1
Exhibit 4.2
[FORM OF NOTE]
THIS NOTE IS A GLOBAL NOTE. UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITORY ") TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY), 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.
REGISTERED PRINCIPAL AMOUNT
No: 1 $100,000,000.00
CUSIP: 00000XXX0 APACHE FINANCE PTY LTD
7% NOTE DUE 2009
APACHE FINANCE PTY LTD (A.C.N. 080 571 900), a proprietary company with
limited liability organized under the laws of the Australian Capital Territory,
Australia (the "Company", which term includes any successor corporation under
the Indenture hereinafter referred to), for value received hereby promises to
pay to Cede & Co., or registered assigns, the principal sum of One Hundred
Million Dollars on March 15, 2009 ("Stated Maturity") and to pay interest
thereon from March 5, 1999 or from the most recent date in respect of which
interest has been paid or duly provided for, on March 15 and September 15 of
each year (each, an "Interest Payment Date"), commencing September 15, 1999, and
at Stated Maturity or upon such other date on which the principal of this Note
becomes due and payable, whether by declaration of acceleration, notice of
redemption or notice of option to elect repayment or otherwise, and including
any Redemption Date or Change in Control Purchase Date (each such date,
"Maturity"), at the rate of 7% per annum, until the principal hereof is paid or
duly made available for payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture referred to below, be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered as of the close of business on
March 1 or September 1, as the case may be (whether or not a Business Day), next
preceding such Interest Payment Date (each such date, a "Regular Record Date").
Any such interest which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date shall forthwith cease to be payable to the
Holder of this Note on such Regular Record Date, and shall be paid to the Person
in whose name this Note (or one or more Predecessor Securities) 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 the Holder
of this Note not less than 10 days prior to such Special Record Date, or may be
paid in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Any interest paid on this Note shall be increased to the extent necessary to pay
Additional Amounts as set forth in this Note.
Payment of the principal of, and interest on, this Note will be made at
the office or agency 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 payment of interest may be made at the option of
the Company by check mailed to the Person in whose name this Note is registered
at the close of business on the related record date; provided further, that,
notwithstanding anything else contained herein, if this Note is a Global
Security and is held in book-entry form through the facilities of the
Depository, payments on this Note will be made to the Depository or its nominee
in accordance with the arrangements then in effect between the Trustee and the
Depository.
Reference is hereby made to the further provisions of this Note set
forth on the succeeding pages hereof, which further provisions shall for all
purposes have the same effect as if set forth herein.
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein, referred
to in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
By:
----------------------------------
Authorized Officer
-1-
2
APACHE FINANCE PTY LTD
7% NOTE DUE 2009
This Note is one of a duly authorized issue of Securities of the
Company issued under an Indenture, dated as of December 9, 1997 (the
"Indenture"), among the Company, Apache Corporation (the "Guarantor") and The
Chase Manhattan Bank (the "Trustee", which term includes any successor trustee
under the Indenture), designated as the 7% Notes due 2009 (the "Notes").
Reference is made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Guarantor, the Trustee and the Holders of the Notes and of the terms upon which
the Notes are, and are to be, authenticated and delivered. All terms used in
this Note and the Guarantee set forth below which are not defined herein and
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
The Indenture provides for the defeasance of the Notes, the Guarantees
and certain covenants in certain circumstances.
This Note is unsecured as to payment of principal and interest, and
ranks pari passu with all other unsecured unsubordinated indebtedness of the
Company.
Interest payments on this Note will include interest accrued to but
excluding the applicable Interest Payment Date or Maturity hereof, as the case
may be. Interest payments for this Note shall be computed and paid on the basis
of a 360-day year of twelve 30-day months.
In the case where the applicable Interest Payment Date or Maturity with
respect hereto, as the case may be, does not fall on a Business Day, payment of
principal or interest otherwise payable on such day need not be made on such
day, but may be made on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date or at Maturity and, unless the
Company or the Guarantor default on such payment, no interest shall accrue with
respect to such payment for the period from and after the Interest Payment Date
or such Maturity, as the case may be, to the date of payment.
