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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 2, 2024
EXPAND ENERGY CORPORATION
(Exact name of Registrant as specified in its Charter)
Oklahoma |
|
001-13726 |
|
73-1395733 |
(State or other jurisdiction of
incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
6100 North Western Avenue |
Oklahoma City |
OK |
|
73118 |
(Address of principal executive offices) |
|
(Zip Code) |
(405) 848-8000
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol |
|
Name
of each exchange on which registered |
Common Stock, $0.01 par value per share |
|
EXE |
|
The Nasdaq Stock Market LLC |
Class A Warrants to purchase Common Stock |
|
EXEEW |
|
The Nasdaq Stock Market LLC |
Class B Warrants to purchase Common Stock |
|
EXEEZ |
|
The Nasdaq Stock Market LLC |
Class C Warrants to purchase Common Stock |
|
EXEEL |
|
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). |
|
|
|
Emerging growth company |
¨ |
|
|
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. |
¨ |
Item 1.01 |
Entry into a Material Definitive Agreement. |
On December 2, 2024,
Expand Energy Corporation (the “Company”) completed its previously announced underwritten public offering (the “Notes
Offering”) of $750,000,000 aggregate principal amount of its 5.700% Senior Notes due 2035 (the “Notes”).
The Notes have been registered
under the Securities Act of 1933, as amended (the “Act”), pursuant to a registration statement on Form S-3 (No. 333-283348),
filed with the Securities and Exchange Commission (the “SEC”) and automatically effective on November 20, 2024 (the “Shelf
Registration Statement”). The terms of the Notes are further described in the Company’s prospectus supplement dated November 21,
2024, as filed with the SEC under Rule 424(b)(2) of the Act on November 22, 2024.
On December 2, 2024,
the Notes were issued pursuant to the Indenture (the “Base Indenture”), dated as of December 2, 2024, between the Company
and Regions Bank (the “Trustee”), as trustee, as supplemented by the First Supplemental Indenture, dated as of December 2,
2024 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the
Company and the Trustee, setting forth specific terms applicable to the Notes.
The Notes are the Company’s
senior unsecured obligations and rank equally in right to payment of the holders of the Company’s other current and future
unsecured senior debt, including debt under the Company’s revolving credit facility and the Company’s existing senior notes,
and senior in right of payment to any future subordinated debt that the Company may incur. The Notes are not guaranteed by any of the
Company’s subsidiaries and are therefore structurally subordinated to any indebtedness incurred by any of the Company’s subsidiaries.
The Company may optionally
redeem the Notes, in whole or in part, at any time prior to October 15, 2034 (the “Par Call Date”), at a redemption price
calculated in a manner set forth in the Indenture. On or after the Par Call Date, the Company may redeem the Notes, in whole or in part,
at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued
and unpaid interest thereon to but not including the redemption date.
The Indenture contains customary
terms and covenants, including limitations on the Company’s ability and the ability of certain of its subsidiaries to incur liens
securing funded indebtedness and on the Company’s ability to consolidate or merge with or into, or convey, transfer or lease all
or substantially all of its properties and assets to, any person.
The foregoing description
of the Indenture does not purport to be complete and is qualified in its entirety by reference to the full text of the Base Indenture
and the First Supplemental Indenture, which are set forth as Exhibits 4.1 and 4.2, respectively, hereto and are incorporated by reference
herein.
Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth
in Item 1.01 above with respect to the Notes is incorporated by reference into this Item 2.03.
In connection with closing
of the Notes Offering, the Company is filing the legal opinions of Latham & Watkins LLP, regarding the enforceability of the
Notes issued in the Notes Offering, and Derrick & Briggs, LLP, regarding the legality of the Notes issued in the Notes Offering,
attached as Exhibits 5.1 and 5.2, respectively, hereto, to incorporate such opinions by reference into the Shelf Registration Statement.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
Exhibit Number |
|
Description |
|
|
|
4.1 |
|
Indenture, dated as of December 2, 2024, by and between Expand Energy Corporation and Regions Bank, as Trustee. |
4.2 |
|
First Supplemental Indenture, dated as of December 2, 2024, by and between Expand Energy Corporation and Regions Bank, as Trustee (including the form of the Notes). |
5.1 |
|
Opinion of Latham & Watkins LLP regarding the enforceability of the Notes. |
5.2 |
|
Opinion of Derrick & Briggs, LLP regarding the legality of the Notes. |
23.1 |
|
Consent of Latham & Watkins LLP (included in Exhibit 5.1 hereto). |
23.2 |
|
Consent of Derrick & Briggs, LLP (included in Exhibit 5.2 hereto). |
104 |
|
Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101). |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
EXPAND ENERGY CORPORATION |
|
|
|
By: |
/s/Chris Lacy |
|
|
Chris Lacy |
|
|
Executive Vice President, General Counsel and Corporate Secretary |
|
|
Date: |
December 2,
2024 |
|
|
|
|
|
Exhibit 4.1
Expand Energy Corporation
INDENTURE
Dated as of December 2, 2024
Regions Bank
Trustee
TABLE
OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
|
Section 1.1. |
Definitions. |
1 |
|
Section 1.2. |
Other Definitions. |
4 |
|
Section 1.3. |
Incorporation by Reference of Trust Indenture Act. |
4 |
|
Section 1.4. |
Rules of Construction. |
5 |
|
|
|
|
ARTICLE II. THE SECURITIES |
5 |
|
Section 2.1. |
Issuable in Series. |
5 |
|
Section 2.2. |
Establishment of Terms of Series of Securities. |
6 |
|
Section 2.3. |
Execution and Authentication. |
8 |
|
Section 2.4. |
Registrar, Paying Agent and Notice Agent. |
9 |
|
Section 2.5. |
Paying Agent to Hold Money in Trust. |
10 |
|
Section 2.6. |
Holder Lists. |
10 |
|
Section 2.7. |
Transfer and Exchange. |
10 |
|
Section 2.8. |
Mutilated, Destroyed, Lost and Stolen Securities. |
11 |
|
Section 2.9. |
Outstanding Securities. |
12 |
|
Section 2.10. |
Treasury Securities. |
12 |
|
Section 2.11. |
Temporary Securities. |
12 |
|
Section 2.12. |
Cancellation. |
13 |
|
Section 2.13. |
Defaulted Interest. |
13 |
|
Section 2.14. |
Global Securities. |
13 |
|
Section 2.15. |
CUSIP Numbers. |
15 |
|
|
|
|
ARTICLE III. REDEMPTION |
15 |
|
Section 3.1. |
Notice to Trustee. |
15 |
|
Section 3.2. |
Selection of Securities to be Redeemed. |
16 |
|
Section 3.3. |
Notice of Redemption. |
16 |
|
Section 3.4. |
Effect of Notice of Redemption. |
17 |
|
Section 3.5. |
Deposit of Redemption Price. |
17 |
|
Section 3.6. |
Securities Redeemed in Part. |
17 |
|
|
|
|
ARTICLE IV. COVENANTS |
18 |
|
Section 4.1. |
Payment of Principal and Interest. |
18 |
|
Section 4.2. |
SEC Reports. |
18 |
|
Section 4.3. |
Compliance Certificate. |
18 |
|
Section 4.4. |
Stay, Extension and Usury Laws. |
19 |
|
|
|
|
ARTICLE V. SUCCESSORS |
19 |
|
Section 5.1. |
When Company May Merge, Etc. |
19 |
|
Section 5.2. |
Successor Corporation Substituted. |
19 |
|
|
|
|
ARTICLE VI. DEFAULTS AND REMEDIES |
20 |
|
Section 6.1. |
Events of Default. |
20 |
|
Section 6.2. |
Acceleration of Maturity; Rescission and Annulment. |
21 |
|
Section 6.3. |
Collection of Indebtedness and Suits for Enforcement by Trustee. |
22 |
|
Section 6.4. |
Trustee May File Proofs of Claim. |
22 |
|
Section 6.5. |
Trustee May Enforce Claims Without Possession of Securities. |
23 |
|
Section 6.6. |
Application of Money Collected. |
23 |
|
Section 6.7. |
Limitation on Suits. |
24 |
|
Section 6.8. |
Unconditional Right of Holders to Receive Principal and Interest. |
24 |
|
Section 6.9. |
Restoration of Rights and Remedies. |
24 |
|
Section 6.10. |
Rights and Remedies Cumulative. |
25 |
|
Section 6.11. |
Delay or Omission Not Waiver. |
25 |
|
Section 6.12. |
Control by Holders. |
25 |
|
Section 6.13. |
Waiver of Past Defaults. |
26 |
|
Section 6.14. |
Undertaking for Costs. |
26 |
|
|
|
|
ARTICLE VII. TRUSTEE |
26 |
|
Section 7.1. |
Duties of Trustee. |
26 |
|
Section 7.2. |
Rights of Trustee. |
28 |
|
Section 7.3. |
Individual Rights of Trustee. |
29 |
|
Section 7.4. |
Trustee’s Disclaimer. |
29 |
|
Section 7.5. |
Notice of Defaults. |
29 |
|
Section 7.6. |
Reports by Trustee to Holders. |
29 |
|
Section 7.7. |
Compensation and Indemnity. |
30 |
|
Section 7.8. |
Replacement of Trustee. |
30 |
|
Section 7.9. |
Successor Trustee by Merger, Etc. |
31 |
|
Section 7.10. |
Eligibility; Disqualification. |
32 |
|
Section 7.11. |
Preferential Collection of Claims Against Company. |
32 |
|
|
|
|
ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE |
32 |
|
Section 8.1. |
Satisfaction and Discharge of Indenture. |
32 |
|
Section 8.2. |
Application of Trust Funds; Indemnification. |
33 |
|
Section 8.3. |
Legal Defeasance of Securities of any Series. |
34 |
|
Section 8.4. |
Covenant Defeasance. |
36 |
|
Section 8.5. |
Repayment to Company. |
37 |
|
Section 8.6. |
Reinstatement. |
37 |
|
|
|
|
ARTICLE IX. AMENDMENTS AND WAIVERS |
37 |
|
Section 9.1. |
Without Consent of Holders. |
37 |
|
Section 9.2. |
With Consent of Holders. |
38 |
|
Section 9.3. |
Limitations. |
38 |
|
Section 9.4. |
Compliance with Trust Indenture Act. |
39 |
|
Section 9.5. |
Revocation and Effect of Consents. |
39 |
|
Section 9.6. |
Notation on or Exchange of Securities. |
40 |
|
Section 9.7. |
Trustee Protected. |
40 |
|
|
|
|
ARTICLE X. MISCELLANEOUS |
40 |
|
Section 10.1. |
Trust Indenture Act Controls. |
40 |
|
Section 10.2. |
Notices. |
40 |
|
Section 10.3. |
Communication by Holders with Other Holders. |
42 |
|
Section 10.4. |
Certificate and Opinion as to Conditions Precedent. |
42 |
|
Section 10.5. |
Statements Required in Certificate or Opinion. |
42 |
|
Section 10.6. |
Rules by Trustee and Agents. |
43 |
|
Section 10.7. |
Legal Holidays. |
43 |
|
Section 10.8. |
No Recourse Against Others. |
43 |
|
Section 10.9. |
Counterparts. |
43 |
|
Section 10.10. |
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction. |
43 |
|
Section 10.11. |
No Adverse Interpretation of Other Agreements. |
44 |
|
Section 10.12. |
Successors. |
44 |
|
Section 10.13. |
Severability. |
44 |
|
Section 10.14. |
Table of Contents, Headings, Etc. |
44 |
|
Section 10.15. |
Securities in a Foreign Currency. |
45 |
|
Section 10.16. |
Judgment Currency. |
45 |
|
Section 10.17. |
Force Majeure. |
46 |
|
Section 10.18. |
U.S.A. Patriot Act. |
46 |
|
|
|
|
ARTICLE XI. SINKING FUNDS |
46 |
|
Section 11.1. |
Applicability of Article. |
46 |
|
Section 11.2. |
Satisfaction of Sinking Fund Payments with Securities. |
46 |
|
Section 11.3. |
Redemption of Securities for Sinking Fund. |
47 |
EXPAND
ENERGY CORPORATION
Reconciliation and
tie between Trust Indenture Act of 1939 and
Indenture, dated as of December 2, 2024
§ 310(a)(1) |
|
7.10 |
(a)(2) |
|
7.10 |
(a)(3) |
|
Not Applicable |
(a)(4) |
|
Not Applicable |
(a)(5) |
|
7.10 |
(b) |
|
7.10 |
§ 311(a) |
|
7.11 |
(b) |
|
7.11 |
(c) |
|
Not Applicable |
§ 312(a) |
|
2.6 |
(b) |
|
10.3 |
(c) |
|
10.3 |
§ 313(a) |
|
7.6 |
(b)(1) |
|
7.6 |
(b)(2) |
|
7.6 |
(c)(1) |
|
7.6 |
(d) |
|
7.6 |
§ 314(a) |
|
4.2, 10.5 |
(b) |
|
Not Applicable |
(c)(1) |
|
10.4 |
(c)(2) |
|
10.4 |
(c)(3) |
|
Not Applicable |
(d) |
|
Not Applicable |
(e) |
|
10.5 |
(f) |
|
Not Applicable |
§ 315(a) |
|
7.1 |
(b) |
|
7.5 |
(c) |
|
7.1 |
(d) |
|
7.1 |
(e) |
|
6.14 |
§ 316(a) |
|
2.10 |
(a)(1)(A) |
|
6.12 |
(a)(1)(B) |
|
6.13 |
(b) |
|
6.8 |
§ 317(a)(1) |
|
6.3 |
(a)(2) |
|
6.4 |
(b) |
|
2.5 |
§ 318(a) |
|
10.1 |
Note: This reconciliation and tie shall not, for
any purpose, be deemed to be part of the Indenture.
Indenture
dated as of December 2, 2024 between Expand Energy Corporation, a company incorporated under the laws of Oklahoma (“Company”),
and Regions Bank (“Trustee”).
Each party agrees as follows
for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
“Affiliate”
of any specified person means any other person directly or indirectly controlling or controlled by or under common control with such specified
person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities
or by agreement or otherwise.
“Agent” means
any Registrar, Paying Agent or Notice Agent.
“Board of Directors”
means the board of directors of the Company or any duly authorized committee thereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and
delivered to the Trustee.
“Business Day”
means any day except a Saturday, Sunday or a legal holiday in the City of New York, New York (or in connection with any payment, the place
of payment) on which banking institutions are authorized or required by law, regulation or executive order to close.
“Capital Stock”
means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“Company”
means the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order”
means a written order signed in the name of the Company by an Officer and delivered to the Trustee.
“Corporate Trust Office”
means the office of the Trustee at which at any particular time its corporate trust business related to this Indenture shall be principally
administered.
“Default”
means any event which is, or after notice, passage of time or both would be, an Event of Default.
“Depositary”
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, “Depositary” as used with respect to the Securities
of any Series shall mean the Depositary with respect to the Securities of such Series.
“Discount Security”
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.2.
“Dollars”
and “$” means the currency of the United States of America.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Foreign Currency”
means any currency or currency unit issued by a government other than the government of the United States of America.
“Foreign Government
Obligations” means, with respect to Securities of any Series that are denominated in a Foreign Currency, direct obligations
of, or obligations guaranteed by, the government that issued or caused to be issued such currency for the payment of which obligations
its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof.
“GAAP”
means generally accepted accounting principles in the United States of America set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession,
which are in effect as of the date of determination.
“Global Security”
or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in
the name of such Depositary or nominee.
“Holder”
means a person in whose name a Security is registered on the Registrar’s books.
“Indenture”
means this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
“interest”
with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity”
when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Officer”
means the Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or
any Assistant Secretary and any Vice President of the Company.
“Officer’s Certificate”
means a certificate signed by any Officer that meets the requirements of this Indenture.
“Opinion of Counsel”
means a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.
The opinion may contain customary limitations, conditions and exceptions.
“person”
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“principal”
of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, the Security.
“Responsible Officer”
means any officer of the Trustee in its Corporate Trust Office having responsibility for administration of this Indenture and also means,
with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or
her knowledge of and familiarity with a particular subject.
