Exhibit 4.2
CONSOL ENERGY INC.
SUPPLEMENTAL INDENTURE NO. 1
$250,000,000
7.875% Notes due 2012
THIS SUPPLEMENTAL INDENTURE NO. 1, dated as of March 7, 2002 (this
"Supplemental Indenture"), between CONSOL ENERGY INC., a Delaware corporation
(the "Company"), the Guarantors listed on Schedule I hereto and THE BANK OF NOVA
SCOTIA TRUST COMPANY OF NEW YORK, a New York trust company, as trustee under the
Indenture referred to below (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Indenture, dated as of March 7, 2002 (the "Indenture"), providing for the
issuance from time to time of one or more series of Securities;
WHEREAS, Article IX of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture;
WHEREAS, Section 9.01 of the Indenture provides that the Company and the
Trustee may enter into an indenture supplemental to the Indenture to establish
the form or terms of Securities of any series as permitted by Sections 2.01 of
the Indenture; and
WHEREAS, all the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the issuance of the series of
Securities provided for herein, the Company and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective Holders of
the Securities of such series as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.1 Relation to Indenture. This Supplemental Indenture constitutes
---------------------
an integral part of the Indenture.
SECTION 1.2 Definitions. For all purposes of this Supplemental Indenture,
-----------
the following terms shall have the respective meanings set forth in this
Section.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Regulation S Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Global Security, to the extent
applicable to such transaction and as in effect from time to time.
"Definitive Security" means a certificated Security (bearing the Restricted
Securities Legend if the transfer of such Security is restricted by applicable
law) that does not include the Global Securities Legend.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors.
"Exchange Offer Prospectus" means the prospectus included in the Exchange
Offer Registration Statement, as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Exchange Securities covered by such Exchange Offer Registration Statement, and
all amendments and supplements thereto and all material incorporated by
reference therein.
"Exchange Offer Registration Period" means the one-year period following
the consummation of the Registered Exchange Offer, exclusive of any period
during which any stop order shall be in effect suspending the effectiveness of
the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration statement of
the Company on an appropriate form under the Securities Act with respect to the
Registered Exchange Offer, all amendments and supplements to such registration
statement, including post-effective amendments thereto, in each case including
the Exchange Offer Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" means the Securities of the Company issued in
exchange for Initial Securities under the terms of the Registration Agreement
and pursuant to the Indenture and this Supplemental Indenture in connection with
the Registered Exchange Offer.
"Global Security" has the meaning set forth in Section 2.3(b) herein.
"Global Securities Legend" means the legend set forth under that caption in
Exhibit A to this Supplemental Indenture.
"Guarantors" means those subsidiaries of the Company listed on Schedule I
hereto.
"Indenture" means the Indenture relating to the Securities, dated as of
March 7, 2002, among the Company, the Guarantors listed on Schedule I thereto
and The Bank of Nova Scotia Trust Company of New York, as trustee, as the same
may be amended from time to time in accordance with the terms thereof.
2
"Initial Purchasers" means Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxx Financial
Markets, LLC, Scotia Capital (USA) Inc., PNC Capital Markets, Inc., Dresdner
Kleinwort Xxxxxxxxxxx-Grantchester, Inc., Australia and New Zealand Banking
Group Limited-London Branch, and NatCity Investments, Inc.
"Initial Securities" means the Rule 144A Securities and the Regulation S
Securities.
"Participant" means members of, or participants in, the Depositary.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the Exchange Securities covered by
such Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
"Purchase Agreement" means the Purchase Agreement dated March 4, 2002,
among the Company, the Guarantors and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registered Exchange Offer" means the offer by the Company, made pursuant
to the terms of the Registration Agreement, to certain Holders of Initial
Securities, to issue and deliver to such Holders, in exchange for their Initial
Securities, a like aggregate principal amount of Exchange Securities registered
under the Securities Act.
"Registration Agreement" means the Registration Rights Agreement dated
March 7, 2002, among the Company, the Guarantors and the Initial Purchasers.
"Registration Statement" means any Exchange Offer Registration Statement or
Shelf Registration Statement that covers any of the Securities or the Exchange
Securities pursuant to the provisions of this Supplemental Indenture, any
amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Securities" has the meaning set forth in Section
2.3(b).
