Indenture
(Rule 144A and/or Regulation S Debt Offering)

Summary

This template indenture may be used in connection with an unregistered offering of debt securities conducted in reliance on Rule 144A and/or Regulation S under the Securities Act of 1933. This template includes practical guidance and drafting notes. An indenture is a contract between an issuer and a trustee that contains the terms of the debt securities and defines the respective duties of the issuer and the trustee with respect to the securities. This is a "closed end" indenture governing just one series of notes and may only be used for the planned transaction, and not for any other issuance. The execution and delivery of the indenture is usually a condition to the closing of the Rule 144A/Regulation S transaction, as stated in the purchase agreement for the offering. An indenture is required if the Rule 144A/Regulation S debt offering will be followed by a registered exchange offer (e.g., in an "A/B" or "Exxon Capital" exchange offer). If the debt securities are not otherwise exchangeable for registered debt (e.g., in a "Rule 144A for life" offering), the parties are not required to use a trustee and may instead use a "paying agent," which will perform a similar role as a trustee. However, even if no exchange offer is contemplated, having a trustee may be necessary for marketing the offering, as debtholders generally prefer a single entity to represent their interests and issuers generally prefer having a single contact point for debtholder issues. For more information on exchange offers, see Exxon Capital Exchange Offers. Note that the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa–77bbbb) (TIA), the federal statute that governs indentures, exempts Rule 144A and Regulation S transactions from the requirements of Sections 305 and 306 of the TIA, which relate to trustee eligibility and qualification of an indenture. However, if the securities will eventually be exchanged for registered securities, you should ensure that indenture complies with all applicable requirements. For more information on the requirements of the TIA, see Indentures and Trustees: Applicable Laws and Regulations. For information on Rule 144A and Regulation S transactions, see Rule 144A / Regulation S Offerings Resource Kit, Resales of Rule 144A and Regulation S Securities, and Rule 144A and Regulation S Debt Offerings Requirements Checklist.