0000950129-01-503603.txt : 20011029
0000950129-01-503603.hdr.sgml : 20011029
ACCESSION NUMBER: 0000950129-01-503603
CONFORMED SUBMISSION TYPE: S-4
PUBLIC DOCUMENT COUNT: 17
FILED AS OF DATE: 20011023
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: DENBURY ENERGY SERVICES INC
CENTRAL INDEX KEY: 0001161316
STANDARD INDUSTRIAL CLASSIFICATION: []
STATE OF INCORPORATION: LA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-72106-01
FILM NUMBER: 1764470
BUSINESS ADDRESS:
STREET 1: 5100 TENNYSON PKWY
STREET 2: SUITE 3000
CITY: PLANO
STATE: TX
ZIP: 75024
BUSINESS PHONE: 9726732000
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: DENBURY MARINE LLC
CENTRAL INDEX KEY: 0001161313
STANDARD INDUSTRIAL CLASSIFICATION: []
STATE OF INCORPORATION: LA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-72106-02
FILM NUMBER: 1764471
BUSINESS ADDRESS:
STREET 1: 5100 TENNYSON PKWY
STREET 2: SUITE 3000
CITY: PLANO
STATE: TX
ZIP: 75024
BUSINESS PHONE: 9726732000
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: DENBURY OFFSHORE INC
CENTRAL INDEX KEY: 0001161318
STANDARD INDUSTRIAL CLASSIFICATION: []
IRS NUMBER: 752945532
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-72106-03
FILM NUMBER: 1764472
BUSINESS ADDRESS:
STREET 1: 5100 TENNYSON PARKWAY
STREET 2: SUITE 3000
CITY: PLANO
STATE: TX
ZIP: 75024
BUSINESS PHONE: 9726732000
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: DENBURY RESOURCES INC
CENTRAL INDEX KEY: 0000945764
STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311]
IRS NUMBER: 752815171
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-72106
FILM NUMBER: 1764469
BUSINESS ADDRESS:
STREET 1: 5100 TENNYSON PARKWAY, #3000
CITY: PLANO
STATE: TX
ZIP: 75024
BUSINESS PHONE: 9726732000
MAIL ADDRESS:
STREET 1: 17304 PRESTON RD
STREET 2: STE 200
CITY: DALLAS
STATE: TX
ZIP: 75252
FORMER COMPANY:
FORMER CONFORMED NAME: NEWSCOPE RESOURCES LTD
DATE OF NAME CHANGE: 19950627
S-4
1
d90789s-4.txt
DENBURY RESOURCES INC
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 23, 2001
REGISTRATION STATEMENT NO. 333-
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--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DENBURY RESOURCES INC.
DENBURY OFFSHORE, INC.
DENBURY MARINE, L.L.C.
DENBURY ENERGY SERVICES, INC.
(Exact name of Registrants)
DELAWARE 1311 75-2815171
DELAWARE (Primary Standard Industrial (I.R.S. Employer
LOUISIANA Classification Code Number) Identification No.)
TEXAS
(State of incorporation
or organization)
PHIL RYKHOEK, CHIEF FINANCIAL OFFICER
DENBURY RESOURCES INC.
5100 TENNYSON PARKWAY, SUITE 3000
DALLAS, TEXAS 75024
(972) 673-2000
(Name, address and telephone number of Registrants' executive offices and agent
for service)
COPIES TO:
DONALD W. BRODSKY
JUDY G. GECHMAN
JENKENS & GILCHRIST,
A PROFESSIONAL CORPORATION
1100 LOUISIANA STREET, SUITE 1800
HOUSTON, TEXAS 77002
(713) 951-3300
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
CALCULATION OF REGISTRATION FEE
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED TO BE REGISTERED PER UNIT OFFERING PRICE(1) FEE(2)
---------------------------------------------------------------------------------------------------------------------------
9% Series B Senior Subordinated Notes
Due 2008............................. $75,000,000 100% $75,000,000 $18,750
---------------------------------------------------------------------------------------------------------------------------
Subsidiary Guarantees.................. (3) (3) (3) (4)
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(1) Estimated solely for the purpose of calculating the registration fee under
Rule 457 of the Securities Act of 1933.
(2) Calculated pursuant to Rule 457(f)(2).
(3) No separate consideration will be received for the Subsidiary Guarantees.
(4) Pursuant to Rule 457(n) no fee is due with respect to the Subsidiary
Guarantees.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION RELATING TO THESE SECURITIES IS EFFECTIVE.
THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT AN OFFER TO
BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED OCTOBER 23, 2001
(DRI LOGO)
DENBURY RESOURCES INC.
OFFER TO EXCHANGE ALL OUTSTANDING
9% SERIES B SENIOR SUBORDINATED NOTES DUE 2008
($75,000,000 AGGREGATE PRINCIPAL AMOUNT OUTSTANDING)
FOR
A LIKE PRINCIPAL AMOUNT OF REGISTERED
9% SERIES B SENIOR SUBORDINATED NOTES DUE 2008
The terms and covenants of the new registered 9% Series B Senior
Subordinated Notes Due 2008 to be issued are substantially identical to those of
our outstanding unregistered 9% Series B Senior Subordinated Notes Due 2008 that
you currently hold, except for the transfer restrictions and registration rights
applicable to the outstanding notes. This offer will expire at 5:00 p.m., New
York City time, on , 2001, unless we extend it. The new notes will not
trade on any established exchange.
------------------
SEE "RISK FACTORS" BEGINNING ON PAGE 6 FOR A DISCUSSION OF CERTAIN FACTORS
YOU SHOULD CONSIDER IN CONNECTION WITH THE EXCHANGE OFFER.
------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE NEW NOTES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
Each broker-dealer that receives new notes for its own account pursuant to
the exchange offer must acknowledge that it will deliver a prospectus in
connection with any resale of such new notes. The letter of transmittal states
that by so acknowledging and by delivering a prospectus, a broker-dealer will
not be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act of 1933. This prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of
new notes received in exchange for old notes where such old notes were acquired
by such broker-dealer as a result of market-making activities or other trading
activities. We have agreed that, for a period of 180 days after the expiration
date (as defined herein), we will make this prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
The date of this prospectus is , 2001.
------------------
TABLE OF CONTENTS
PAGE
----
WHERE YOU CAN FIND MORE INFORMATION.... i
INCORPORATION OF DOCUMENTS BY
REFERENCE............................ i
FORWARD-LOOKING STATEMENTS............. ii
SUMMARY................................ 1
RISK FACTORS........................... 6
USE OF PROCEEDS........................ 10
RATIO OF EARNINGS TO FIXED CHARGES..... 10
PAGE
----
THE EXCHANGE OFFER..................... 10
DESCRIPTION OF THE NEW NOTES........... 17
CERTAIN U.S. FEDERAL INCOME TAX
CONSIDERATIONS....................... 60
PLAN OF DISTRIBUTION................... 61
NOTICE TO CANADIAN RESIDENTS........... 61
LEGAL MATTERS.......................... 61
EXPERTS................................ 62
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YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR TO WHICH WE HAVE REFERRED YOU. WE HAVE NOT
AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT. THIS
PROSPECTUS MAY ONLY BE USED WHERE IT IS LEGAL TO SELL THESE SECURITIES. THE
INFORMATION IN THIS PROSPECTUS MAY ONLY BE ACCURATE ON THE DATE OF THIS
PROSPECTUS.
WHERE YOU CAN FIND MORE INFORMATION
Denbury Resources Inc. files annual and quarterly reports and other
information with the SEC. These documents include specific information regarding
Denbury Resources Inc. You may read and copy any document we file with the SEC
at the SEC's public reference rooms in Washington, DC and Chicago, Illinois.
Please call the SEC at 1-800-SEC-0330 for further information about the public
reference rooms. Our SEC filings are also available to the public at the SEC's
web site at http://www.sec.gov. Except as set forth below, our reports and other
information that are filed with the SEC are not incorporated by reference into
this prospectus and, therefore, are not part of this prospectus.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them into this prospectus, which means that:
- incorporated documents are considered part of this prospectus;
- we can disclose to you important business and financial information about
us, that is not included in or delivered with this prospectus, by
referring you to those other documents; and
- information contained in later-dated documents will supplement, modify or
supersede, as applicable, the information contained in earlier-dated
documents, and information that we subsequently file with the SEC will
automatically update and supersede this incorporated information.
We incorporate by reference into this prospectus the documents listed
below, as amended and supplemented, and all documents filed by us with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
after the date of this prospectus and prior to the time that the exchange offer
made hereby is completed:
- Our Annual Report on Form 10-K for the year ended December 31, 2000;
- Our Quarterly Reports on Form 10-Q for the quarterly periods ended March
31, and June 30, 2001;
i
- Our Current Reports on Form 8-K dated January 26, 2001, June 15, 2001,
July 24, 2001 and August 9, 2001 and Amendment No. 1 to Current Report on
Form 8-K/A dated July 24, 2001; and
- Our Definitive Proxy Statement dated April 5, 2001.
You can obtain any of the filings incorporated by reference into this
document through us or from the SEC through the SEC's web site or at the
addresses listed above. Documents incorporated by reference into this
prospectus, except for any exhibits to those documents that are not expressly
incorporated by reference into those documents, are available from us without
charge by requesting them in writing or by telephone at the following address
and telephone number:
Denbury Resources Inc.
5100 Tennyson Parkway, Suite 3000
Dallas, Texas 75024
Attention: Phil Rykhoek
Telephone: (972) 673-2000
If you request any incorporated documents from us, we will mail them to you
by first class mail, or by another equally prompt means, within one business day
after we receive your request. However, in order to obtain timely delivery of
these documents, you must make your request no later than five business days
before the expiration date of the exchange offer. You may also obtain these
reports through our web site: www.denbury.com under "Shareholder Reports."
Unless the context requires otherwise, all references in this document to
"this prospectus" include all documents incorporated by reference into this
prospectus.
------------------
FORWARD-LOOKING STATEMENTS
The statements contained in this prospectus that are not historical facts
are forward-looking statements as that is defined in Section 21E of the
Securities and Exchange Act of 1934, as amended, that involve a number of risks
and uncertainties. Such forward-looking statements may concern, among other
things, capital expenditures, drilling activity, acquisition plans and proposals
and dispositions, development activities, cost savings, production efforts and
volumes, estimated and potential hydrocarbon and carbon dioxide reserves,
hydrocarbon prices, liquidity, regulatory matters and competition. Such
forward-looking statements generally are accompanied by words such as "plan,"
"estimate," "budgeted," "expect," "predict," "anticipate," "projected,"
"should," "assume," "believe" or other words that convey the uncertainty of
future events or outcomes. Such forward-looking information is based upon
management's current plans, expectations, estimates and assumptions and is
subject to a number of risks and uncertainties that could significantly affect
current plans, anticipated actions, the timing of such actions and our financial
condition and results of operations. As a consequence, actual results may differ
materially from expectations, estimates or assumptions expressed in or implied
by any forward-looking statements made by or on behalf of us. Among the factors
that could cause actual results to differ materially are:
- fluctuations of the prices received or demand for our oil and natural
gas;
- the uncertainty of drilling results and reserve estimates;
- operating hazards;
- acquisition risks;
- requirements for capital;
- general economic or international political conditions;
- competition and government regulations; and
- the other risks and uncertainties discussed in this prospectus and set
forth from time to time in our public reports, filings and public
statements.
ii
SUMMARY
The following summary highlights selected information appearing in other
sections of this prospectus and may not contain all of the information that is
important to you. You should read the entire prospectus carefully, including the
"Risk Factors" section. In this prospectus, when we use the terms "Denbury," the
"Company," "we" or "our," we mean Denbury Resources Inc., and its subsidiaries
on a consolidated basis, including Denbury Offshore, Inc., the surviving
corporation in a recent merger acquisition of Matrix Oil & Gas, Inc., unless
otherwise indicated or the context requires otherwise.
ABOUT DENBURY
We are an independent oil and natural gas company engaged in acquisition,
development and exploration activities in the U.S. Gulf Coast region. We have
significant reserves and production in Mississippi, where we are the largest
producer of oil and natural gas, onshore in Louisiana and in the offshore Gulf
of Mexico. We have an established track record for reserve and production
growth, with an average compound annual growth rate, over the four-year period
ended December 31, 2000, of 34% in reserves and 27% in production.
We have a well-balanced portfolio of development, exploitation and
exploration projects. Our drilling inventory includes a mix of long-lived oil
and shorter-lived natural gas properties, which we exploit utilizing primary,
secondary (waterflood) and tertiary (carbon dioxide injection) recovery methods.
We estimate that our production during the second half of 2001 will be
approximately one-half natural gas and one-half oil. We operate properties
accounting for approximately 92% of the total of the present value at June 30,
2001, pro forma for the Matrix acquisition, of our future net revenues
discounted at 10% per year, which gives us a significant advantage in terms of
being able to control our cost structure and the timing of major operational
decisions. A key to our growth has been our strategy of exploitation and
development of acquired properties, with a goal of doubling the reserves in
place at the time of acquisition. From our inception in 1990 through December
31, 2000, approximately 60% of our reserves and cumulative production have come
from acquisitions and 40% from subsequent development activities.
RISK FACTORS
You should carefully consider the matters discussed under "Risk Factors"
and the other information included in this prospectus. See "Risk Factors"
beginning on page 6.
1
THE EXCHANGE OFFER
Background.......................... On August 15, 2001, we completed a
private placement of the old notes. In
connection with that private placement,
we entered into a registration rights
agreement in which we agreed, among
other things, to deliver this
prospectus to you and to complete an
exchange offer.
The Exchange Offer.................. We are offering to exchange our new
notes which have been registered under
the Securities Act of 1933 for a like
principal amount of our outstanding,
unregistered old notes. Old notes may
only be tendered in integral multiples
of $1,000 principal amount at maturity.
As of the date of this prospectus,
$75,000,000 in aggregate principal
amount of our old notes is outstanding.
Resale of New Notes................. We believe that new notes issued
pursuant to the exchange offer in
exchange for old notes may be offered
for resale, resold and otherwise
transferred by you without compliance
with the registration and prospectus
delivery provisions of the Securities
Act, provided that:
- you are acquiring the new notes in
the ordinary course of your business;
- you are not a broker-dealer who
acquired the new notes directly from
us without compliance with the
registration and prospectus delivery
provisions of the Securities Act;
- you have not engaged in, do not
intend to engage in, and have no
arrangement or understanding with any
person to participate in the
distribution of the new notes; and
- you are not our affiliate as defined
under Rule 405 of the Securities Act.
Each participating broker-dealer that
receives new notes for its own account
pursuant to the exchange offer in
exchange for old notes that were
acquired as a result of market-making
or other trading activity must
acknowledge that it will deliver a
prospectus in connection with any
resale of new notes. See "Plan of
Distribution."
Any holder of old notes who:
- is our affiliate;
- does not acquire new notes in the
ordinary course of its business;
2
- tenders in the exchange offer with
the intention to participate, or for
the purpose of participating, in a
distribution of new notes; or
- is a broker-dealer that acquired the
old notes directly from us
must comply with the registration and
prospectus delivery requirements of the
Securities Act in connection with the
resale of new notes.
Consequences If You Do Not Exchange
Your Old Notes...................... Old notes that are not tendered in the
exchange offer or are not accepted for
exchange will continue to bear legends
restricting their transfer. You will
not be able to offer or sell the old
notes unless:
- you do so pursuant to an exemption
from the requirements of the
Securities Act;
- the old notes are registered under
the Securities Act; or
- the transaction requires neither such
an exemption nor registration.
After the exchange offer is closed, we
will no longer have an obligation to
register the old notes, except for some
limited exceptions. See "Risk Factors."
Certain Conditions to the Exchange
Offer............................... The exchange offer is subject to
certain customary conditions, which we
may waive.
Special Procedures for Beneficial
Holders............................. If you beneficially own old notes which
are registered in the name of a broker,
dealer, commercial bank, trust company
or other nominee and you wish to tender
in the exchange offer, you should
contact such registered holder promptly
and instruct such person to tender on
your behalf. If you wish to tender in
the exchange offer on your own behalf
you must, prior to completing and
executing the letter of transmittal and
delivering your old notes, either
arrange to have the old notes
registered in your name or obtain a
properly completed bond power from the
registered holder. The transfer of
registered ownership may take
considerable time.
Withdrawal Rights................... You may withdraw your tender of old
notes at any time before the offer
expires.
Accounting Treatment................ We will not recognize any gain or loss
for accounting purposes upon the
completion of the exchange offer. The
expenses of the exchange offer that we
pay will increase our deferred
financing costs in accordance with
generally accepted accounting
principles. See "The Exchange
Offer -- Accounting Treatment."
3
Certain Tax Consequences............ Your exchange of old notes for new
notes pursuant to the exchange offer
generally will not be a taxable event
for U.S. federal income tax purposes.
Use of Proceeds..................... We will not receive any proceeds from
the exchange or the issuance of new
notes in connection with the exchange
offer.
Exchange Agent...................... The Chase Manhattan Bank is serving as
exchange agent in connection with the
exchange offer.
SUMMARY OF TERMS OF THE NEW NOTES
The terms and covenants of the new notes are substantially identical to
those of the old notes that you currently hold, except for the transfer
restrictions and registration rights applicable to the old notes. The new notes
will evidence the same debt as the old notes and will be governed by the same
indenture under which the old notes were issued. For purposes of the description
of the new notes included in this prospectus, references to "us," "we," "our"
and Denbury refer only to Denbury Resources Inc. and do not include our
subsidiaries. The term "notes" in the following summary refers to the new notes.
Issuer.............................. Denbury Resources Inc.
Notes Offered....................... $75,000,000 aggregate principal amount
of 9% Series B Senior Subordinated
Notes Due 2008.
Maturity Date....................... March 1, 2008.
Interest Payment Dates.............. March 1 and September 1 of each year,
commencing March 1, 2002.
Optional Redemption................. We cannot redeem the notes before March
1, 2003. On or after March 1, 2003, we
can redeem some or all of the notes at
the redemption prices listed under the
caption "Description of the New
Notes -- Optional Redemption."
Change of Control................... If a Change of Control occurs, subject
to certain conditions, we must give
holders of the notes an opportunity to
sell to us the notes at a purchase
price of 101% of the principal amount
of the notes, plus accrued and unpaid
interest to the date of the purchase.
The term "Change of Control" is defined
under the caption "Description of the
New Notes -- Change of Control."
Guarantees.......................... The payment of the principal, premium
and interest on the notes will be fully
and unconditionally guaranteed on a
senior subordinated basis by all our
existing domestic restricted
subsidiaries. The subsidiary guarantees
will be subordinated to all existing
and future senior indebtedness of our
guarantor subsidiaries, including their
guarantees of our obligations under our
bank credit facility. See "Description
of the New Notes -- Guarantees."
Ranking............................. The notes will be our senior
subordinated unsecured obligations.
They will rank senior in right of
payment
4
to any of our future Subordinated
Obligations, equal in right of payment
with any of our existing and future
Senior Subordinated Indebtedness and
subordinated in right of payment to any
of our existing and future Senior
Indebtedness. As of September 30, 2001,
we had about $121.0 million of Senior
Indebtedness and $200.0 million of
Senior Subordinated Indebtedness. The
terms "Senior Indebtedness," "Senior
Subordinated Indebtedness" and
"Subordinated Obligations" are defined
under the caption "Description of the
New Notes -- Certain Definitions."
Restrictive Covenants............... The indenture governing the notes,
which is the same indenture that
governs the old notes, contains
covenants which limit our ability and
certain of our subsidiaries' ability
to:
- incur additional debt;
- pay dividends on our capital stock or
redeem, repurchase or retire our
capital stock or subordinated debt;
- make investments;
- create liens on our assets;
- create restrictions on the ability of
our restricted subsidiaries to pay
dividends or make other payments to
us;
- engage in transactions with our
affiliates;
- transfer or sell assets; and
- consolidate, merge or transfer all or
substantially all of our assets and
the assets of our subsidiaries.
These covenants are subject to
important exceptions and
qualifications, which are described
under the caption "Description of the
New Notes -- Certain Covenants."