"Regulation S Legend" means the legend set forth in Section 2.4(e)(iv)
herein.
"Regulation S Securities" means all Initial Securities offered and sold
outside the United States in reliance on Regulation S.
3
"Restricted Period" with respect to any Regulation S Securities means the
period of 40 consecutive days beginning on and including the later of (i) the
day on which such Securities are first offered to persons other than
distributors (as defined in Regulation S) in reliance on Regulation S and (ii)
the original issue date with respect to such Securities.
"Restricted Securities Legend" means the legend set forth in Section
2.4(e)(i) herein.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all Initial Securities offered and sold to
QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities" means the 7.875% Notes due March 1, 2012.
"Securities Registrar" means the custodian with respect to a Global
Security (as appointed by the Depositary) or any successor person thereto, who
will initially be the Trustee.
"Shelf Registration Period" has the meaning set forth in Section 3(b) of
the Registration Agreement.
"Shelf Registration Statement" means a registration statement filed by the
Company in connection with the offer and sale of the Initial Securities or the
Exchange Securities pursuant to Section 3 of the Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities and any other
Securities that bear or are required to bear the Restricted Securities Legend.
SECTION 1.3 Rules of Construction. For all purposes of this Supplemental
---------------------
Indenture:
(a) capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(b) all references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture;
(c) the terms "herein," "hereof," "hereunder" and other words of
similar import refer to this Supplemental Indenture; and
(d) in the event of a conflict with the definition of terms in the
Indenture, the definitions in this Supplemental Indenture shall control.
4
ARTICLE TWO
THE SECURITIES
SECTION 2.1 Title of the Securities. The Securities shall be designated the
-----------------------
7.875% Notes due March 1, 2012.
SECTION 2.2 Limitation on Aggregate Principal Amount. The Securities will
---------------------------------------
be initially issued in an aggregate principal amount of $250,000,000.
SECTION 2.3 Form and Dating.
---------------
(a) General. The Securities and the Trustee's certificate of
-------
authentication shall be substantially in the form of Exhibit A hereto. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Security shall be dated the date of its
authentication. The Securities shall be in denominations of $1,000 and integral
multiples thereof. The terms and provisions contained in the Securities 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 Security conflicts
with the express provisions of this Supplemental Indenture, the provisions of
this Supplemental Indenture shall govern and be controlling. The Initial
Securities issued on the date hereof will be (i) offered and sold by the Company
pursuant to the Purchase Agreement and (ii) resold initially only to (A) QIBs in
reliance on Rule 144A and (B) Persons other than U.S. Persons (as defined in
Regulation S) in reliance on Regulation S. Such Initial Securities may
thereafter be transferred to, among others, QIBs and purchasers in reliance on
Regulation S. The Company hereby designates The Depository Trust Company as the
initial Depositary for the Global Securities.
(b) Global Securities. The Rule 144A Securities shall be issued
-----------------
initially in the form of one or more permanent Global Securities in definitive,
fully registered form (collectively, the "Rule 144A Global Security") and the
Regulation S Securities shall be issued initially in the form of one or more
Global Securities (collectively, the "Regulation S Global Security"), in each
case without interest coupons and bearing the Global Securities Legend and
Restricted Securities Legend (and in the case of the Regulation S Global
Securities, the Regulation S Legend), which shall be deposited on behalf of the
purchasers of the Securities represented thereby with the Securities Custodian,
and registered in the name of the Depositary or a nominee of the Depositary,
duly executed by the Company and authenticated by the Trustee as provided in the
Indenture. Beneficial ownership interests in the Regulation S Global Security
shall not be exchangeable for interests in the Rule 144A Global Security or any
other Security without a Restricted Securities Legend until the expiration of
the Restricted Period. The Rule 144A Global Security and the Regulation S Global
Security are each referred to herein as a "Global Security" and are collectively
referred to herein as "Global Securities." The aggregate principal amount of the
Global Securities may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depositary or its nominee as
hereinafter provided.