“SEC” means
the Securities and Exchange Commission.
“Security”
or “Securities” means the debentures, notes or other debt instruments of the Company of any Series authenticated
and delivered under this Indenture.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.1 and 2.2 hereof.
“Stated Maturity”
when used with respect to any Security, means the date specified in such Security as the fixed date on which the principal of such Security
or interest is due and payable.
“Subsidiary”
of any specified person means any corporation, association or other business entity of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries
of that person or a combination thereof.
“TIA” means
the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required
by any such amendment, the Trust Indenture Act as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each person who
is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the
Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government Obligations”
means securities which are direct obligations of, or guaranteed by, the United States of America for the payment of which its full faith
and credit is pledged and which are not callable or redeemable at the option of the issuer thereof and shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt, provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depositary
receipt.
Section 1.2. Other
Definitions.
TERM |
DEFINED IN SECTION |
|
|
“Agent Member” |
2.14.6 |
“Bankruptcy Law” |
6.1 |
“Custodian” |
6.1 |
“Event of Default” |
6.1 |
“Judgment Currency” |
10.16 |
“mandatory sinking fund payment” |
11.1 |
“New York Banking Day” |
10.16 |
“Notice Agent” |
2.4 |
“optional sinking fund payment” |
11.1 |
“Paying Agent” |
2.4 |
“Registrar” |
2.4 |
“Required Currency” |
10.16 |
“Specified Courts” |
10.10 |
“successor person” |
5.1 |
|
|
Section 1.3. Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture refers
to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
“Commission”
means the SEC.
“indenture securities”
means the Securities.
“indenture security
holder” means a Holder.
“indenture to be qualified”
means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor” on the indenture
securities means the Company and any successor obligor upon the Securities.
All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise
defined herein are used herein as so defined.
Section 1.4. Rules of
Construction.
Unless the context otherwise
requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or”
is not exclusive;
(d) words
in the singular include the plural, and in the plural include the singular;
(e) provisions
apply to successive events and transactions;
(f) in
the computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including,” and the words “to” and “until” each mean “to but excluding”; and
(g) the
phrase “in writing” as used herein shall be deemed to include PDFs, e-mails and other electronic means of transmission, unless
otherwise indicated.
ARTICLE II.
THE SECURITIES
Section 2.1. Issuable
in Series.
The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series.
All Securities of a Series shall be identical except as may be set forth or determined in the manner provided in a Board Resolution,
a supplemental indenture or an Officer’s Certificate detailing the adoption of the terms thereof pursuant to authority granted under
a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officer’s Certificate
or supplemental indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide
for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are
to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities shall
be equally and ratably entitled to the benefits of the Indenture.
Section 2.2. Establishment
of Terms of Series of Securities.
At or prior to the issuance
of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1
and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.23)
by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture
hereto or Officer’s Certificate:
2.2.1. the
title (which shall distinguish the Securities of that particular Series from the Securities of any other Series) and ranking (including
the terms of any subordination provisions) of the Series;
2.2.2. the
price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;
2.2.3. any
limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the
date or dates on which the principal of the Securities of the Series is payable;
2.2.5. the
rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if
any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;
2.2.6. the
place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities
of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of such Series and this Indenture may be delivered, and the method of such payment, if by wire transfer,
mail or other means;
2.2.7. if
applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of
the Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8. the
obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
2.2.9. the
dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the option
of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
2.2.10. if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
2.2.11. the
forms of the Securities of the Series and whether the Securities will be issuable as Global Securities;
2.2.12. if
other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13. the
currency of denomination of the Securities of the Series, which may be Dollars or any Foreign Currency, and if such currency of denomination
is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
2.2.14. the
designation of the currency, currencies or currency units in which payment of the principal of and interest, if any, on the Securities
of the Series will be made;
2.2.15. if
payments of principal of or interest, if any, on the Securities of the Series are to be made in one or more currencies or currency
units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect to such payments
will be determined;
2.2.16. the
manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined, if
such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index,
stock exchange index or financial index;
2.2.17. the
provisions, if any, relating to any security provided for the Securities of the Series;
2.2.18. any
addition to, deletion of or change in the Events of Default which applies to any Securities of the Series and any change in the right
of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
2.2.19. any
addition to, deletion of or change in the covenants applicable to Securities of the Series;
2.2.20. any
Depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if
other than those appointed herein;
2.2.21. the
provisions, if any, relating to conversion or exchange of any Securities of such Series, including if applicable, the conversion or exchange
price, the conversion or exchange period, provisions as to whether conversion or exchange will be mandatory, at the option of the Holders
thereof or at the option of the Company, the events requiring an adjustment of the conversion price or exchange price and provisions affecting
conversion or exchange if such Series of Securities are redeemed;
2.2.22. any
other terms of the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such Series),
including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of Securities
of that Series; and
2.2.23. whether
any of the Company’s direct or indirect Subsidiaries will guarantee the Securities of that Series, including the terms of subordination,
if any, of such guarantees.
All Securities of any one Series need
not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or
pursuant to the Board Resolution, supplemental indenture hereto or Officer’s Certificate referred to above.
Section 2.3. Execution
and Authentication.
An Officer shall sign the Securities
for the Company by manual, facsimile or electronic signature.
If an Officer whose signature
is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall at any time,
and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental
indenture hereto or Officer’s Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date
of its authentication.
The aggregate principal amount
of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2, except
as provided in Section 2.8.
Prior to the issuance of Securities
of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the
Board Resolution, supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities of that Series or
of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an
Officer’s Certificate complying with Sections 10.4 and 10.5, and (c) an Opinion of Counsel complying with Sections 10.4 and
10.5.
The Trustee shall have the right
to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that
such action may not be taken lawfully; or (b) if the Trustee in good faith determines that such action may expose the Trustee to
personal liability.
The Trustee may appoint an authenticating
agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4. Registrar,
Paying Agent and Notice Agent.
The Company shall maintain,
with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2,
an office or agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”),
where Securities of such Series may be surrendered for registration of transfer or exchange (“Registrar”) and
where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered
(“Notice Agent”). The Registrar shall keep a register with respect to each Series of Securities and to their transfer
and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address,
of each Registrar, Paying Agent or Notice Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying
Agent or Notice Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands; provided, however, that any appointment of the Trustee
as the Notice Agent shall exclude the appointment of the Trustee or any office of the Trustee as an agent to receive the service of legal
process on the Company.
The Company may also from time
to time designate one or more co-registrars, additional paying agents or additional notice agents and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations
to maintain a Registrar, Paying Agent and Notice Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for
such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the
name or address of any such co-registrar, additional paying agent or additional notice agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Notice
Agent” includes any additional notice agent. The Company or any of its Affiliates may serve as Registrar or Paying Agent.
The
Company hereby appoints the Trustee the initial Registrar, Paying Agent and Notice Agent for each Series unless another Registrar,
Paying Agent or Notice Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued. The
rights, powers, duties, obligations and actions of each Agent under this Indenture are several and not joint or joint and several, and
the Agents shall only be obliged to perform those duties expressly set out in this Indenture and shall have no implied duties.
Section 2.5. Paying
Agent to Hold Money in Trust.
The
Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit
of Holders of any Series of Securities or the Trustee, all money held by the Paying Agent for the payment of principal of or interest
on the Series of Securities and will notify the Trustee in writing of any default by the Company in making any such payment. While
any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than
the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company
acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Holders of any Series of Securities
all money held by it as Paying Agent. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee
shall serve as Paying Agent for the Securities. For the avoidance of doubt, a Paying Agent and the Trustee shall be held harmless
and have no liability with respect to payments or disbursements (including to the Holders) until they have confirmed receipt of funds
sufficient to make the relevant payment. No money held by an Agent needs to be segregated except as is required by law.
Section 2.6. Holder
Lists.
If it is serving as Registrar,
the Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses
of Holders of each Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request
in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Holders of each
Series of Securities.
Every
Holder, by receiving and holding Securities, agrees with the Company and the Trustee that neither the Company nor the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders
in accordance with TIA § 312, regardless of the source from which such information was derived, and that the Trustee
shall not be held accountable by reason of sending any material pursuant to a request made under TIA § 312(b).
Section 2.7. Transfer
and Exchange.
Where Securities of a Series are
presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of
Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions
are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request.
No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Company nor the
Registrar shall be required (a) to issue, register the transfer of or exchange Securities of any Series for the period beginning
at the opening of business 15 days immediately preceding the sending of a notice of redemption of Securities of that Series selected
for redemption and ending at the close of business on the day such notice is sent, (b) to register the transfer of or exchange Securities
of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part or (c) to register the transfer of or exchange Securities of any Series between
a record date and payment date for such Series of Securities.
Section 2.8. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity bond as may be required by each of them to hold itself and any of its agents harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon receipt
of a Company Order the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new
Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 2.9. Outstanding
Securities.
The Securities outstanding at
any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described
in this Section as not outstanding.
If a Security is replaced pursuant
to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held
by a bona fide purchaser.
If the Paying Agent (other than
the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient
to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and
interest on them ceases to accrue.
The Company may purchase or
otherwise acquire the Securities, whether by open market purchases, negotiated transactions or otherwise. A Security does not cease to
be outstanding because the Company or an Affiliate of the Company holds the Security (but see Section 2.10 below).
In determining whether the Holders
of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.2.
Section 2.10. Treasury
Securities.
In determining whether the Holders
of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice,
consent or waiver, Securities of a Series owned by the Company or any Affiliate of the Company shall be disregarded, except that
for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee actually knows are so owned shall
be so disregarded.
Section 2.11. Temporary
Securities.
Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary
Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate
for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon receipt of a Company Order shall
authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged,
temporary securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12. Cancellation.
The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered
to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment, replacement or cancellation and shall destroy such canceled Securities (subject to the record retention requirements of the Exchange
Act and the Trustee) and deliver a certificate of such cancellation to the Company upon written request of the Company. The Company may
not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13. Defaulted
Interest.
If the Company defaults in a
payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest
payable on the defaulted interest, to the persons who are Holders of the Series on a subsequent special record date. The Company
shall fix the record date and payment date. At least ten days before the special record date, the Company shall send to the Trustee and
to each Holder of the Series a notice that states the special record date, the payment date and the amount of interest to be paid.
The Company may pay defaulted interest in any other lawful manner.
Section 2.14. Global
Securities.
2.14.1. Terms
of Securities. A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate shall establish whether the Securities
of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security
or Securities.
2.14.2. Transfer
and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture and in addition thereto,
any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders
other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered
under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing agency under
the Exchange Act within 90 days of such event or (ii) the Company executes and delivers to the Trustee an Officer’s Certificate
to the effect that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount
equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2,
a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee of such
Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such a successor Depositary.
None of the Trustee or any Agent
shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among
Depositary participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the express requirements hereof.
None of the Trustee or any Agent
shall have any responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in the Depositary
or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof,
with respect to any ownership interest in any Security or with respect to the delivery to any participant, member, beneficial owner or
other Person (other than the Depositary) of any notice (including any notice of optional redemption) or the payment of any amount, under
or with respect to such Security.
2.14.3. Legends.
Any Global Security issued hereunder shall bear a legend in substantially the following form:
“THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE
DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.”
In addition, so long as the
Depository Trust Company (“DTC”) is the Depositary, each Global Security registered in the name of DTC or its nominee shall
bear a legend in substantially the following form:
“UNLESS THIS GLOBAL SECURITY
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL SECURITY 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.”
2.14.4. Acts
of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
2.14.5. Payments.
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the
principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
2.14.6. Agent
Members. The registered Holder of a Security will be treated as the owner of such Security for all purposes and only registered
Holders shall have rights under this Indenture and the Securities. Members of, or participants in, the Depositary (“Agent Members”)
and persons who hold beneficial interests in a Global Security through an Agent Member shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the Depositary. The Depositary may be treated by the Company, the Trustee, the
Paying Agent, the Registrar and any agent of the foregoing as the absolute owner of the Global Securities for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent, the Registrar or any agent of
the foregoing from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights
of a Holder of a beneficial interest in any Global Security.
Section 2.15. CUSIP
Numbers.
The Company in issuing the Securities
may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices
of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only
on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission
of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Notice
to Trustee.
The Company may, with respect
to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay
the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for
in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity
thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing
of the redemption date and the principal amount of the Series of Securities to be redeemed. The Company shall give the notice at
least 15 days before the redemption date (or such shorter period as may be acceptable to the Trustee).
Section 3.2. Selection
of Securities to be Redeemed.
Unless
otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate,
if less than all the Securities of a Series are to be redeemed, the Securities of the Series to be redeemed will be selected
as follows: (a) if the Securities are in the form of Global Securities, in accordance with the procedures of the Depositary, (b) if
the Securities are listed on any national securities exchange, in compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed or (c) if not otherwise provided for under clause (a) or (b) in the
manner that the Trustee deems fair and appropriate, including by lot or other method, unless otherwise required by law or applicable stock
exchange requirements, subject, in the case of Global Securities, to the applicable rules and procedures of the Depositary. The Securities
to be redeemed shall be selected from Securities of the Series outstanding not previously called for redemption. Portions of the
principal of Securities of the Series that have denominations larger than $1,000 may be selected for redemption. Securities of the
Series and portions of them it selected for redemption shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect
to Securities of any Series issuable in other denominations pursuant to Section 2.2.10, the minimum principal denomination for
each Series and the authorized integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called
for redemption also apply to portions of Securities of that Series called for redemption. Neither the Trustee nor the Paying
Agent shall be liable for any selection made by it in accordance with this paragraph (including the procedures of the Depositary).
Section 3.3. Notice
of Redemption.
Unless otherwise indicated for
a particular Series by Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, at least 15 days but
not more than 60 days before a redemption date (except that redemption notices may be sent more than 60 days prior to a redemption date
if the notice is issued in connection with a defeasance of the Securities or a satisfaction and discharge of this Indenture with respect
to Securities), the Company shall send or cause to be sent by first-class mail or electronically, in accordance with the procedures of
the Depositary, a notice of redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the
Securities of the Series to be redeemed and shall state:
(a) the
redemption date;
(b) the
redemption price;
(c) the
name and address of the Paying Agent;
(d) if
any Securities are being redeemed in part, the portion of the principal amount of such Securities to be redeemed and that, after the redemption
date and upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion of the original
Security shall be issued in the name of the Holder thereof upon cancellation of the original Security;
(e) that
Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that
interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date unless the Company defaults
in the deposit of the redemption price;
(g) the
“CUSIP” number, if any; and
(h) any
other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s request,
the Trustee shall give the notice of redemption in the Company’s name and at its expense, provided, however, that the Company has
delivered to the Trustee, at least 10 days (unless a shorter time shall be acceptable to the Trustee) prior to the notice date, an Officer’s
Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice and the form of
such notice.
Section 3.4. Effect
of Notice of Redemption.
Once notice of redemption is
sent as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date
and at the redemption price. Except as otherwise provided in the supplemental indenture, Board Resolution or Officer’s Certificate
for a Series, a notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest to the redemption date.
Section 3.5. Deposit
of Redemption Price.
On or before 11:00 a.m., New
York City time, on the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of
and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6. Securities
Redeemed in Part.
Upon surrender of a Security
that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal
in principal amount to the unredeemed portion of the Security surrendered except that if a Global Security is so surrendered, the Company
shall execute, and the Trustee shall authenticate and deliver to the Depositary for such Global Security, without service charge, a new
Global Security in denomination equal to and in exchange for the unredeemed portion of the principal of the Global Security so surrendered.
In the case of a Security providing appropriate space for such notation, at the option of the Holder thereof, the Trustee, in lieu of
delivering a new Debt Security or Securities as aforesaid, may make a notation on such Security of the payment of the redeemed portion
thereof.
ARTICLE IV.
COVENANTS
Section 4.1. Payment
of Principal and Interest.