5
RISK FACTORS
You should consider carefully the following risk factors, in addition to
the other information in this prospectus, before you decide to exchange your old
notes for the new notes, including the factors described under the caption
"Forward-Looking Statements."
RISKS ASSOCIATED WITH THE NOTES
FAILURE TO EXCHANGE YOUR OLD NOTES -- IF YOU FAIL TO EXCHANGE YOUR OLD NOTES,
THEY WILL CONTINUE TO BE RESTRICTED SECURITIES AND MAY BECOME LESS LIQUID.
Old notes that you do not tender or we do not accept will, following the
exchange offer, continue to be restricted securities, and you may not offer to
sell them except pursuant to an exemption from, or in a transaction not subject
to, the Securities Act and applicable state securities law. We will issue new
notes in exchange for the old notes pursuant to the exchange offer only
following the satisfaction of the procedures and conditions set forth in "The
Exchange Offer -- Procedures for Tendering." Such procedures and conditions
include timely receipt by the exchange agent of such old notes and of a properly
completed and duly executed letter of transmittal.
THERE IS CURRENTLY NO MARKET FOR THE NEW NOTES -- IF AN ACTIVE TRADING MARKET
FOR THE NEW NOTES DOES NOT DEVELOP, THE LIQUIDITY AND VALUE OF THE NEW NOTES
COULD BE HARMED.
The new notes constitute a new issue of securities for which there is
currently no trading market. We do not intend to apply for listing of the new
notes on any securities exchange or to seek approval for quotation through an
automated quotation system. Accordingly, we cannot assure you that an active
market will develop upon completion of the exchange offer or, if developed, that
such market will be sustained or as to the liquidity of any market.
Because we anticipate that most holders of old notes will elect to exchange
such old notes, we expect that the liquidity of the market for any old notes
remaining after the completion of the exchange offer may be substantially
limited. Any old notes tendered and exchanged in the exchange offer will reduce
the aggregate principal amount at maturity of the old notes outstanding.
Following the exchange offer, if you did not tender your old notes you generally
will not have any further registration rights, and such old notes will continue
to be subject to certain transfer restrictions. Accordingly, the liquidity of
the market for such old notes could be adversely affected.
YOUR RIGHT TO RECEIVE PAYMENTS ON THE NOTES IS JUNIOR TO OUR EXISTING SENIOR
INDEBTEDNESS AND THE EXISTING SENIOR INDEBTEDNESS OF OUR SUBSIDIARY GUARANTORS.
The indebtedness evidenced by the notes and the guarantees will be senior
subordinated obligations of Denbury and our subsidiaries, respectively. The
payment of the principal of, premium on, if any, and interest on the notes and
the payment of the subsidiary guarantees are each subordinate in right of
payment, as set forth in the indenture, to the prior payment in full of all
senior indebtedness of Denbury or our subsidiaries, as the case may be,
including the obligations of Denbury under, and any of our subsidiaries'
guarantees of Denbury's obligations with respect to, the bank credit facility.
Any future subsidiary guarantee will be similarly subordinated to senior
indebtedness of such subsidiary guarantor.
As of September 30, 2001, our senior indebtedness was approximately $121.0
million, consisting of borrowings under the bank credit facility. Although the
indenture contains limitations on the amount of additional indebtedness that we
may incur, under certain circumstances the amount of such indebtedness could be
substantial and, in any case, such indebtedness may be senior indebtedness. See
"Description of the Notes -- Certain Covenants -- Limitation on Indebtedness."
6
IF WE UNDERGO A CHANGE OF CONTROL, WE MAY NOT HAVE THE ABILITY TO RAISE THE
FUNDS NECESSARY TO FINANCE THE CHANGE OF CONTROL OFFER REQUIRED BY THE INDENTURE
GOVERNING THE NOTES, WHICH WOULD VIOLATE THE TERMS OF THE NOTES.
Upon the occurrence of a change of control, holders of the notes will have
the right to require us to purchase all or any part of such holders' notes at a
price equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of purchase. We would also be required to make a
similar offer to purchase our existing 9% senior subordinated notes. The events
that constitute a change of control under the indenture would constitute a
default under the bank credit facility, which prohibits the purchase of the
notes by us in the event of certain change of control events, unless, and until,
such time as our indebtedness under the bank credit facility is repaid in full.
There can be no assurance that Denbury and our subsidiary guarantors would have
sufficient financial resources available to satisfy all of our or their
obligations under the bank credit facility, our existing 9% senior subordinated
notes and these notes in the event of a change in control. Our failure to
purchase the notes as required under the indenture would result in a default
under the indenture and under the bank credit facility, each of which could have
material adverse consequences for us and the holders of the notes. See
"Description of the New Notes -- Change of Control."
A SUBSIDIARY GUARANTEE COULD BE VOIDED IF IT CONSTITUTES A FRAUDULENT TRANSFER
UNDER U.S. BANKRUPTCY OR SIMILAR STATE LAW, WHICH WOULD PREVENT THE HOLDERS OF
THE NOTES FROM RELYING ON THAT SUBSIDIARY TO SATISFY CLAIMS.
Under U.S. bankruptcy law and comparable provisions of state fraudulent
transfer laws, a guarantee can be voided, or claims under the guarantee may be
subordinated to all other debts of that guarantor if, among other things, the
guarantor, at the time it incurred the indebtedness evidenced by its guarantee:
- intended to hinder, delay or defraud any present or future creditor or
received less than reasonably equivalent value or fair consideration for
the incurrence of the guarantee;
- was insolvent or rendered insolvent by reason of such incurrence;
- was engaged in a business or transaction for which the guarantor's
remaining assets constituted unreasonably small capital; or
- intended to incur, or believed that it would incur, debts beyond its
ability to pay those debts as they mature.
In addition, any payment by that guarantor under the guarantee could be voided
and required to be returned to the guarantor or to a fund for the benefit of the
creditors of the guarantor.
The measures of insolvency for purposes of fraudulent transfer laws vary
depending upon the governing law. Generally, a guarantor would be considered
insolvent if:
- the sum of its debts, including contingent liabilities, was greater than
the fair saleable value of all its assets;
- the present fair saleable value of its assets were less than the amount
that would be required to pay its probable liability on its existing
debts, including contingent liabilities, as they became absolute and
mature; or
- it could not pay its debts as they became due.
On the basis of historical financial information, recent operating history
and other factors, we believe that the subsidiary guarantees are being incurred
for proper purposes and in good faith and that each subsidiary guarantor, after
giving effect to its guarantee of the notes, will not be insolvent, have
unreasonably small capital for the business in which it is engaged or have
incurred debts beyond its ability to pay those debts as they mature. We cannot
be certain, however, that a court would agree with our conclusions in this
regard.
7
RISKS ASSOCIATED WITH OUR INDUSTRY AND OUR COMPANY
STEEP OR PROLONGED DROPS IN PRICES CAN HARM US FINANCIALLY AND HURT OUR ABILITY
TO GROW.
Our revenue, profitability and cash flow depend upon the prices and demand
for oil and natural gas. The markets for oil and natural gas are very volatile,
as evidenced by the recent volatility in natural gas prices.
WE ARE CONTROLLED BY A SINGLE SHAREHOLDER.
Texas Pacific Group has owned a majority of our outstanding common stock
since April 1999. As such, Texas Pacific Group is able to determine all matters
submitted for shareholder approval, control the election of directors, determine
our corporate and management policies and approve a merger, consolidation or
sale of all of our assets, all of which may adversely affect the market for the
notes.
OIL AND NATURAL GAS DRILLING AND PRODUCING OPERATIONS INVOLVE VARIOUS RISKS.
Our drilling activities are subject to many risks, including the risk that
we will not discover commercially productive reservoirs. Operating and
developing oil and natural gas properties involves a number of inherent risks,
including the risk of personal injury, environmental contamination or loss of
wells. In addition, our drilling operations may be curtailed, delayed or
canceled as a result of other factors including title problems, adverse weather
conditions, and compliance with environmental and other governmental
requirements. We may not be able to insure against all of these risks.
A FAILURE TO ACQUIRE PRODUCING PROPERTIES ON A PROFITABLE BASIS IN THE FUTURE
MAY SIGNIFICANTLY AFFECT OUR PROFITABILITY AND GROWTH.
Our significant growth in recent years is attributable in significant part
to our acquiring producing properties. Our ability to continue to make
successful acquisitions is influenced by many factors beyond our control.
ESTIMATING OUR RESERVES, PRODUCTION AND FUTURE NET CASH FLOW IS DIFFICULT TO DO
WITH ANY CERTAINTY.
Estimates of our proved developed oil and natural gas reserves and the
resulting future net revenues contained in this prospectus and elsewhere are
based on a number of uncertainties. A drop in prices or estimated production
volumes could materially adversely effect our revenues, profitability and
financial health.
OUR LEVEL OF INDEBTEDNESS MAY ADVERSELY AFFECT OPERATIONS AND LIMIT OUR GROWTH.
We make, and will continue to make, substantial capital expenditures to
acquire, develop, produce, explore and abandon our oil and natural gas reserves.
Our bank borrowing base is adjusted at the banks' discretion and is based in
part upon external factors over which we have no control. Further, our cash flow
from operations is highly dependent on the prices that we receive for oil and
natural gas. Any decrease in our revenues, as a result of lower oil or gas
prices or otherwise, could limit our ability to replace reserves or maintain
production at current levels. If our cash flow from operations drops
significantly, we may be unable to find additional debt or equity financing.
SHORTAGES OF OIL FIELD EQUIPMENT, SERVICES AND QUALIFIED PERSONNEL COULD REDUCE
OUR CASH FLOW AND ADVERSELY AFFECT RESULTS OF OPERATIONS.
Our ability to conduct operations in a timely and cost effective manner
depends on the availability of supplies, equipment and personnel. The oil and
gas industry is cyclical and experiences periodic shortages of drilling rigs and
other equipment, tubular goods, supplies and experienced personnel. Shortages
can delay operations and materially increase operating and capital costs.
8
OUR FUTURE SUCCESS DEPENDS ON OUR ABILITY TO FIND, DEVELOP OR ACQUIRE ADDITIONAL
OIL AND NATURAL GAS RESERVES THAT ARE ECONOMICALLY RECOVERABLE.
Unless we successfully replace the reserves that we produce, our reserves
will decline, resulting eventually in a decrease in oil and natural gas
production. This would lead to lower production and cash flow.
9
USE OF PROCEEDS
We will not receive any proceeds from the exchange offer.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for
the six months ended June 30, 2001 and June 30, 2000, and for each of the last
five years ended December 31. For purposes of determining the ratio of earnings
to fixed charges, earnings are defined as earnings from continuing operations
before income taxes, plus fixed charges. Fixed charges consist of interest
expense, amortization of debt expense, and imputed preferred stock dividends.
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
----------------------------------------------- -------------------
1996 1997 1998 1999 2000 2000 2001
------- -------- ------ ------- ------- -------- --------
Ratio of earnings to fixed charges..... 4.4x 19.9x --(a) 1.3x 5.8x 4.4 8.7
---------------
(a) Earnings were inadequate to cover fixed charges in 1998 by $285.0 million.
The deficiency was primarily due to a $280 million writedown of our full cost
pool as a result of the low oil prices during 1998.
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
In connection with the sale of the old notes, we entered into a
registration rights agreement with the initial purchasers, under which we agreed
to use our best efforts to file and have declared effective under the Securities
Act of 1933 an exchange offer registration statement.
We are making the exchange offer in reliance on the position of the SEC as
set forth in certain no-action letters. However, we have not sought our own
no-action letter. Based upon these interpretations by the SEC, we believe that a
holder of new notes, but not a holder who is our "affiliate" within the meaning
of Rule 405 of the Securities Act, who exchanges old notes for new notes in the
exchange offer, generally may offer the new notes for resale, sell the new notes
and otherwise transfer the new notes without further registration under the
Securities Act and without delivery of a prospectus that satisfies the
requirements of Section 10 of the Securities Act. We also believe that a holder
may offer, sell or transfer the new notes only if the holder acquires the new
notes in the ordinary course of its business and is not participating, does not
intend to participate and has no arrangement or understanding with any person to
participate in a distribution of the new notes.
Any holder of the old notes using the exchange offer to participate in a
distribution of new notes cannot rely on the no-action letters referred to
above. This includes a broker-dealer that acquired old notes directly from us,
but not as a result of market-making activities or other trading activities.
Consequently, the holder must comply with the registration and prospectus
delivery requirements of the Securities Act in the absence of an exemption from
such requirements.
Each broker-dealer that receives new notes for its own account in exchange
for old notes, where such old notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such new
notes. This prospectus, as it may be amended or supplemented from time to time,
may be used by a broker-dealer in connection with resales of new notes received
in exchange for old notes where such old notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The letter of transmittal states that by acknowledging and
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. We have agreed that
for a period of 180 days after the expiration date, we will make this prospectus
available to broker-dealers for use in connection with any such resale. See
"Plan of Distribution."
10
Except as described above, this prospectus may not be used for an offer to
resell, resale or other transfer of new notes. The exchange offer is not being
made to, nor will we accept tenders for exchange from, holders of old notes in
any jurisdiction in which the exchange offer or the acceptance of it would not
be in compliance with the securities or blue sky laws of such jurisdiction.
TERMS OF THE EXCHANGE
Upon the terms and subject to the conditions of the exchange offer, we will
accept any and all old notes validly tendered prior to 5:00 p.m., New York time,
on the expiration date. The date of acceptance for exchange of the old notes,
and completion of the exchange offer, is the exchange date, which will be the
first business day following the expiration date, unless extended as described
in this prospectus. We will issue, on or promptly after the exchange date, an
aggregate principal amount of up to $75,000,000 new notes for a like principal
amount of outstanding old notes tendered and accepted in connection with the
exchange offer. The new notes issued in connection with the exchange offer will
be delivered on the earliest practicable date following the exchange date.
Holders may tender some or all of their old notes in connection with the
exchange offer, but only in $1,000 increments of principal amount at maturity.
The terms and covenants of the new registered 9% Series B Senior
Subordinated Notes Due 2008 to be issued are substantially identical to those of
our outstanding unregistered 9% Series B Senior Subordinated Notes Due 2008 that
you currently hold, except for the transfer restrictions and registration rights
applicable to the outstanding notes. The new notes will evidence the same debt
as the old notes and will be issued under the same indenture and entitled to the
same benefits under that indenture as the old notes being exchanged. As of the
date of this prospectus, $75,000,000 in aggregate principal amount of the old
notes is outstanding.
In connection with the issuance of the old notes, we arranged for the old
notes originally purchased by qualified institutional buyers and those sold in
reliance on Regulation S under the Securities Act to be issued and transferable
in book-entry form through the facilities of The Depository Trust Company,
acting as depositary. Except as described under "Description of the New
Notes -- Book-Entry, Delivery and Form," the new notes will be issued in the
form of a global note registered in the name of DTC or its nominee and each
beneficial owner's interest in it will be transferable in book-entry form
through DTC. See "Description of the New Notes -- Book-Entry, Delivery and
Form."
Holders of old notes do not have any appraisal or dissenters' rights in
connection with the exchange offer. Old notes which are not tendered for
exchange or are tendered but not accepted in connection with the exchange offer
will remain outstanding and be entitled to the benefits of the indenture under
which they were issued, but will not be entitled to any registration rights
under the registration rights agreement.
We shall be considered to have accepted validly tendered old notes if and
when we have given oral or written notice to the exchange agent. The exchange
agent will act as agent for the tendering holders for the purposes of receiving
the new notes from us.
If any tendered old notes are not accepted for exchange because of an
invalid tender, the occurrence of certain other events described in this
prospectus or otherwise, we will return the old notes, without expense, to the
tendering holder as quickly as possible after the expiration date.
Holders who tender old notes will not be required to pay brokerage
commissions or fees or, subject to the instructions in the letter of
transmittal, transfer taxes on exchange of old notes in connection with the
exchange offer. We will pay all charges and expenses, other than certain
applicable taxes described below, in connection with the exchange offer. See
"-- Fees and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The expiration date for the exchange offer is 5:00 p.m., New York City
time, on , 2001, unless extended by us in our sole discretion (but in
no event to a date later than , 2001), in which case the term
"expiration date" shall mean the latest date and time to which the exchange
offer is extended.
11
We reserve the right, in our sole discretion:
- to delay accepting any old notes, to extend the offer or to terminate the
exchange offer if, in our reasonable judgment, any of the conditions
described below shall not have been satisfied, by giving oral or written
notice of the delay, extension or termination to the exchange agent, or
- to amend the terms of the exchange offer in any manner.
If we amend the exchange offer in a manner that we consider material, we
will disclose such amendment by means of a prospectus supplement, and we will
extend the exchange offer for a period of five to ten business days.
If we determine to make a public announcement of any delay, extension,
amendment or termination of the exchange offer, we will do so by making a timely
release through an appropriate news agency.
INTEREST ON THE NEW NOTES
Interest on the new notes will accrue at the rate of 9% per annum from the
most recent date to which interest on the new notes has been paid or, if no
interest has been paid, from the date of the indenture governing the notes.
Interest will be payable semiannually in arrears on March 1 and September 1,
commencing on March 1, 2002.
PROCEDURES FOR TENDERING
Unless the tender is being make in book-entry form, to tender in the
exchange offer, a holder must
- complete, sign and date the letter of transmittal, or a facsimile of it,
- have the signatures guaranteed if required by the letter of transmittal,
and
- mail or otherwise deliver the letter of transmittal or the facsimile, the
old notes and any other required documents to the exchange agent prior to
5:00 p.m., New York City time, on the expiration date.
Any financial institution that is a participant in DTC's Book-Entry
Transfer Facility system may make book-entry delivery of the old notes by
causing DTC to transfer the old notes into the exchange agent's account.
Although delivery of old notes may be effected through book-entry transfer into
the exchange agent's account at DTC, the letter of transmittal (or facsimile),
with any required signature guarantees and any other required documents, must,
in any case, be transmitted to and received or confirmed by the exchange agent
at its addresses set forth under the caption "Exchange Agent" below, prior to
5:00 p.m., New York City time, on the expiration date. Delivery of documents to
DTC in accordance with its procedures does not constitute delivery to the
exchange agent.
The tender by a holder of old notes will constitute an agreement between us
and the holder in accordance with the terms and subject to the conditions set
forth in this prospectus and in the letter of transmittal.
The method of delivery of old notes and the letter of transmittal and all
other required documents to the exchange agent is at the election and risk of
the holders. Instead of delivery by mail, we recommend that holders use an
overnight or hand delivery service. In all cases, holders should allow
sufficient time to assure delivery to the exchange agent before the expiration
date. No letter of transmittal of old notes should be sent to us. Holders may
request their respective brokers, dealers, commercial banks, trust companies or
nominees to effect the tenders for such holders.
Any beneficial owner whose old notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact the registered holder promptly and instruct such
registered holder to tender on behalf of the beneficial owner. If the beneficial
owner wishes to tender on that owner's own behalf, the owner must, prior to
completing and executing the
12
letter of transmittal and delivery of such owner's old notes, either make
appropriate arrangements to register ownership of the old notes in the owner's
name or obtain a properly completed bond power from the registered holder. The
transfer of registered ownership may take considerable time.
Signature on a letter of transmittal or a notice of withdrawal must be
guaranteed by an eligible guarantor institution within the meaning of Rule
17Ad-15 under the Securities Exchange Act of 1934, unless the old notes tendered
pursuant thereto are tendered:
- by a registered holder who has not completed the box entitled "Special
Payment Instructions" or "Special Delivery Instructions" on the letter of
transmittal, or
- for the account of an eligible guarantor institution.
In the event that signatures on a letter or transmittal or a notice of
withdrawal are required to be guaranteed, such guarantee must be by:
- a member firm of a registered national securities exchange or of the
National Association of Securities Dealers, Inc.,
- a commercial bank or trust company having an office or correspondent in
the United States, or
- an "eligible guarantor institution."
If the letter of transmittal is signed by a person other than the
registered holder of any old notes, the old notes must be endorsed by the
registered holder or accompanied by a properly completed bond power, in each
case signed or endorsed in blank by the registered holder.