5
(c) Book-Entry Provisions. This Section 2.3(c) shall apply only to a
---------------------
Global Security deposited with or on behalf of the Depositary. The Company shall
execute and the Trustee shall, in accordance with this Section 2.3(c) and
pursuant to an order of the Company, authenticate and deliver initially one or
more Global Securities that (a) shall be registered in the name of the
Depositary for such Global Security or Global Securities or the nominee of such
Depositary and (b) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions or held by the Trustee as Securities
Custodian. Participants shall have no rights under the Indenture with respect to
any Global Security held on their behalf by the Depositary or by the Trustee as
Securities Custodian or under such Global Security, 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 Security 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 Participants, 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.
(d) Definitive Securities. Except as provided in Section 2.11 of the
---------------------
Indenture, owners of beneficial interests in Global Securities will not be
entitled to receive physical delivery of certificated Securities.
SECTION 2.4 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Securities. When Definitive
----------------------------------------------
Securities are presented to the Securities Registrar with a request:
(i) to register the transfer of such Definitive Securities; or
(ii) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations;
the Securities Registrar shall register the transfer or make the
exchange as requested if its reasonable requirements for such
transaction are met; provided, however, that the Definitive Securities
surrendered for transfer or exchange:
(A) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the
Company and the Securities Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing; and
(B) are accompanied by the following additional information
and documents, as applicable:
(x) if such Definitive Securities are being delivered
to the Securities Registrar by a Holder for registration in
the name of such Holder, without transfer, a certification
from such Holder to
6
that effect (in the form set forth on the reverse side of
the Initial Security); or
(y) if such Definitive Securities are being transferred
to the Company, a certification to that effect (in the form
set forth on the reverse side of the Initial Security); or
(C) if such Definitive Securities are being transferred
pursuant to an exemption from registration in accordance with
Rule 144 under the Securities Act or in reliance upon another
exemption from the registration requirements of the Securities
Act, (i) a certification to that effect (in the form set forth on
the reverse side of the Initial Security) and (ii) if the Company
so requests, an opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the restrictions set
forth in the legend set forth in Section 2.4(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a Beneficial
------------------------------------------------------------------
Interest in a Global Security. A Definitive Security may not be exchanged for a
-----------------------------
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Company and the Securities Registrar,
together with:
(i) certification (in form set forth on the reverse side of the
Initial Security) that such Definitive Security is being transferred (A) to
a QIB in accordance with Rule 144A, or (B) outside the United States in an
offshore transaction within the meaning of Regulation S and in compliance
with Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to direct
the Securities Custodian to make, an adjustment on its books and records
with respect to such Global Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Global
Security, such instructions to contain information regarding the Depositary
account to be credited with such increase,
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased by the aggregate principal amount of the Definitive Security to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global Security
equal to the principal amount of the Definitive Security so canceled. If no
Global Securities are then outstanding and the Global Security has not been
previously exchanged for certificated securities pursuant to Section 2.11 of the
Indenture, the Company shall issue and the Trustee shall authenticate, upon
written order of the Company in the form of an Officers' Certificate, a new
Global Security in the appropriate principal amount.
7
(c) Transfer and Exchange of Global Securities.
------------------------------------------
(i) The transfer and exchange of Global Securities or beneficial
interests therein shall be effected through the Depositary in accordance
with this Supplemental Indenture (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the Depositary
therefor. A transferor of a beneficial interest in a Global Security shall
deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global
Security or another Global Security and such account shall be credited in
accordance with such order with a beneficial interest in the applicable
Global Security and the account of the Person making the transfer shall be
debited by an amount equal to the beneficial interests in the Global
Security being transferred. Transfers by an owner of a beneficial interest
in a Rule 144A Global Security to a transferee who takes delivery of such
interest through a Regulation S Global Security, whether before or after
the expiration of the Restricted Period, shall be made only upon receipt by
the Trustee of a certification from the transferor to the effect that such
transfer is being made in accordance with Regulation S or (if available)
Rule 144 under the Securities Act.