The Notes will not be subject to any sinking fund and, except as
provided in the Indenture or herein, will not be redeemable or repayable prior
to their Stated Maturity.
If any Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As set forth in, and subject to the provisions of, the Indenture, no
Holder of any Note will have any right to institute any proceeding with respect
to the Indenture, the Notes or the Guarantees, or for any remedy thereunder,
unless (i) such Holder shall have previously given to the Trustee written notice
of a continuing Event of Default with respect to the Notes, (ii) the Holders of
not less than 25% in principal amount of the Outstanding Notes shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as Trustee, (iii) the Trustee shall have failed to institute
such proceeding within 60 days after receipt of such written notice, request and
offer of indemnity and (iv) the Trustee shall not have received from the Holders
of a majority in principal amount of the Outstanding Notes a direction
inconsistent with such request within such 60 day period; provided, however,
that such limitations do not apply to a suit instituted by the Holder hereof for
the enforcement of payment of the principal of or any interest on this Note on
or after the respective due dates expressed herein or to require the purchase of
this Note by the Company upon the occurrence of a Change in Control in
accordance with the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Securities of
each series thereunder to be affected under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than 66-2/3%
in aggregate principal amount of such Securities then Outstanding of each series
to be affected. The Indenture also contains provisions permitting the Holders of
not less than a majority in principal amount of the Securities of each series
thereunder at the time Outstanding, on behalf of the Holders of all Securities
of such series, to waive compliance by the Company with certain restrictive
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of any
Note issued upon the registration of transfer hereof or in exchange for or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note. Notwithstanding the foregoing, no consent of Holders shall be required to
advance the Stated Maturity of the Notes as provided herein.
No reference to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any interest on this Note at the
times, places and rate, and in the coin or currency, herein prescribed.
-2-
3
The Notes are issuable only in fully registered form in denominations
of $1,000 and integral multiples in excess thereof. As provided in the Indenture
and subject to certain limitations therein set forth, this Note is exchangeable
for a like aggregate principal amount of Notes of this series and of like tenor
of any authorized denomination, as requested by the Holder surrendering the
same. As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company in any place where the principal of and any interest on this Note
are payable or at such other offices or agencies as the Company may designate,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to, the Company and the Security Registrar or any transfer agent
duly executed by the registered owner hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of this series and of like tenor,
of authorized denominations and for the same aggregate principal amount and
Stated Maturity will be issued to the designated transferee or transferees.
If as a result of any change in or any amendment to the laws,
regulations or published tax rulings of the "applicable taxing jurisdiction" (as
hereinafter defined) affecting taxation, or any change in the official
administration, application or interpretation of such laws, regulations or
published tax rulings either generally or in relation to the Notes, which change
or amendment becomes effective on or after the original issue date of the Notes
or which change in official administration, application or interpretation shall
not have been available to the public prior to such issue date, it is determined
by the Company that (a) the Company would be required to pay any Additional
Amounts pursuant to the Indenture or the terms of the Notes in respect of
interest on the next succeeding Interest Payment Date and (b) such obligation
cannot be avoided by the Company or the Guarantor taking reasonable measures
available to it, the Company may, at its option, redeem all (but not less than
all) the Notes upon not less than 30 nor more than 60 days= written notice as
provided in the Indenture, at a Redemption Price equal to 100% of the principal
amount thereof plus accrued interest to the date fixed for redemption; provided,
however, that (a) no such notice of redemption may be given earlier than 60 days
prior to the earliest date on which the Company would be obligated to pay such
Additional Amounts were a payment then due in respect of the Notes, and (b) at
the time any such redemption notice is given, such obligation to pay such
Additional Amounts must remain in effect. If (a) the Company shall have on any
date (the "Succession Date") consolidated with or merged into, or conveyed or