If the letter of transmittal or any old notes or bond powers are signed or
endorsed by trustees, executors, administrators, guardians, attorney-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and, unless waived by us,
submit evidence satisfactory to us of their authority to act in that capacity
with the letter of transmittal.
We will determine all questions as to the validity, form, eligibility
(including time of receipt) and acceptance and withdrawal of tendered old notes
in our sole discretion. We reserve the absolute right to reject any and all old
notes not properly tendered or any old notes whose acceptance by us would, in
the opinion of our U.S. counsel, be unlawful. We also reserve the right to waive
any defects, irregularities or conditions of tender as to any particular old
notes either before or after the expiration date. Our interpretation of the
terms and conditions of the exchange offer (including the instructions in the
letter of transmittal) will be final and binding on all parties. Unless waived,
any defects or irregularities in connection with tenders of old notes must be
cured within a time period we will determine. Although we intend to request the
exchange agent to notify holders of defects or irregularities relating to
tenders of old notes, neither we, the exchange agent nor any other person will
have any duty or incur any liability for failure to give such notification.
Tenders of old notes will not be considered to have been made until such defects
or irregularities have been cured or waived. Any old notes received by the
exchange agent that are not properly tendered and as to which the defects or
irregularities have not been cured or waived will be returned by the exchange
agent to the tendering holders, unless otherwise provided in the letter of
transmittal, as soon as practicable following the expiration date.
By tendering old notes for exchange, each holder represents to us, among
other things, that:
- the new notes acquired in connection with the exchange offer are being
obtained in the ordinary course of business of the person receiving the
new notes, whether or not such person is the holder;
- neither the holder nor any such other person has an arrangement or
understanding with any person to participate in the distribution of such
new notes; and
- neither the holder nor any such other person is our "affiliate" (as
defined in Rule 405 under the Securities Act).
13
Each broker-dealer that receives new notes for its own account in exchange
for old notes, where such old notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such new
notes. See "Plan of Distribution."
GUARANTEED DELIVERY PROCEDURES
A holder who wishes to tender its old notes and:
- whose old notes are not immediately available;
- who cannot deliver the holder's old notes, the letter of transmittal or
any other required documents to the exchange agent prior to the
expiration date; or
- who cannot complete the procedures for book-entry transfer before the
expiration date
may effect a tender if:
- the tender is made through an eligible guarantor institution;
- before the expiration date, the exchange agent receives from the eligible
guarantor institution:
- a properly completed and duly executed notice of guaranteed delivery
by facsimile transmission, mail or hand delivery;
- the name and address of the holder;
- the certificate number(s) of the old notes and the principal amount at
maturity of old notes tendered, stating that the tender is being made
and guaranteeing that, within three New York Stock Exchange trading
days after the expiration date, the letter of transmittal and the
certificate(s) representing the old notes (or a confirmation of
book-entry transfer), and any other documents required by the letter
of transmittal will be deposited by the eligible guarantor institution
with the exchange agent; and
- the exchange agent receives, within three New York Stock Exchange trading
days after the expiration date, a properly completed and executed letter
of transmittal or facsimile, as well as the certificate(s) representing
all tendered old notes in proper form for transfer or a confirmation of
book-entry transfer, and all other documents required by the letter of
transmittal.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of old notes may be withdrawn
at any time prior to 5:00 p.m., New York City time, on the expiration date.
To withdraw a tender of old notes in connection with the exchange offer, a
written facsimile transmission notice of withdrawal must be received by the
exchange agent at its address set forth herein prior to 5:00 p.m., New York City
time, on the expiration date. Any such notice of withdrawal must:
- specify the name of the person who deposited the old notes to be
withdrawn,
- identify the old notes to be withdrawn (including the certificate number
or numbers and principal amount at maturity of such old notes),
- be signed by the depositor in the same manner as the original signature
on the letter of transmittal by which such old notes were tendered
(including any required signature guarantees) or be accompanied by
documents or transfer sufficient to have the trustee register the
transfer of such old notes into the name of the person withdrawing the
tender, and
- specify the name in which any such old notes are to be registered, if
different from that of the depositor.
14
We will determine all questions as to the validity, form and eligibility
(including time of receipt) of such withdrawal notices. Any old notes so
withdrawn will be considered not to have been validly tendered for purposes of
the exchange offer, and no new notes will be issued unless the old notes
withdrawn are validly re-tendered. Any old notes which have been tendered but
which are not accepted for exchange or which are withdrawn will be returned to
the holder without cost to such holder as soon as practicable after withdrawal,
rejection of tender or termination of the exchange offer. Properly withdrawn old
notes may be re-tendered by following one of the procedures described above
under the caption "Procedures for Tendering" at any time prior to the expiration
date.
EXCHANGE AGENT
The Chase Manhattan Bank has been appointed as exchange agent in connection
with the exchange offer. Questions and requests for assistance, requests for
additional copies of this prospectus or of the letter of transmittal should be
directed to the exchange agent, using the contact information set forth in the
letter of transmittal. For information or questions you can reach the exchange
agent at (713) 216-6686.
FEES AND EXPENSES
We will not make any payment to brokers, dealers or others soliciting
acceptances of the exchange offer. We will pay certain other expenses to be
incurred in connection with the exchange offer, including the fees and expenses
of the exchange agent, accounting and certain legal fees.
Holders who tender their old notes for exchange will not be obligated to
pay transfer taxes. If, however:
- new notes are to be delivered to, or issued in the name of, any person
other than the registered holder of the old notes tendered, or
- if tendered old notes are registered in the name of any person other than
the person signing the letter of transmittal, or
- if a transfer tax is imposed for any reason other than the exchange of
old notes in connection with the exchange offer,
then the amount of any such transfer taxes (whether imposed on the registered
holder or any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption from them is not
submitted with the letter of transmittal, the amount of such transfer taxes will
be billed directly to the tendering holder.
ACCOUNTING TREATMENT
The new notes will be recorded at the same carrying value as the old notes
as reflected in our accounting records on the date of the exchange. Accordingly,
we will not recognize any gain or loss for accounting purposes upon the
completion of the exchange offer. The expenses of the exchange offer that we pay
will increase our deferred financing costs in accordance with generally accepted
accounting principles.
CONSEQUENCES OF FAILURES TO PROPERLY TENDER OLD NOTES IN THE EXCHANGE
Issuance of the new notes in exchange for the old notes under the exchange
offer will be made only after timely receipt by the exchange agent of such old
notes, a properly completed and duly executed letter of transmittal and all
other required documents. Therefore, holders of the old notes desiring to tender
such old notes in exchange for new notes should allow sufficient time to ensure
timely delivery. We are under no duty to give notification of defects or
irregularities of tenders of old notes for exchange. Old notes that are not
tendered or that are tendered but not accepted by us will, following completion
of the exchange offer, continue to be subject to the existing restrictions upon
transfer thereof under the Securities Act, and,
15
upon completion of the exchange offer, certain registered rights under the
registration rights agreement will terminate.
In the event the exchange offer is completed, we will not be required to
register the remaining old notes. Remaining old notes will continue to be
subject to the following restrictions on transfer:
- the remaining old notes may be resold only if registered pursuant to the
Securities Act, or if any exemption from registration is available, under
such exemption, or may be sold if neither such registration nor such
exemption is required by law;
- the remaining old notes will bear a legend restricting transfer in the
absence of registration.
We do not currently anticipate that we will register the remaining old
notes under the Securities Act. To the extent that old notes are tendered and
accepted in connection with the exchange offer, any trading market for remaining
old notes could be adversely affected.
16
DESCRIPTION OF THE NEW NOTES
Certain terms used in this description are defined under the subheading
"-- Certain Definitions." As used in this section, the terms "Company," "we,"
"us" and "our" refer only to Denbury Resources Inc., the issuer of the Notes,
and not to any of its subsidiaries. The term "Notes" in this description refers
to the new notes.
GENERAL
The Notes are to be issued under an Indenture, dated as of August 15, 2001
(the "Indenture"), among the Company, its subsidiaries and The Chase Manhattan
Bank, as Trustee (the "Trustee"). This is the same indenture under which the old
notes were issued. 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 of
1939 (the "Trust Indenture Act"). The following description is only a summary of
the material provisions of the Indenture. We urge you to read the Indenture
because it, not this description, defines your rights as holders of these Notes.
You may request copies of the indenture at our address set forth under the
heading "Incorporation of Documents by Reference."
TERMS OF THE NOTES
The Notes will be unsecured senior subordinated obligations of the Company,
initially limited to $75 million aggregate principal amount, and will mature on
March 1, 2008. The Notes will bear interest at the rate per annum shown on the
cover page hereof from the date of original issuance, or from the most recent
date to which interest has been paid or provided for, payable semiannually to
Holders of record at the close of business on the February 15 or August 15
immediately preceding the interest payment date on March 1 and September 1 of
each year, commencing March 1, 2002. Interest on overdue principal and (to the
extent permitted by law) on overdue installments of interest will accrue at 1%
per annum in excess of such rate. Interest on the Notes will be computed on the
basis of a 360-day year of twelve 30-day months.
Principal of and interest on the Notes will be payable, and the Notes may
be exchanged or transferred, at our office or agency in the Borough of
Manhattan, The City of New York (which initially shall be the corporate trust
office of the Trustee), except that, at our option, payment of interest may be
made by check mailed to the address of the Holders as such address appears in
the Note Register.
The Notes will be issued only in fully registered form, without coupons, in
denominations of $1,000 and any integral multiple of $1,000. No service charge
shall be made for any registration of transfer or exchange of Notes, but we may
require payment of a sum sufficient to cover any transfer tax or other similar
governmental charge payable in connection therewith.
Subject to the covenants described below under "-- Certain Covenants" and
applicable law, the Company may issue additional Notes under the Indenture in an
unlimited principal amount (the "Additional Notes"). The Notes offered hereby
and any Additional Notes subsequently issued would be treated as a single class
for all purposes under the Indenture. Unless the context otherwise requires, for
all purposes of the Indenture and this "Description of the New Notes,"
references to the Notes include any Additional Notes actually issued.
OPTIONAL REDEMPTION
Except as set forth in the following paragraph, the Notes will not be
redeemable at the option of the Company prior to March 1, 2003. Thereafter, the
Notes will be redeemable, at our option, in whole or in part, at any time or
from time to time, upon not less than 30 nor more than 60 days' prior notice
mailed by first-class mail to each Holder's registered address, at the following
redemption prices (expressed in percentages of principal amount), plus accrued
interest to the redemption date (subject to the right of
17
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date), if redeemed during the 12-month period
commencing on March 1, of the years set forth below:
REDEMPTION
PERIOD PRICE
------ ----------
2003...................................................... 104.500%
2004...................................................... 103.000
2005...................................................... 101.500
2006 and thereafter....................................... 100.000
In the case of any partial redemption, selection of the Notes for
redemption will be made by the Trustee on a pro rata basis, by lot or by such
other method as the Trustee in its sole discretion shall deem to be fair and
appropriate, although no Note of $1,000 in original principal amount or less
shall be redeemed in part. If any Note is to be redeemed in part only, the
notice of redemption relating to such Note shall state the portion of the
principal amount thereof to be redeemed. A new Note in principal amount equal to
the unredeemed portion thereof will be issued in the name of the Holder thereof
upon cancelation of the original Note. Notes called for redemption become due on
the date fixed for redemption. On and after the redemption date, interest ceases
to accrue on Notes or portions of them called for redemption.
MANDATORY REDEMPTION; OFFERS TO PURCHASE; OPEN MARKET PURCHASES
We are not required to make any mandatory redemption or sinking fund
payments with respect to the Notes. However, under certain circumstances, we may
be required to offer to purchase Notes as described under the captions
"-- Change of Control" and "Certain Covenants -- Limitation on Sales of Assets
and Subsidiary Stock." We may at any time and from time to time purchase Notes
in the open market or otherwise.
GUARANTEES
The Subsidiary Guarantors, jointly and severally, as primary obligors and
not merely as sureties, will irrevocably, fully and unconditionally guarantee
(each, a "Subsidiary Guarantee") on a senior subordinated basis the performance
and the punctual payment when due, whether at Stated Maturity, by acceleration
or otherwise, of all the obligations of the Company under the Indenture and the
Notes (all such obligations guaranteed by the Subsidiary Guarantors being herein
called the "Guaranteed Obligations"). The Company will derive a substantial
portion of its operating income and cash flow from its subsidiaries, including
the Subsidiary Guarantors, the common stock of which may be pledged to secure
the Company's indebtedness outstanding under the Credit Facilities. Each
Subsidiary Guarantor will agree to pay, in addition to the amount stated above,
any and all expenses (including reasonable counsel fees and expenses) incurred
by the Trustee and the Holders in enforcing any rights under the Subsidiary
Guarantee with respect to the Subsidiary Guarantor. Each Subsidiary Guarantee
will be limited in amount to an amount not to exceed the maximum amount that can
be guaranteed by the applicable Subsidiary Guarantor without rendering the
Subsidiary Guarantee, as it relates to such Subsidiary Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally. If a Subsidiary
Guarantee were to be rendered voidable, it could be subordinated by a court to
all other indebtedness (including guarantees and other contingent liabilities)
of the applicable Subsidiary Guarantor, and depending on the amount of such
indebtedness, a Subsidiary Guarantor's liability on its Subsidiary Guarantee
could be reduced to zero.
Each Subsidiary Guarantor that makes a payment under its Subsidiary
Guarantee will be entitled to a contribution from each other Subsidiary
Guarantor in an amount equal to such other Subsidiary Guarantor's pro rata
portion of such payment based on the respective net assets of all the Subsidiary
Guarantors at the time of such payment determined in accordance with GAAP.
18
Each Subsidiary Guarantee is a continuing guarantee and shall:
(1) subject to certain limited exceptions, remain in full force and
effect until payment in full of all the Guaranteed Obligations;
(2) be binding upon the Subsidiary Guarantor; and
(3) enure to the benefit of and be enforceable by the Trustee, the
Holders and their successors, transferees and assigns.
Pursuant to the Indenture, a Subsidiary Guarantor may consolidate with,
merge with or into, or transfer all or substantially all its assets to any other
Person to the extent described below under "-- Certain Covenants -- Merger and
Consolidation"; provided, however, that if such Person is not the Company, the
Subsidiary Guarantor's obligations under the Indenture and its Subsidiary
Guarantee must be expressly assumed by such other Person. However, upon the sale
or other disposition (including by way of consolidation or merger) of a
Subsidiary Guarantor or the sale or disposition of all or substantially all the
assets of a Subsidiary Guarantor (in each case other than to the Company or an
Affiliate of the Company), such Subsidiary Guarantor will be released and
relieved from all its obligations under its Subsidiary Guarantee. See
"-- Certain Covenants -- Merger and Consolidation."
RANKING
Senior Indebtedness versus Notes
The indebtedness evidenced by the Notes and the Subsidiary Guarantees will
be unsecured, general obligations of the Company and the relevant Subsidiary
Guarantor, as the case may be, subordinated in right of payment, as set forth in
the Indenture, to the prior payment of all Senior Indebtedness of the Company or
the relevant Subsidiary Guarantor, as the case may be, whether outstanding on
the Issue Date or thereafter incurred, including the obligations of the Company
under, and such Subsidiary Guarantor's guarantee, if any, of the Company's
obligations with respect to, the Credit Facilities.
As of September 30, 2001:
(1) the Senior Indebtedness of the Company was approximately $121.0
million, all of which was secured debt of the Company under the Credit
Agreement; and
(2) the Senior Indebtedness of the Subsidiary Guarantors was
approximately $121.0 million, all of which represented their respective
guarantees of Senior Indebtedness of the Company under the Credit
Agreement.
Although the Indenture contains limitations on the amount of additional
Indebtedness that the Company and the Subsidiary Guarantors may incur, under
certain circumstances the amount of such Indebtedness could be substantial and,
in any case, such Indebtedness may be Senior Indebtedness. See "-- Certain
Covenants -- Limitation on Indebtedness."
Other Senior Subordinated Indebtedness versus Notes
Only Indebtedness of the Company or a Subsidiary Guarantor that is Senior
Indebtedness will rank senior to the Notes and the relevant Subsidiary Guarantee
in accordance with the provisions of the Indenture. The Notes and each
Subsidiary Guarantee will in all respects rank pari passu with all other Senior
Subordinated Indebtedness of the Company and the relevant Subsidiary Guarantor,
respectively, including the obligations of the Company and such Subsidiary
Guarantor with respect to the Company's existing 9% Senior Subordinated Notes
Due 2008 (the "Existing 9% Senior Subordinated Notes").
As of September 30, 2001:
(1) the Company's Senior Subordinated Indebtedness was approximately
$200.0 million, consisting of the Notes and $125.0 million of Senior
Subordinated Indebtedness represented by the Existing 9% Senior
Subordinated Notes; and
19
(2) the Senior Subordinated Indebtedness of the Subsidiary Guarantors
was approximately $200.0 million, consisting of their respective guarantees
of Senior Subordinated Indebtedness of the Company represented by the Notes
and the Existing 9% Senior Subordinated Notes.
The Company and each Subsidiary Guarantor will agree in the Indenture that
they will not Incur, directly or indirectly, any Indebtedness that is
subordinate or junior in ranking in right of payment to its Senior Indebtedness
unless such Indebtedness is Senior Subordinated Indebtedness or is expressly
subordinated in right of payment to Senior Subordinated Indebtedness. Unsecured
Indebtedness is not deemed to be subordinated or junior to Secured Indebtedness
merely because it is unsecured.
Liabilities of Non-Guarantor Subsidiaries versus Notes
A substantial portion of the operations of the Company are currently
conducted through its Subsidiaries. All of our existing Restricted Subsidiaries
are Guaranteeing the Notes. However, our Unrestricted Subsidiaries will not, and
certain future Subsidiaries of the Company may not, be required to guarantee the
Notes. Claims of creditors of any non-guarantor Subsidiaries, including trade
creditors, secured creditors and creditors holding guarantees issued by such
non-guarantor Subsidiaries, and claims of preferred stockholders (if any) of
such non-guarantor Subsidiaries generally would have priority with respect to
the assets and earnings of such non-guarantor Subsidiaries over the claims of
creditors of the Company, including holders of the Notes, even though such
obligations would not constitute Senior Indebtedness of the Company. The Notes,
therefore, would be effectively subordinated to creditors (including trade
creditors) and preferred stockholders (if any) of such non-guarantor
Subsidiaries of the Company. Although the Indenture limits the incurrence of
Indebtedness and the issuance of preferred stock of certain of the Company's
Subsidiaries, such limitation is subject to a number of significant
qualifications. Moreover, the Indenture does not impose any limitation on the
incurrence by such Subsidiaries of liabilities that are not considered
Indebtedness under the Indenture. See "-- Certain Covenants -- Limitation on
Indebtedness."
Payment of Notes
The Company may not pay principal of, premium (if any) or interest on, the
Notes or make any deposit pursuant to the provisions described under
"Defeasance" below or may not repurchase, redeem or otherwise retire any Notes
(collectively, "pay the Notes") if:
(1) any Designated Senior Indebtedness of the Company is not paid when
due; or
(2) any other default on Designated Senior Indebtedness of the Company
occurs and the maturity of such Designated Senior Indebtedness is
accelerated in accordance with its terms;
unless, in either case, the default has been cured or waived and any such
acceleration has been rescinded or such Designated Senior Indebtedness has been
paid in full. However, the Company may pay the Notes without regard to the
foregoing if the Company and the Trustee receive written notice approving such
payment from the Representative of the applicable Designated Senior Indebtedness
with respect to which either of the events set forth in clause (1) or (2) of the
immediately preceding sentence has occurred and is continuing. During the
continuance of any default (other than a default described in clause (1) or (2)
of the second preceding sentence) with respect to any Designated Senior
Indebtedness of the Company pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, the Company may not pay the Notes for a period (a "Payment Blockage
Period") commencing upon the receipt by the Trustee (with a copy to the Company)
of written notice (a "Blockage Notice") of such default from the Representative
of the holders of such Designated Senior Indebtedness specifying an election to
effect a Payment Blockage Period and ending 179 days thereafter (or earlier if
such Payment Blockage Period is terminated:
(1) by written notice to the Trustee and the Company from the Person
or Persons who gave such Blockage Notice;
20
(2) because the default giving rise to such Blockage Notice is no
longer continuing; or
(3) because such Designated Senior Indebtedness has been repaid in
full in cash).