The Company covenants and agrees
for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest, if
any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture. On or before 11:00 a.m.,
New York City time, on the applicable payment date, the Company shall deposit with the Paying Agent money sufficient to pay the principal
of and interest, if any, on the Securities of each Series in accordance with the terms of such Securities and this Indenture.
Section 4.2. SEC
Reports.
To the extent any Securities
of a Series are outstanding, the Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the
annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. The Company also shall comply with the other provisions of TIA § 314(a). Reports, information and documents filed
with the SEC via the EDGAR system will be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of
this Section 4.2.
Delivery of reports, information
and documents to the Trustee under this Section 4.2 is for informational purposes only and the Trustee’s receipt of the foregoing
shall not constitute constructive or actual notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of the covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officer’s Certificates). All such reports, information or documents referred to in this Section 4.2 that the Company files
with the SEC via the SEC’s EDGAR system shall be deemed to be filed with the Trustee and transmitted to Holders at the time such
reports, information or documents are filed via the EDGAR system (or any successor system). The Trustee shall not be obligated to monitor
or confirm, on a continuing basis or otherwise, our compliance with the covenants.
Section 4.3. Compliance
Certificate.
To the extent any Securities
of a Series are outstanding, the Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company,
an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officer with a view to determining whether the Company has kept, observed, performed
and fulfilled its obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best
of his/her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is
not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of which the Officer may have knowledge).
Section 4.4. Stay,
Extension and Usury Laws.
The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, plead or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been
enacted.
ARTICLE V.
SUCCESSORS
Section 5.1. When
Company May Merge, Etc.
The Company shall not consolidate
with or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a “successor
person”) unless:
(a) the
Company is the surviving entity or the successor person (if other than the Company) is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes by supplemental indenture the Company’s
obligations on the Securities and under this Indenture; and
(b) immediately
after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
The Company shall deliver to
the Trustee prior to the consummation of the proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion
of Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above, any
Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties to the Company. Neither an Officer’s
Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Section 5.2. Successor
Corporation Substituted.
Upon any consolidation or merger,
or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1,
the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance
or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor person has been named as the Company herein; provided, however, that
the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released from all obligations
and covenants under this Indenture and the Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events
of Default.
“Event of Default,”
wherever used herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officer’s Certificate it is provided that such Series shall not have the benefit of said
Event of Default:
(a) default
in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior
to 11:00 a.m., New York City time, on the 30th day of such period);
(b) default
in the payment of principal of any Security of that Series at its Maturity;
(c) default
in the performance or breach of any covenant or warranty of the Company in this Indenture (other than defaults pursuant to paragraph (a) or
(b) above or pursuant to a covenant or warranty that has been included in this Indenture solely for the benefit of a Series of
Securities other than that Series), which default continues uncured for a period of 60 days after there has been given, mailed by first
class mail (registered or certified mail, return receipt requested), email, or overnight air courier guaranteeing next day delivery to
the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the outstanding Securities
of that Series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is
a “Notice of Default” hereunder;
(d) the
Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences
a voluntary case,
(ii) consents
to the entry of an order for relief against it in an involuntary case,
(iii) consents
to the appointment of a Custodian of it or for all or substantially all of its property,
(iv) makes
a general assignment for the benefit of its creditors, or
(v) generally
is unable to pay its debts as the same become due;
(e) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is
for relief against the Company in an involuntary case,
(ii) appoints
a Custodian of the Company or for all or substantially all of its property, or
(iii) orders
the liquidation of the Company,
and the order or decree remains unstayed
and in effect for 60 days; or
(f) any
other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture
hereto or an Officer’s Certificate, in accordance with Section 2.2.18.
The term “Bankruptcy
Law” means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
The Company will provide the
Trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event
of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action the Company
is taking or proposes to take in respect thereof.
Section 6.2. Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default with
respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to
in Section 6.1(d) or (e)) then in every such case the Trustee or the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities,
such portion of the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any,
on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any,
shall become immediately due and payable. If an Event of Default specified in Section 6.1(d) or (e) shall occur, the principal
amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become
and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration
of acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities
of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events
of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities
of that Series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect
any subsequent Default or impair any right consequent thereon.
Section 6.3. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(a) default
is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period
of 30 days,
(b) default
is made in the payment of principal of any Security at the Maturity thereof, or
(c) default
is made in the deposit of any sinking fund payment, if any, when and as due by the terms of a Security,
then,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the compensation, reasonable
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with
respect to any Securities of any Series occurs and is continuing, the Trustee, subject to Article VII hereof, may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee
May File Proofs of Claim.
In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative
to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to
file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the compensation,
reasonable expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel
and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 6.5. Trustee
May Enforce Claims Without Possession of Securities.
All rights of action and claims
under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or
the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the compensation, reasonable
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.
Section 6.6. Application
of Money Collected.
Any money or property collected
by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money or property on account of principal or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To
the payment of all amounts due the Trustee under Section 7.7; and
Second: To
the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and interest, respectively; and
Third: To
the Company.
Section 6.7. Limitation
on Suits.
No Holder of any Security of
any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
(b) the
Holders of not less than 25% in principal amount of the outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by the Trustee in compliance with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Securities of that Series;
it being understood, intended and expressly covenanted
by the Holder of every Security with every other Holder and the Trustee that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders of the applicable Series.
Section 6.8. Unconditional
Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision
in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal
of and interest, if any, on such Security on the Maturity of such Security, including the Stated Maturity expressed in such Security (or,
in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 6.9. Restoration
of Rights and Remedies.
If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned
for any reason or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.10. Rights
and Remedies Cumulative.
Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay
or Omission Not Waiver.
No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
Section 6.12. Control
by Holders.
The Holders of a majority in
principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the
Securities of such Series, provided that
(a) such
direction shall not be in conflict with any rule of law or with this Indenture,
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction,
(c) subject
to the provisions of Section 7.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal
liability, and
(d) prior
to taking any action as directed under this Section 6.12, the Trustee shall be entitled to indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
Section 6.13. Waiver
of Past Defaults.
The Holders of not less than
a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of
such Series, by written notice to the Trustee and the Company, waive any past Default hereunder with respect to such Series and its
consequences, except a Default in the payment of the principal of or interest on any Security of such Series (provided, however,
that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its
consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14. Undertaking
for Costs.
All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted
by any Holder or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series,
or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after
the Maturity of such Security, including the Stated Maturity expressed in such Security (or, in the case of redemption, on the redemption
date).
ARTICLE VII.
TRUSTEE
Section 7.1. Duties
of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(i) The
Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants
or obligations will be read into this Indenture against the Trustee.
(ii) In
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officer’s Certificates or Opinions of Counsel which by any provisions
hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officer’s Certificates and Opinions
of Counsel to determine whether or not they conform to the form requirements of this Indenture.
(c) The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
(i) This
paragraph does not limit the effect of paragraph (b) of this Section.
(ii) The
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(iii) The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any
Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities
of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series in accordance with
Section 6.12.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The
Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in performing such duty or exercising such right or power.
(f) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No
provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers, if adequate indemnity against such risk is not assured to the
Trustee in its satisfaction.
(h) The
Paying Agent, the Notice Agent, the Registrar, any authenticating agent and the Trustee when acting in any other capacity hereunder shall
be entitled to the protections and immunities as are set forth in this Article VII.
(i) The
rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to,
and will be enforceable by, the Trustee in each of its capacities under this Indenture.
Section 7.2. Rights
of Trustee.
(a) The
Trustee may rely on and shall be protected in acting or refraining from acting upon any document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact
or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion
of Counsel.
(c) The
Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No
Depositary shall be deemed an agent of the Trustee, and the Trustee shall not be responsible for any act or omission by any Depositary.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights
or powers.
(e) The
Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(g) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
(h) The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer at the Corporate Trust
Office of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this Indenture.
(i) In
no event shall the Trustee be liable to any person for special, punitive, indirect, consequential or incidental loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.
(j) The
permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do
so.
(k) The
Trustee will not be required to give any bond or surety in respect of the execution of this Indenture or otherwise.
Section 7.3. Individual
Rights of Trustee.
The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company
with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to
Sections 7.10 and 7.11.
Section 7.4. Trustee’s
Disclaimer.
The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities. The Trustee shall not be accountable for the Company’s use of
the proceeds from the Securities and shall not be responsible for any statement in the Securities other than its certificate of authentication.
Section 7.5. Notice
of Defaults.
If
a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it is known to a Responsible
Officer of the Trustee, the Trustee shall send to each Holder of the Securities of that Series notice of a Default or Event of Default
within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default.
Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee
may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Holders of that Series. The Trustee will not be deemed to have notice or be
charged with knowledge of any Default or Event of Default unless written notice thereof has been received by a Responsible Officer, and
such notice references the applicable Series of Securities and this Indenture and states on its face that a Default or Event of Default
has occurred.
Section 7.6. Reports
by Trustee to Holders.
Within 60 days after each anniversary
of the date of this Indenture, the Trustee shall transmit to all Holders, as their names and addresses appear on the register kept by
the Registrar, a brief report dated as of such date, in accordance with, and to the extent required under, TIA § 313.
A copy of each report at the
time of its delivery to Holders of any Series shall be filed with the SEC and each national securities exchange on which the Securities
of that Series are listed. The Company shall promptly notify the Trustee in writing when Securities of any Series are listed
on any national securities exchange.
Section 7.7. Compensation
and Indemnity.
The Company shall pay to the
Trustee from time to time compensation for its services as the Company and the Trustee shall from time to time agree upon in writing.
The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation
and expenses of the Trustee’s agents and counsel.
The Company shall indemnify
each of the Trustee and any predecessor Trustee (including for the cost of defending itself) against any cost, expense or liability, including
taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the
next paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations
hereunder, unless and to the extent that the Company is materially prejudiced thereby. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel, and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent, which consent will not be unreasonably withheld. This indemnification
shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The
Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director,
employee, shareholder or agent of the Trustee through willful misconduct or negligence, as determined by a final decision of a
court of competent jurisdiction.
To secure the Company’s
payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property
held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.1(d) or (e) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The
provisions of this Section shall survive the termination of this Indenture and the resignation or removal of the Trustee.
Section 7.8. Replacement
of Trustee.
A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment
as provided in this Section.
The Trustee may resign with
respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation.
The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by
so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a
Custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with
respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the applicable
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver
a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall
transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation
or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall
send a notice of its succession to each Holder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Company’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses
and liabilities incurred by it for actions taken or omitted to be taken in accordance with its rights, powers and duties under this Indenture
prior to such replacement.
Section 7.9. Successor
Trustee by Merger, Etc.
Any organization or entity into
which the Trustee may be merged or converted or with which it may be consolidated, or any organization or entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any organization or entity succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such organization or entity
shall be otherwise qualified and eligible under Section 7.10, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
Section 7.10. Eligibility;
Disqualification.
This Indenture shall always
have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee shall always have a combined capital
and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with
TIA § 310(b).
Section 7.11. Preferential
Collection of Claims Against Company.
The Trustee is subject to TIA
§ 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject
to TIA § 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction
and Discharge of Indenture.
This Indenture shall upon Company
Order be discharged with respect to the Securities of any Series and cease to be of further effect as to all Securities of such Series (except
as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all
Securities of such Series theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen
and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all
such Securities of such Series not theretofore delivered to the Trustee for cancellation:
(1) have
become due and payable by reason of sending a notice of redemption or otherwise,
(2) will
become due and payable at their Stated Maturity within one year,
(3) have
been called for redemption or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(4) are
deemed paid and discharged pursuant to Section 8.3, as applicable;
and the Company, in the case of (1), (2) or
(3) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount of money or U.S.
Government Obligations, which amount shall be sufficient in the opinion of a nationally recognized investment bank, appraisal firm or
firm of independent public accountants (or if no nationally recognized investment bank, appraisal firm or firm of independent public accountants
agrees to express such opinion, a certificate from the chief financial officer of Expand Energy expressing his or her opinion) for the
purpose of paying and discharging each installment of principal (including mandatory sinking fund payments or analogous payments) of and
interest on all the Securities of such Series on the dates such installments of principal or interest are due;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the satisfaction and discharge contemplated by this Section have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture, (x) the obligations of the Company to the Trustee under Section 7.7, (y) if money shall
have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5,
and (z) the rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith
shall survive.
Section 8.2. Application
of Trust Funds; Indemnification.
(a) Subject
to the provisions of Section 8.5, all money and U.S. Government Obligations or Foreign Government Obligations deposited with the
Trustee pursuant to Section 8.1, 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to Section 8.1, 8.3 or 8.4, shall be held in trust and applied by it,
in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest
for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous
payments as contemplated by Sections 8.1, 8.3 or 8.4.
(b) The
Company shall pay and shall indemnify the Trustee (which indemnity shall survive termination of this Indenture) against any tax, fee or
other charge imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Sections
8.1, 8.3 or 8.4 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders.
(c) The
Trustee shall deliver or pay to the Company from time to time upon Company Order any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized investment bank, appraisal
firm or firm of independent public accountants (or if no nationally recognized investment bank, appraisal firm or firm of independent
public accountants agrees to express such opinion, a certificate from the chief financial officer of Expand Energy expressing his or her
opinion) expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would
have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign Government Obligations or money
were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations or Foreign Government
Obligations held under this Indenture.
Section 8.3. Legal
Defeasance of Securities of any Series.
Unless this Section 8.3
is otherwise specified, pursuant to Section 2.2, to be inapplicable to Securities of any Series, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the outstanding Securities of any Series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities
of such Series, shall no longer be in effect (and the Trustee, at the expense of the Company, shall, upon receipt of a Company Order,
execute instruments acknowledging the same), except as to:
(a) the
rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment
of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Maturity
of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable
to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture
and the Securities of such Series;
(b) the
provisions of Sections 2.4, 2.5, 2.7, 2.8, 7.7, 8.2, 8.3, 8.5 and 8.6; and
(c) the
rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith;
provided that, the following conditions shall
have been satisfied:
(d) the
Company shall have irrevocably deposited or caused to be deposited (except as provided in Section 8.2(c)) with the Trustee as trust
funds specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities (i) in the case
of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations or (ii) in the case
of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government
Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any
payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of
independent public accountants (or if no nationally recognized investment bank, appraisal firm or firm of independent public accountants
agrees to express such opinion, a certificate from the chief financial officer of Expand Energy expressing his or her opinion) expressed
in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest, on and
any mandatory sinking fund payments in respect of all the Securities of such Series on the dates such installments of principal or
interest and such sinking fund payments are due;
(e) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(f) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(g) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount
and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
(h) the
Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the
intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(i) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this Section have been complied with.
Section 8.4. Covenant
Defeasance.
Unless this Section 8.4
is otherwise specified pursuant to Section 2.2 to be inapplicable to Securities of any Series, the Company may omit to comply with
respect to the Securities of any Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4 and 5.1 and,
unless otherwise specified therein, any additional covenants specified in a supplemental indenture for such Series of Securities
or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2 (and the failure to comply with any such
covenants shall not constitute a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence
of any event specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate
delivered pursuant to Section 2.2 and designated as an Event of Default shall not constitute a Default or Event of Default hereunder,
with respect to the Securities of such Series, but, except as specified above, the remainder of this Indenture and such Securities will
be unaffected thereby; provided that the following conditions shall have been satisfied:
(a) with
reference to this Section 8.4, the Company has irrevocably deposited or caused to be irrevocably deposited (except as provided in
Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated
in Dollars, cash in Dollars and/or U.S. Government Obligations or (ii) in the case of Securities of such Series denominated
in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest
and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability
will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in
the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants (or if no nationally
recognized investment bank, appraisal firm or firm of independent public accountants agrees to express such opinion, a certificate from
the chief financial officer of Expand Energy expressing his or her opinion) expressed in a written certification thereof delivered to
the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund payments or analogous payments) of and
interest on all the Securities of such Series on the dates such installments of principal or interest are due;
(b) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(c) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit;
(d) the
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that the Holders of
the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit
and covenant defeasance and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit and covenant defeasance had not occurred;
(e) The
Company shall have delivered to the Trustee an Officer’s Certificate stating the deposit was not made by the Company with the intent
of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f) The
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the covenant defeasance contemplated by this Section have been complied with.