(ii) If the proposed transfer is a transfer of a beneficial interest
in one Global Security to a beneficial interest in another Global Security,
the Securities Registrar shall reflect on its books and records the date
and an increase in the principal amount of the Global Security to which
such interest is being transferred in an amount equal to the principal
amount of the interest to be so transferred, and the Registrar shall
reflect on its books and records the date and a corresponding decrease in
the principal amount of Global Security from which such interest is being
transferred.
(iii) Notwithstanding any other provisions of this Supplemental
Indenture (other than the provisions set forth in Section 2.11 of the
Indenture), a Global Security may not be transferred as a whole except by
the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.
(iv) In the event that a Global Security is exchanged for Definitive
Securities pursuant to Section 2.11 of the Indenture prior to the
consummation of the Registered Exchange Offer or the effectiveness of the
Shelf Registration Statement with respect to such Securities, such
Securities may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.4 (including
the certification requirements set forth on the reverse of the Initial
Securities intended to ensure that such transfers comply with Rule 144A,
Regulation S or such other applicable exemption from
8
registration under the Securities Act, as the case may be) and such other
procedures as may from time to time be adopted by the Company.
(d) Restrictions on Transfer of Regulation S Global Security.
--------------------------------------------------------
(i) During the Restricted Period, beneficial ownership interests in a
Regulation S Global Security may only be sold, pledged or transferred in
accordance with the Applicable Procedures and only (A) to the Company, (B)
so long as such security is eligible for resale pursuant to Rule 144A, to a
person whom the selling holder reasonably believes is a QIB that purchases
for its own account or for the account of a QIB to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule 144A,
(C) in an offshore transaction in accordance with Regulation S, (D)
pursuant to an exemption from registration under the Securities Act
provided by Rule 144 (if applicable) under the Securities Act, or (E)
pursuant to an effective registration statement under the Securities Act,
in each case in accordance with any applicable securities laws of any state
of the United States. Prior to the expiration of the Restricted Period,
transfers by an owner of a beneficial interest in a Regulation S Global
Security to a transferee who takes delivery of such interest through a Rule
144A Global Security shall be made only in accordance with the Applicable
Procedures and upon receipt by the Trustee of a written certification from
the transferor of the beneficial interest in the form provided on the
reverse of the Initial Security to the effect that such transfer is being
made to a person whom the transferor reasonably believes is a QIB within
the meaning of Rule 144A. Such written certification shall no longer be
required after the expiration of the Restricted Period.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in a Regulation S Global Security shall be transferable
in accordance with applicable law and the other terms of the Indenture.
(e) Legends for Securities.
----------------------
(i) Except as permitted by the following paragraphs (ii) or (iii),
each Security certificate evidencing the Global Securities and the
Definitive Securities (and all Securities issued in exchange therefor or in
substitution thereof) shall bear a legend in substantially the following
form (each defined term in the legend being defined as such for purposes of
the legend only):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION, NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE
9
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH EITHER THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1),(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO THE RIGHT OF THE COMPANY AND THE TRUSTEE PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
Each Security evidencing a Global Security offered and sold to QIBs pursuant to
Rule 144A shall bear a legend in substantially the following form:
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS
SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
10
Each Definitive Security shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITIES
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS
SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted Security that
is a Definitive Security, the Securities Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a Definitive
Security that does not bear the legends set forth above and rescind any
restriction on the transfer of such Transfer Restricted Security if the
Holder certifies in writing to the Securities Registrar that its request
for such exchange was made in reliance on Rule 144 (such certification to
be in the form set forth on the reverse of the Initial Security).
(iii) After a transfer of any Initial Securities during the period of
the effectiveness of a Shelf Registration Statement with respect to such
Initial Securities, all requirements pertaining to the Restricted
Securities Legend on such Initial Securities shall cease to apply and the
requirements that any such Initial Securities be issued in global form
shall continue to apply.
(iv) Any Initial Security that is a Regulation S Security, and any
Security issued pursuant to the sale or transfer of a Regulation S Security
during the Restricted Period, shall bear the following legend:
PRIOR TO EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS
DEFINED IN REGULATION S), THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES WITHIN THE MEANING OF
REGULATION S OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON WITHIN
THE MEANING OF REGULATION S OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S.
PERSON WITHIN THE MEANING OF REGULATION S, EXCEPT TO A PERSON REASONABLY
BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND THE INDENTURE.