Notwithstanding the provisions described in the immediately preceding sentence,
unless the holders of such Designated Senior Indebtedness or the Representative
of such holders have accelerated the maturity of such Designated Senior
Indebtedness, the Company must resume payments on the Notes after the end of
such Payment Blockage Period. The Notes shall not be subject to more than one
Payment Blockage Period in any consecutive 360-day period, irrespective of the
number of defaults with respect to Designated Senior Indebtedness of the Company
during such period.
Upon any payment or distribution of the assets of the Company upon a total
or partial liquidation or dissolution or reorganization of or similar proceeding
relating to the Company or its property:
(1) the holders of Senior Indebtedness of the Company will be entitled
to receive payment in full in cash of such Senior Indebtedness before the
Noteholders are entitled to receive any payment in respect of the Notes;
(2) until such Senior Indebtedness is paid in full in cash, any
payment or distribution to which Noteholders would be entitled from the
Company but for the subordination provisions of the Indenture will be made
to holders of such Senior Indebtedness of the Company as their interests
may appear; and
(3) if a distribution is made to Noteholders that, due to the
subordination provisions, should not have been made to them, such
Noteholders are required to hold it in trust for the holders of Senior
Indebtedness of the Company and pay it over to them as their interests may
appear.
If payment of the Notes is accelerated because of an Event of Default, the
Company or the Trustee shall promptly notify the holders of Designated Senior
Indebtedness of the Company or the Representative of such holders of the
acceleration.
The obligations of each Subsidiary Guarantor under its Subsidiary Guarantee
are unsecured senior subordinated obligations. As such, the rights of
Noteholders to receive payment by a Subsidiary Guarantor pursuant to its
Subsidiary Guarantee will be subordinated in right of payment to the rights of
holders of Senior Indebtedness of such Subsidiary Guarantor. The terms of the
subordination provisions described above with respect to the Company's
obligations under the Notes apply equally to each Subsidiary Guarantor and the
obligations of each such Subsidiary Guarantor under its respective Subsidiary
Guarantee.
By reason of the subordination provisions contained in the Indenture, in
the event of insolvency, creditors of the Company or a Subsidiary Guarantor who
are holders of Senior Indebtedness of the Company or such Subsidiary Guarantor,
as the case may be, may recover more, ratably, than the Noteholders, and
creditors of the Company or a Subsidiary Guarantor who are not holders of Senior
Indebtedness of the Company or such Subsidiary Guarantor may recover less,
ratably, than holders of Senior Indebtedness of the Company or such Subsidiary
Guarantor, as the case may be, and may recover more, ratably, than the
Noteholders.
Notwithstanding the foregoing, payment from the money or the proceeds of
U.S. Government Obligations held in any defeasance trust described under
"-- Defeasance" below will not be contractually subordinated in right of payment
to any Senior Indebtedness of the Company or subject to the restrictions
described herein.
BOOK-ENTRY, DELIVERY AND FORM
We will initially issue the Notes in the form of one or more global notes
(the "Global Note"). The Global Note will be deposited with, or on behalf of,
the Depository and registered in the name of the Depository or its nominee.
Except as set forth below, the Global Note may be transferred, in whole and
21
not in part, only to the Depository or another nominee of the Depository. You
may hold your beneficial interests in the Global Note directly through the
Depository if you have an account with the Depository or indirectly through
organizations which have accounts with the Depository.
The Depository has advised us as follows: the Depository is a
limited-purpose trust company organized under the laws of the State of New York,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and "a clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. The
Depository was created to hold securities of institutions that have accounts
with the Depository ("participants") and to facilitate the clearance and
settlement of securities transactions among its participants in such securities
through electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. The
Depository's participants include securities brokers and dealers (which may
include the initial purchasers), banks, trust companies, clearing corporations
and certain other organizations. Access to the Depository's book-entry system is
also available to others such as banks, brokers, dealers and trust companies
(collectively, the "indirect participants") that clear through or maintain a
custodial relationship with a participant, whether directly or indirectly.
We expect that pursuant to procedures established by the Depository, upon
the deposit of the Global Note with the Depository, the Depository will credit,
on its book-entry registration and transfer system, the principal amount of
Notes represented by such Global Note to the accounts of participants. The
accounts to be credited shall be designated by the initial purchasers. Ownership
of beneficial interests in the Global Note will be limited to participants or
persons that may hold interests through participants. Ownership of beneficial
interests in the Global Note will be shown on, and the transfer of those
ownership interests will be effected only through, records maintained by the
Depository (with respect to participants' interests), the participants and the
indirect participants (with respect to the owners of beneficial interests in the
Global Note other than participants). The laws of some jurisdictions may require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and laws may impair the ability to transfer or
pledge beneficial interests in the Global Note.
So long as the Depository, or its nominee, is the registered holder and
owner of the Global Note, the Depository or such nominee, as the case may be,
will be considered the sole legal owner and holder of any related Notes
evidenced by the Global Note for all purposes of such Notes and the Indenture.
Except as set forth below, as an owner of a beneficial interest in the Global
Note, you will not be entitled to have the Notes represented by the Global Note
registered in your name, will not receive or be entitled to receive physical
delivery of certificated Notes and will not be considered to be the owner or
holder of any Notes under the Global Note. We understand that under existing
industry practice, in the event an owner of a beneficial interest in the Global
Note desires to take any action that the Depository, as the holder of the Global
Note, is entitled to take, the Depository would authorize the participants to
take such action, and the participants would authorize beneficial owners owning
through such participants to take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
We will make payments of principal of, premium, if any, and interest on
Notes represented by the Global Note registered in the name of and held by the
Depository or its nominee to the Depository or its nominee, as the case may be,
as the registered owner and holder of the Global Note.
We expect that the Depository or its nominee, upon receipt of any payment
of principal of, premium, if any, or interest on the Global Note will credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of the Global Note as
shown on the records of the Depository or its nominee. We also expect that
payments by participants or indirect participants to owners of beneficial
interests in the Global Note held through such participants or indirect
participants will be governed by standing instructions and customary practices
and will be the responsibility of such participants or indirect participants. We
will not have any responsibility or liability for any aspect of the records
relating to, or payments made on account of, beneficial ownership interests in
the Global Note for any Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests or for any other aspect
of the relationship between the Depository and its participants
22
or indirect participants or the relationship between such participants or
indirect participants and the owners of beneficial interests in the Global Note
owning through such participants.
Although the Depository has agreed to the foregoing procedures in order to
facilitate transfers of interests in the Global Note among participants of the
Depository, it is under no obligation to perform or continue to perform such
procedures, and such procedures may be discontinued at any time. Neither the
Trustee nor the Company will have any responsibility or liability for the
performance by the Depository or its participants or indirect participants of
their respective obligations under the rules and procedures governing their
operations.
CERTIFICATED NOTES
Subject to certain conditions, the Notes represented by the Global Note are
exchangeable for certificated Notes in definitive form of like tenor in
denominations of $1,000 and integral multiples thereof if:
(1) the Depository notifies us that it is unwilling or unable to
continue as Depository for the Global Note or the Depository ceases to be a
clearing agency registered under the Exchange Act and, in either case, we
are unable to locate a qualified successor within 90 days;
(2) we in our discretion at any time determine not to have all the
Notes represented by the Global Note; or
(3) a default entitling the holders of the Notes to accelerate the
maturity thereof has occurred and is continuing.
Any Note that is exchangeable as above is exchangeable for certificated
Notes issuable in authorized denominations and registered in such names as the
Depository shall direct. Subject to the foregoing, the Global Note is not
exchangeable, except for a Global Note of the same aggregate denomination to be
registered in the name of the Depository or its nominee. In addition, such
certificates will bear the legend referred to under "Transfer Restrictions"
(unless we determine otherwise in accordance with applicable law), subject, with
respect to such certificated Notes, to the provisions of such legend.
SAME-DAY PAYMENT
The Indenture requires us to make payments in respect of Notes (including
principal, premium and interest) by wire transfer of immediately available funds
to the U.S. dollar accounts with banks in the U.S. specified by the holders
thereof or, if no such account is specified, by mailing a check to each such
holder's registered address.
CHANGE OF CONTROL
(a) Upon the occurrence of any of the following events (each a "Change of
Control"), each Holder shall have the right to require that the Company
repurchase such Holder's Notes at a purchase price in cash equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of purchase (subject to the right of Holders of record on the relevant record
date to receive interest on the relevant interest payment date), in accordance
with the terms contemplated in paragraph (b) below:
(1) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than a Permitted Holder, is or becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that for purposes of this clause (1) such person shall be
deemed to have "beneficial ownership" of all shares that such person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than 40% of the
total voting power of the Voting Stock of the Company (for the purposes of
this clause (1), such person shall be deemed to beneficially own any Voting
Stock of a specified corporation held by a parent corporation, if such
person is the beneficial owner (as defined in this
23
clause (1)), directly or indirectly, of more than 40% of the voting power
of the Voting Stock of such parent corporation);
(2) during any period of two consecutive years from and after the
Issue Date, individuals who at the beginning of such period constituted the
Board of Directors of the Company (together with any new directors whose
election by such Board of Directors or whose nomination for election by the
shareholders of the Company was approved by a vote of a majority of the
directors of the Company then still in office who were either directors at
the beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a majority
of the Board of Directors then in office;
(3) the shareholders of the Company shall have approved any plan of
liquidation or dissolution of the Company; or
(4) the merger or consolidation of the Company with or into another
Person or the merger of another Person with or into the Company, or the
sale, lease, conveyance or transfer of all or substantially all the assets
of the Company and its Restricted Subsidiaries, taken as a whole, to
another Person (other than a Person that is controlled (as defined in the
definition of "Affiliate") by the Permitted Holders), and, in the case of
any such merger or consolidation, the securities of the Company that are
outstanding immediately prior to such transaction and which represent 100%
of the aggregate voting power of the Voting Stock of the Company are
changed into or exchanged for cash, securities or property, unless pursuant
to such transaction such securities are changed into or exchanged for, in
addition to any other consideration, securities of the surviving
corporation that represent immediately after such transaction, at least a
majority of the aggregate voting power of the Voting Stock of the surviving
corporation.
In the event that at the time of such Change of Control the terms of the
Indebtedness under the Credit Agreement restrict or prohibit the repurchase of
Notes pursuant to this covenant, then prior to the mailing of the notice to
Holders provided for in paragraph (b) below, but in any event within 30 days
following any Change of Control, the Company shall:
(1) repay in full the Indebtedness under the Credit Agreement; or
(2) obtain the requisite consent under the agreements governing the
Indebtedness under the Credit Agreement to permit the repurchase of the
Notes as provided for in paragraph (b) below.
(b) Within 30 days following a Change of Control, the Company shall mail a
notice to each Holder with a copy to the Trustee stating: (1) that a Change of
Control has occurred and that such Holder has the right to require the Company
to purchase such Holder's Notes at a purchase price in cash equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of purchase (subject to the right of Holders of record on the relevant record
date to receive interest on the relevant interest payment date); (2) the
circumstances and relevant facts regarding such Change of Control (including
information with respect to pro forma historical income, cash flow and
capitalization, in each case after giving effect to such Change of Control); (3)
the purchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); and (4) the instructions determined by the
Company, consistent with this covenant, that a Holder must follow in order to
have its Notes purchased.
(c) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
covenant. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this covenant, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this covenant by virtue thereof.
The Change of Control purchase feature of the Notes may in certain
circumstances make more difficult or discourage a sale or takeover of the
Company and, thus, the removal of incumbent
24
management. The Change of Control purchase feature is a result of negotiations
between the Company and the initial purchasers. Management has no present
intention to engage in a transaction involving a Change of Control, although it
is possible that the Company would decide to do so in the future. Subject to the
limitations discussed below, the Company could, in the future, enter into
certain transactions, including acquisitions, refinancings or other
recapitalizations, that would not constitute a Change of Control under the
Indenture, but that could increase the amount of indebtedness outstanding at
such time or otherwise affect the Company's capital structure or credit ratings.
Restrictions on the ability of the Company to Incur additional Indebtedness are
contained in the covenants described under "Certain Covenants -- Limitation on
Indebtedness" and "-- Limitation on Liens." Such restrictions can only be waived
with the consent of the holders of a majority in principal amount of the Notes
then outstanding. Except for the limitations contained in such covenants,
however, the Indenture will not contain any covenants or provisions that may
afford holders of the Notes protection in the event of a highly leveraged
transaction.
The Credit Agreement prohibits the Company from purchasing any Notes and
also provides that the occurrence of certain change of control events with
respect to the Company would constitute a default thereunder. In the event a
Change of Control occurs at a time when the Company is prohibited from
purchasing Notes, the Company could seek the consent of its lenders to the
purchase of Notes or could attempt to refinance the borrowings that contain such
prohibition. If the Company does not obtain such a consent or repay such
borrowings, the Company will remain prohibited from purchasing Notes. In such
case, the Company's failure to purchase tendered Notes would constitute an Event
of Default under the Indenture which would, in turn, constitute a default under
the Credit Agreement. In such circumstances, the subordination provisions in the
Indenture would likely restrict payment to the Holders of Notes.
Future indebtedness of the Company may contain prohibitions on the
occurrence of certain events that would constitute a Change of Control or
require such indebtedness to be repurchased upon a Change of Control. Moreover,
the exercise by the Holders of their right to require the Company to repurchase
the Notes could cause a default under such indebtedness, even if the Change of
Control itself does not, due to the financial effect of such repurchase on the
Company. Finally, the Company's ability to pay cash to the holders of Notes
following the occurrence of a Change of Control may be limited by the Company's
then existing financial resources. There can be no assurance that sufficient
funds will be available when necessary to make any required repurchases.
The provisions under the Indenture relating to the Company's obligation to
make an offer to repurchase the Notes as a result of a Change of Control may be
waived or modified with the written consent of the holders of a majority in
principal amount of the Notes.
The Company will not be required to make an offer to purchase the Notes as
a result of a Change of Control if a third party:
(1) makes such offer in the manner, at the times and otherwise in
compliance with the requirements set forth in the Indenture relating to the
Company's obligations to make such an offer; and
(2) purchases all Notes validly tendered and not withdrawn under such
an offer.
CERTAIN COVENANTS
The Indenture contains covenants including, among others, the following:
LIMITATION ON INDEBTEDNESS. (a) The Company shall not, and shall not
permit any Restricted Subsidiary to, Incur, directly or indirectly, any
Indebtedness; provided, however, that the Company or Restricted Subsidiary may
Incur Indebtedness if, on the date of such Incurrence and after giving effect
thereto, the Consolidated Coverage Ratio equals or exceeds 2.25 to 1.0.
25
(b) Notwithstanding the foregoing paragraph (a), the Company and any
Restricted Subsidiary may Incur the following Indebtedness:
(1) Indebtedness Incurred pursuant to any Credit Facility, so long as
the aggregate amount of all Indebtedness outstanding under all Credit
Facilities does not, at any one time, exceed the aggregate amount of
borrowing availability as of such date under all Credit Facilities that
determine availability on the basis of a borrowing base or other
asset-based calculation; provided, however, that in no event shall such
amount exceed the greater of (x) $300 million and (y) 75% of ACNTA as of
the date of such Incurrence;
(2) Indebtedness owed to and held by the Company or a Wholly Owned
Subsidiary; provided, however, that any subsequent issuance or transfer of
any Capital Stock which results in any such Wholly Owned Subsidiary ceasing
to be a Wholly Owned Subsidiary or any subsequent transfer of such
Indebtedness (other than to the Company or another Wholly Owned Subsidiary)
shall be deemed, in each case, to constitute the Incurrence of such
Indebtedness by the issuer thereof;
(3) The Notes and the Exchange Notes (other than any Additional
Notes);
(4) Indebtedness outstanding on February 26, 1998 (other than
Indebtedness described in clause (1), (2) or (3) of this covenant);
(5) Indebtedness of (A) a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted Subsidiary was
acquired by the Company (other than Indebtedness Incurred in connection
with, or to provide all or any portion of the funds or credit support
utilized to consummate, the transaction or series of related transactions
pursuant to which such Restricted Subsidiary became a Restricted Subsidiary
or was acquired by the Company) and (B) the Company or a Restricted
Subsidiary Incurred for the purpose of financing all or any part of the
cost of acquiring oil and gas properties, another Person (other than a
Person that was, immediately prior to such acquisition, a Subsidiary of the
Company) engaged in the Oil and Gas Business or all or substantially all
the assets of such a person; provided, however, that, in the case of each
of clause (A) and clause (B) above, on the date of such Incurrence and
after giving effect thereto, the Consolidated Coverage Ratio equals or
exceeds 2.0 to 1.0;
(6) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to paragraph (a) or pursuant to clause (3), (4), (5) above, this
clause (6) or clause (7) below; provided, however, that to the extent such
Refinancing Indebtedness directly or indirectly Refinances Indebtedness or
Preferred Stock of a Restricted Subsidiary described in clause (5), such
Refinancing Indebtedness shall be Incurred only by such Restricted
Subsidiary or the Company;
(7) Non-recourse Purchase Money Indebtedness;
(8) Indebtedness with respect to Production Payments; provided,
however, that any such Indebtedness shall be Limited Recourse Production
Payments; provided further, however, that the Net Present Value of the
reserves related to such Production Payments shall not exceed 30% of ACNTA
at the time of Incurrence;
(9) Indebtedness consisting of the Subsidiary Guarantees and any
Guarantee by a Subsidiary Guarantor of Indebtedness Incurred by the Company
pursuant to clauses (1) and (3);
(10) Indebtedness consisting of Interest Rate Agreements directly
related to Indebtedness permitted to be Incurred by the Company and its
Restricted Subsidiaries pursuant to the Indenture;
(11) Indebtedness under Oil and Gas Hedging Contracts and Currency
Agreements entered into in the ordinary course of business for the purpose
of limiting risks that arise in the ordinary course of business of the
Company and its Restricted Subsidiaries;
(12) Indebtedness in respect of bid, performance or surety obligations
issued by or for the account of the Company or any Restricted Subsidiary in
the ordinary course of business, including
26
Guarantees and letters of credit functioning as or supporting such bid,
performance or surety obligations (in each case other than for an
obligation for money borrowed);
(13) Indebtedness of the Company or a Restricted Subsidiary Incurred
to finance capital expenditures and Refinancing Indebtedness Incurred in
respect thereof in an aggregate amount which, when taken together with the
amount of all other Indebtedness Incurred pursuant to this clause (13)
since February 26, 1998 and then outstanding, does not exceed $20 million;
(14) Permitted Marketing Obligations;
(15) In-kind obligations relating to oil and gas balancing positions
arising in the ordinary course of business; and
(16) Indebtedness in an aggregate amount which, together with the
amount of all other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the date of such Incurrence (other than
Indebtedness permitted by clauses (1) through (15) above or paragraph (a))
does not exceed $30 million.
(c) Notwithstanding the foregoing, the Company shall not, and shall not
permit any Subsidiary Guarantor to, Incur any Indebtedness pursuant to the
foregoing paragraph (b) if the proceeds thereof are used, directly or
indirectly, to Refinance any Subordinated Obligations unless such Indebtedness
shall be subordinated to the Notes or the relevant Subsidiary Guarantor, as the
case may be, to at least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with the foregoing covenant:
(1) in the event that an item of Indebtedness meets the criteria of
more than one of the types of Indebtedness described above, the Company, in
its sole discretion, will classify such item of Indebtedness and only be
required to include the amount and type of such Indebtedness in one of the
above clauses; provided that items of Indebtedness Incurred since February
26, 1998 and prior to the Issue Date shall be deemed to have been Incurred
under the above clause corresponding to the provision in the indenture
governing the Existing 9% Senior Subordinated Notes under which such items
were incurred; and
(2) an item of Indebtedness may be divided and classified in more than
one of the types of Indebtedness described above.