Section 8.5. Repayment
to Company.
Subject to applicable abandoned
property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal
and interest that remains unclaimed for two years. After that, Holders entitled to the money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
Section 8.6. Reinstatement.
If the Trustee or the Paying
Agent is unable to apply any money deposited with respect to Securities of any Series in accordance with Section 8.1 by reason
of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the obligations of the Company under this Indenture with respect to the Securities of such Series and
under the Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1
until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 8.1; provided,
however, that if the Company has made any payment of principal of or interest on any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or Paying Agent after payment in full to the Holders.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without
Consent of Holders.
The Company and the Trustee
may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Holder:
(a) to
cure any ambiguity, defect or inconsistency;
(b) to
comply with Article V;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add guarantees with respect to Securities of any Series or secure Securities of any Series;
(e) to
surrender any of the Company’s rights or powers under this Indenture;
(f) to
add covenants or events of default for the benefit of the holders of Securities of any Series;
(g) to
comply with the applicable procedures of the applicable depositary;
(h) to
make any change that does not adversely affect the rights of any Holder;
(i) to
provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(j) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more
Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee;
(k) to
comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA; or
(l) to
conform the text of this Indenture or any Securities to any provision of the “Description of Debt Securities” or “Description
of the Notes” (or comparable) section in any offering memorandum, prospectus or prospectus supplement of the Company prepared from
time to time with respect to the offer and sale of Securities of any series, to the extent that such provision was intended to be a complete
description or summary of a provision of this Indenture or the Securities, as determined in good faith by the Company (which intent will
be established by an Officer’s Certificate).
Section 9.2. With
Consent of Holders.
Subject to Section 9.3,
the Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained
in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any
manner the rights of the Holders of each such Series. Except as provided in Section 6.13, and subject to Section 9.3, the Holders
of at least a majority in principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents
obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with
any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for
the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture
or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this
section becomes effective, the Company shall send to the Holders of Securities affected thereby, a notice briefly describing the supplemental
indenture or waiver. Any failure by the Company to send such notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture or waiver.
Section 9.3. Limitations.
Without the consent of each
Holder affected, an amendment or waiver may not:
(a) reduce
the principal amount of Securities whose Holders must consent to an amendment, supplement or waiver;
(b) reduce
the rate of or extend the time for payment of interest (including default interest) on any Security;
(c) reduce
the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation;
(d) reduce
the principal amount of Discount Securities payable upon acceleration of the maturity thereof;
(e) waive
a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration
of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and
a waiver of the payment default that resulted from such acceleration);
(f) make
the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;
(g) make
any change in Sections 6.8, 6.13 or 9.3 (this sentence); or
(h) waive
a redemption payment with respect to any Security, provided that such redemption is made at the Company’s option.
Section 9.4. Compliance
with Trust Indenture Act.
Every amendment to this Indenture
or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then
in effect.
Section 9.5. Revocation
and Effect of Consents.
Until an amendment is set forth
in a supplemental indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder
and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security,
even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to
his Security or portion of a Security if the Trustee receives the notice of revocation before the date of the supplemental indenture or
the date the waiver becomes effective.
Any amendment or waiver once
effective shall bind every Holder of each Series affected by such amendment or waiver unless it is of the type described in any of
clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who
has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security.
The Company may, but shall not
be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the second
immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent previously given or take any such action, whether or not such
Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record
date.
Section 9.6. Notation
on or Exchange of Securities.
The Company or the Trustee may,
but shall not be obligated to, place an appropriate notation about an amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall authenticate upon receipt of
a Company Order in accordance with Section 2.3 new Securities of that Series that reflect the amendment or waiver.
Section 9.7. Trustee
Protected.
In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, an Officer’s Certificate and/or an Opinion of Counsel complying with
Sections 10.4 and 10.5 stating that such supplemental indenture is authorized or permitted by this Indenture and (subject to Section 7.1)
shall be fully protected in relying upon such Officer’s Certificate and/or Opinion of Counsel. The Trustee shall sign all supplemental
indentures upon delivery of such an Officer’s Certificate or Opinion of Counsel or both, except that the Trustee need not sign any
supplemental indenture that adversely affects its rights, duties, liabilities or immunities under this Indenture.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust
Indenture Act Controls.
If any provision of this Indenture
limits, qualifies or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required
or deemed provision shall control.
Section 10.2. Notices.
Any notice or communication
by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in
person or mailed by first-class mail (registered or certified, return receipt requested), email or overnight air courier guaranteeing
next day delivery, to the others’ address:
if to the Company:
Expand Energy Corporation
6100 North Western Avenue
Oklahoma City, OK 73118
Attention: Chris Lacy
Email: legal@expandenergy.com
with a copy to:
Latham & Watkins
LLP
811 Main Street, Suite 3700
Houston, Texas 77002
Attention: Kevin Richardson
Email: kevin.richardson@lw.com
if to the Trustee:
Regions Bank,
1717 McKinney Avenue 11th Floor
Dallas, Texas 75202
Attention: Shawn Bednasek
Office: (214) 220-6158
Fax: (713) 960-4058
Email: shawn.bednasek@regions.com
The Company or the Trustee by
notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication
to a Holder shall be sent electronically or by first-class mail or overnight air courier to his, her or its address shown on the register
kept by the Registrar, in accordance with the procedures of the Depositary. Failure to send a notice or communication to a Holder of any
Series or any defect in it shall not affect its sufficiency with respect to other Holders of that or any other Series.
If a notice or communication
is sent or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Holder receives it.
If the Company sends a notice
or communication to Holders, it shall send a copy to the Trustee and each Agent at the same time.
The
Trustee shall not have any duty to confirm that the person sending any notice, instruction or other communication by electronic transmission
(including by e-mail, facsimile transmission, web portal or other electronic methods) is, in fact, a person authorized to do so. Electronic
signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten
signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider acceptable to the Trustee)
shall be deemed original signatures for all purposes. The Company assumes all risks arising out of the use of electronic signatures and
electronic methods to send communications to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized
communication, and the risk of interception or misuse by third parties.
Notwithstanding any other provision
of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption)
to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for such Security
(or its designee) pursuant to the customary procedures of such Depositary.
Section 10.3. Communication
by Holders with Other Holders.
Holders of any Series may
communicate pursuant to TIA § 312(b) with other Holders of that Series or any other Series with respect to their rights
under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA § 312(c).
Section 10.4. Certificate
and Opinion as to Conditions Precedent.
Upon any request or application
by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an
Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent , if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 10.5. 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 § 314(a)(4)) shall comply with the provisions of TIA § 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, such person has made such examination or investigation as is necessary to enable such person
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.
Section 10.6. Rules by
Trustee and Agents.
The Trustee may make reasonable
rules for action by or a meeting of Holders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements
for its functions.
Section 10.7. Legal
Holidays.
If a payment date for any payment
made under this Indenture is not a Business Day, payment may be made on the next succeeding Business Day, and no interest shall accrue
for the intervening period.
Section 10.8. No
Recourse Against Others.
A director, officer, employee
or stockholder (past or present), as such, of the Company shall not have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting
a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
Section 10.9. Counterparts.
This Indenture may be executed
in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement. The exchange of copies of this Indenture and
of signature pages by facsimile or electronic format (e.g., “.pdf” or “.tif”) transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all
purposes. Signatures of the parties hereto transmitted by facsimile or electronic format (e.g., “.pdf” or “.tif”)
shall be deemed to be their original signatures for all purposes.
Unless otherwise provided herein
or in any other Securities, the words “execute”, “execution”, “signed” and “signature”
and words of similar import used in or related to any document to be signed in connection with this Indenture, any Securities or any of
the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic
signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability
as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as
provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act and any other similar state laws based on the Uniform Electronic Transactions Act.
Section 10.10. Governing
Law; Waiver of Jury Trial; Consent to Jurisdiction.
THIS INDENTURE AND THE SECURITIES, INCLUDING
ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
THE
COMPANY, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Any legal suit, action or proceeding
arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United
States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York
(collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such
courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under
any applicable statute or rule of court) to such party’s address set forth above shall be effective service of process for
any suit, action or other proceeding brought in any such court. The Company, the Trustee and the Holders (by their acceptance of the Securities)
each hereby irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the
Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has
been brought in an inconvenient forum.
Section 10.11. No
Adverse Interpretation of Other Agreements.
This Indenture may not be used
to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.12. Successors.
All agreements of the Company
in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13. 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 10.14. Table
of Contents, Headings, Etc.
The Table of Contents, Cross
Reference Table, headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not
to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.
Section 10.15. Securities
in a Foreign Currency.
Unless otherwise specified in
a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture
with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action
at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in more than one
currency, then the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking
such action shall be determined by converting any such other currency into a currency that is designated upon issuance of any particular
Series of Securities. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate
delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, such conversion shall
be at the spot rate for the purchase of the designated currency as published in The Financial Times in the “Currency Rates”
section (or, if The Financial Times is no longer published, or if such information is no longer available in The Financial Times, such
source as may be selected in good faith by the Company) on any date of determination. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection
with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations
provided for in the preceding paragraph shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all
purposes and irrevocably binding upon the Trustee and all Holders.
Section 10.16. Judgment
Currency.
The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary
to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the City of New York the Required
Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking
Day, then the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase
in the City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall
not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day”
means any day except a Saturday, Sunday or a legal holiday in the City of New York on which banking institutions are authorized or required
by law, regulation or executive order to close.
Section 10.17. Force
Majeure.
In no event shall the Trustee
be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes, pandemics, epidemics or other public health emergencies, or acts of God,
and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood
that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
Section 10.18. U.S.A.
Patriot Act.
The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee is required to obtain, verify and record information that
identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture
agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. Patriot Act.
ARTICLE XI.
SINKING FUNDS
Section 11.1. Applicability
of Article.
The provisions of this Article shall
be applicable to any sinking fund for the retirement of the Securities of a Series if so provided by the terms of such Securities
pursuant to Section 2.2, except as otherwise permitted or required by any form of Security of such Series issued pursuant to
this Indenture.
The minimum amount of any sinking
fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund
payment” and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities
of any Series as provided for by the terms of the Securities of such Series.
Section 11.2. Satisfaction
of Sinking Fund Payments with Securities.
The Company may, in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such
Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any
of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to
which such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at the election of the
Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application
of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officer’s Certificate
with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of selecting Securities for redemption
and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities
in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for
redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a
Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying
Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having
an unpaid principal amount equal to the cash payment required to be released to the Company.
Section 11.3. Redemption
of Securities for Sinking Fund.
Not less than 45 days (unless
otherwise indicated in the Board Resolution, supplemental indenture hereto or Officer’s Certificate in respect of a particular Series of
Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officer’s
Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that
Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied
by delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional amount, if any, to be added
in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board Resolution, Officer’s Certificate or supplemental indenture in respect
of a particular Series of Securities) before each such sinking fund payment date the Securities to be redeemed upon such sinking
fund payment date will be selected in the manner specified in Section 3.2, and the Company shall send or cause to be sent a notice
of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in and in accordance with
Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
|
EXPAND ENERGY CORPORATION |
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By: |
/s/ Mohit Singh |
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Name: |
Mohit Singh |
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Title: |
Executive Vice President and Chief Financial Officer |
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REGIONS BANK, as Trustee |
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By: |
/s/ Shawn Bednasek |
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Name: Shawn Bednasek |
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Title: Senior Vice President |
[Signature Page to Indenture]
Exhibit 4.2
EXPAND ENERGY CORPORATION,
as the Company
and
REGIONS BANK,
as the Trustee
5.700% Senior Notes due 2035
FIRST SUPPLEMENTAL INDENTURE
Dated as of December 2, 2024
to the
INDENTURE
Dated as of December 2, 2024
TABLE OF CONTENTS
Page
ARTICLE I SCOPE OF SUPPLEMENTAL INDENTURE;
GENERAL; THE NOTES |
2 |
Section 1.1 |
Scope of Supplemental Indenture; General |
2 |
Section 1.2 |
Applicability of Sections of the Base Indenture |
2 |
Section 1.3 |
Form, Dating and Terms |
2 |
Section 1.4 |
Additional Notes |
5 |
ARTICLE II CERTAIN DEFINITIONS |
5 |
Section 2.1 |
Certain Definitions |
5 |
ARTICLE III REDEMPTION |
13 |
Section 3.1 |
Optional Redemption |
13 |
Section 3.2 |
Sinking Fund; Mandatory Redemption |
14 |
Section 3.3 |
Redemption Provisions |
14 |
ARTICLE IV COVENANTS |
15 |
Section 4.1 |
Limitation on Liens |
15 |
Section 4.2 |
Reports |
15 |
Section 4.3 |
Unrestricted Subsidiaries |
16 |
ARTICLE V [RESERVED] |
16 |
ARTICLE VI DEFAULTS AND REMEDIES |
16 |
Section 6.1 |
Events of Default |
17 |
Section 6.2 |
Acceleration of Maturity; Rescission and Annulment |
18 |
ARTICLE VII SATISFACTION AND DISCHARGE;
DEFEASANCE |
19 |
ARTICLE VIII AMENDMENT, SUPPLEMENT AND
WAIVER |
19 |
Section 8.1 |
Without Consent of Holders |
19 |
Section 8.2 |
With Consent of Holders |
20 |
Section 8.3 |
Limitations |
21 |
Section 8.4 |
Compliance with Trust Indenture Act |
21 |
Section 8.5 |
Revocation and Effect of Consents |
21 |
Section 8.6 |
Notation on or Exchange of Notes |
22 |
Section 8.7 |
Effect of Supplemental Indenture |
22 |
ARTICLE IX MISCELLANEOUS |
22 |
Section 9.1 |
Governing Law |
22 |
Section 9.2 |
Successors |
22 |
Section 9.3 |
Multiple Originals |
23 |
Section 9.4 |
Paying Agent and Security Registrar |
23 |
Section 9.5 |
Severability |
23 |
Section 9.6 |
Trust Indenture Act Controls |
23 |
Section 9.7 |
Table of Contents; Headings |
23 |
Section 9.8 |
No Adverse Interpretation of Other Agreements |
23 |
Section 9.9 |
Ratification and Incorporation of Base Indenture |
23 |
Section 9.10 |
Benefits of Supplemental Indenture |
23 |
Section 9.11 |
The Trustee |
23 |
EXHIBITS
EXHIBIT A Form of Note
FIRST SUPPLEMENTAL INDENTURE
dated as of December 2, 2024 (this “Supplemental Indenture”) by and between EXPAND ENERGY CORPORATION, an Oklahoma
corporation (referred to herein as the “Company”), and Regions Bank, as trustee (referred to herein as the “Trustee”),
supplementing the Indenture dated as of December 2, 2024, by and between the Company and the Trustee (the “Base Indenture”
and, as supplemented by this Supplemental Indenture, the “Indenture”).