(v) Upon the consummation of a Registered Exchange Offer with respect
to the Initial Securities pursuant to which Holders of such Initial
Securities are offered Exchange Securities in exchange for their Initial
Securities, all requirements pertaining to Initial Securities that Initial
Securities be issued in global form shall continue to apply, and Exchange
Securities in global form without the Restricted Securities Legend shall be
available to Holders that exchange such Initial Securities in such
Registered Exchange Offer.
11
(vi) Upon a sale or transfer after the expiration of the Restricted
Period of any Initial Security acquired pursuant to Regulation S, all
requirements that such Initial Security bear the Restricted Securities
Legend shall cease to apply and the requirements requiring any such Initial
Security be issued in global form shall continue to apply.
(f) Cancellation or Adjustment of Global Security. At such time as all
---------------------------------------------
beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depositary to the Trustee for
cancellation or retained and canceled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for
Definitive Securities, transferred in exchange for an interest in another Global
Security, redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of Securities.
-----------------------------------------------------------------
(i) To permit registrations of transfers and exchanges, the Company
will execute and the Trustee shall authenticate, Definitive Securities and
Global Securities at the Securities Registrar's request.
(ii) No service charge shall be made for any registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge payable
in connection therewith (other than any such transfer taxes, assessments or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.05, 2.06, 2.07, 3.03(b) or 9.04 of the Indenture).
(iii) Prior to the due presentation for registration of transfer of
any Security, the Company, the Trustee, the Paying Agent or the Registrar
may deem and treat the person in whose name a Security is registered as the
absolute owner of such Security for the purpose of receiving payment of
principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the
Company, the Trustee, the Paying Agent or the Securities Registrar shall be
affected by notice to the contrary.
(iv) The Company shall not be required to make and the Securities
Registrar need not register transfers or exchanges of Securities selected
for redemption (except, in the case of Securities to be redeemed in part,
the portion thereof not to be redeemed) or any Securities for a period of
15 days before the mailing of a notice of redemption of Securities to be
redeemed.
(v) All Securities issued upon any transfer or exchange pursuant to
the terms of this Supplemental Indenture shall evidence the same debt and
shall be
12
entitled to the same benefits under the Indenture as the Securities
surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
----------------------------
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in the
Depositary or any 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 the Securities or with respect to
the delivery to any participant, member, beneficial owner or other Person
(other than the Depositary) or any notice (including any notice of
redemption or repurchase) or the payment of any amount, under or with
respect to such Securities. All notices and communications to be given to
the Holders and all payments to be made to Holders under the Securities
shall be given or made only to the registered Holders (which shall be the
Depositary or its nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security shall be exercised only through
the Depositary subject to the applicable rules and procedures of the
Depositary. The Trustee may rely and shall be fully protected in relying
upon information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligations or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Supplemental 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
Supplemental Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 Ratification. The Indenture, as supplemented and amended by
------------
this Supplemental Indenture, is in all respects hereby adopted, ratified and
confirmed.
SECTION 3.2 Trustee Not Liable for Recitals. The recitals contained herein
-------------------------------
are made by the Company and the Guarantors, and the Trustee assumes no liability
for the correctness thereof. The Trustee makes no representations as to the
validity or sufficiency of this Supplemental Indenture.
SECTION 3.3 Counterparts. This Supplemental Indenture may be executed in
------------
any number of counterparts, each of which when so executed shall be deemed an
original, and all such counterparts shall together constitute but one and the
same instrument.
13
SECTION 3.4 Governing Law. THIS SUPPLEMENTAL INDENTURE AND THE SECURITIES
-------------
SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE.
[signature page follows]
14
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year first above written.
CONSOL ENERGY INC.