INCURRENCE OF LAYERED INDEBTEDNESS. Notwithstanding paragraphs (a) and (b)
of the covenant described above under "-- Limitation on Indebtedness," the
Company shall not, and the Company shall not permit any Subsidiary Guarantor to,
Incur any Indebtedness if such Indebtedness is subordinate or junior in ranking
in any respect to any Senior Indebtedness of the Company or such Subsidiary
Guarantor, as applicable, unless such Indebtedness is Senior Subordinated
Indebtedness or is expressly subordinated in right of payment to Senior
Subordinated Indebtedness of such Person.
LIMITATION ON RESTRICTED PAYMENTS. (a) The Company shall not, and shall
not permit any Restricted Subsidiary, directly or indirectly, to make a
Restricted Payment if at the time the Company or such Restricted Subsidiary
makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) the Company is not able to Incur an additional $1.00 of
Indebtedness pursuant to paragraph (a) of the covenant described under
"-- Limitation on Indebtedness"; or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments since February 26, 1998 would exceed the sum of
(without duplication):
(A) 50% of the aggregate Consolidated Net Income of the Company
accrued on a cumulative basis commencing on the last day of the fiscal
quarter immediately preceding February 26, 1998, and ending on the last
day of the fiscal quarter ending on or immediately
27
preceding the date of such proposed Restricted Payment (or, if such
aggregate Consolidated Net Income shall be a deficit, minus 100% of such
deficit);
(B) the aggregate Net Cash Proceeds received by the Company from
the issuance or sale of its Capital Stock (other than Disqualified
Stock) subsequent to February 26, 1998 (other than an issuance or sale
to a Subsidiary of the Company and other than an issuance or sale to an
employee stock ownership plan or to a trust established by the Company
or any of its Subsidiaries for the benefit of their employees);
(C) the aggregate Net Cash Proceeds received by the Company from
the issue or sale subsequent to February 26, 1998 of its Capital Stock
(other than Disqualified Stock) to an employee stock ownership plan;
provided, however, that if such employee stock ownership plan incurs any
Indebtedness with respect thereto, such aggregate amount shall be
limited to an amount equal to any increase in the Consolidated Net Worth
of the Company resulting from principal repayments made by such employee
stock ownership plan with respect to such Indebtedness;
(D) the amount by which Indebtedness of the Company is reduced on
the Company's balance sheet upon the conversion or exchange (other than
by a Subsidiary of the Company) subsequent to February 26, 1998, of any
Indebtedness of the Company convertible or exchangeable for Capital
Stock (other than Disqualified Stock) of the Company (less the amount of
any cash, or the fair value of any other property, distributed by the
Company upon such conversion or exchange); and
(E) an amount equal to the sum of (i) the net reduction in
Investments made by the Company or any Restricted Subsidiary in any
Person resulting from dividends, repayments of loans or advances or
other transfers of assets, in each case to the Company or any Restricted
Subsidiary from such Person, and (ii) the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market value
of the net assets of an Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is designated a Restricted Subsidiary; provided,
however, that the foregoing sum shall not exceed, in the case of any
such Person or Unrestricted Subsidiary, the amount of Investments
previously made (and treated as a Restricted Payment) by the Company or
any Restricted Subsidiary in such Person or Unrestricted Subsidiary.
(b) The provisions of the foregoing paragraph (a) shall not prohibit:
(1) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with this covenant; provided, however, that at the time of payment of such
dividend, no other Default shall have occurred and be continuing (or result
therefrom); provided further, however, that such dividend shall be included
in the calculation of the amount of Restricted Payments;
(2) any purchase or redemption of Capital Stock or Subordinated
Obligations of the Company made by exchange for, or out of the proceeds of
the substantially concurrent sale of, Capital Stock of the Company (other
than Disqualified Stock and other than Capital Stock issued or sold to a
Subsidiary of the Company or an employee stock ownership plan or to a trust
established by the Company or any of its Subsidiaries for the benefit of
their employees); provided, however, that (A) such purchase or redemption
shall be excluded in the calculation of the amount of Restricted Payments
and (B) the Net Cash Proceeds from such sale shall be excluded from the
calculation of amounts under clause (3) (B) of paragraph (a) above (but
only to the extent that such Net Cash Proceeds were used to purchase or
redeem such Capital Stock as provided in this clause (2));
(3) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations of the
Company made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Subordinated Obligations of the Company; provided,
however, that
28
such purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value shall be excluded in the calculation of the amount of
Restricted Payments;
(4) the repurchase of shares of, or options to purchase shares of,
common stock of the Company or any of its Subsidiaries from employees,
former employees, directors or former directors of the Company or any of
its Subsidiaries (or permitted transferees of such employees, former
employees, directors or former directors), pursuant to the terms of the
agreements (including employment agreements) or plans (or amendments
thereto) approved by the Board of Directors under which such individuals
purchase or sell or are granted the option to purchase or sell, shares of
such common stock; provided, however, that the aggregate amount of such
repurchases shall not exceed $2 million in any calendar year; provided
further, however, that such repurchases shall be excluded in the
calculation of the amount of Restricted Payments;
(5) loans made to officers, directors or employees of the Company or
any Restricted Subsidiary approved by the Board of Directors (or a duly
authorized officer), the net cash proceeds of which are used solely (A) to
purchase common stock of the Company in connection with a restricted stock
or employee stock purchase plan, or to exercise stock options received
pursuant to an employee or director stock option plan or other incentive
plan, in a principal amount not to exceed the exercise price of such stock
options or (B) to refinance loans, together with accrued interest thereon,
made pursuant to item (A) of this clause (5); provided, however, that such
loans shall be excluded in the calculation of the amount of Restricted
Payments; or
(6) other Restricted Payments in an aggregate amount not to exceed $20
million; provided, however, that such Restricted Payments shall be excluded
in the calculation of the amount of Restricted Payments.
LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED
SUBSIDIARIES. The Company shall not, and shall not permit any Restricted
Subsidiary to, create or otherwise cause or permit to exist or become effective
any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary (a) to pay dividends or make any other distributions on its Capital
Stock or pay any Indebtedness owed to the Company or a Restricted Subsidiary,
(b) to make any loans or advances to the Company or a Restricted Subsidiary or
(c) to transfer any of its property or assets to the Company or a Restricted
Subsidiary, except:
(1) any encumbrance or restriction in the Credit Agreement on the
Issue Date or pursuant to any other agreement in effect on the Issue Date;
(2) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness Incurred
by such Restricted Subsidiary on or prior to the date on which such
Restricted Subsidiary was acquired by the Company (other than Indebtedness
Incurred as consideration in, or to provide all or any portion of the funds
or credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Company) and outstanding on
such date;
(3) any encumbrance or restriction pursuant to an agreement effecting
a Refinancing of Indebtedness Incurred pursuant to an agreement referred to
in clause (1) or (2) of this covenant or this clause (3) or contained in
any amendment to an agreement referred to in clause (1) or (2) of this
covenant or this clause (3); provided, however, that the encumbrances and
restrictions with respect to such Restricted Subsidiary contained in any
such refinancing agreement or amendment are no less favorable to the
Noteholders than encumbrances and restrictions with respect to such
Restricted Subsidiary contained in such agreements;
(4) any such encumbrance or restriction consisting of customary
nonassignment provisions in leases governing leasehold interests to the
extent such provisions restrict the transfer of the lease or the property
leased thereunder;
29
(5) in the case of clause (c) above, restrictions contained in
security agreements or mortgages securing Indebtedness of a Restricted
Subsidiary to the extent such restrictions restrict the transfer of the
property subject to such security agreements or mortgages; and
(6) any restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all or
substantially all the Capital Stock or assets of such Restricted Subsidiary
pending the closing of such sale or disposition.
LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK. (a) In the event and
to the extent that the Net Available Cash received by the Company or any
Restricted Subsidiary from one or more Asset Dispositions (other than an Asset
Disposition referred to in clause (c) below) occurring on or after the Issue
Date in any period of 12 consecutive months exceeds 15% of Adjusted Consolidated
Net Tangible Assets as of the beginning of such 12-month period, then the
Company shall:
(1) within 180 days (in the case of (A) below) or 18 months (in the
case of (B) below) after the date such Net Available Cash so received
exceeds such 15% of Adjusted Consolidated Net Tangible Assets (A) apply an
amount equal to such excess Net Available Cash to repay Senior Indebtedness
of the Company or a Subsidiary Guarantor or Indebtedness of a Restricted
Subsidiary that is not a Subsidiary Guarantor, in each case owing to a
Person other than the Company or any Affiliate of the Company or (B) invest
an equal amount, or the amount not so applied pursuant to clause (A), in
Additional Assets or Permitted Business Investments; or
(2) apply such excess Net Available Cash (to the extent not applied
pursuant to clause (1)) as provided in the following paragraphs of this
covenant. The amount of such excess Net Available Cash required to be
applied during the applicable period and not applied as so required by the
end of such period shall constitute "Excess Proceeds."
(b) If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined
below) totals at least $10 million, the Company must, not later than the
fifteenth Business Day of such month, make an offer (an "Excess Proceeds Offer")
to purchase from the Holders on a pro rata basis an aggregate principal amount
of Notes equal to the Excess Proceeds (rounded down to the nearest multiple of
$1,000) on such date, at a purchase price equal to 100% of the principal amount
of such Notes, plus, in each case, accrued interest (if any) to, the date of
purchase (the "Excess Proceeds Payment"), but, if the terms of any other Senior
Subordinated Indebtedness require that an offer be made for such Senior
Subordinated Indebtedness contemporaneously with the Excess Proceeds Offer, then
the Excess Proceeds shall be prorated between the Excess Proceeds Offer and the
offer for such other Senior Subordinated Indebtedness in accordance with the
aggregate outstanding principal amounts (or, in the case of other Senior
Subordinated Indebtedness issued with significant original issue discount,
accreted value) of the Notes and such other Senior Subordinated Indebtedness,
and the aggregate principal amount of Notes for which the Excess Proceeds Offer
is made shall be reduced accordingly.
The Company will comply, to the extent applicable, with the requirements of
Section 14(e) of the Exchange Act and any other securities laws or regulations
thereunder in the event that such Excess Proceeds are received by the Company
under this covenant and the Company is required to repurchase Notes as described
above. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this covenant, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this covenant by virtue thereof.
(c) In the event of an Asset Disposition by the Company or any Restricted
Subsidiary that consists of a sale of hydrocarbons and results in Production
Payments, the Company or such Restricted Subsidiary shall apply an amount equal
to the Net Available Cash received by the Company or such Restricted Subsidiary
to:
(1) reduce Senior Indebtedness of the Company or a Subsidiary
Guarantor or Indebtedness of a Restricted Subsidiary that is not a
Subsidiary Guarantor, in each case owing to a Person other than
30
the Company or any Affiliate of the Company, within 180 days after the date
such Net Available Cash is so received; or
(2) invest in Additional Assets or Permitted Business Investments
within 18 months after the date such Net Available Cash is so received.
(d) The amounts of "Net Available Cash" and "Excess Proceeds" outstanding
as of the Issue Date under the indenture governing the Existing 9% Senior
Subordinated Notes shall be deemed to be Net Available Cash or Excess Proceeds,
as applicable, for purposes of this covenant.
LIMITATION ON AFFILIATE TRANSACTIONS. (a) The Company shall not, and shall
not permit any Restricted Subsidiary to, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property,
employee compensation arrangements or the rendering of any service) with any
Affiliate of the Company (an "Affiliate Transaction") unless the terms thereof:
(1) are no less favorable to the Company or such Restricted Subsidiary
than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate;
(2) if such Affiliate Transaction involves an amount in excess of $10
million, are set forth in writing and have been approved by the Board of
Directors, including a majority of the members of the Board of Directors
having no personal stake in such Affiliate Transaction; and
(3) if such Affiliate Transaction involves an amount in excess of $20
million, have been determined by a nationally recognized investment banking
firm or other qualified independent appraiser to be fair, from a financial
standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of the foregoing paragraph (a) shall not prohibit:
(1) any sale of hydrocarbons or other mineral products to an Affiliate
of the Company or the entering into or performance of Oil and Gas Hedging
Contracts, gas gathering, transportation or processing contracts or oil or
natural gas marketing or exchange contracts with an Affiliate of the
Company, in each case, in the ordinary course of business, so long as the
terms of any such transaction are approved by a majority of the members of
the Board of Directors who are disinterested with respect to such
transaction;
(2) the sale to an Affiliate of the Company of Capital Stock of the
Company that does not constitute Disqualified Stock, and the sale to an
Affiliate of the Company of Indebtedness (including Disqualified Stock) of
the Company in connection with an offering of such Indebtedness in a market
transaction and on terms substantially identical to those of other
purchasers in such market transaction;
(3) transactions contemplated by any employment agreement or other
compensation plan or arrangement existing on the Issue Date or thereafter
entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business;
(4) the payment of reasonable fees to directors of the Company and its
Restricted Subsidiaries who are not employees of the Company or any
Restricted Subsidiary;
(5) transactions between or among the Company and its Restricted
Subsidiaries;
(6) transactions between the Company or any of its Restricted
Subsidiaries and Persons that are controlled (as defined in the definition
of "Affiliate") by the Company (an "Unrestricted Affiliate"); provided that
no other Person that controls (as so defined) or is under common control
with the Company holds any Investments in such Unrestricted Affiliate;
(7) Restricted Payments that are permitted by the provisions of the
Indenture described above under the caption "-- Limitation on Restricted
Payments"; and
31
(8) loans or advances to employees in the ordinary course of business
and approved by the Company's Board of Directors in an aggregate principal
amount not to exceed $2.5 million outstanding at any one time.
LIMITATION ON THE SALE OR ISSUANCE OF CAPITAL STOCK OF RESTRICTED
SUBSIDIARIES. The Company shall not sell or otherwise dispose of any shares of
Capital Stock of a Restricted Subsidiary, and shall not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell or otherwise dispose of any
shares of its Capital Stock except:
(1) to the Company or a Wholly Owned Subsidiary;
(2) if, immediately after giving effect to such issuance, sale or
other disposition, neither the Company nor any of its Subsidiaries own any
Capital Stock of such Restricted Subsidiary;
(3) if, immediately after giving effect to such issuance, sale or
other disposition, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary and any Investment in such Person remaining after
giving effect thereto is treated as a new Investment by the Company and
such Investment would be permitted to be made under the covenant described
under "-- Limitation on Restricted Payments" if made on the date of such
issuance, sale or other disposition; or
(4) to the extent such shares represent directors' qualifying shares
or shares required by applicable law to be held by a Person other than the
Company or a Restricted Subsidiary.
LIMITATION ON LIENS. The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, enter into, create, incur,
assume or suffer to exist any Lien on or with respect to any property of the
Company or such Restricted Subsidiary, whether owned on the Issue Date or
acquired after the Issue Date, or any interest therein or any income or profits
therefrom, unless the Notes or any Subsidiary Guarantee of such Restricted
Subsidiary, as applicable, are secured equally and ratably with (or prior to)
any and all other obligations secured by such Lien, except that the Company and
its Restricted Subsidiaries may enter into, create, incur, assume or suffer to
exist Permitted Liens and Liens securing Senior Indebtedness.
MERGER AND CONSOLIDATION. The Company shall not consolidate with or merge
with or into, or convey, transfer or lease, in one transaction or a series of
transactions, all or substantially all the assets of the Company and its
Restricted Subsidiaries, taken as a whole, to, any Person, unless:
(1) (A) the resulting, surviving or transferee Person (the "Successor
Company") shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and
(B) the Successor Company (if not the Company) shall expressly assume, by
an indenture supplemental thereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the Company
under the Notes and the Indenture;
(2) immediately after giving effect to such transaction (and treating
any Indebtedness which becomes an obligation of the Successor Company or
any Subsidiary as a result of such transaction as having been Incurred by
such Successor Company or such Subsidiary at the time of such transaction),
no Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction, the Successor
Company would be able to Incur an additional $1.00 of Indebtedness pursuant
to paragraph (a) of the covenant described under "-- Limitation on
Indebtedness";
(4) immediately after giving effect to such transaction, the Successor
Company shall have Adjusted Consolidated Net Tangible Assets that are not
less than the Adjusted Consolidated Net Tangible Assets prior to such
transaction;
(5) in the case of a conveyance, transfer or lease of all or
substantially all the assets of the Company and its Restricted
Subsidiaries, taken as a whole, such assets shall have been so conveyed,
transferred or leased as an entirety or virtually as an entirety to one
Person; and
32
(6) the Company shall have complied with certain additional conditions
set forth in the Indenture;
provided, however, that clauses (3) and (4) shall not be applicable to any such
transaction solely between the Company and any Restricted Subsidiary.
The Successor Company shall be the successor to the Company and shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under the Indenture, and the predecessor Company, except in the case
of a lease, shall be released from the obligation to pay the principal of and
interest on the Notes.
The Company will not permit any Subsidiary Guarantor to consolidate with or
merge with or into, or convey, transfer or lease, in one transaction or a series
of transactions, all or substantially all of its assets to any Person unless:
(1) the resulting, surviving or transferee Person (if not such
Subsidiary) shall be a Person organized and existing under the laws of the
jurisdiction under which such Subsidiary was organized or under the laws of
the United States of America, or any State thereof or the District of
Columbia, and such Person shall expressly assume, by executing a Guarantee
Agreement, all the obligations of such Subsidiary, if any, under its
Subsidiary Guarantee;
(2) immediately after giving effect to such transaction or
transactions on a pro forma basis (and treating any Indebtedness which
becomes an obligation of the resulting, surviving or transferee Person as a
result of such transaction as having been issued by such Person at the time
of such transaction), no Default shall have occurred and be continuing;
(3) in the case of a conveyance, transfer or lease of all or
substantially all the assets of a Subsidiary Guarantor, such assets shall
have been so conveyed, transferred or leased as an entirety or virtually as
an entirety to one Person; and
(4) the Company shall have complied with certain additional conditions
contained in the Indenture.
The provisions of clauses (1) and (2) above shall not apply to any one or more
transactions which constitute an Asset Disposition if the Company has complied
with the applicable provisions of the covenant described under "-- Limitation on
Sales of Assets and Subsidiary Stock" above.
SEC REPORTS. Notwithstanding that the Company may not at any time be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall file with the SEC and provide the Trustee and Noteholders
with such annual reports and such information, documents and other reports as
are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a
U.S. corporation subject to such Sections, such information, documents and other
reports to be so filed and provided at the times specified for the filing of
such information, documents and reports under such Sections.
In addition, the Company shall furnish to the Holders of the Notes and to
prospective investors, upon the requests of such Holders, any information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so
long as the Notes are not freely transferable under the Securities Act.
FUTURE SUBSIDIARY GUARANTORS. The Company shall cause each Restricted
Subsidiary that represents at least 10% of the book assets of, or 10% of the
ACNTA of, the Company and its Restricted Subsidiaries, taken as a whole, and
that has an aggregate of $15.0 million or more of Indebtedness and Preferred
Stock outstanding at any time to promptly Guarantee the Notes pursuant to a
Subsidiary Guarantee on the terms and conditions set forth in the Indenture.