transferred or leased its properties and assets as an entirety or substantially
as an entirety to, any Successor which is organized under the laws of any
jurisdiction other than the United States of America, any State thereof or the
District of Columbia or the jurisdiction in which the Company is organized, (b)
as result of any change in or any amendment to the laws, regulations or
published tax rulings of such jurisdiction or organization, or of any political
subdivision or taxing authority thereof or therein, affecting taxation, or any
change in the official administration, application or interpretation of such
laws, regulations or published tax rulings either generally or in relation to
the Notes, which change or amendment becomes effective on or after the
Succession Date or which change in official administration, application or
interpretation shall not have been available to the public prior to such
Succession Date and is notified to the Company, such Successor would be required
to pay any Successor Additional Amounts pursuant to the Indenture or the terms
of the Notes in respect of interest on any Notes on the next succeeding Interest
Payment Date and (c) such obligation cannot be avoided by the Company or such
Successor taking reasonable measures available to it, such Company or Successor
may at its option, redeem all (but not less than all) of the Notes, upon not
less than 30 nor more than 60 days= written notice as provided in the Indenture,
at a Redemption Price equal to 100% of the principal amount thereof plus accrued
interest to the date fixed for redemption; provided however, that (a) no such
notice of redemption may be given earlier than 60 days prior to the earliest
date on which a Successor would be obligated to pay such Successor Additional
Amounts were a payment then due in respect of the Notes, and (b) at the time any
such redemption notice is given, such obligation to pay such Successor
Additional Amounts must remain in effect.
Holders of Notes to be redeemed will receive notice thereof by
first-class mail at least 30 and not more than 60 days prior to the Redemption
Date, as provided in the Indenture.
Unless the Company defaults in payment of the redemption price, on and
after the Redemption Date interest will cease to accrue on the Notes or portions
thereof called for redemption.
All payments of, or in respect of, principal of and interest on this
Note shall be made without withholding or deduction for, or on account of, any
present or future taxes, duties, levies, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of the jurisdiction (or any
political subdivision or taxing authority thereof or therein) in which the
Company is incorporated or resident (or deemed for tax purposes to be resident)
(the "applicable taxing jurisdiction"), unless such taxes, duties, levies,
assessments or governmental charges are required by the applicable taxing
jurisdiction or any such subdivision or authority to be withheld or deducted. In
that event, the Company will pay by way of additional interest such additional
amounts of, or in respect of, principal of and interest ("Additional Amounts")
as will result (after deduction of such taxes, duties, levies, assessments or
governmental charges and any additional taxes, duties, levies, assessments or
governmental charges payable in respect of such Additional Amounts) in the
payment to the Holder of this Note of the amounts which would have been payable
in respect of this Note had no such withholding or deduction been required,
except that no Additional Amounts shall be so payable for or on account of:
-3-
4
(a) any tax, duty, xxxx, assessment or other governmental charge which
would not have been imposed but for the fact that such Xxxxxx:
(i) was a resident, domiciliary or national of, or engaged in business
or maintained a permanent establishment or was physically present in,
the applicable taxing jurisdiction or otherwise had some connection
with the applicable taxing jurisdiction other than the mere ownership
of this Note;
(ii) presented (if presentation is required) this Note for payment in
the applicable taxing jurisdiction, unless this Note could not have
been presented for payment elsewhere;
(iii) presented (if presentation is required) this Note, as the case
may be, more than 30 days after the date on which the payment in
respect of this Note first became due and payable or was provided for,
whichever is later, except to the extent that the Holder would have
been entitled to such Additional Amounts; if it had presented such Note
for payment on any days within such period of 30 days;
(iv) directly or indirectly is taken to be an associate of the Company
(as "associate" is defined in Division 16F of the Income Tax Assessment
Act 1936 of the Commonwealth of Australia (the "Tax Act") (but on the
basis that sub paragraphs 159GZC(1)(a)(ii), (1)(b)(i) and (1)(d)(i) of
the Tax Act do not apply)); or
(v) entered into or participated in a scheme to avoid Australian
interest withholding tax, being a scheme which the Company was neither
a party to nor participated in, in respect of which the Australian
Commissioner of Taxation has made a determination that Australian
interest withholding tax is payable in respect of the amount.