By:
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and Chief
Financial Officer
Each of the Guarantor Subsidiaries listed on
Schedule I hereto,
---------------------------------------------
Name of Guarantor Subsidiary
By:
------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK, as Trustee
By:
------------------------------------------
Name:
Title:
15
SCHEDULE I
GUARANTORS
----------
Conrhein Coal Company, a Pennsylvania general partnership
CONSOL Financial Inc.,a Delaware corporation
CONSOL of Kentucky, a Delaware corporation
CONSOL Pennsylvania Coal Company, a Delaware corporation
Consolidation Coal Company, a Delaware corporation
Consolidation Coal Sales Company, a Delaware corporation
Eighty-Four Mining Company, a Pennsylvania corporation
Fairmont Supply Company,a Delaware corporation
IC Coal Inc., a Delaware corporation
Island Creek Coal Company, a Delaware corporation
XxXxxxx Coal Company, a Delaware corporation
Rochester & Pittsburgh Coal Company, a Pennsylvania corporation
16
EXHIBIT A
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.11 OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.08 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
CONSOL ENERGY INC.
7.875% Notes Due 2012
No. [ ]
U.S. $[ ]
CUSIP No.: [ ]
ISIN No.: [ ]
CONSOL Energy Inc., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the principal sum set
forth above or such other principal sum on the Schedule attached hereto (which
shall not exceed U.S.$250,000,000) on March 1, 2012, and to pay interest thereon
from March 7, 2002 or from the most recent interest payment date to which
interest has been paid or duly provided for, semiannually on March 1 and
September 1 in each year, commencing September 1, 2002, at the rate of 7.875%
per annum, until the principal hereof is paid or made available for payment;
provided, however, if (a) on or prior to the 90th day
-------- -------
1
following the date of original issuance hereof, neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been filed with
the Securities and Exchange Commission, (b) on or prior to the 180th day
following the date of original issuance hereof, neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been declared
effective, (c) on or prior to the 225th day following the date of original
issuance of the Securities, neither the Registered Exchange Offer has been
consummated nor the Shelf Registration Statement has been declared effective, or
(d) after either the Exchange Offer Registration Statement or the Shelf
Registration Statement has been declared effective, (A) such Registration
Statement thereafter ceases to be effective or usable prior to the end of the
Exchange Offer Registration Period or the Shelf Registration Period, as
applicable, or (B) such Registration Statement or the related Prospectus ceases
to be usable in connection with the resales of the Securities covered by such
Registration Statement prior to the end of the Exchange Offer Registration
Period or the Shelf Registration Period, subject to Sections 3(b)(ii) and
Section 4(k) of the Registration Agreement (each such event referred to in
clauses (a) through (d), a "Registration Default"), interest ("Special
Interest") will accrue on the principal amount of the Securities and the
Exchange Notes (in addition to the stated interest on the Securities and the
Exchange Notes) from and including the date on which any such Registration
Default shall occur to but excluding the date on which all Registration Defaults
have been cured. Special Interest will accrue at a rate of 0.25% per annum
during the 90-day period immediately following the occurrence of such
Registration Default and shall increase by 0.25% per annum at the end of each
subsequent 90 day period, but in no event shall such rate exceed 0.50% per
annum.
Unless otherwise defined capitalized terms herein shall have the meaning
ascribed thereto in the Indenture and the Supplemental Indenture.
The Company shall notify the Trustee within three business days after the
occurrence of a Registration Default, and Special Interest shall be paid by
depositing with the Trustee, in trust for the benefit of the Holders entitled to
receive the Special Interest, on or before the applicable semiannual interest
payment date, immediately available funds in sums sufficient to pay the Special
Interest then due. The Special Interest due shall be payable on each interest
payment date to the record Holder entitled to receive the interest payment to be
paid on such date as set forth in the Indenture.
The interest (and Special Interest, if any) payable, and punctually paid or
duly provided for, on any interest payment date for this Security will, as
provided in the Indenture, be paid to the Person in whose name this Security is
registered at the close of business on the regular record date for such
interest, which shall be the 15th of February or the 15th of August (whether or
not a Business Day), as the case may be, next preceding such interest payment
date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such regular record date and may
either be paid to the Person in whose name this Security is registered at the
close of business on a special record date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such special record
date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture.
2
Payment of the principal of (and premium, if any) and interest (and Special
Interest, if any) on this Security will be made at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City of New
York, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or by wire transfer to an account maintained by
the Person entitled thereto as specified in the Security Register, provided that
such Person shall have given the Trustee written wire instructions at least five
Business Days prior to the applicable Interest Payment Date.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
[Signatures appear on next page]
3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CONSOL Energy Inc.