33
DEFAULTS
An Event of Default is defined in the Indenture as:
(1) a default in the payment of interest on the Notes when due,
continued for 30 days;
(2) a default in the payment of principal of any Note when due at its
Stated Maturity, upon optional redemption, upon required purchase, upon
declaration of acceleration or otherwise;
(3) the failure by the Company to comply with its obligations under
"-- Certain Covenants -- Merger and Consolidation" above;
(4) the failure by the Company to comply for 30 days after notice with
any of its obligations in the covenants described above under "Change of
Control" (other than a failure to purchase Notes), "-- Certain Covenants,"
"-- Limitation on Indebtedness," "-- Limitation on Restricted Payments,"
"-- Limitation on Restrictions on Distributions from Restricted
Subsidiaries," "-- Limitation on Sales of Assets and Subsidiary Stock"
(other than a failure to purchase Notes), "-- Limitation on Affiliate
Transactions," "-- Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries," "-- Limitation on Liens," "Future Subsidiary
Guarantors" or "SEC Reports";
(5) the failure by the Company to comply for 60 days after notice with
its other agreements contained in the Indenture;
(6) Indebtedness of the Company (other than Limited Recourse
Production Payments and Non-recourse Purchase Money Indebtedness) is not
paid within any applicable grace period after final maturity or the
maturity of such Indebtedness is accelerated by the holders thereof because
of a default (and such acceleration is not rescinded or annulled) and the
total amount of such Indebtedness unpaid or accelerated exceeds $10 million
(the "cross acceleration provision");
(7) certain events of bankruptcy, insolvency or reorganization of the
Company or a Significant Subsidiary (the "bankruptcy provisions");
(8) any judgment or decree for the payment of money in an uninsured or
unindemnified amount in excess of $10 million or its foreign currency
equivalent at the time is rendered against the Company or a Significant
Subsidiary, remains outstanding for a period of 60 days following such
judgment and is not discharged, waived, bonded or stayed within 10 days
after notice (the "judgment default provision"); or
(9) any Subsidiary Guarantee ceases or otherwise fails to be in full
force and effect (other than in accordance with the terms thereof) or a
Subsidiary Guarantor denies or disaffirms its obligations under its
Subsidiary Guarantee if such default continues for a period of ten days
after notice thereof to the Company (the "guarantee default provision").
However, a default under clauses (4), (5), (8) and (9) will not constitute an
Event of Default until the Trustee or the holders of 25% in principal amount of
the outstanding Notes notify the Company of the default and the Company does not
cure such default within the time specified after receipt of such notice.
If an Event of Default occurs and is continuing, the Trustee or the holders
of at least 25% in principal amount of the outstanding Notes may declare the
principal of and accrued but unpaid interest on all the Notes to be due and
payable. Upon such a declaration, such principal and interest shall be due and
payable immediately. If an Event of Default relating to certain events of
bankruptcy, insolvency or reorganization of the Company occurs and is
continuing, the principal of and interest on all the Notes will ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any holders of the Notes. Under certain
circumstances, the holders of a majority in principal amount of the outstanding
Notes may rescind any such acceleration with respect to the Notes and its
consequences.
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default occurs and is continuing, the Trustee will
be under no obligation to exercise any of the rights or
34
powers under the Indenture at the request or direction of any of the holders of
the Notes unless such holders have offered to the Trustee reasonable indemnity
or security against any loss, liability or expense. Except to enforce the right
to receive payment of principal, premium (if any) or interest when due, no
holder of a Note may pursue any remedy with respect to the Indenture or the
Notes unless:
(1) such holder has previously given the Trustee notice that an Event
of Default is continuing;
(2) holders of at least 25% in principal amount of the outstanding
Notes have requested the Trustee to pursue the remedy;
(3) such holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days
after the receipt thereof and the offer of security or indemnity; and
(5) the holders of a majority in principal amount of the outstanding
Notes have not given the Trustee a direction inconsistent with such request
within such 60-day period.
Subject to certain restrictions, the holders of a majority in principal amount
of the outstanding Notes are given the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
holder of a Note or that would involve the Trustee in personal liability.
The Indenture provides that if a Default occurs and is continuing and is
known to the Trustee, the Trustee must mail to each holder of the Notes notice
of the Default within 90 days after it occurs. Except in the case of a Default
in the payment of principal of or interest on any Note, the Trustee may withhold
notice if and so long as a committee of its trust officers determines that
withholding notice is not opposed to the interest of the holders of the Notes.
In addition, the Company is required to deliver to the Trustee, within 120 days
after the end of each fiscal year, a certificate indicating whether the signers
thereof know of any Default that occurred during the previous year. The Company
also is required to deliver to the Trustee, within 30 days after the occurrence
thereof, written notice of any event which would constitute certain Defaults,
their status and what action the Company is taking or proposes to take in
respect thereof.
AMENDMENTS AND WAIVERS
Subject to certain exceptions, the Indenture may be amended with the
consent of the holders of a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange for the Notes) and any past default or compliance with any provisions
may also be waived with the consent of the holders of a majority in principal
amount of the Notes then outstanding. However, without the consent of each
holder of an outstanding Note affected thereby, an amendment or waiver may not,
among other things:
(1) reduce the amount of Notes whose holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on
any Note;
(3) reduce the principal of or extend the Stated Maturity of any Note;
(4) reduce the premium payable upon the redemption of any Note or
change the time at which any Note may be redeemed as described under
"-- Optional Redemption";
(5) make any Note payable in money other than that stated in the Note;
(6) impair the right of any holder of the Notes to receive payment of
principal of 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;
35
(7) make any change in the amendment provisions which require each
holder's consent or in the waiver provisions;
(8) make any change to the subordination provisions of the Indenture
that would adversely affect the Noteholders; or
(9) make any change in any Subsidiary Guarantee that could adversely
affect such holder.
Without the consent of any holder of the Notes, the Company, the Subsidiary
Guarantors and the Trustee may amend the Indenture to:
(1) cure any ambiguity, omission, defect or inconsistency;
(2) provide for the assumption by a successor corporation of the
obligations of the Company or the Subsidiary Guarantors under the
Indenture;
(3) provide for 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, or in a manner
such that the uncertificated Notes are described in Section 163(f)(2)(B) of
the Code);
(4) make any change in the subordination provisions of the Indenture
that would limit or terminate the benefits available to any holder of
Senior Indebtedness of the Company or any Subsidiary Guarantor thereunder;
(5) add guarantees with respect to the Notes (including any Subsidiary
Guarantee);
(6) secure the Notes;
(7) add to the covenants of the Company for the benefit of the holders
of the Notes or surrender any right or power conferred upon the Company or
any Subsidiary Guarantor;
(8) make any change that does not adversely affect the rights of any
holder of the Notes; or
(9) comply with any requirement of the SEC in connection with the
qualification of the Indenture under the Trust Indenture Act.
However, no amendment may be made to the subordination provisions of the
Indenture that adversely affects the rights of any holder of Senior Indebtedness
of the Company or a Subsidiary Guarantor then outstanding unless the holders of
such Senior Indebtedness (or their Representative) consents to such change.
The consent of the holders of the Notes is not necessary under the
Indenture to approve the particular form of any proposed amendment. It is
sufficient if such consent approves the substance of the proposed amendment.
After an amendment under the Indenture becomes effective, the Company is
required to mail to holders of the Notes a notice briefly describing such
amendment. However, the failure to give such notice to all holders of the Notes,
or any defect therein, will not impair or affect the validity of the amendment.
TRANSFER
The Notes will be issued in registered form and will be transferable only
upon the surrender of the Notes being transferred for registration of transfer.
The Company may require payment of a sum sufficient to cover any tax, assessment
or other governmental charge payable in connection with certain transfers and
exchanges.
36
DEFEASANCE
The Company at any time may terminate all its obligations under the Notes
and the Indenture ("legal defeasance"), except for certain obligations,
including those respecting the defeasance trust and obligations to register the
transfer or exchange of the Notes, to replace mutilated, destroyed, lost or
stolen Notes and to maintain a registrar and paying agent in respect of the
Notes. The Company at any time may terminate its obligations under "Change of
Control" and under the covenants described under "-- Certain Covenants" (other
than the covenant described under "-- Merger and Consolidation"), the operation
of the cross acceleration provision, the bankruptcy provisions with respect to
Significant Subsidiaries, the judgment default provision and the guarantee
default provision described under "-- Defaults" above and the limitations
contained in clauses (3) and (4) under the first and third paragraphs of
"-- Certain Covenants -- Merger and Consolidation" above ("covenant
defeasance").
The Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option. If the Company exercises its
legal defeasance option, payment of the Notes may not be accelerated because of
an Event of Default with respect thereto. If the Company exercises its covenant
defeasance option, payment of the Notes may not be accelerated because of an
Event of Default specified in clause (4), (6), (7) (with respect only to
Significant Subsidiaries) or (8) under "-- Defaults" above or because of the
failure of the Company to comply with clause (3) or (4) under the first or third
paragraph of "-- Certain Covenants -- Merger and Consolidation" above. If the
Company exercises its legal defeasance option or its covenant defeasance option,
each Subsidiary Guarantor will be released from all its obligations with respect
to its Subsidiary Guarantee.
In order to exercise either defeasance option, the Company must irrevocably
deposit in trust (the "defeasance trust") with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on the Notes to
redemption or maturity, as the case may be, and must comply with certain other
conditions, including delivery to the Trustee of an Opinion of Counsel to the
effect that holders of the Notes will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance and will
be subject to Federal income tax on the same amounts and in the same manner and
at the same times as would have been the case if such deposit and defeasance had
not occurred (and, in the case of legal defeasance only, such Opinion of Counsel
must be based on a ruling of the Internal Revenue Service or other change in
applicable Federal income tax law).
CONCERNING THE TRUSTEE
The Chase Manhattan Bank is to be the Trustee under the Indenture and will
be appointed by the Company as Registrar and Paying Agent with regard to the
Notes.
The Indenture contains certain limitations on the rights of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any such
claim as security or otherwise. The Trustee will be permitted to engage in other
transactions; provided, however, if it acquires any conflicting interest it must
either eliminate such conflict within 90 days, apply to the SEC for permission
to continue or resign.
The Holders of a majority in principal amount of the outstanding Notes will
have the right to direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee, subject to certain
exceptions. The Indenture provides that if an Event of Default occurs (and is
not cured), the Trustee will be required, in the exercise of its power, to use
the degree of care of a prudent man in the conduct of his own affairs. Subject
to such provisions, the Trustee will be under no obligation to exercise any of
its rights or powers under the Indenture at the request of any Holder of Notes,
unless such Holder shall have offered to the Trustee security and indemnity
satisfactory to it against any loss, liability or expense and then only to the
extent required by the terms of the Indenture.
37
GOVERNING LAW
The Indenture and the Notes will be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to
applicable principles of conflicts of law to the extent that the application of
the law of another jurisdiction would be required thereby.
CERTAIN DEFINITIONS
"Additional Assets" means:
(1) any property or assets (other than Indebtedness and Capital Stock)
in the Oil and Gas Business;
(2) the Capital Stock of a Person that becomes a Restricted Subsidiary
as a result of the acquisition of such Capital Stock by the Company or
another Restricted Subsidiary; or
(3) Capital Stock constituting a minority interest in any Person that
at such time is a Restricted Subsidiary;
provided, however, that any such Restricted Subsidiary described in clauses (2)
or (3) above is primarily engaged in the Oil and Gas Business.
"Adjusted Consolidated Net Tangible Assets" or "ACNTA" means (without
duplication), as of the date of determination:
(a) the sum of:
(1) discounted future net revenue from proved crude oil and natural
gas reserves of the Company and its Restricted Subsidiaries calculated in
accordance with SEC guidelines before any state or federal income taxes, as
estimated in a reserve report prepared as of the end of the Company's most
recently completed fiscal year, which reserve report is prepared or
reviewed by independent petroleum engineers, as increased by, as of the
date of determination, the discounted future net revenue of (A) estimated
proved crude oil and natural gas reserves of the Company and its Restricted
Subsidiaries attributable to acquisitions consummated since the date of
such year-end reserve report, and (B) estimated crude oil and natural gas
reserves of the Company and its Restricted Subsidiaries attributable to
extensions, discoveries and other additions and upward determinations of
estimates of proved crude oil and natural gas reserves (including
previously estimated development costs incurred during the period and the
accretion of discount since the prior year end) due to exploration,
development or exploitation, production or other activities which reserves
were not reflected in such year-end reserve report which would, in the case
of determinations made pursuant to clauses (A) and (B), in accordance with
standard industry practice, result in such determinations, in each case
calculated in accordance with SEC guidelines (utilizing the prices utilized
in such year-end reserve report), and decreased by, as of the date of
determination, the discounted future net revenue attributable to (C)
estimated proved crude oil and natural gas reserves of the Company and its
Restricted Subsidiaries reflected in such year-end reserve report produced
or disposed of since the date of such year-end reserve report and (D)
reductions in the estimated oil and gas reserves of the Company and its
Restricted Subsidiaries reflected in such year-end reserve report since the
date of such year-end reserve report attributable to downward
determinations of estimates of proved crude oil and natural gas reserves
due to exploration, development or exploitation, production or other
activities conducted or otherwise occurring since the date of such year-end
reserve report which would, in the case of determinations made pursuant to
clauses (C) and (D), in accordance with standard industry practice, result
in such determinations, in each case calculated in accordance with SEC
guidelines (utilizing the prices utilized in such year-end reserve report);
provided, however, that, in the case of each of the determinations made
pursuant to clauses (A) through (D), such increases and decreases shall be
as estimated by the Company's engineers, except that if as a result of such
acquisitions, dispositions, discoveries, extensions or revisions, there is
a Material Change which is
38
an increase, then such increases and decreases in the discounted future net
revenue shall be confirmed in writing by an independent petroleum engineer;
(2) the capitalized costs that are attributable to crude oil and
natural gas properties of the Company and its Restricted Subsidiaries to
which no proved crude oil and natural gas reserves are attributed, based on
the Company's books and records as of a date no earlier than the date of
the Company's latest annual or quarterly financial statements;
(3) the Net Working Capital on a date no earlier than the date of the
Company's latest annual or quarterly financial statements; and
(4) the greater of (I) the net book value on a date no earlier than
the date of the Company's latest annual or quarterly financial statements
and (II) the appraised value, as estimated by independent appraisers, of
other tangible assets of the Company and its Restricted Subsidiaries as of
a date no earlier than the date of the Company's latest audited financial
statements (provided that the Company shall not be required to obtain such
an appraisal of such assets if no such appraisal has been performed); minus
(b) to the extent not otherwise taken into account in the immediately
preceding clause (a), the sum of:
(1) minority interests;
(2) any natural gas balancing liabilities of the Company and its
Restricted Subsidiaries reflected in the Company's latest audited financial
statements;
(3) the discounted future net revenue, calculated in accordance with
SEC guidelines (utilizing the same prices utilized in the Company's
year-end reserve report), attributable to reserves subject to participation
interests, overriding royalty interests or other interests of third
parties, pursuant to participation, partnership, vendor financing or other
agreements then in effect, or which otherwise are required to be delivered
to third parties;
(4) the discounted future net revenue, calculated in accordance with
SEC guidelines (utilizing the same prices utilized in the Company's
year-end reserve report), attributable to reserves that are required to be
delivered to third parties to fully satisfy the obligations of the Company
and its Restricted Subsidiaries with respect to Volumetric Production
Payments on the schedules specified with respect thereto; and
(5) the discounted future net revenue, calculated in accordance with
SEC guidelines, attributable to reserves subject to Dollar-Denominated
Production Payments that, based on the estimates of production included in
determining the discounted future net revenue specified in the immediately
preceding clause (a)(1) (utilizing the same prices utilized in the
Company's year-end reserve report), would be necessary to satisfy fully the
obligations of the Company and its Restricted Subsidiaries with respect to
Dollar-Denominated Production Payments on the schedules specified with
respect thereto.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and controlled" have meanings correlative to the foregoing. For
purposes of the provisions described under "-- Certain Covenants -- Limitation
on Restricted Payments," "-- Certain Covenants -- Limitation on Affiliate
Transactions" and "-- Certain Covenants -- Limitation on Sales of Assets and
Subsidiary Stock" only, "Affiliate" shall also mean any beneficial owner of
Capital Stock representing 10% or more of the total voting power of the Voting
Stock (on a fully diluted basis) of the Company or of rights or warrants to
purchase such Capital Stock
39
(whether or not currently exercisable) and any Person who would be an Affiliate
of any such beneficial owner pursuant to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other disposition
(or series of related sales, leases, transfers or dispositions) by the Company
or any Restricted Subsidiary, including any disposition by means of a merger,
consolidation or similar transaction (each referred to for the purposes of this
definition as a "disposition"), of:
(1) any shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares or shares required by applicable law to be
held by a Person other than the Company or a Restricted Subsidiary);
(2) all or substantially all the assets of any division or line of
business of the Company or any Restricted Subsidiary; or
(3) any other assets of the Company or any Restricted Subsidiary
outside of the ordinary course of business of the Company or such
Restricted Subsidiary.
Notwithstanding the foregoing, none of the following shall be deemed to be an
Asset Disposition:
(1) a disposition by a Restricted Subsidiary to the Company or by the
Company or a Restricted Subsidiary to a Wholly Owned Subsidiary;
(2) for purposes of the covenant described under "-- Certain
Covenants -- Limitation on Sales of Assets and Subsidiary Stock" only, a
disposition that constitutes a Restricted Payment permitted by the covenant
described under "-- Certain Covenants -- Limitation on Restricted
Payments," a disposition of all or substantially all the assets of the
Company in compliance with "-- Certain Covenants -- Merger and
Consolidation" or a disposition that constitutes a Change of Control
pursuant to clause (3) of the definition thereof;
(3) the sale or transfer (whether or not in the ordinary course of
business) of crude oil and natural gas properties or direct or indirect
interests in real property; provided, however, that at the time of such
sale or transfer such properties do not have associated with them any
proved reserves;
(4) the abandonment, farm-out, lease or sublease of developed or
undeveloped crude oil and natural gas properties in the ordinary course of
business;
(5) the trade or exchange by the Company or any Restricted Subsidiary
of any crude oil and natural gas property owned or held by the Company or
such Restricted Subsidiary for any crude oil and natural gas property owned
or held by another Person; or
(6) the sale or transfer of hydrocarbons or other mineral products or
surplus or obsolete equipment;
in each case in the ordinary course of business.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means, as at
the time of determination, the present value (discounted at the interest rate
implicit in the Sale/Leaseback Transaction, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with respect to any
Indebtedness or Preferred Stock, the quotient obtained by dividing
(1) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment
of such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by
(2) the sum of all such payments.
40
"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized to act on behalf of such Board.
"Business Day" means each day which is not a Legal Holiday (as defined in
the Indenture).
"Capital Lease Obligation" means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"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 any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consolidated Coverage Ratio" as of any date of determination means the
ratio of
(x) the aggregate amount of EBITDA for the period of the most recent four
consecutive fiscal quarters ending at least 45 days prior to the date of such
determination to
(y) Consolidated Interest Expense for such four fiscal quarters; provided,
however, that:
(1) if the Company or any Restricted Subsidiary has Incurred any
Indebtedness since the beginning of such period that remains outstanding or
if the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an Incurrence of Indebtedness, or both, EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving effect on a pro forma basis to such Indebtedness as if such
Indebtedness had been Incurred on the first day of such period and the
discharge of any other Indebtedness repaid, repurchased, defeased or
otherwise discharged with the proceeds of such new Indebtedness as if such
discharge had occurred on the first day of such period;
(2) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness since the
beginning of such period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged on the date of the
transaction giving rise to the need to calculate the Consolidated Coverage
Ratio, EBITDA and Consolidated Interest Expense for such period shall be
calculated on a pro forma basis as if such discharge had occurred on the
first day of such period and as if the Company or such Restricted
Subsidiary has not earned the interest income actually earned during such
period in respect of cash or Temporary Cash Investments used to repay,
repurchase, defease or otherwise discharge such Indebtedness;
(3) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Asset Disposition (other than an
Asset Disposition involving assets having a fair market value of less than
the greater of two and one-half percent (2.5%) of Adjusted Consolidated Net
Tangible Assets as of the end of the Company's then most recently completed
fiscal year and $3.0 million), then EBITDA for such period shall be reduced
by an amount equal to EBITDA (if positive) directly attributable to the
assets which are the subject of such Asset Disposition for such period, or
increased by an amount equal to EBITDA (if negative), directly attributable
thereto for such period and Consolidated Interest Expense for such period
shall be reduced by an amount equal to the Consolidated Interest Expense
directly attributable to any Indebtedness of the Company or any Restricted
Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to the Company and its continuing Restricted Subsidiaries in
connection with such Asset Disposition for such period (or, if the Capital
Stock of any Restricted Subsidiary is sold, the Consolidated Interest
Expense for such period directly attributable to the Indebtedness of such
Restricted Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such Indebtedness after
such sale);
41
(4) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any person which becomes a
Restricted Subsidiary) or an acquisition (including by way of lease) of
assets, including any acquisition of assets occurring in connection with a
transaction requiring a calculation to be made hereunder, EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the Incurrence of any
Indebtedness) as if such Investment or acquisition occurred on the first
day of such period; and
(5) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period)
shall have made any Asset Disposition, any Investment or acquisition of
assets that would have required an adjustment pursuant to clause (3) or (4)
above if made by the Company or a Restricted Subsidiary during such period,
EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto as if such Asset
Disposition, Investment or acquisition occurred on the first day of such
period.
For purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets, the amount of income or earnings relating thereto and the
amount of Consolidated Interest Expense associated with any Indebtedness
Incurred in connection therewith, the pro forma calculations shall be determined
in good faith by a responsible financial or accounting Officer of the Company.
If any Indebtedness bears a floating rate of interest and is being given pro
forma effect, the interest on such Indebtedness shall be calculated as if the
rate in effect on the date of determination had been the applicable rate for the
entire period (taking into account any Interest Rate Agreement applicable to
such Indebtedness if such Interest Rate Agreement has a remaining term in excess
of 12 months).
"Consolidated Current Liabilities" as of the date of determination means
the aggregate amount of liabilities of the Company and its consolidated
Restricted Subsidiaries which would properly be classified as current
liabilities (including taxes accrued as estimated), on a consolidated balance
sheet of the Company and its Restricted subsidiaries at such date, after
eliminating:
(1) all intercompany items between the Company and any Restricted
Subsidiary; and
(2) all current maturities of long-term Indebtedness, all as
determined in accordance with GAAP consistently applied.
"Consolidated Interest Expense" means, for any period, the total interest
expense of the Company and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, plus, to the extent
not included in such total interest expense, and to the extent incurred by the
Company or its Restricted Subsidiaries, without duplication:
(1) interest expense attributable to Capital Lease Obligations and
imputed interest with respect to Attributable Debt;
(2) capitalized interest;
(3) non-cash interest expense;
(4) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing;
(5) net costs (including amortization of fees and up-front payments)
associated with interest rate caps and other interest rate and currency
options that, at the time entered into, resulted in the Company and its
Restricted Subsidiaries being net payees as to future payouts under such
caps or options, and interest rate and currency swaps and forwards for
which the Company or any of its Restricted Subsidiaries has paid a premium;
42
(6) dividends (excluding dividends paid in shares of Capital Stock
which is not Disqualified Stock) in respect of all Disqualified Stock held
by Persons other than the Company or a Wholly Owned Subsidiary;
(7) interest accruing on any Indebtedness of any other Person to the
extent such Indebtedness is Guaranteed by the Company or any Restricted
Subsidiary or secured by a Lien on assets of the Company or any Restricted
Subsidiary to the extent such Indebtedness constitutes Indebtedness of the
Company or any Restricted Subsidiary (whether or not such Guarantee or Lien
is called upon); provided, however, "Consolidated Interest Expense" shall
not include any (x) amortization of costs relating to original debt
issuances other than the amortization of debt discount related to the
issuance of zero coupon securities or other securities with an original
issue price of not more than 90% of the principal thereof, (y) Consolidated
Interest Expense with respect to any Indebtedness Incurred pursuant to
clause (b) (8) of the covenant described under "-- Certain
Covenants -- Limitation on Indebtedness" and (z) noncash interest expense
Incurred in connection with interest rate caps and other interest rate and
currency options that, at the time entered into, resulted in the Company
and its Restricted Subsidiaries being either neutral or net payors as to
future payouts under such caps or options.
"Consolidated Net Income" means, for any period, the net income of the
Company and its Subsidiaries determined on a consolidated basis in accordance
with GAAP; provided, however, that there shall not be included in such
Consolidated Net Income:
(1) any net income of any Person (other than the Company) if such
Person is not a Restricted Subsidiary, except that:
(A) subject to the exclusion contained in clause (4) below, the
Company's equity in the net income of any such Person for such period
shall be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Person during such period to
the Company or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution
paid to a Restricted Subsidiary, to the limitations contained in clause
(3) below); and
(B) the Company's equity in a net loss of any such Person for such
period shall be included in determining such Consolidated Net Income;
(2) any net income (or loss) of any Person acquired by the Company or
a Subsidiary in a pooling of interests transaction for any period prior to
the date of such acquisition;
(3) any net income of any Restricted Subsidiary if such Restricted
Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company, except that:
(A) subject to the exclusion contained in clause (4) below, the
Company's equity in the net income of any such Restricted Subsidiary for
such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Restricted
Subsidiary during such period to the Company or another Restricted
Subsidiary as a dividend or other distribution (subject, in the case of
a dividend or other distribution paid to another Restricted Subsidiary,
to the limitation contained in this clause); and
(B) the Company's equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining such
Consolidated Net Income;
(4) any gain or loss realized upon the sale or other disposition of
any assets of the Company or its consolidated Subsidiaries (including
pursuant to any sale-and-leaseback arrangement) which is not sold or
otherwise disposed of in the ordinary course of business and any gain or
loss realized upon the sale or other disposition of any Capital Stock of
any Person;
(5) extraordinary gains or losses;
43
(6) any non-cash compensation expense realized for grants of
performance shares, stock options or stock awards to officers, directors
and employees of the Company or any of its Restricted Subsidiaries;
(7) any write-downs of noncurrent assets; provided, however, that any
ceiling limitation write-downs under SEC guidelines shall be treated as
capitalized costs, as if such write-downs had not occurred; and
(8) the cumulative effect of a change in accounting principles.
Notwithstanding the foregoing, for the purposes of the covenant described
under "Certain Covenants -- Limitation on Restricted Payments" only, there shall
be excluded from Consolidated Net Income any dividends, repayments of loans or
advances or other transfers of assets from Unrestricted Subsidiaries to the
Company or a Restricted Subsidiary to the extent such dividends, repayments or
transfers increase the amount of Restricted Payments permitted under such
covenant pursuant to clause (a) (3) (E) thereof.
"Consolidated Net Tangible Assets," as of any date of determination, means
the total amount of assets (less accumulated depreciation and amortization,
allowances for doubtful receivables, other applicable reserves and other
properly deductible items) which would appear on a balance sheet of the Company
and its Restricted Subsidiaries, determined on a consolidated basis in
accordance with GAAP, and after giving effect to purchase accounting and after
deducting therefrom Consolidated Current Liabilities and, to the extent
otherwise included, the amounts of:
(1) minority interests in Restricted Subsidiaries held by Persons
other than the Company or a Restricted Subsidiary;
(2) excess of cost over fair value of assets of businesses acquired,
as determined in good faith by the Board of Directors;
(3) any revaluation or other write-up in book value of assets
subsequent to February 26, 1998 as a result of a change in the method of
valuation in accordance with GAAP consistently applied;
(4) unamortized debt discount and expenses and other unamortized
deferred charges, goodwill, patents, trademarks, service marks, trade
names, copyrights, licenses, organization or developmental expenses and
other intangible items;
(5) treasury stock;
(6) cash set apart and held in a sinking or other analogous fund
established for the purpose of redemption or other retirement of Capital
Stock to the extent such obligation is not reflected in Consolidated
Current Liabilities; and
(7) Investments in and assets of Unrestricted Subsidiaries.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Company and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP, as of the end of the most recent fiscal quarter
of the Company ending at least 45 days prior to the taking of any action for the
purpose of which the determination is being made, as the sum of:
(1) the par or stated value of all outstanding Capital Stock of the
Company plus
(2) paid-in capital or capital surplus relating to such Capital Stock
plus
(3) any retained earnings or earned surplus
less (A) any accumulated deficit and (B) any amounts attributable to
Disqualified Stock.
"Credit Agreement" means that certain Second Amended and Restated Credit
Agreement, dated October 13, 2000, as amended, by and among the Company and Bank
of America, N.A. (or any successor
44
thereto or replacement thereof), as administrative agent and as a lender, and
certain other institutions, as lenders, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, restated, modified, renewed, refunded,
replaced, refinanced or increased in whole or in part, from time to time.
"Credit Facilities" means, with respect to the Company or any Restricted
Subsidiary, one or more debt facilities (including the Credit Agreement) or
commercial paper facilities with banks or other institutional lenders providing
for revolving credit loans, term loans, production payments, receivables
financing (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time.
"Currency Agreement" means in respect of a Person any foreign exchange
contract, currency swap agreement or other similar agreement to which such
Person is a party or a beneficiary.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Designated Senior Indebtedness" in respect of a Person means:
(1) all the obligations of such Person under any Credit Facility
(including the Credit Agreement); and
(2) any other Senior Indebtedness of such Person which, at the date of
determination, has an aggregate principal amount outstanding of, or under
which, at the date of determination, the holders thereof are committed to
lend up to, at least $20 million and is specifically designated by such
Person in the instrument evidencing or governing such Senior Indebtedness
as "Designated Senior Indebtedness" for purposes of the Indenture.
"Disqualified Stock" means, with respect to any Person, any Capital Stock
that by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or upon the happening of any event:
(1) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise;
(2) is convertible or exchangeable for Indebtedness or Disqualified
Stock; or
(3) is redeemable, in whole or in part, at the option of the holder
thereof;
in each case described in the immediately preceding clauses (1), (2) or (3), on
or prior to the Stated Maturity of the Notes; provided, however, that any
Capital Stock that would not constitute Disqualified Stock but for provisions
thereof giving holders thereof the right to require such Person to purchase or
redeem such Capital Stock upon the occurrence of an "asset sale" or "change of
control" occurring prior to the Stated Maturity of the Notes shall not
constitute Disqualified Stock if:
(x) the "asset sale" or "change of control" provisions applicable to
such Capital Stock are not more favorable to the holders of such Capital
Stock than the provisions described under "-- Certain
Covenants -- Limitation on Sales of Assets and Subsidiary Stock" and
"-- Certain Covenants -- Change of Control"; and
(y) any such requirement only becomes operative after compliance with
such corresponding terms applicable to the Notes, including the purchase of
any Notes tendered pursuant thereto.
The amount of any Disqualified Stock that does not have a fixed redemption,
repayment or repurchase price will be calculated in accordance with the terms of
such Disqualified Stock as if such Disqualified Stock were redeemed, repaid or
repurchased on any date on which the amount of such Disqualified Stock is to be
determined pursuant to the Indenture; provided, however, that if such
Disqualified Stock could not be required to be redeemed, repaid or repurchased
at the time of such determination, the redemption,
45
repayment or repurchase price will be the book value of such Disqualified Stock
as reflected in the most recent financial statements of such Person.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"EBITDA" for any period means the sum of Consolidated Net Income, plus
Consolidated Interest Expense plus the following to the extent deducted in
calculating such Consolidated Net Income:
(1) provision for taxes based on income or profits;
(2) depletion and depreciation expense;
(3) amortization expense;
(4) exploration expense (if applicable to the Company after February
26, 1998);
(5) unrealized foreign exchange losses; and
(6) all other non-cash charges (excluding any such non-cash charge to
the extent that it represents an accrual of or reserve for cash charges in
any future period or amortization of a prepaid cash expense that was paid
in a prior period except such amounts as the Company determines in good
faith are nonrecurring);
and less, to the extent included in calculating such Consolidated Net Income and
in excess of any costs or expenses attributable thereto and deducted in
calculating such Consolidated Net Income, the sum of:
(1) the amount of deferred revenues that are amortized during such
period and are attributable to reserves that are subject to Volumetric
Production Payments;
(2) amounts recorded in accordance with GAAP as repayments of
principal and interest pursuant to Dollar-Denominated Production Payments;
and
(3) unrealized foreign exchange gains.
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depletion, depreciation, amortization and exploration and
other non-cash charges of, a Restricted Subsidiary shall be added to
Consolidated Net Income to compute EBITDA only to the extent (and in the same
proportion) that the net income of such Restricted Subsidiary was included in
calculating Consolidated Net Income and only if a corresponding amount would be
permitted at the date of determination to be dividended to the Company by such
Restricted Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect on February 26, 1998, including those set forth in:
(1) the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants;
(2) statements and pronouncements of the Financial Accounting
Standards Board;
(3) such other statements by such other entity as approved by a
significant segment of the accounting profession; and
(4) the rules and regulations of the SEC governing the inclusion of
financial statements (including pro forma financial statements) in periodic
reports required to be filed pursuant to
46
Section 13 of the Exchange Act, including opinions and pronouncements in
staff accounting bulletins and similar written statements from the
accounting staff of the SEC.
"Guarantee" means, without duplication, any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of
any Person and any obligation, direct or indirect, contingent or otherwise, of
such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness of such Person (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase
assets, goods, securities or services, to take-or-pay or to maintain
financial statement conditions or otherwise); or
(2) entered into for the purpose of assuring in any other manner the
obligee of such Indebtedness of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning. The term "Guarantor" shall mean any
Person Guaranteeing any obligation.
"Guarantee Agreement" means a supplemental indenture, in a form
satisfactory to the Trustee, pursuant to which a Subsidiary Guarantor or any
other Person becomes subject to the applicable terms and conditions of the
Indenture.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any Oil and Gas Hedging Contract, Interest Rate Agreement or
Currency Agreement.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become liable
for; provided, however, that any Indebtedness or Capital Stock of a Person
existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary. The term "Incurrence" when used
as a noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall not be deemed the
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal of and premium (if any) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable;
(2) all Capital Lease Obligations of such Person and all Attributable
Debt in respect of Sale/ Leaseback Transactions entered into by such
Person;
(3) all obligations of such Person issued or assumed as the deferred
purchase price of property (which purchase price is due more than six
months after the date of taking delivery of title to such property),
including all obligations of such Person for the deferred purchase price of
property under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business);
(4) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit
securing obligations (other than obligations described in clauses (1)
through (3) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if and
to the extent drawn upon, such drawing is reimbursed no later than the
47
tenth Business Day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit);
(5) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock (but
excluding any accrued dividends);
(6) all obligations of such Person relating to any Production Payment;
(7) all obligations of the type referred to in clauses (1) through (6)
of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee (including, with respect to any Production Payment, any
warranties or guarantees of production or payment by such Person with
respect to such Production Payment but excluding other contractual
obligations of such Person with respect to such Production Payment);
(8) all obligations of the type referred to in clauses (1) through (7)
of other Persons secured by any Lien on any property or asset of such
first-mentioned Person (whether or not such obligation is assumed by such
first-mentioned Person), the amount of such obligation being deemed to be
the lesser of the value of such property or assets or the amount of the
obligation so secured; and
(9) to the extent not otherwise included in this definition, Hedging
Obligations of such Person. The amount of Indebtedness of any Person at any
date shall be the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability, assuming the
contingency giving rise to the obligation were to have occurred on such
date, of any Guarantees outstanding at such date.
None of the following shall constitute Indebtedness:
(1) indebtedness arising from agreements providing for indemnification
or adjustment of purchase price or from guarantees securing any obligations
of the Company or any of its Subsidiaries pursuant to such agreements,
incurred or assumed in connection with the disposition of any business,
assets or Subsidiary of the Company, other than guarantees or similar
credit support by the Company or any of its Subsidiaries of Indebtedness
incurred by any Person acquiring all or any portion of such business,
assets or Subsidiary for the purpose of financing such acquisition;
(2) any trade payables or other similar liabilities to trade creditors
and other accrued current liabilities incurred in the ordinary course of
business as the deferred purchase price of property;
(3) any liability for Federal, state, local or other taxes owed or
owing by such Person;
(4) amounts due in the ordinary course of business to other royalty
and working interest owners;
(5) obligations arising from guarantees to suppliers, lessors,
licensees, contractors, franchisees or customers incurred in the ordinary
course of business;
(6) obligations (other than express Guarantees of indebtedness for
borrowed money) in respect of Indebtedness of other Persons arising in
connection with (A) the sale or discount of accounts receivable, (B) trade
acceptances and (C) endorsements of instruments for deposit in the ordinary
course of business;
(7) obligations in respect of performance bonds provided by the
Company or its Subsidiaries in the ordinary course of business and
refinancing thereof;
(8) obligations arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business, provided, however
that such obligation is extinguished within two Business Days of its
incurrence; and
(9) obligations in respect of any obligations under workers'
compensation laws and similar legislation.
48
"Interest Rate Agreement" means any interest rate swap agreement, interest
rate cap agreement or other financial agreement or arrangement designed to
protect the Company or any Restricted Subsidiary against fluctuations in
interest rates.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers or joint interest partners or drilling
partnerships sponsored by the Company or any Restricted Subsidiary in the
ordinary course of business that are recorded as accounts receivable on the
balance sheet of the lender) or other extensions of credit (including by way of
Guarantee or similar arrangement) or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition of
Capital Stock, Indebtedness or other similar instruments issued by such Person.
Except as otherwise provided for herein, the amount of an Investment shall be
its fair value at the time the Investment is made and without giving effect to
subsequent changes in value.
For purposes of the definition of "Unrestricted Subsidiary," the definition
of "Restricted Payment" and the covenant described under "-- Certain
Covenants -- Limitation on Restricted Payments":
(1) "Investment" shall include the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market value of
the net assets of any Subsidiary of the Company at the time that such
Subsidiary is designated an Unrestricted Subsidiary; provided, however,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary,
the Company shall be deemed to continue to have a permanent "Investment" in
an Unrestricted Subsidiary equal to an amount (if positive) equal to (x)
the Company's "Investment" in such Subsidiary at the time of such
redesignation less (y) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of
such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its fair market value at the time of such transfer, in
each case as determined in good faith by the Board of Directors.
"Issue Date" means the date on which the Notes are originally issued.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Limited Recourse Production Payments" means, with respect to any
Production Payments, Indebtedness, the terms of which limit the liability of the
Company and its Restricted Subsidiaries solely to the hydrocarbons covered by
such Production Payments; provided, however, that no default with respect to
such Indebtedness would permit any holder of any other Indebtedness of the
Company or any Restricted Subsidiary to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.
"Material Change" means an increase or decrease (excluding changes that
result solely from changes in prices and changes resulting from the incurrence
of previously estimated future development costs) of more than 25% during a
fiscal quarter in the discounted future net revenues from proved crude oil and
natural gas reserves of the Company and its Restricted Subsidiaries, calculated
in accordance with clause (a)(1) of the definition of Adjusted Consolidated Net
Tangible Assets; provided, however, that the following will be excluded from the
calculation of Material Change:
(1) any acquisitions during the fiscal quarter of oil and gas reserves
that have been estimated by independent petroleum engineers and with
respect to which a report or reports of such engineers exist; and
(2) any disposition of properties existing at the beginning of such
fiscal quarter that have been disposed of in compliance with the covenant
described under "-- Certain Covenants -- Limitation on Sales of Assets and
Subsidiary Stock."
49
"Moody's" means Moody's Investor's Service, Inc. and its successors.
"Net Available Cash" from an Asset Disposition means cash payments received
therefrom (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only as
and when received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Indebtedness or other obligations relating
to such properties or assets or received in any other noncash form), in each
case net of:
(1) all legal, title and recording tax expenses, commissions and other
fees (including financial and other advisory fees) and expenses incurred,
and all Federal, state, provincial, foreign and local taxes required to be
accrued as a liability under GAAP, as a consequence of such Asset
Disposition;
(2) all payments made on any Indebtedness which is secured by any
assets subject to such Asset Disposition, in accordance with the terms of
any Lien upon or other security agreement of any kind with respect to such
assets, or which must by its terms, or in order to obtain a necessary
consent to such Asset Disposition, or by applicable law, be repaid out of
the proceeds from such Asset Disposition;
(3) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a result of
such Asset Disposition; and
(4) the deduction of appropriate amounts provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with
the property or other assets disposed in such Asset Disposition and
retained by the Company or any Restricted Subsidiary after such Asset
Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of Capital Stock,
means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Net Present Value" means, with respect to any proved hydrocarbon reserves,
the discounted future net cash flows associated with such reserves, determined
in accordance with the rules and regulations (including interpretations thereof)
of the SEC in effect on February 26, 1998.
"Net Working Capital" means:
(1) all current assets of the Company and its Restricted Subsidiaries;
minus
(2) all current liabilities of the Company and its Restricted
Subsidiaries, except current liabilities included in Indebtedness;
determined in accordance with GAAP.