Each party agrees as follows
for the benefit of the other parties and for the equal and ratable benefit of the Holders of Notes (as such terms are defined herein):
WHEREAS, the Company has
duly authorized the execution and delivery of the Base Indenture to provide for the issuance from time to time of the Company’s
Securities to be issued in one or more series as provided in the Indenture;
WHEREAS, the Base Indenture
has been duly authorized, executed and delivered by the Company and the Trustee;
WHEREAS, Section 9.1
of the Base Indenture provides that the Company and the Trustee may, without the consent of any Holder, enter into a supplemental indenture:
in accordance with clause (i) thereof, to provide for the issuance of and establish the form and terms and conditions of Securities
of any series as permitted by the Base Indenture;
WHEREAS, the Company has
duly authorized the issue of its 5.700% Senior Notes due 2035 as a series of Securities under the Base Indenture (as they may be
issued from time to time under this Supplemental Indenture, including any Additional Notes (as defined below) issued pursuant to Section 1.4
of this Supplemental Indenture, the “Notes”); and in connection therewith, there being no Notes Outstanding at
the time of execution and delivery of this Supplemental Indenture, the Company has duly determined to make, execute and deliver this
Supplemental Indenture to establish the form and terms of the Notes as required by the Base Indenture, to add to, change and
eliminate certain provisions of the Base Indenture in respect of the Notes;
WHEREAS, the Company has
duly authorized the execution and delivery of this Supplemental Indenture, and has requested the Trustee to join them in the execution
and delivery of this Supplemental Indenture, in order to establish the form and terms of, and to provide for the issuance by the Company
of, the Notes, substantially in the form attached hereto as Exhibit A, on the terms set forth herein;
WHEREAS, the Company now
wishes to issue $750,000,000 aggregate principal amount of the Notes (the “Initial Notes”);
WHEREAS, the conditions set
forth in the Base Indenture for the execution and delivery of this Supplemental Indenture have been complied with;
WHEREAS, all things necessary
have been done to make the Initial Notes, when Global Securities representing the Initial Notes have been duly executed by the Company
and authenticated and delivered by the Trustee or a duly authorized Authenticating Agent, as provided in the Base Indenture, the valid
and legally binding obligations of the Company; and
WHEREAS, all things necessary
have been done to make this Supplemental Indenture a valid agreement of the Company and the Trustee, in accordance with its terms, and
a valid amendment of, and supplement to, the Base Indenture.
NOW, THEREFORE:
In consideration of the premises
and the purchase and acceptance of the Notes by the Holders, the Company covenants and agrees with the Trustee, for the equal and ratable
benefit of the Holders of the Notes, that the Base Indenture is supplemented and amended, to the extent expressed herein, as follows:
ARTICLE I
SCOPE
OF SUPPLEMENTAL INDENTURE; GENERAL; THE NOTES
Section 1.1 Scope
of Supplemental Indenture; General. This Supplemental Indenture supplements, and to the extent inconsistent therewith, replaces,
the provisions of the Base Indenture, to which provisions reference is hereby made.
The changes, modifications
and supplements to the Base Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the
terms of, and shall be deemed expressly included in this Supplemental Indenture solely for the benefit of, the Notes (which shall be
initially in the aggregate principal amount of $750,000,000) and shall not apply to any other series of Securities that have been or
may be issued under the Base Indenture unless a supplemental indenture with respect to such other series of Securities specifically incorporates
such changes, modifications and supplements.
Section 1.2 Applicability
of Sections of the Base Indenture. Except as expressly specified hereby, each of the provisions of the Base Indenture shall apply
to the Notes.
Section 1.3 Form,
Dating and Terms.
(a) General.
The aggregate principal amount of the Notes that may be authenticated and delivered under the Indenture is unlimited. The aggregate principal
amount of the Initial Notes initially authorized for authentication and delivery pursuant to this Supplemental Indenture is limited to
$750,000,000 (except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other
Notes pursuant to Section 1.3(b), 1.3(c) and 8.6 of this Supplemental Indenture and Sections 2.7, 2.8,
2.11 and 3.6 of the Base Indenture). Pursuant to this Supplemental Indenture, there is hereby created and designated one series of Securities
under the Indenture entitled “5.700% Senior Notes due 2035.”
In addition, with respect
to the Notes, the Company may issue, from time to time subsequent to the Issue Date in accordance with the provisions of the Indenture,
additional Securities (such Securities, the “Additional Notes”) of the same series as the Notes.
The Initial Notes and the
Additional Notes shall be considered collectively as a single class for all purposes of the Indenture. Holders of the Initial Notes and
the Additional Notes shall vote and consent together on all matters to which such Holders are entitled to vote or consent as one series
of Securities, and none of the Holders of the Initial Notes or the Additional Notes shall have the right to vote or consent as a separate
class or series on any matter to which such Holders are entitled to vote or consent.
Initial Notes and Additional
Notes shall be initially issued in the form of one or more permanent Global Securities substantially in the form of Exhibit A
(each, a “Global Note”), duly executed by the Company and authenticated by the Trustee as provided in the Base
Indenture. The aggregate principal amount of the Global Notes may from time to time be increased or decreased by adjustments made on
the records of the Trustee and the Depositary or its nominee.
The Notes may have such letters,
numbers or other marks of identification and such notations, legends or endorsements as the officer executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Supplemental Indenture or
the Base Indenture or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance,
or to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are subject.
The terms and provisions
contained in the form of Note attached as Exhibit A hereto shall constitute, and are hereby expressly made, a part of this
Supplemental Indenture, and the Company and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree
to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions
of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Company shall pay principal
of, premium, if any, and interest on the Notes at the office or agency designated by the Company, which is initially the corporate trust
office of the Trustee in Birmingham, Alabama. The Company shall pay principal of, premium, if any, and interest on the Global Notes registered
in the name of or held by the Depositary or its nominee in immediately available funds to the Depositary or its nominee, as the case
may be, as the registered holder of such Global Note. The Company shall make all payments in respect of a Definitive Note by mailing
a check to the registered address of each Holder thereof as such address shall appear in the Security Registrar’s books; provided,
however, that payments on the Notes represented by Definitive Notes may also be made, by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent in accordance with the terms of the Indenture.
(b) Book-Entry
Provisions. Except as otherwise stated in this Section 1.3(b) and Section 1.3(c) below, Section 2.14
of the Base Indenture will apply to the Notes.
(i) This
Section 1.3(b) shall apply only to Global Notes deposited with the Notes Custodian with respect to such Notes (as appointed
by the Depositary), or any successor Person thereto, which shall initially be the Trustee.
(ii) Each
Global Note initially shall (x) be registered in the name of the Depositary for such Global Note or the nominee of such Depositary,
(y) be delivered to the Notes Custodian for such Depositary and (z) bear the legend set forth in Exhibit A.
(iii) Members
of, or participants in, the Depositary (“Agent Members”) shall have no rights under the Indenture with respect to
any Global Note held on their behalf by the Depositary or by the Trustee as the custodian of the Depositary or under such Global Note,
and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such
Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of customary practices of the Depositary governing the exercise
of the rights of a Holder of a beneficial interest in any Global Note.
(iv) The
registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(v) In
connection with the transfer of an entire Global Note to beneficial owners pursuant to Section 1.3(c) of this Supplemental
Indenture, such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the
Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest
in such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.
(vi) Any
Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interests in such Global Note may
be effected only through a book-entry system maintained by (a) the Holder of such Global Note (or its agent) or (b) any Holder
of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be
reflected in a book entry.
(c) Definitive
Notes. Except as provided in the Indenture, owners of beneficial interests in Global Notes shall not be entitled to receive Definitive
Notes. Definitive Notes shall be delivered to all beneficial owners in exchange for their beneficial interests in a Global Note if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary ceases
to be a clearing agency registered under the Exchange Act at a time when the Depositary is required to be so registered in order to act
as Depositary, and, in each case, a successor depositary is not appointed by the Company within 90 days of such notice or (ii) an
Event of Default has occurred and is continuing and the Security Registrar has received a request from the Depositary to deliver Definitive
Notes to all beneficial owners in exchange for their beneficial interests in such Global Note. Definitive Notes may not be exchanged
for beneficial interests in any Global Note unless the transferor first delivers to the Trustee a written certificate to the effect that
such transfer will comply with any appropriate transfer restrictions applicable to such Notes.
(d) Initial
Notes. The Initial Notes may forthwith be executed by the Company and delivered, together with a Company Order, to the Trustee for
authentication and delivery by the Trustee for original issue in accordance with the provisions of Section 2.3 of the Base Indenture.
(e) Additional
Notes. At any time and from time to time after the issuance of the Initial Notes, the Trustee shall authenticate and deliver any
Additional Notes for original issue in accordance with the provisions of Section 2.3 of the Base Indenture in an aggregate principal
amount determined at the time of issuance and specified in a Company Order which shall be accompanied with the Officer’s Certificate
or supplemental indenture, as applicable, in respect thereof specified in Section 1.4 of this Supplemental Indenture. Such
Company Order shall specify the principal amount of the Additional Notes to be authenticated and the date on which the original issue
of such Additional Notes is to be authenticated.
Section 1.4 Additional
Notes. With respect to any Additional Notes, there shall be set forth or determined in an Officer’s Certificate delivered to
the Trustee or established in one or more indentures supplemental to the Indenture, prior to the issuance of such Additional Notes:
(a) the
aggregate principal amount of such Additional Notes to be authenticated and delivered; and
(b) the
issue price and the issue date of such Additional Notes, including the date from which interest shall accrue and the first interest payment
date therefor.
ARTICLE II
CERTAIN
DEFINITIONS
Section 2.1 Certain
Definitions. Section 1.1 of the Base Indenture is hereby amended by adding the following definitions in their proper alphabetical
order which, in the event of a conflict with the definition of terms in the Base Indenture, shall supersede and replace the corresponding
definitions in the Base Indenture. Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Base
Indenture. The rules of construction set forth in Section 1.1 of the Base Indenture shall be applied hereto as if set forth
in full herein, except that unless the context indicates otherwise, references in this Supplemental Indenture to an Article or Section refer
to an Article or Section of this Supplemental Indenture, as the case may be.
“Bankruptcy Law”
means Title 11 of the United States Code or any similar federal, state or foreign law for the relief of debtors.
“Capital Stock”
of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests
in (however designated) equity of such Person, including, without limitation, any preferred stock and limited liability company or partnership
interests (whether general or limited) of such Person, but excluding any debt securities convertible or exchangeable into such equity.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Consolidated Net
Tangible Assets” means at any date of determination, the total amount of assets of the Company and its Restricted Subsidiaries
(less applicable depreciation and valuation reserves and other reserves and items deductible from the gross book value of specific asset
accounts under GAAP) after deducting therefrom:
(1) all
current liabilities (excluding (A) any current liabilities that by their terms are extendable or renewable at the option of the
obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed, and (B) current maturities
of Funded Debt); and
(2) the
value of all goodwill, trade names, trademarks, patents, and other like intangible assets, all as set forth on the Company’s consolidated
balance sheet as of a date no earlier than the date of the Company’s latest available annual or quarterly consolidated financial
statements prepared in accordance with GAAP.
“Custodian”
means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
“Customary Recourse
Exceptions” means with respect to any Non-Recourse Debt, exclusions from the exculpation provisions with respect to such Non-Recourse
Debt for the voluntary bankruptcy of a Person, fraud, misapplication of cash, environmental claims, waste, willful destruction and other
circumstances customarily excluded by lenders from exculpation provisions or included in separate indemnification agreements in non-recourse
financings.
“Default”
means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Definitive Notes”
means Notes issued in the form of one or more certificated Notes substantially in the form of Exhibit A.
“Depositary”
means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depository institution hereinafter
appointed by the Company.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Funded Debt”
means, in respect of any Person, all Indebtedness Incurred by such Person that matures, or is renewable by such Person to a date, more
than one year after the date as of which Funded Debt is being determined.
“GAAP”
means generally accepted accounting principles in the United States of America as in effect as of the Issue Date, including those set
forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved
by a significant segment of the accounting profession.
“guarantee”
means any obligation, contingent or otherwise, of any Person guaranteeing any Indebtedness of any other Person and any obligation, direct
or indirect, contingent or otherwise, of such Person to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise). The term “guarantee”
will not include endorsements for collection or deposit in the ordinary course of business. The term “guarantee” used as
a verb has a corresponding meaning.
“Holder”
means a Person in whose name a Note is registered on the Security Registrar’s books.
“Incur”
means issue, create, assume, guarantee, incur or otherwise become liable for any Indebtedness of a Person existing at the time such Person
becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) will be deemed to be Incurred by such Subsidiary at
the time it becomes a Subsidiary. The terms “Incurred” and “Incurrence” have meanings correlative to the foregoing.
“Indebtedness”
means, with respect to any Person on any date of determination, any obligation of such Person, whether contingent or otherwise, for the
repayment of borrowed money and any guarantee thereof.
“Issue Date”
means December 2, 2024, the date the Initial Notes are first issued under the Indenture.
“Lien”
means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference,
priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement
to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction. For the avoidance of doubt, (1) an operating lease shall be deemed not to constitute
a Lien and (2) a contract that would not be considered a capital lease pursuant to GAAP prior to the effectiveness of Accounting
Standards Codification 842 shall be deemed not to constitute a Lien.
“Non-Recourse Debt”
means Indebtedness as to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly liable
as a guarantor or otherwise except, in each case for (i) Customary Recourse Exceptions and (ii) the pledge of (or a guarantee
limited in recourse solely to) the Capital Stock of such Unrestricted Subsidiary.
“Notes Custodian”
means the custodian with respect to the Global Notes (as appointed by the Depositary), or any successor Person thereto, and shall initially
be the Trustee.
“Officer’s
Certificate” means a certificate signed by an Officer of the Company.
“Opinion of Counsel”
means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel
to the Company or the Trustee.
“Par Call Date”
means October 15, 2034.