(b) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable
otherwise than by withholding or deduction from payments of, or in respect of,
principal of or interest on this Note;
(d) any tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure to comply by the Holder or the beneficial
owner of this Note with a request of the Company addressed to the Holder (i) to
provide information concerning the nationality, residence or identity of the
Holder or such beneficial owner or (ii) to make any declaration or other similar
claim or satisfy any information or reporting requirement, which, in the case of
(i) or (ii), is required or imposed by a statute, treaty, regulation or
administrative practice of the applicable taxing jurisdiction as a precondition
to exemption from all or part of such tax, assessment or other governmental
charge; or
(e) any combination of items (a), (b), (c) and (d);
nor shall Additional Amounts be paid with respect to any payment of the
principal of or interest on this Note to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent such payment would be required by the laws of the applicable taxing
jurisdiction to be included in the income for tax purposes of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to such Additional Amounts had
it been the Holder of this Note.
The payment of principal of, or interest on, or in respect of, this
Note shall be deemed to include the payment of Additional Amounts provided for
in the Indenture or herein to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to the
Indenture or this Note.
Subject to the terms and conditions of the Indenture, if any Change in
Control occurs prior to the Stated Maturity of the Notes, the Company shall, at
the option of the Holders thereof, purchase all Notes for which a Change in
Control Purchase Notice shall have been delivered as provided in the Indenture
and not withdrawn, by a date which shall be 35 Business Days after the
occurrence of such Change in Control, at a Change in Control Purchase Price
equal to 100% of the principal amount thereof plus accrued interest to the
Change in Control Purchase Date, which Change in Control Purchase Price shall be
paid in cash.
Holders have the right to withdraw any Change in Control Purchase
Notice by delivering to the paying agent a written notice of withdrawal in
accordance with the provisions of the Indenture.
If cash sufficient to pay the Change in Control Purchase Price of all
Notes or portions thereof to be purchased on the Change in Control Purchase Date
is deposited with the Trustee on the Change in Control Purchase Date, interest
shall cease to accrue on such Notes (or portions thereof) and on and after the
Change in Control Purchase Date the Holders thereof shall have no other rights
as such (other than the right to receive the Change in Control Purchase Price
upon surrender of such Notes).
-4-
5
Subject to the terms of the Indenture, prior to due presentment of this
Note for registration of transfer, the Company, the Guarantor, the Trustee and
any agent of the Company, the Guarantor or the Trustee may treat the Person in
whose name this Note is registered as the owner hereof for all purposes, whether
or not this Note is overdue, and neither the Company, the Guarantor, the Trustee
nor any such agent shall be affected by notice to the contrary.
No service charge shall be payable for any registration of transfer or
exchange of this Note, but, subject to certain limitations set forth in the
Indenture, the Company may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
This Note shall not be valid or become obligatory for any purpose until
the Trustee's Certificate of Authentication hereon shall have been executed by
the Trustee.
IN WITNESS WHEREOF, APACHE FINANCE PTY LTD has caused this instrument to
be duly executed under its corporate seal.