Dated: March 7, 2002 By:
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title:Senior Vice President and Chief
Financial Officer
By:
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title:Vice President and Secretary
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK, as Trustee
By:
------------------------------------------
Authorized Signatory
4
[FORM OF REVERSE SIDE OF SECURITY]
7.875% Note due 2012
Section 1. Indenture. The Company issued the Securities under an Indenture,
---------
dated as of March 7, 2002, between the Company, the Guarantors listed on
Schedule I thereto and the Trustee, and Supplemental Indenture No. 1 thereto
(the "Supplemental Indenture"), dated as of March 7, 2002 (collectively, the
"Indenture"). The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act as
in effect on the date of the Indenture. Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all terms and provisions of the Indenture, and
Securityholders are referred to the Indenture and the Trust Indenture Act for a
statement of such terms and provisions.
The Securities are senior unsecured obligations of the Company initially
limited to $250,000,000 aggregate principal amount at any one time outstanding.
This Security is one of the Initial Securities referred to in the Supplemental
Indenture.
The Securities include the Initial Securities and any Exchange Securities
issued in exchange for Initial Securities. The Initial Securities and Exchange
Securities are treated as a single class of Securities under the Indenture.
Section 2. Optional Redemption. The Securities may be redeemed at the
-------------------
option of the Company, in whole or in part, at any time or from time to time.
The redemption price for the Securities to be redeemed on any redemption date
will be equal to the greater of: (i) 100% of the principal amount of the
Securities being redeemed on the redemption date or (ii) the sum of the present
values of the remaining scheduled payments of principal and interest on the
Securities being redeemed on that redemption date (not including any portion of
any payments of interest accrued to the redemption date) discounted to the
redemption date on a semiannual basis at the Treasury Rate, plus 45 basis
points, as determined by the Reference Treasury Dealer, plus, in each case,
accrued and unpaid interest thereon to the redemption date. Notwithstanding the
foregoing, installments of interest on Securities that are due and payable on
interest payment dates falling on or prior to a redemption date will be payable
on the interest payment date to the registered Holders as of the close of
business on the relevant record date according to the Securities and the
Indenture. The redemption price will be calculated on the basis of a 360-day
year consisting of twelve 30-day months.
The Company shall mail notice of any redemption at least 30 days but not
more than 60 days before the redemption date to each registered Holder of the
Securities to be redeemed. Once notice of redemption is mailed, the Securities
called for redemption will become due and payable on the redemption date and at
the applicable redemption price, plus accrued and unpaid interest to the
redemption date.
On and after the redemption date, interest will cease to accrue on the
Securities or any portion of the Securities called for redemption (unless the
Company defaults in the payment of the redemption price or accrued interest). On
or before the redemption date, the Company will
5
deposit with a Paying Agent (or the trustee) money sufficient to pay the
redemption price of and accrued interest on the Securities to be redeemed on
that date. If less than all of the Securities are to be redeemed, Securities
that are not represented by a Global Security shall be redeemed in accordance
with a method the Trustee deems to be fair and appropriate.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Reference Treasury Dealer as having a maturity comparable to the
remaining term of the Securities to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption date, (A)
the average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer" means (A) Xxxxxxx Xxxxx Xxxxxx Inc., the other
Initial Purchasers of the Securities (or their respective affiliates which are
Primary Treasury Dealers), and their respective successors; provided, however,
that if any of those entities ceases to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company will
substitute for those entities another Primary Treasury Dealer; and (B) any other
Primary Treasury Dealer(s) selected by the Company.
"Reference Treasury Dealer Quotation" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. (New York
City time) on the third Business Day preceding such redemption date.
"Treasury Rate" means, with respect to the redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
Section 3. Sinking Fund. The Securities are not subject to any sinking
------------
fund.
Section 4. Notice of Redemption. These Securities may be redeemed in
` --------------------
accordance with the Indenture. Notice of redemption will be mailed by first
class mail at least 30 days but not more than 60 days before the redemption date
to each Holder of Securities to be redeemed at his or her registered address.