“Permitted Liens”
means, with respect to any Person:
(1) any
Lien in favor of the Trustee for the benefit of the Trustee or the Holders of the Notes or otherwise securing the Notes, a Guarantee
or other obligations under the Indenture;
(2) Liens
securing hedging obligations, swap agreements, derivatives, forward contracts, exchange agreements, in each case excluding such arrangement
entered into for speculative purposes or obligations with regard to treasury management arrangements;
(3) Liens
in favor of the Company or a Restricted Subsidiary;
(4) Liens
on property of a Person existing at the time such Person becomes a Restricted Subsidiary of the Company or is merged with or into or
consolidated with the Company or any Restricted Subsidiary of the Company; provided that such Liens were in existence prior to the contemplation
of such Person becoming a Restricted Subsidiary;
(5) Liens
on property existing at the time of acquisition of the property by the Company or any Restricted Subsidiary of the Company; provided
that such Liens were (i) in existence prior to such acquisition and not Incurred in contemplation of such acquisition or (ii) incurred
to secure Indebtedness incurred to refinance Indebtedness secured by Liens described in the foregoing clause (i);
(6) Liens
to secure the performance of statutory or regulatory obligations, insurance, surety or appeal bonds, workers’ compensation obligations,
bid, plugging and abandonment and performance bonds or other obligations of a like nature incurred in the ordinary course of business
(including Liens to secure letters of credit issued to assure payment of such obligations);
(7) Liens
on insurance policies and proceeds thereof, or other deposits, to secure insurance premium financings;
(8) Liens
on cash or other property arising in connection with the defeasance, discharge, or redemptions of Indebtedness;
(9) Liens
to secure Indebtedness represented by capital lease obligations, finance lease obligations, mortgage financings or purchase money obligations
or other Indebtedness, in each case, incurred for the purpose of financing all or any part of the purchase price, other acquisition cost
or cost of design, construction, installation, development, repair or improvement of property, plant or equipment used in the business
of the Company or any of its Restricted Subsidiaries, and all refinancing indebtedness Incurred to renew, refund, refinance, replace,
defease, discharge or otherwise retire for value, in whole or in part, such Indebtedness, covering only the assets acquired with or financed
by such Indebtedness;
(10) Grants
of software and other technology licenses in the ordinary course of business;
(11) Liens
existing on the date hereof;
(12) filing
of Uniform Commercial Code financing statements as a precautionary measure in connection with operating leases;
(13) bankers’
Liens, rights of setoff, rights of revocation, refund or chargeback with respect to money, instruments or accounts of the Company or
any Restricted Subsidiary, Liens arising out of judgments or awards and notices of lis pendens and associated rights related to
litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made;
(14) Liens
in respect of Production Payments and Reserve Sales; provided, that such Liens are limited to the property that is subject to such Production
Payments and Reserve Sales;
(15) Liens
arising under, or in connection with, oil and gas leases or subleases, assignments, farmout agreements, farm-in agreements, division
orders, contracts for the sale, purchase, exchange, marketing, transportation, gathering, treating, fractionation, compression, stabilization
or processing of hydrocarbons, unitizations and pooling designations, declarations, orders and agreements, development agreements, joint
venture agreements, partnership agreements, operating agreements, royalties, working interests, net profits interests, joint interest
billing arrangements, participation agreements, production sales contracts, incentive compensation programs for geologists, geophysicists
and other providers of technical services to the Company or a Restricted Subsidiary, area of mutual interest agreements, gas balancing
or deferred production agreements, injection, repressuring and recycling agreements, overriding royalty agreements, gathering agreements,
marketing agreements, processing agreements, treating agreements, fractionation agreements, compression agreements, stabilization agreements,
construction agreements, storage agreements, net profits agreements, salt water or other disposal agreements, seismic or geophysical
permits or agreements, licenses, sublicenses and other agreements that are customary in the oil and gas business; provided, however,
in all instances that such Liens are limited to the assets that are the subject of the relevant agreement, program, order or contract
and margin and other deposits related thereto;
(16) Liens
for (i) taxes, assessments or governmental charges or levies on its property if the same shall not at the time be delinquent or
thereafter can be paid without penalty or, provided the Company or its Restricted Subsidiaries have knowledge or should have had knowledge
of such Liens, are being actively contested in good faith and by appropriate proceedings and for which adequate reserves shall have been
set aside on its books in accordance with GAAP (to the extent required thereby) or (ii) for property taxes on property that the
Company or any Subsidiary has determined to abandon if the sole recourse for such tax, assessment, charge or claim is to such property;
(17) Liens
imposed by law or ordinary course of business contracts, including, without limitation, carriers’, warehousemen’s, suppliers’,
mechanics’, materialmen’s, repairmen’s and similar Liens;
(18) Liens
arising under applicable statutory provisions with respect to production of oil, gas or other hydrocarbons purchased from others (such
as Chapter 67 of the Texas Property Code and Louisiana Revised Statutes Title 9, §4863, et seq., (including Louisiana Revised Statutes
Title 9, §4869));
(19) Liens
in favor of issuers of surety or performance bonds or letters of credit or bankers’ acceptances issued pursuant to the request
of and for the account of such Person in the ordinary course of its business;
(20) survey
exceptions, encumbrances, ground leases, easements, restrictions, servitudes, permits, conditions, covenants, exceptions or reservations
of, or rights of others for, licenses, rights-of-way, roads, pipelines, transmission liens, transportation liens, distribution lines
for the removal of gas, oil, coal or other minerals or timber, sewers, electric lines, telegraph and telephone lines and other similar
purposes, or for the joint or common use of real estate, rights of way, facilities and equipment, Liens related to surface leases and
surface operations, or zoning, building codes or other restrictions (including, without limitation, minor defects or irregularities in
title and similar encumbrances) as to the use of real properties or Liens incidental to the conduct of the business of the Company or
any Restricted Subsidiary of the Company or to the ownership of its properties that do not in the aggregate materially adversely affect
the value of said properties or materially impair their use in the operation of the business of the Company or any Restricted Subsidiary
of the Company;
(21) leases,
licenses, subleases and sublicenses of assets that do not materially interfere with the ordinary conduct of the business of the Company
or any Restricted Subsidiary of the Company;
(22) Liens
on the Capital Stock of a joint venture that does not constitute a Subsidiary securing obligations of such joint venture;
(23) any
interest or title of a lessor under any operating lease;
(24) Liens
on pipelines or pipeline facilities that arise by operation of law;
(25) Liens
on, or related to, properties or assets to secure all or part of the costs incurred in the ordinary course of business for the exploration,
drilling, development, construction, production, processing, treating, fractionation, stabilization, compression, gathering, transportation,
marketing or storage, plugging, abandonment or operation thereof;
(26) Liens
under industrial revenue, municipal or similar bonds; and
(27) any
Lien renewing, extending, refinancing, replacing or refunding a Lien permitted by this definition, provided that (a) the principal
amount of the Indebtedness secured by such Lien is not increased except by an amount equal to accrued interest and any premium or other
amount paid, and fees, costs and expenses incurred, in connection therewith and by an amount equal to any existing commitments unutilized
thereunder and (b) no assets are encumbered by any such Lien other than the assets permitted to be encumbered immediately prior
to such renewal, extension, refinancing, replacement or refunding.
In each case set forth above,
notwithstanding any stated limitation on the assets or property that may be subject to such Lien, a Permitted Lien on a specified asset
or property or group or type of assets or property may include Liens on all improvements, additions, repairs, attachments and accessions
thereto, construction thereon, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor and
all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
“Person”
means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
“Principal Property”
means all property interests in oil and gas reserves located in the United States capable of producing hydrocarbon substances in paying
quantities, the net book value of which exceeds 3% of Consolidated Net Tangible Assets, other than: (1) property not of material
importance to the business of the Company and its Subsidiaries, taken as a whole; (2) assets used in midstream operations; (3) accounts
receivable; and (4) production or proceeds from the production of hydrocarbons.
“Production Payments
and Reserve Sales” means the grant or transfer by the Company or any of its Restricted Subsidiaries to any Person of a royalty,
overriding royalty, net profits interest, production payment, partnership or other interest in oil and gas properties, reserves or the
right to receive all or a portion of the production or the proceeds from the sale of production attributable to such properties where
the holder of such interest has recourse solely to such production or proceeds of production, subject to the obligation of the grantor
or transferor to operate and maintain, or cause the subject interests to be operated and maintained, in a reasonably prudent manner or
other customary standard or subject to the obligation of the grantor or transferor to indemnify for environmental, title or other matters
customary in the oil and gas business, including any such grants or transfers pursuant to incentive compensation programs on terms that
are reasonably customary in the oil and gas business for geologists, geophysicists or other providers of technical services to the Company
or any of its Restricted Subsidiaries.
“Restricted Subsidiary”
of any Person means any Subsidiary of the Person that is not an Unrestricted Subsidiary.
“SEC”
means the United States Securities and Exchange Commission.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Stated Maturity”
means, with respect to any security or Indebtedness, the date specified in such security or Indebtedness as the fixed date on which the
payment of principal of such security or Indebtedness is due and payable, including, without limitation, pursuant to any mandatory redemption
provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally
scheduled for the payment thereof.
“Subsidiary”
with respect to any Person, means any (i) corporation, limited liability company or other entity (other than a partnership) of which
the outstanding Capital Stock having a majority of the votes entitled to be cast in the election of directors, managers or trustees of
such entity under ordinary circumstances shall at the time be owned, directly or indirectly, by such Person or any other Person of which
a majority of the voting interests under ordinary circumstances is at the time, directly or indirectly, owned by such Person or (ii) partnership
(a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the
only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
“Treasury Rate”
means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be
determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted
daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the date of the notice of redemption
relating to such redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the
most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest
Rates (Daily)—H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S.
government securities—Treasury constant maturities—Nominal” (or any successor caption or heading) (“H.15 TCM”).
In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15
exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there
is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the
Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately
longer than the Remaining Life—and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of
days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on
H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining
Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity
date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third Business
Day preceding the date of the notice of redemption relating to such redemption date H.15 TCM is no longer published, the Company shall
calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York
City time, on the second Business Day preceding the date of such notice of redemption of the United States Treasury security maturing
on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing
on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call
Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall
select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury
securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence,
the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading
closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York
City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the
applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of
principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
“Unrestricted Subsidiary”
means (1) any Subsidiary of the Company designated as such pursuant to and in compliance with this
Indenture and (2) any Subsidiary of an Unrestricted Subsidiary.
In addition to the terms
defined above, the following terms are defined in this Supplemental Indenture where indicated below:
Term | |
Defined in Section |
“Additional Notes” | |
1.3(a) |
“Agent Members” | |
1.3(b)(iii) |
“Base Indenture” | |
Preamble |
“Event of Default” | |
6.1(a) |
“Global Note” | |
1.3(a) |
“Indenture” | |
Preamble |
“Initial Notes” | |
Recitals |
“Notes” | |
Recitals |
“payment default” | |
6.1(a)(5)(A) |
“Supplemental Indenture” | |
Preamble |
ARTICLE III
REDEMPTION
Section 3.1 Optional
Redemption.
(a) Prior
to the Par Call Date, the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a Redemption
Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (1) (a) the
sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed discounted to the
Redemption Date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate plus 20 basis points less (b) interest accrued to the Redemption Date, and (2) 100% of
the principal amount of the Notes to be redeemed, plus, in either case, accrued and unpaid interest thereon to but not including the
Redemption Date.
(b) On
or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption
Price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to but not including
the Redemption Date.
(c) The
Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent
manifest error.
(d) In
the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the
Trustee in its sole discretion deems appropriate and fair, subject to the last sentence of this Section 3.1(d). No Notes of a principal
amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates
to the Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the
unredeemed portion of the Note will be issued in the name of the Holder of the Note upon surrender for cancellation of the original Note.
For so long as the Notes are held by the Depositary, the redemption of the Notes shall be done in accordance with the policies and procedures
of such Depositary.
(e) Unless
the Company defaults in payment of the Redemption Price or any conditions precedent described in the notice of redemption are not satisfied
and therefore the notice of redemption is deemed rescinded, on and after the Redemption Date interest will cease to accrue on the Notes
or portions thereof called for redemption.
Section 3.2 Sinking
Fund; Mandatory Redemption. The Company is not required to make mandatory redemption payments or sinking fund payments with respect
to the Notes. Accordingly, Article XI of the Base Indenture shall not apply to the Notes.
Section 3.3 Redemption
Provisions.
(a) The
first paragraph of Section 3.3 of the Base Indenture shall not apply to the Notes, and in lieu thereof, the following paragraph
shall be deemed included in the Indenture for the benefit of the Notes:
Notice of any redemption will be mailed
or electronically delivered (or otherwise transmitted in accordance with the Depositary’s Applicable Procedures) in the manner
provided in Section 10.2 of the Base Indenture at least 10 days but not more than 60 days before the Redemption Date to each Holder
of Notes to be redeemed. Notwithstanding anything herein to the contrary, notices may be sent more than 60 days prior to a Redemption
Date if the notice is issued in connection with a Covenant Defeasance or Defeasance with respect to the Notes or a satisfaction and discharge
of the Indenture with respect to the Notes.
(b) Notice
of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent. If the conditions precedent
are satisfied, the Company shall provide written notice to the Trustee of the satisfaction of such conditions as soon as practicable
following occurrence of the conditions.
(c) Except
as otherwise stated in this Article III or to the extent inconsistent with this Article III, Article III
of the Base Indenture shall apply to the Notes.
ARTICLE IV
COVENANTS
Section 4.2 of the Base
Indenture shall not apply to the Notes, and the covenants in Section 4.2 of the Base Indenture shall be deemed included in the Indenture
solely for the benefit of series of Securities other than the Notes.
In addition, the following
covenants in this Article IV shall apply to the Notes and shall be deemed included in the Indenture solely for the benefit
of the Notes:
Section 4.1 Limitation
on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, create, Incur or assume, any Lien
securing Funded Debt (other than Permitted Liens) upon any Principal Property, whether owned on the Issue Date or acquired after that
date, unless the Indebtedness due under the Indenture and the Notes is secured equally and ratably with (or senior in priority to in
the case of Liens with respect to Funded Debt that is expressly subordinated to the Notes) the Funded Debt secured by such Lien for so
long as such Funded Debt is so secured.
Notwithstanding the preceding
paragraph, the Company may, and may permit any Restricted Subsidiary of the Company to, create, Incur or assume, any Lien securing
Funded Debt upon any Principal Property without securing the Indebtedness due under the Indenture and the Notes if the aggregate principal
amount of such Funded Debt secured by such Lien upon such Principal Property, together with the aggregate outstanding principal amount
of all other Funded Debt of the Company and of any Restricted Subsidiary of the Company secured by any Liens (other than Permitted Liens)
upon Principal Property, does not at the time such Funded Debt is created, Incurred or assumed (or, if later, at the time such Lien
is created, Incurred or assumed) exceed the greater of (i) 15% of Consolidated Net Tangible Assets at such time and (ii) $3.0
billion.
Section 4.2 Reports.
(a) The
Company will furnish or file with the Trustee, (i) within 15 days after it files the same with the SEC, copies of the annual reports
and the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
If the Company is not subject to the requirements of Section 13 or 15(d) of the Exchange Act and (ii) other information,
documents, or reports as may be required pursuant to the Trust Indenture Act at the times and in the manner provided in the Trust Indenture
Act. For purposes of this Section 4.2, the Company will be deemed to have furnished such reports and information to, or filed
such reports and information with, the Trustee and the Holders of Notes and prospective purchasers as required by this Section 4.2
if it has filed such reports or information with the SEC via the EDGAR filing system (or any successor filing system) or otherwise
made such reports or information publicly available on a freely accessible page on the Company’s website. The Trustee shall
have no obligation whatsoever to determine whether or not such reports and information have been filed or have been posted on such website.
(b) The
Company also shall furnish to the Trustee, within 120 days after the end of each fiscal year of the Company, a brief certificate from
the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company’s
compliance with all covenants under the Indenture.
(c) The
Company will deliver to the Trustee, within 30 days after the occurrence thereof, written notice of any events that would constitute
an Event of Default, unless such Event of Default has been cured or waived before the end of such 30-day period, their status and what
action the Company is taking or proposing to take in respect thereof.
(d) Delivery
of any reports, information and documents to the Trustee pursuant to paragraphs (a) and (b) above is for informational purposes
only and the Trustee’s receipt of such shall not constitute notice, constructive or otherwise, of any information contained therein
or determinable from information contained therein, including the compliance by the Company with any of the Company’s covenants
(as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Section 4.3 Unrestricted
Subsidiaries.
(a) The
Board of Directors of the Company may after the Issue Date designate any Subsidiary as an “Unrestricted Subsidiary” if: (1) no
Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such designation; and (2) such
Subsidiary has no Indebtedness other than Non-Recourse Debt.
(b) The
Board of Directors of the Company may at any time, subject to the following sentence, designate any Unrestricted Subsidiary to be a Restricted
Subsidiary of the Company. Any such designation will be deemed to be an incurrence of Funded Debt and Liens by a Restricted Subsidiary
of the Company of any outstanding Funded Debt and Liens, respectively, of such Unrestricted Subsidiary, and such designation will only
be permitted if no Default or Event of Default would be in existence following such designation.
ARTICLE V
[RESERVED]
ARTICLE VI
DEFAULTS
AND REMEDIES
Sections
6.1 and 6.2 of the Base Indenture shall not apply to the Notes, and shall be deemed not to be included in the Indenture for
the benefit of the Notes.
Sections
6.1 and 6.2 below shall apply to the Notes and shall be deemed to be included in the Indenture solely for the benefit of the
Notes:
Section 6.1 Events
of Default.
(a) Each
of the following is an “Event of Default” with respect to the Notes:
(1) default
in any payment of interest on any Note when due, continued for 30 days;
(2) default
in the payment of principal of or premium, if any, on any Note when due at its Stated Maturity, upon redemption, acceleration or otherwise;
(3) failure
by the Company to comply for 180 days after notice as provided below with Section 4.2 of this Supplemental Indenture;
(4) failure
by the Company to comply for 90 days after notice as provided below with its agreements (other than the agreements that are the subjects
of clauses (1)-(3) above) contained in the Indenture or the Notes;
(5) default
under any mortgage, indenture or similar instrument under which there is issued or by which there is secured or evidenced any Indebtedness
for money borrowed by the Company (or the payment of which is guaranteed by the Company), other than Indebtedness owed to a Subsidiary,
whether such Indebtedness or guarantee now exists or is created after the Issue Date, which default:
(A) is
caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness (“payment default”); or
(B) results
in the acceleration of such Indebtedness prior to its 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 an outstanding uncured payment
default or the maturity of which has been and remains so accelerated, aggregates $250.0 million or more;
(6) the
Company, pursuant to or within the meaning of any Bankruptcy Law:
(A) commences
a voluntary case or voluntary proceeding;
(B) consents
to the entry of a judgment, decree or order for relief against it in an involuntary case or involuntary proceeding;
(C) consents
to the appointment of a Custodian of it or for any substantial part of its property;
(D) makes
a general assignment of substantially all of its property for the benefit of its creditors; or
(E) transmits
its written consent to or acquiescence in the institution of a bankruptcy proceeding or other collective proceeding for relief by or
against its creditors generally; or
(7) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is
for relief in an involuntary case against the Company, pursuant to or within the meaning of the Bankruptcy Law;
(B) appoints
a Custodian for all or substantially all of the property of the Company, pursuant to or within the meaning of the Bankruptcy Law; or
(C) orders
the winding up or liquidation of the Company, pursuant to or within the meaning of the Bankruptcy Law;
and in case of (A), (B) or (C), the order
or decree remains unstayed or not dismissed and in effect for 60 days following the entry, issuance or effective date thereof.