APACHE FINANCE PTY LTD
[SEAL] BY
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
Attest:
By
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Date: March 5, 1999
-5-
6
GUARANTEE
For value received, Apache Corporation, a corporation organized under the
laws of the State of Delaware (herein called the "Guarantor," which term
includes any successor corporation under the Indenture referred to in the
Security upon which this Guarantee is endorsed), hereby irrevocably and
unconditionally guarantees to the Holder of the Security upon which this
Guarantee is endorsed and to the Trustee on behalf of the Trustee and such
Holder the due and punctual payment of the principal of and interest on, and any
Additional Amounts with respect to, such Security, and any other amount due and
payable pursuant to the terms of such Security or Indenture or payments referred
to therein, when and as the same shall become due and payable, whether at the
Stated Maturity, by declaration of acceleration, call for redemption or
repurchase or otherwise, according to the terms of such Security and of the
Indenture referred to therein. In case of the failure of Apache Finance Pty Ltd,
a proprietary company with limited liability organized under the laws of the
Australian Capital Territory, Australia (herein called the "Company," which term
includes any successor corporation under such Indenture), punctually to make any
such payment of principal or interest on, or any Additional Amounts with respect
to such Security, the Guarantor hereby agrees to cause any such payment to be
made punctually when and as the same shall become due and payable, whether at
the Stated Maturity or by declaration of acceleration, call for redemption or
repurchase or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as if
it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or such Indenture, any failure
to enforce the provisions of such Security or such Indenture, or any waiver,
modification or indulgence granted to the Company with respect thereto, by the
Holder of such Security or the Trustee or any other circumstance which may
otherwise constitute a legal or equitable discharge of a surety or guarantor.
The Guarantor hereby waives the benefits of division and discussion, diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to such
Security or the indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged except by strict and
complete performance of the obligations contained in such Security and this
Guarantee. The Guarantor hereby agrees that, in the event of a default in
payment of principal or interest on, or any Additional Amounts with respect to
such Security, or default in any payment referred to therein, legal proceedings
may be instituted by the Trustee on behalf of, or by, the Holder of such
Security, on the terms and conditions set forth in such Indenture, directly
against the Guarantor to enforce this Guarantee without first proceeding against
the Company.
The Guarantor shall be subrogated to all rights of the Holder of such
Security and the Trustee against the Company in respect of any amounts paid to
such Holder by the Guarantor on account of such Security pursuant to the
provisions of this Guarantee or such Indenture; provided, however, that the
Guarantor shall not be entitled to enforce, or to receive any payments arising
out of or based upon, such right of subrogation until the principal of, and
interest on, and any Additional Amounts required with respect to Securities
issued under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this Guarantee
or of such Indenture shall alter or impair the guarantee of the Guarantor, which
is absolute and unconditional, of the due and punctual payment of principal and
interest on and any Additional Amounts with respect to the Security upon which
this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication of the Security upon which this Guarantee is
endorsed shall have been manually executed by or on behalf of the Trustee under
such Indenture.
All terms used in this Guarantee which are defined in such Indenture shall
have the meanings assigned to them in such Indenture.
This Guarantee shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be governed by and construed in
accordance with the laws of the State of New York.
This Guarantee is an unsecured obligation of the Guarantor, and ranks pari
passu with all other unsubordinated indebtedness of the Guarantor.
-6-
7
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed under its corporate seal and dated the date on the face hereof.
APACHE CORPORATION
[SEAL] BY
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Attest:
BY
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Corporate Secretary
Date: March 5, 1999
-7-
8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
Please insert Social Security or other identifying number of assignee
--------------------------------------------------------------------------------
(please print or type name and address of assignee)
the within Security and all rights thereunder and does hereby irrevocably
constitute and appoint the aforesaid assignee attorney to transfer the within
Security on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
--------------------------------- -------------------------------------
In the presence of:
--------------------------------------------------------------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Security in every particular, without
alteration or enlargement or any change whatever. When assignment is made by a
guardian, trustee, executor or administrator, an officer of a corporation, or
anyone in a representative capacity, proof of his or her authority to act must
accompany the Security. The signature must be guaranteed by an Institution which
is a member of one of the following recognized signature Guarantee Programs: (i)
The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program
(SEMP); or (iv) in such other guarantee program acceptable to the Trustee.
-8-