Securities in denominations larger than $1,000 of principal amount may be
redeemed in part but only in whole multiples of $1,000 of principal amount.
Section 5. Denominations; Transfer; Exchange. The Securities are in
---------------------------------
registered form without coupons in denominations of $1,000 and whole multiples
of $1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. Upon any transfer or exchange, the Registrar and the Trustee may
require a Holder to furnish appropriate
6
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Registrar need not register the transfer or
exchange of any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or to transfer or exchange any Securities for a period of 15 days prior to the
mailing of a notice of redemption of Securities to be redeemed.
Section 6. Persons Deemed Owners. The registered Holder of this Security
--------------------
may be treated as the owner of it for all purposes.
Section 7. Discharge and Defeasance. Subject to certain conditions, the
------------------------
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal of and interest on the
Securities to redemption or maturity, as the case may be.
Section 8. Trustee Dealings with the Company. Subject to certain
---------------------------------
limitations imposed by the Trust Indenture Act, the Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect obligations owned to it by
the Company or its affiliates and may otherwise deal with the Company or its
affiliates with the same rights it would have if it were not Trustee.
Section 9. No Recourse Against Others. A director, officer, employee or
--------------------------
stockholder, 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. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
Section 10. Authentication. This Security shall not be valid until an
--------------
authorized signatory of the Trustee (or an authenticating agent) manually signs
the certificate of authentication on the other side of this Security.
Section 11. Governing Law. THIS SECURITY SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE.
Section 12. CUSIP Numbers. Pursuant to a recommendation promulgated by the
-------------
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Securityholders.
No representation is made as to the accuracy of such numbers either printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
Section 14. Holders' Compliance with Registration Agreement. Each Holder of
-----------------------------------------------
a Security, by acceptance hereof, acknowledges and agrees to the provisions of
the Registration Agreement, including, without limitation, the obligations of
the Holders with respect to
7
a registration and the indemnification of the Company to the extent provided
therein. In the event of a conflict between the terms of this Security and the
Registration Agreement, the terms of the Registration Agreement shall control.
The Company will furnish to any Holder of Securities upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Security.
8
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
This Certificate relates to $ principal amount of Securities held in
------
(check applicable space) book-entry or definitive form by (the
---------------
"Transferor").
The Transferor (check one box below).
. has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary
a Security or Securities in definitive, registered form of authorized
denominations in an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above); or
. has requested the Trustee by written to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act of 1933, as amended (the "Securities Act"), the
undersigned confirms that such Securities are being transferred in accordance
with its terms:
CHECK ONE BOX BELOW
(1) . to the Company; or
(2) . pursuant to an effective registration statement under the Securities
Act; or
(3) . inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that such transfer is
being made in reliance on Rule 144A, in each case pursuant to and
in compliance with Rule 144A under the Securities Act; or
(4) . outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in compliance
with Rule 904 under the Securities Act; or
(5) . pursuant to another available exemption from registration provided by
Rule 144 under the Securities Act.
Prior to the expiration of the period referred to in Rule 144(k), unless
one of the boxes is checked, the Trustee will refuse to register any of the
Securities evidenced by this certificate in the name of any Person other than
the registered holder thereof; provided, however, that if box (4) or (5) is
checked, the Trustee may require, prior to the registering any such transfer of
the Securities, such legal opinions, certifications and other information
required by the Company and the Trustee to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
9
---------------------------------------------
[INSERT NAME OF TRANSFEROR]
Dated: By:
------------------------------------------
10
SCHEDULE OF EXCHANGES
The following exchanges of a part of this Book-Entry Security have been made:
Principal Amount of
this Book-Entry Signature of
Amount of decrease in Amount of increase in Security following authorized signatory
Date of Principal Amount of Principal Amount of such decrease of Trustee or
Exchange this Book-Entry Security this Book-Entry Security (or increase) Security Custodian
-------- ------------------------ ------------------------ ------------------- --------------------
11
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
irrevocably appoint as agent to transfer this Security on the books of
--------
the Company. The agent may substitute another to act for him.
Dated: Your Signature:
---------- ------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Security.)
12