(b) Notwithstanding
Section 6.1(a), a default under Section 6.1(a)(3) or Section 6.1(a)(4) will not constitute
an Event of Default until the Trustee or the Holders of at least 25% in principal amount of the then Outstanding Notes notify the Company
in writing of the Default and the Company does not cure such Default within the time specified in Section 6.1(a)(3) or
Section 6.1(a)(4) after receipt of such notice. Such notice must specify the Default, demand that it be remedied, and
state that such notice is a “Notice of Default.”
Section 6.2 Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default (other
than an Event of Default described in Section 6.1(a)(6) or (7)) occurs and is continuing, the Trustee by written
notice to the Company, or Holders of at least 25% in principal amount of the then outstanding Notes by written notice to the Company
and the Trustee, may, and the Trustee at the request of Holders of at least 25% in principal amount of the then Outstanding Notes shall,
declare the principal, premium, if any, and accrued and unpaid interest, if any, on all the Notes to be due and payable. Such notice
must specify the Event of Default and state that such notice is a “Notice of Acceleration.” Upon such a declaration, such
principal, premium, if any, and accrued and unpaid interest will be due and payable immediately.
In the event of a declaration
of acceleration of the Notes because an Event of Default described in Section 6.1(a)(5) has occurred and is continuing,
the declaration of acceleration of the Notes shall be automatically annulled if (x) such Indebtedness or guarantee is discharged
in full (other than customary surviving contingent obligations) or (y) the Default triggering such Event of Default pursuant to
Section 6.1(a)(5) shall be remedied or cured by the Company or waived by the Holders of the relevant Indebtedness within
60 days after the written notice of declaration of acceleration of the Notes with respect thereto is received by the Company and if the
annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction.
If an Event of Default pursuant
to Section 6.1(a)(6) or (7) occurs, the principal, premium, if any, and accrued and unpaid interest on all
the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
At any time after a declaration
of acceleration, but before a judgment or decree for the payment of the money due has been obtained by the Trustee, the Holders of a
majority in principal amount of the Outstanding Notes may by notice to the Trustee and the Company (including, without limitation, waivers
and consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes) waive all current defaults (except
with respect to nonpayment of principal, premium, if any, or interest) and rescind any such acceleration with respect to the Notes and
its consequences if rescission would not conflict with any judgment or decree of a court of competent jurisdiction.
ARTICLE VII
SATISFACTION
AND DISCHARGE; DEFEASANCE
In the case of a Covenant
Defeasance as provided in the Base Indenture, (i) the Company will be released from its obligations to comply with Sections 4.1
and 4.2 of this Supplemental Indenture (for the benefit of Holders of Notes) and Section 5.1 of the Base Indenture
(other than Section 5.1(a)) and (ii) the events described in Section 6.1(a), clauses (3), (4) and (5) of
this Supplemental Indenture shall no longer constitute Events of Default with respect to Notes.
ARTICLE VIII
AMENDMENT,
SUPPLEMENT AND WAIVER
Article IX of the Base
Indenture shall not apply to the Notes, provided that nothing in this Supplemental Indenture shall limit or affect the provisions of
Article IX of the Base Indenture (including Section 9.1(f) and Section 9.1(i) thereof) insofar as relating to
any amendment or waiver in respect of any series of Securities other than the Notes.
Section 8.1 Without
Consent of Holders. Notwithstanding Section 8.2 and Section 8.3, without the consent of any Holder of Notes, the Company
and the Trustee may amend or supplement this Supplemental Indenture, the Base Indenture as it relates to the Notes and the Notes to:
(1) cure
any ambiguity, omission, defect or inconsistency;
(2) provide
for the assumption by a successor entity of the obligations of the Company under this Supplemental Indenture, the Base Indenture or the
Notes;
(3) provide
for or facilitate the issuance of uncertificated Notes in addition to or in place of certificated Notes (provided that the uncertificated
Notes are issued in registered form for purposes of Section 163(f) of the Code);
(4) add
Guarantees with respect to the Notes, evidence the release of a Guarantor from its Guarantee or provide for the assumption by a successor
entity of the obligations of a Guarantor in accordance with the applicable provisions of the Indenture;
(5) secure
the Notes;
(6) add
covenants of the Company or other obligor under the Indenture or the Notes, as the case may be, or Events of Default for the benefit
of the Holders of the Notes or to make other changes that would provide additional rights to the Holders of the Notes or to surrender
any right or power conferred upon the Company or other such obligor;
(7) make
any change that does not adversely affect the legal or contractual rights of any Holder under the Indenture or the Notes;
(8) evidence
and provide for the acceptance of an appointment under the Indenture of a successor trustee; provided that the successor trustee
is otherwise qualified and eligible to act as such under the terms of the Indenture;
(9) provide
for the issuance of Additional Notes permitted to be issued under the Indenture;
(10) comply
with the rules of any applicable securities depositary; or
(11) conform
the text of this Supplemental Indenture, the Base Indenture or the Notes to any provision of the section of the Company’s Prospectus
Supplement dated November 21, 2024 entitled “Description of the Notes” or the “Description of Debt Securities”
set forth in the accompanying base prospectus to the extent that such provision in the “Description of the Notes” or the
“Description of Debt Securities” was intended to be a complete description or summary of a provision of the Indenture or
the Notes as evidenced by an Officer’s Certificate.
After an amendment, supplement
or waiver under the Indenture becomes effective, the Company is required to send to the Holders a notice briefly describing such amendment,
supplement or waiver. However, the failure to give such notice to all the Holders, or any defect in the notice, will not impair or affect
the validity of any amendment, supplement or waiver.
Section 8.2 With
Consent of Holders. Except as set forth in Section 8.1 and Section 8.3, the Company and the Trustee may amend or supplement
this Supplemental Indenture, the Base Indenture (as it relates to the Notes) and the Notes with the consent of the Holders of a majority
in principal amount of the Notes then Outstanding (including, without limitation, consents obtained in connection with a purchase of,
or tender offer or exchange offer for, Notes) and any past default or compliance with any provisions of this Supplemental Indenture,
the Base Indenture (as it relates to the Notes) and the Notes may be waived with the consent of the Holders of a majority in principal
amount of the Notes then Outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes).
The consent of the Holders
is not necessary under the Indenture to approve the particular form of any proposed amendment, supplement or waiver. It is sufficient
if such consent approves the substance of the proposed amendment, supplement or waiver. A consent to any amendment, supplement or waiver
under the Indenture by any Holder of Notes given in connection with a tender of such Holder’s Notes will not be rendered invalid
by such tender.
Section 8.3 Limitations.
Notwithstanding Section 8.2, without the consent of each Holder of an Outstanding Note affected, no amendment, supplement or waiver
may (with respect to any Notes held by a non-consenting Holder):
(1) reduce
the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(2) reduce
the stated rate of interest or extend the stated time for payment of interest on any Note;
(3) reduce
the principal of or extend the Stated Maturity of any Note;
(4) waive
a Default or Event of Default in the payment of principal of, premium, if any, or interest on the Notes (except a rescission of acceleration
of the Notes by Holders of a majority in aggregate principal amount of the then outstanding Notes with respect to a nonpayment default
and a waiver of the payment default that resulted from such acceleration);
(5) reduce
the premium payable upon the redemption of any Note or change the time at which any Note may be redeemed as described under Article III,
whether through an amendment or waiver of Article III, related definitions or otherwise;
(6) make
any Note payable in money other than that stated in the Note;
(7) impair
the right of any Holder to receive payment of principal, premium, if any, and interest on such Holder’s Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes; or
(8) make
any change in the amendment or waiver provisions that require each Holder’s consent.
Section 8.4 Compliance
with Trust Indenture Act. Every amendment to this Supplemental Indenture, the Base Indenture (as it relates to the Notes) or the
Notes shall be set forth in a supplemental indenture hereto that complies with the Trust Indenture Act as then in effect. The Trustee
shall have no responsibility or liability for whether this Supplemental Indenture, the Base Indenture, the Notes, or any amendment to
any of them complies with the Trust Indenture Act or the Company’s compliance with the Trust Indenture Act.
Section 8.5 Revocation
and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of Notes is a continuing
consent by the Holder and every subsequent Holder of the Notes or portion of such Notes that evidences the same debt as the consenting
Holder’s Note or Notes, even if notation of the consent is not made on any such Note. However, any such Holder or subsequent Holder
may revoke the consent as to its Notes or portion of such Notes if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective.
Any amendment or waiver in
respect of the Notes once effective shall bind every Holder of Notes affected by such amendment or waiver unless it is of the type described
in any of the clauses of Section 8.3. In that case, the amendment or waiver shall bind each Holder of a Note who has consented
to it and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note.
The Company may, but shall
not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this Supplemental Indenture in respect of the Notes or the Base Indenture
(as it relates to the Notes). If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who
were Holders of Notes at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders of Notes
after such record date.
Section 8.6 Notation
on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment or waiver on the Notes. The Company in
exchange for the Notes may issue and the Trustee shall authenticate upon written request new Notes that reflect the amendment or waiver.
Section 8.7 Effect
of Supplemental Indenture. Upon the execution of any supplemental indenture under this Article VIII, the Indenture (including
this Supplemental Indenture) shall be modified in accordance therewith, and such supplemental indenture shall form a part of the Indenture
for all purposes; and, subject to Section 8.3, every Holder of Notes theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Governing
Law. This Supplemental Indenture, the Indenture and the Notes shall be governed by, and construed in accordance with, the laws of
the State of New York.
EACH OF THE COMPANY AND THE
TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE (AS IT RELATES TO THE NOTES), THE NOTES OR THE TRANSACTION
CONTEMPLATED HEREBY.
Section 9.2 Successors.
All agreements of the Company in this Supplemental Indenture and the Notes shall bind its successors. All agreements of the Trustee in
this Supplemental Indenture shall bind its successors.
Section 9.3 Multiple
Originals. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement. One signed copy is enough to prove this Supplemental Indenture. The exchange of copies
of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and
delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original instrument for all purposes.
Signature pages of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
This Section 9.3 is subject to Section 10.9 of the Base Indenture.
Section 9.4 Paying
Agent and Security Registrar. The Company initially appoints the Trustee as Paying Agent and Security Registrar with respect to any
Global Notes.
Section 9.5 Severability.
In case any provision in this Supplemental Indenture, the Indenture or the Notes 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 9.6 Trust
Indenture Act Controls. If any provision of the Indenture limits, qualifies, or conflicts with another provision that is required
or deemed to be included in the Indenture by the Trust Indenture Act, such required or deemed provision shall control. If any provision
of the Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the provision of
the Trust Indenture Act shall be deemed to apply to the Indenture as so modified or shall be excluded, as the case may be.
Section 9.7 Table
of Contents; Headings. The table of contents, cross-reference sheet and headings of the Articles and Sections of this Supplemental
Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify
or restrict any of the terms or provisions hereof.
Section 9.8 No
Adverse Interpretation of Other Agreements. The Indenture insofar as relating to the Notes may not be used to interpret any other
indenture, loan or debt agreement (including the Indenture (including any other supplemental indenture thereto) insofar as relating to
any series of Securities other than the Notes) of the Company or any Subsidiaries or of any other Person. Any such indenture, loan or
debt agreement (including the Indenture (including any other supplemental indenture thereto) insofar as relating to any series of Securities
other than the Notes) may not be used to interpret the Indenture insofar as relating to the Notes.
Section 9.9 Ratification
and Incorporation of Base Indenture. As supplemented hereby, the Base Indenture is in all respects ratified and confirmed, and the
Base Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument. This Supplemental Indenture
shall form a part of the Indenture for all purposes (as it relates to the Notes), and every Holder of Notes shall be bound hereby.
Section 9.10 Benefits
of Supplemental Indenture. Nothing in this Supplemental Indenture or the Base Indenture (as it relates to the Notes) or in the Notes,
express or implied, shall give to any Person, other than the parties to this Supplemental Indenture and their successors hereunder and
the Holders of the Notes, any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture as it relates
to the Notes or the Indenture.
SECTION 9.11 The
Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity, sufficiency or adequacy
of this Supplemental Indenture or for or in respect of the statements or recitals contained herein, all of which recitals are made solely
by the Company, and the Trustee assumes no responsibility for their correctness.
IN WITNESS WHEREOF, the parties
hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
|
EXPAND ENERGY CORPORATION
as the Company |
|
|
|
By: |
/s/ Mohit Singh |
|
Name: |
Mohit Singh |
|
Title: |
Executive Vice President
and Chief Financial Officer |
|
TRUSTEE: |
|
|
|
REGIONS BANK,
as Trustee |
|
|
|
By: |
/s/
Shawn Bednasek |
|
Name: |
Shawn Bednasek |
|
Title: |
Senior Vice President |
EXHIBIT A
FORM OF FACE OF NOTE
[THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE “DEPOSITARY”) TO THE NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY),
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.]1
1 Depositary legend, if applicable.
No. [ ] |
Principal Amount $ [ ]
[as revised by the Schedule of Increases
and Decreases in the Global Note attached
hereto]1 |
|
|
|
CUSIP NO. 165167DH7
ISIN US165167DH73 |
EXPAND ENERGY CORPORATION
5.700% Senior Note due 2035
Expand
Energy Corporation, an Oklahoma corporation, promises to pay to [Cede & Co.]1 or registered assigns, the principal
sum of [ ] Dollars, [as revised by the Schedule of Increases and Decreases in the Global Note attached hereto]1, on January 15,
2035.
Interest Payment Dates: January 15
and July 15, commencing July 15, 2025.
Regular Record Dates: January 1
and July 1.
Additional provisions of
this Note are set forth on the other side of this Note.
1 For Global Notes.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officer.
|
EXPAND ENERGY CORPORATION |
|
|
|
By: |
|
|
Name: |
|
Title: |
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Dated:
Regions Bank,
as Trustee, certifies that this is one of the Notes referred to in
the Indenture.
FORM OF REVERSE SIDE OF NOTE
5.700% Senior Note due 2035
Expand Energy Corporation,
an Oklahoma corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called
the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above.
The Company shall pay interest
semiannually on January 15 and July 15 of each year, commencing July 15, 2025. Interest on the Notes shall accrue from
the most recent date to which interest has been paid on the Notes or, if no interest has been paid, from December 2, 2024. The Company
shall pay interest on overdue principal or premium, if any (plus interest on overdue installments of interest to the extent lawful),
at the rate borne by the Notes to the extent lawful. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.
By no later than 12:30 p.m. (New
York City time) on the date on which any principal of, premium, if any, or interest on any Note is due and payable, the Company shall
irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal, premium, if any, or interest. The Company
shall pay interest (except Defaulted Interest) to the Persons who are registered Holders at the close of business on the January 1
or July 1 immediately preceding the interest payment date even if the Notes are cancelled or repurchased after the Regular Record
Date and on or before the Interest Payment Date. Holders must surrender the Notes to a Paying Agent to collect principal payments. The
Company shall pay principal of, premium, if any, and interest on the Notes in money of the United States that at the time of payment
is legal tender for payment of public and private debts. The Company shall pay principal of, premium, if any, and interest on the Notes
at the office or agency designated by the Company, which is initially the corporate trust office of the Trustee in Birmingham, Alabama.
The Company shall pay principal of, premium, if any, and interest on the Global Notes registered in the name of or held by the Depositary
or its nominee in immediately available funds to the Depositary or its nominee, as the case may be, as the registered holder of such
Global Note. The Company shall make all payments in respect of a Definitive Note by mailing a check to the registered address of each
Holder thereof as such address shall appear on the Security Registrar’s books; provided, however, that payments on
the Notes represented by Definitive Notes may also be made, by wire transfer to a U.S. dollar account maintained by the payee with a
bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent
in accordance with the terms of the Indenture.
| 3. | Paying Agent and Security Registrar |
Initially, Regions Bank,
the trustee under the Indenture (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being
herein called the “Trustee”), shall act as Paying Agent and Security Registrar. The Company may appoint and change
any Paying Agent or Security Registrar without notice to any Holder. The Company or any of its Subsidiaries may act as Paying Agent or
Security Registrar.
The Company issued the Notes
as a series of Securities under the Indenture dated as of December 2, 2024 (the “Base Indenture”) between the
Company and the Trustee, as supplemented by the First Supplemental Indenture dated as of December 2, 2024 (the “Supplemental
Indenture” and, together with the Base Indenture and any one or more additional supplemental indentures thereto applicable
to the Notes, herein called the “Indenture”) by and between the Company and the Trustee. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. Capitalized terms used herein
and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a statement of those terms. In the event of any inconsistency between the terms
of this Note and the terms of the Indenture, the terms of the Indenture shall control.
The aggregate principal amount
of Notes that may be authenticated and delivered under the Indenture is unlimited. This Note is one of the 5.700% Senior Notes due 2035
referred to in the Indenture. The Notes include (i) $750,000,000 aggregate principal amount of the Company’s 5.700% Senior
Notes due 2035 issued under the Indenture on December 2, 2024 in an offering registered under the Securities Act (the “Initial
Notes”), and (ii) if and when issued, an unlimited principal amount of additional 5.700% Senior Notes due 2035 that may
be issued from time to time, under the Indenture, subsequent to December 2, 2024 (the “Additional Notes” and,
together with the Initial Notes, the “Notes”). The Initial Notes and the Additional Notes shall be considered collectively
as a single series of Securities for all purposes of the Indenture.
(a) Prior
to October 15, 2034 (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part,
at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal
places) equal to the greater of (1) (a) the sum of the present values of the remaining scheduled payments of principal and
interest on the Notes to be redeemed discounted to the Redemption Date (assuming the Notes matured on the Par Call Date) on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points less (b) interest accrued
to the Redemption Date, and (2) 100% of the principal amount of the Notes to be redeemed, plus, in either case, accrued and unpaid
interest thereon to but not including the Redemption Date.
(b) On
or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption
Price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to but not including
the Redemption Date.
6. | Denominations; Transfer; Exchange |
The Notes are in registered
form without coupons in denominations of principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. A Holder may
transfer or exchange Notes in accordance with the Indenture. The Security Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents. No service charge will be imposed by the Company, the Trustee or
the Security Registrar for any registration of transfer or exchange of the Notes, but the Company may require a Holder to pay a sum sufficient
to cover any transfer tax or other governmental taxes and fees required by law or permitted by the Indenture. The Company is not required
to transfer or exchange any Note selected for redemption or any Note for a period of 15 days before a selection of the Notes to be redeemed.
The registered Holder of
this Note shall be treated as the owner of it for all purposes.
Subject to applicable unclaimed
property laws, if money for the payment of the principal of, or premium, if any, or interest remains unclaimed for two years, the Trustee
or Paying Agent shall pay the money back to the Company at its written request unless an abandoned property law designates another Person.
After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee or the Paying Agent for payment.
Subject to certain conditions
set forth in the Indenture, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if
the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest
on the Notes to Stated Maturity or a specified redemption date.
10. | Amendment, Supplement and Waiver |
The Supplemental Indenture,
the Base Indenture (as it relates to the Notes) and the Notes may be amended or supplemented and certain provisions may be waived as
provided in the Indenture.
The Events of Default as
to the Notes are defined in Section 6.1 of the Supplemental Indenture. Upon the occurrence of an Event of Default, the rights and
obligations of the Company, the Trustee and the Holders shall be as set forth in the applicable provisions of the Indenture.
12. | Trustee Dealings with the Company |
Subject to certain limitations
set forth in the Indenture, the Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or pledgee of the Notes and may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
13. | No Recourse Against Others |
No past, present or future
director, officer, employee, manager, member, partner, incorporator or stockholder of the Company, as such, will have any liability for
any obligations of the Company, respectively, under the Notes or the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes.
This Note shall not be valid
until an authorized signatory of the Trustee (or an Authenticating Agent acting on its behalf) manually signs the certificate of authentication
on the other side of this Note.
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 entirety), JT TEN (=joint
tenants with rights of survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the
Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other
identification numbers placed thereon.
This Note shall be governed
by, and construed in accordance with, the laws of the State of New York.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note 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 Note on the books of the Company. The agent may substitute another to act for him.
Date: _______________________ |
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Your Signature:
_______________________ |
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Signature Guarantee: |
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(Signature must be guaranteed) |
Sign exactly as your name appears on the other
side of this Note.
The signature(s) should be guaranteed by
an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved
signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL
NOTE1
The following increases or
decreases in this Global Note have been made:
Date of Increase / Decrease |
|
Amount of decrease in Principal Amount of this
Global Note |
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Amount of increase in Principal Amount of this
Global Note |
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Principal Amount of this Global Note following
such decrease or increase |
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Signature of authorized signatory of Trustee or
Notes Custodian |
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1 Global Notes.
Exhibit 5.1
|
811 Main Street, Suite 3700 |
|
Houston, TX 77002 |
|
Tel: +1.713.546.5400 Fax: +1.713.546.5401 |
|
www.lw.com |
|
FIRM / AFFILIATE OFFICES |
|
Beijing |
Moscow |
|
Boston |
Munich |
|
Brussels |
New York |
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Century City |
Orange County |
|
Chicago |
Paris |
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Dubai |
Riyadh |
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Düsseldorf |
Rome |
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Frankfurt |
San Diego |
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Hamburg |
San Francisco |
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Hong Kong |
Seoul |
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Houston |
Shanghai |
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London |
Silicon Valley |
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Los Angeles |
Singapore |
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Madrid |
Tokyo |
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Milan |
Washington, D.C. |
December 2, 2024
Expand Energy Corporation
6100 North Western Avenue
Oklahoma City, OK 73118
Re: Registration Statement No. 333-283348; $750,000,000 Aggregate
Principal Amount of 5.700% Senior Notes Due 2035
To the addressees set forth above:
We have acted as special counsel
to Expand Energy Corporation, an Oklahoma corporation (the “Company”), in connection with the issuance of $750,000,000
aggregate principal amount of 5.700% Senior Notes due 2035 (the “Notes”), under the Indenture, dated
the date hereof (the “Base Indenture”), by and between the Company and Regions Bank, as trustee (the “Trustee”),
as supplemented by the First Supplemental Indenture (the “First Supplemental Indenture”), dated as
of the date hereof, by and between such parties (the Base Indenture, as supplemented by the First Supplemental Indenture, the “Indenture”),
and pursuant to a registration statement on Form S-3 under the Securities Act of 1933, as amended (the “Act”),
filed with the Securities and Exchange Commission (the “Commission”) on November 20, 2024 (Registration
No. 333-283348) (the “Registration Statement”), an accompanying base prospectus, dated November 20,
2024, and included in the Registration Statement at the time it originally became effective (the “Base Prospectus”),
and a final prospectus supplement, dated November 21, 2024, and filed with the Commission pursuant to Rule 424(b) under
the Act on November 22, 2024 (together with the Base Prospectus, the “Prospectus”). This opinion is being
furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein
as to any matter pertaining to the contents of the Registration Statement or Prospectus, other than as expressly stated herein with respect
to the issuance of the Notes.
As such counsel, we have examined
such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied
upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified
such factual matters. We are opining herein as to the internal laws of the State of New York, and we express no opinion with respect to
the applicability thereto, or the effect thereon, of the laws of any other jurisdiction, or as to any matters of municipal law or the
laws of any local agencies within any state. Various issues pertaining to the laws of the State of Oklahoma are addressed in the opinion
of Derrick & Briggs, LLP, separately provided to you. We express no opinion with respect to those matters herein, and to the
extent elements of those opinions are necessary to the conclusions expressed herein, we have, with your consent, assumed such matters.
December 2, 2024
Page 2
Subject to the foregoing and the other matters set forth herein, it
is our opinion that, as of the date hereof, when the Indenture has been duly authorized, executed, and delivered by all necessary corporate
action of the Company, and when the Notes have been duly authorized, executed, issued, and authenticated in accordance with the terms
of the Indenture and delivered against payment therefor in the circumstances contemplated
by the underwriting agreement, dated November 21, 2024, by and among the underwriters named therein and the Company, the
Notes will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
Our opinion is subject
to: (i) the effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors; (ii) (a) the effect of general principles of equity,
whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive
relief), (b) concepts of materiality, reasonableness, good faith and fair dealing, and (c) the discretion of the court
before which a proceeding is brought; and (iii) the invalidity under certain circumstances under law or court decisions of
provisions providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or
contribution is contrary to public policy. We express no opinion as to (a) any provision for liquidated damages, default
interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed
to constitute a penalty, (b) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies, or
judicial relief, (c) the waiver of rights or defenses contained in Section 4.4 of the Indenture, (d) any provision requiring the payment of attorneys’ fees, where
such payment is contrary to law or public policy, (e) any provision permitting, upon acceleration of any Notes, collection of
that portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon, (f) the
creation, validity, attachment, perfection, or priority of any lien or security interest, (g) advance waivers of claims,
defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury
or at law, or other procedural rights, (h) waivers of broadly or vaguely stated rights, (i) provisions for exclusivity,
election or cumulation of rights or remedies, (j) provisions authorizing or validating conclusive or discretionary
determinations, (k) grants of setoff rights, (l) proxies, powers and trusts, (m) provisions prohibiting, restricting,
or requiring consent to assignment or transfer of any right or property, (n) any provision to the extent it requires that a
claim with respect to a security denominated in other than U.S. dollars (or a judgment in respect of such a claim) be converted into
U.S. dollars at a rate of exchange at a particular date, to the extent applicable law otherwise provides, and (o) the
severability, if invalid, of provisions to the foregoing effect.
December 2, 2024
Page 3
With your consent, we have
assumed (a) that the Indenture and the Notes (collectively, the “Documents”) have been duly authorized,
executed and delivered by the parties thereto, (b) that the Documents constitute legally valid and binding obligations of
the parties thereto other than the Company, enforceable against each of them in accordance with their respective terms and (c) that
the status of the Documents as legally valid and binding obligations of the parties is not affected by any (i) breaches
of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders,
or (iii) failures to obtain required consents, approvals or authorizations from, or make required registrations, declarations
or filings with, governmental authorities.
This opinion is for your benefit in connection with the Registration
Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We
consent to your filing this opinion as an exhibit to the Company’s Current Report on Form 8-K dated December 2, 2024
and to the reference to our firm contained in the Prospectus under the heading “Legal Matters.” In giving such consent, we
do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
|
Sincerely, |
|
|
|
/s/ Latham & Waktins LLP |
Exhibit 5.2
DERRICK & BRIGGS, LLP
A PROFESSIONAL
PARTNERSHIP
ATTORNEYS AND COUNSELORS AT LAW
BANCFIRST TOWER, SUITE 2700
100 NORTH BROADWAY AVENUE
OKLAHOMA CITY, OKLAHOMA 73102
December 2, 2024
Expand Energy Corporation
6100 North Western Avenue
Oklahoma City, Oklahoma 73118
| Re: | Expand Energy Corporation
- Registration Statement No. 333-283348 |
Ladies and Gentlemen:
We serve as Oklahoma counsel
to Expand Energy Corporation, an Oklahoma corporation (the “Company”), in connection with the issuance by the Company
of $750,000,000 aggregate principal amount of the Company’s 5.700% Senior Notes due 2035 (the “Notes”) under
(a) the Registration Statement No. 333-283348 on Form S-3 (the “Initial Registration Statement”) filed
on November 20, 2024, with the Securities and Exchange Commission (the “Commission”) under the Securities Act
of 1933, as amended (the “Securities Act”) and (b) the related prospectus of the Company dated November 20,
2024, as supplemented by the prospectus supplement relating to the sale of the Notes dated December 2, 2024 (as so supplemented,
the “Prospectus”). Capitalized terms not otherwise defined in this Opinion Letter have the meanings ascribed in the
Registration Statement. At your request, this Opinion Letter is being furnished to you for filing as Exhibit 5.2 to the Current Report
of the Company on Form 8-K to be filed with the Commission on or about this date (the “Form 8-K”).
The Company is selling
the Notes under the terms of an Underwriting Agreement dated as of November 21, 2024 (the “Underwriting Agreement”),
between the Company and the several underwriters named in the Underwriting Agreement (the “Underwriters”), and J.P.
Morgan Securities LLC, TD Securities (USA) LLC and BofA Securities, Inc., as Representatives of the Underwriters (the “Representatives”).
The Notes are to be issued under an Indenture,
dated as of December 2, 2024 (the “Base Indenture”) between the Company, and Regions Bank, as trustee (the “Trustee”),
as amended by a Supplemental Indenture to be dated as of December 2, 2024 (the “Supplemental Indenture” and together
with the Base Indenture, the “Indenture”).
We are providing this
Opinion Letter to fulfill the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In preparing this Opinion
Letter, we have examined (i) the certificate of incorporation, (the “Organizational Documents”) of the Company,
(ii) the Registration Statement and its exhibits, (iii) the Indenture and (iv) originals or copies certified or otherwise
identified to our satisfaction of such other instruments and other certificates of public officials and of officers and representatives
of the Company as we have deemed appropriate as a basis for our opinions.
We have assumed: (i) the
genuineness of any signatures on all documents we have reviewed; (ii) the legal capacity of natural persons who have executed all
documents we have reviewed; (iii) the authenticity of all documents submitted to us as originals; (iv) the conformity to originals
of all documents submitted as copies and the authenticity of the originals of such copies; (v) the truth, accuracy and completeness
of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed
and relied upon; (vi) the accuracy, completeness and authenticity of certificates of public officials; (vii) that the Registration
Statement and the Organizational Documents of the Company, as amended to this date, will not have been amended after this date in a manner
that would affect the validity of our opinions; and (viii) that the Underwriting Agreement will constitute the valid and legally
binding obligation of the Company, enforceable against the Company in accordance with its terms. We have relied upon a certificate and
other assurances of officers of the Company as to factual matters without having independently verified such factual matters.
We have further assumed
that:
(i) The
Registration Statement, and any amendments (including post-effective amendments), has become effective and complies with applicable law;
(ii) The
Prospectus (as supplemented) complies with applicable law and has been prepared and filed with the Commission describing the Notes offered
at such time; and
(iii) The
Notes will be issued and sold in compliance with Federal and state securities laws and in the manner stated in the Registration Statement
and the Prospectus.
Our opinions are limited
to matters governed by the laws of the State of Oklahoma, and we express no opinion as to the laws of any other jurisdiction or as to
the effect of or compliance with any state securities or blue sky laws.
Based upon the foregoing
and on such legal considerations as we deem relevant, and subject to the assumptions, limitations and qualifications set forth in this
Opinion Letter and in reliance on the statements of fact contained in the documents we have examined, we are of the opinion that:
1. The
Company (a) is validly existing as a corporation under the laws of the State of Oklahoma, (b) is in good standing under such
laws, and (c) has the corporate power and authority under such laws and has taken all necessary corporate action under such laws
to issue the Notes and to execute and deliver, and incur and perform all of its obligations under, the Notes and the Indenture.
We hereby consent to the
reference to our firm under the caption “Legal Matters” in the Prospectus and to the filing of this Opinion Letter as an exhibit
to the Form 8-K. In giving this consent, we do not admit that we are within the category of persons whose consent is required under
Section 7 of the Securities Act or the applicable rules and regulations of the Commission.
|
Very truly yours, |
|
|
|
/s/ Derrick & Briggs, LLP |
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Expand Energy (NASDAQ:EXEEZ)
Gráfico Histórico do Ativo
De Nov 2024 até Dez 2024
Expand Energy (NASDAQ:EXEEZ)
Gráfico Histórico do Ativo
De Dez 2023 até Dez 2024