"Non-recourse Purchase Money Indebtedness" means Indebtedness (other than
Capital Lease Obligations) of the Company or any Subsidiary Guarantor incurred
in connection with the acquisition by the Company or such Subsidiary Guarantor
in the ordinary course of business of fixed assets used in the Oil and Gas
Business (including office buildings and other real property used by the Company
or such Subsidiary Guarantor in conducting its operations) with respect to
which:
(1) the holders of such Indebtedness agree that they will look solely
to the fixed assets so acquired which secure such Indebtedness, and neither
the Company nor any Restricted Subsidiary (a) is directly or indirectly
liable for such Indebtedness or (b) provides credit support, including any
undertaking, Guarantee, agreement or instrument that would constitute
Indebtedness (other than the grant of a Lien on such acquired fixed
assets); and
(2) no default or event of default with respect to such Indebtedness
would cause, or permit (after notice or passage of time or otherwise), any
holder of any other Indebtedness of the Company or a Subsidiary Guarantor
to declare a default or event of default on such other Indebtedness or
cause the payment, repurchase, redemption, defeasance or other acquisition
or retirement for value thereof
50
to be accelerated or payable prior to any scheduled principal payment,
scheduled sinking fund payment or maturity.
"Oil and Gas Business" means the business of the exploration for, and
exploitation, development, acquisition, production, processing (but not
refining), marketing, storage and transportation of, hydrocarbons, and other
related energy and natural resource businesses (including oil and gas services
businesses related to the foregoing).
"Oil and Gas Hedging Contract" means any oil and gas purchase or hedging
agreement, and other agreement or arrangement, in each case, that is designed to
provide protection against oil and gas price fluctuations.
"Oil and Gas Liens" means:
(1) Liens on any specific property or any interest therein,
construction thereon or improvement thereto to secure all or any part of
the costs incurred for surveying, exploration, drilling, extraction,
development, operation, production, construction, alteration, repair or
improvement of, in, under or on such property and the plugging and
abandonment of wells located thereon (it being understood that, in the case
of oil and gas producing properties, or any interest therein, costs
incurred for "development" shall include costs incurred for all facilities
relating to such properties or to projects, ventures or other arrangements
of which such properties form a part or which relate to such properties or
interests);
(2) Liens on an oil or gas producing property to secure obligations
incurred or guarantees of obligations incurred in connection with or
necessarily incidental to commitments for the purchase or sale of, or the
transportation or distribution of, the products derived from such property;
(3) Liens arising under partnership agreements, oil and gas leases,
overriding royalty agreements, net profits agreements, production payment
agreements, royalty trust agreements, incentive compensation programs on
terms that are reasonably customary in the Oil and Gas Business for
geologists, geophysicists and other providers of technical services to the
Company or a Restricted Subsidiary, master limited partnership agreements,
farm-out agreements, farm-in agreements, division orders, contracts for the
sale, purchase, exchange, transportation, gathering or processing of oil,
gas or other hydrocarbons, unitizations and pooling designations,
declarations, orders and agreements, development agreements, operating
agreements, production sales contracts, area of mutual interest agreements,
gas balancing or deferred production agreements, injection, repressuring
and recycling agreements, salt water or other disposal agreements, seismic
or geophysical permits or agreements, and other agreements which are
customary in the Oil and Gas Business; provided, however, that in all
instances such Liens are limited to the assets that are the subject of the
relevant agreement, program, order or contract;
(4) Liens arising in connection with Production Payments; and
(5) Liens on pipelines or pipeline facilities that arise by operation
of law.
"Permitted Business Investment" means any investment made in the ordinary
course of, and of a nature that is or shall have become customary in, the Oil
and Gas Business including investments or expenditures for actively exploiting,
exploring for, acquiring, developing, producing, processing, gathering,
marketing or transporting oil and gas through agreements, transactions,
interests or arrangements which permit one to share risks or costs, comply with
regulatory requirements regarding local ownership or satisfy other objectives
customarily achieved through the conduct of Oil and Gas Business jointly with
third parties, including:
(1) ownership interests in oil and gas properties, processing
facilities, gathering systems, pipelines or ancillary real property
interests; and
51
(2) Investments in the form of or pursuant to operating agreements,
processing agreements, farm-in agreements, farm-out agreements, development
agreements, area of mutual interest agreements, unitization agreements,
pooling agreements, joint bidding agreements, service contracts, joint
venture agreements, partnership agreements (whether general or limited),
subscription agreements, stock purchase agreements and other similar
agreements (including for limited liability companies) with third parties,
excluding, however, Investments in corporations other than Restricted
Subsidiaries.
"Permitted Holders" means TPG Advisors, Inc. or any Person who on February
26, 1998 was an Affiliate thereof or any Person controlled by TPG Advisors, Inc.
"Permitted Investment" means an Investment by the Company or any Restricted
Subsidiary in:
(1) a Restricted Subsidiary or a Person that will, upon the making of
such Investment, become a Restricted Subsidiary; provided, however, that
the primary business of such Restricted Subsidiary is an Oil and Gas
Business;
(2) another Person if as a result of such Investment such other Person
is merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Company or a Restricted Subsidiary;
provided, however, that such Person's primary business is an Oil and Gas
Business;
(3) Temporary Cash Investments;
(4) receivables owing to the Company or any Restricted Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided, however,
that such trade terms may include such concessionary trade terms as the
Company or any such Restricted Subsidiary deems reasonable under the
circumstances;
(5) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of
business;
(6) loans or advances to employees made in the ordinary course of
business;
(7) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Company or any
Restricted Subsidiary or in satisfaction of judgments;
(8) any Person to the extent such Investment represents the noncash
portion of the consideration received for an Asset Disposition as permitted
pursuant to the covenant described under "-- Certain
Covenants -- Limitation on Sales of Assets and Subsidiary Stock";
(9) Permitted Business Investments;
(10) Investments intended to promote the Company's strategic
objectives in the Oil and Gas Business in an aggregate amount not to exceed
5.0% of ACNTA (determined as of the date of the making of any such
Investment) at any one time outstanding (which Investments shall be deemed
to be no longer outstanding only upon and to the extent of the return of
capital thereof); and
(11) Investments made pursuant to Hedging Obligations of the Company
and the Restricted Subsidiaries.
"Permitted Liens" means, with respect to any Person:
(1) Liens existing as of the Issue Date;
(2) Liens securing the Notes, any Subsidiary Guarantee and other
obligations arising under the Indenture;
(3) any Lien existing on any property of a Person at the time such
Person is merged or consolidated with or into the Company or a Restricted
Subsidiary or becomes a Restricted Subsidiary
52
(and not incurred in anticipation of or in connection with such
transaction), provided that such Liens are not extended to other property
of the Company or the Restricted Subsidiaries;
(4) any Lien existing on any property at the time of the acquisition
thereof (and not incurred in anticipation of or in connection with such
transaction), provided that such Liens are not extended to other property
of the Company or the Restricted Subsidiaries;
(5) any Lien incurred in the ordinary course of business incidental to
the conduct of the business of the Company or the Restricted Subsidiaries
or the ownership of their property (including (i) easements, rights of way
and similar encumbrances, (ii) rights or title of lessors under leases
(other than Capital Lease Obligations), (iii) rights of collecting banks
having rights of setoff, revocation, refund or chargeback with respect to
money or instruments of the Company or the Restricted Subsidiaries on
deposit with or in the possession of such banks, (iv) Liens imposed by law,
including Liens under workers' compensation or similar legislation and
mechanics', carriers', warehousemen's, materialmen's, suppliers' and
vendors' Liens, (v) Liens incurred to secure performance of obligations
with respect to statutory or regulatory requirements, performance or
return-of-money bonds, surety bonds or other obligations of a like nature
and incurred in a manner consistent with industry practice and (vi) Oil and
Gas Liens, in each case which are not incurred in connection with the
borrowing of money, the obtaining of advances or credit or the payment of
the deferred purchase price of property (other than trade accounts payable
arising in the ordinary course of business);
(6) Liens for taxes, assessments and governmental charges not yet due
or the validity of which are being contested in good faith by appropriate
proceedings, promptly instituted and diligently conducted, and for which
adequate reserves have been established to the extent required by GAAP as
in effect at such time;
(7) Liens incurred to secure appeal bonds and judgment and attachment
Liens, in each case in connection with litigation or legal proceedings that
are being contested in good faith by appropriate proceedings, so long as
reserves have been established to the extent required by GAAP as in effect
at such time and so long as such Liens do not encumber assets by an
aggregate amount (together with the amount of any unstayed judgments
against the Company or any Restricted Subsidiary but excluding any such
Liens to the extent securing insured or indemnified judgments or orders) in
excess of $10.0 million;
(8) Liens securing Hedging Obligations of the Company and its
Restricted Subsidiaries;
(9) Liens securing purchase money Indebtedness or Capital Lease
Obligations, provided that such Liens attach only to the property acquired
with the proceeds of such purchase money Indebtedness or the property which
is the subject of such Capital Lease Obligations;
(10) Liens securing Non-recourse Purchase Money Indebtedness granted
in connection with the acquisition by the Company or any Restricted
Subsidiary in the ordinary course of business of fixed assets used in the
Oil and Gas Business (including the office buildings and other real
property used by the Company or such Restricted Subsidiary in conducting
its operations), provided that (i) such Liens attach only to the fixed
assets acquired with the proceeds of such Non-recourse Purchase Money
Indebtedness; and (ii) such Non-recourse Purchase Money Indebtedness is not
in excess of the purchase price of such fixed assets;
(11) Liens resulting from the deposit of funds or evidences of
Indebtedness in trust for the purpose of decreasing or legally defeasing
Indebtedness of the Company or any Restricted Subsidiary so long as such
deposit of funds is permitted by the provisions of the Indenture described
under "-- Limitation on Restricted Payments";
(12) Liens resulting from a pledge of Capital Stock of a Person that
is not a Restricted Subsidiary to secure obligations of such Person and any
refinancings thereof;
53
(13) Liens to secure any permitted extension, renewal, refinancing,
refunding or exchange (or successive extensions, renewals, refinancings,
refundings or exchanges), in whole or in part, of or for any Indebtedness
secured by Liens referred to in clauses (1), (2), (3), (4), (9) and (10)
above; provided, however, that (i) such new Lien shall be limited to all or
part of the same property (including future improvements thereon and
accessions thereto) subject to the original Lien and (ii) the Indebtedness
secured by such Lien at such time is not increased to any amount greater
than the sum of (A) the outstanding principal amount or, if greater, the
committed amount of the Indebtedness secured by such original Lien
immediately prior to such extension, renewal, refinancing, refunding or
exchange and (B) an amount necessary to pay any fees and expenses,
including premiums, related to such refinancing, refunding, extension,
renewal or replacement; and
(14) Liens in favor of the Company or a Restricted Subsidiary.
Notwithstanding anything in this definition to the contrary, the term "Permitted
Liens" shall not include Liens resulting from the creation, incurrence,
issuance, assumption or Guarantee of any Production Payments other than:
(1) any such Liens existing as of the Issue Date;
(2) Production Payments in connection with the acquisition of any
property after the Issue Date; provided that any such Lien created in
connection therewith is created, incurred, issued, assumed or Guaranteed in
connection with the financing of, and within 60 days after the acquisition
of, such property;
(3) Production Payments other than those described in clauses (1) and
(2), to the extent such Production Payments constitute Asset Dispositions
made pursuant to and in compliance with the provisions of the Indenture
described under "-- Limitation on Sales of Assets and Subsidiary Stock";
and
(4) incentive compensation programs for geologists, geophysicists and
other providers of technical services to the Company and any Restricted
Subsidiary;
provided, however, that, in the case of the immediately foregoing clauses (1),
(2), (3) and (4), any Lien created in connection with any such Production
Payments shall be limited to the property that is the subject of such Production
Payments.
"Permitted Marketing Obligations" means Indebtedness of the Company or any
Restricted Subsidiary under letter of credit or borrowed money obligations, or
in lieu of or in addition to such letters of credit or borrowed money,
guarantees of such Indebtedness or other obligation, of the Company or any
Restricted Subsidiary by any other Restricted Subsidiary, as applicable, related
to the purchase by the Company or any Restricted Subsidiary of hydrocarbons for
which the Company or such Restricted Subsidiary has contracts to sell; provided,
however, that in the event that such Indebtedness or obligations are guaranteed
by the Company or any Restricted Subsidiary, then either:
(1) the Person with which the Company or such Restricted Subsidiary
has contracts to sell has an investment grade credit rating from S&P or
Moody's, or in lieu thereof, a Person guaranteeing the payment of such
obligated Person has an investment grade credit rating from S&P or Moody's;
or
(2) such Person posts, or has posted for it, a letter of credit in
favor of the Company or such Restricted Subsidiary with respect to all such
Person's obligations to the Company or such Restricted Subsidiary under
such contracts.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.
54
"Preferred Stock," as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
The term "principal" of a Note means the principal of the Note plus the
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time.
"Production Payments" means, collectively, Dollar-Denominated Production
Payments and Volumetric Production Payments.
"Refinance" means, in respect of any Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other
Indebtedness in exchange or replacement for, such Indebtedness. "Refinanced" and
"Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Subsidiary existing on February
26, 1998 or Incurred in compliance with the Indenture, including Indebtedness
that Refinances Refinancing Indebtedness; provided, however, that:
(1) such Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being Refinanced;
(2) such Refinancing Indebtedness has an Average Life at the time such
Refinancing Indebtedness is Incurred that is equal to or greater than the
Average Life of the Indebtedness being Refinanced;
(3) such Refinancing Indebtedness has an aggregate principal amount
(or if Incurred with original issue discount, an aggregate issue price)
that is equal to or less than the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium and
defeasance costs) under the Indebtedness being Refinanced; and
(4) if the Indebtedness being Refinanced is Non-recourse Purchase
Money Indebtedness, such Refinancing Indebtedness satisfies clauses (1) and
(2) of the definition of "Non-recourse Purchase Money Indebtedness;"
provided further, however, that Refinancing Indebtedness shall not include
(x) Indebtedness of a Subsidiary that Refinances Indebtedness of the
Company or (y) Indebtedness of the Company or a Restricted Subsidiary that
Refinances Indebtedness of an Unrestricted Subsidiary.
"Representative" means any trustee, agent or representative (if any) for an
issue of Senior Indebtedness of the Company or of a Subsidiary Guarantor.
"Restricted Payment" with respect to any Person means:
(1) the declaration or payment of any dividends or any other
distributions of any sort in respect of its Capital Stock (including any
payment in connection with any merger or consolidation involving such
Person) or similar payment to the direct or indirect holders of its Capital
Stock (other than (x) dividends or distributions payable solely in its
Capital Stock (other than Disqualified Stock), (y) dividends or
distributions payable solely to the Company or a Restricted Subsidiary, and
(z) pro rata dividends or other distributions made by a Subsidiary that is
not a Wholly Owned Subsidiary to minority stockholders (or owners of an
equivalent interest in the case of a Subsidiary that is an entity other
than a corporation));
(2) the purchase, redemption or other acquisition or retirement for
value of any Capital Stock of the Company held by any Person or of any
Capital Stock of a Restricted Subsidiary held by any Affiliate of the
Company (other than a Restricted Subsidiary), including the exercise of any
option to exchange any Capital Stock (other than into Capital Stock of the
Company that is not Disqualified Stock);
55
(3) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment of any Subordinated Obligations
of such Person (other than the purchase, repurchase or other acquisition of
Subordinated Obligations purchased in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in each case due
within one year of the date of acquisition); or
(4) the making of any Investment (other than a Permitted Investment)
in any Person.
"Restricted Subsidiary" means any Subsidiary of the Company that is not an
Unrestricted Subsidiary.
"S&P" means Standard & Poor's Rating Services, a division of The
McGraw-Hill Company, Inc., and its successors.
"Sale/Leaseback Transaction" means an arrangement relating to property
owned on February 26, 1998 or thereafter acquired whereby the Company or a
Restricted Subsidiary transfers such property to a Person and the Company or a
Restricted Subsidiary leases it from such Person, provided that the fair market
value of such property (as reasonably determined by the Board of Directors
acting in good faith) is $10 million or more.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company secured by a
Lien.
"Senior Indebtedness" means with respect to any Person:
(1) Indebtedness of such Person, and all obligations of such Person
under any Credit Facility, whether outstanding on the Issue Date or
thereafter Incurred; and
(2) accrued and unpaid interest (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization
relating such Person to the extent post-filing interest is allowed in such
proceeding) in respect of (A) indebtedness of such Person for money
borrowed and (B) indebtedness evidenced by notes, debentures, bonds or
other similar instruments for the payment of which such Person is
responsible or liable;
unless, with respect to obligations described in the immediately preceding
clause (1) or (2), in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Notes or the applicable Subsidiary
Guarantee; provided, however, that Senior Indebtedness shall not include:;
(1) any obligation of such Person to any Subsidiary of such Person;
(2) any liability for Federal, state, local or other taxes owed or
owing by such Person;
(3) any accounts payable or other liability to trade creditors arising
in the ordinary course of business (including guarantees thereof or
instruments evidencing such liabilities);
(4) any Indebtedness of such Person (and any accrued and unpaid
interest in respect thereof) which is subordinate or junior in any respect
to any other Indebtedness or other obligation of such Person; or
(5) that portion of any Indebtedness which at the time of Incurrence
is Incurred in violation of the Indenture (other than, in the case of the
Company or any Subsidiary Guarantor that Guarantees any Credit Facility,
Indebtedness under any Credit Facility that is Incurred on the basis of a
representation by the Company or the applicable Subsidiary Guarantor to the
applicable lenders that such Person is permitted to Incur such Indebtedness
under the Indenture).
"Senior Subordinated Indebtedness" means:
(1) with respect to the Company, the Notes, the Existing 9% Senior
Subordinated Notes and any other Indebtedness of the Company that
specifically provides that such Indebtedness is to rank
56
pari passu with the Notes in right of payment and is not subordinated by
its terms in right of payment to any Indebtedness or other obligation of
the Company which is not Senior Indebtedness of the Company; and
(2) with respect to each Subsidiary Guarantor, its Subsidiary
Guarantee of the Notes and the Existing 9% Senior Subordinated Notes and
any other Indebtedness of such Person that specifically provides that such
Indebtedness rank pari passu with its applicable Subsidiary Guarantee in
respect of payment and is not subordinated by its terms in respect of
payment to any Indebtedness or other obligation of such Person which is not
Senior Indebtedness of such Person.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the final payment of principal of
such security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).
"Stock Offering" means a primary offering, whether public or private, of
shares of common stock of the Company.
"Subordinated Obligation" means any Indebtedness of the Company or any
Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter
Incurred) which is subordinate or junior in right of payment to, in the case of
the Company, the Notes or, in the case of a Subsidiary Guarantor, its Subsidiary
Guarantee pursuant to a written agreement to that effect.
"Subsidiary" means, in respect of any Person, any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) 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:
(1) such Person;
(2) such Person and one or more Subsidiaries of such Person; or
(3) one or more Subsidiaries of such Person.
"Subsidiary Guarantor" means each Subsidiary of the Company that executes
the Indenture as a guarantor and each other Subsidiary of the Company that
thereafter Guarantees the Notes pursuant to the terms of the Indenture.
"Temporary Cash Investments" means any of the following:
(1) any investment in direct obligations of the United States of
America or any agency thereof or obligations guaranteed by the United
States of America or any agency thereof;
(2) investments in time deposit accounts, certificates of deposit and
money market deposits maturing within one year of the date of acquisition
thereof issued by a bank or trust company which is organized under the laws
of the United States of America, any state thereof or any foreign country
recognized by the United States, and which bank or trust company has
capital, surplus and undivided profits aggregating in excess of $200.0
million (or the foreign currency equivalent thereof) and has outstanding
debt which is rated "A" (or such similar equivalent rating) or higher by at
least one nationally recognized credit rating organization (as defined in
Rule 436 under the Securities Act) or any money-market fund sponsored by a
registered broker dealer or mutual fund distributor whose assets consist of
obligations of the types described in clauses (1), (2), (3), (4) and (5)
hereof;
57
(3) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (1) above entered
into with a bank meeting the qualifications described in clause (2) above;
(4) investments in commercial paper, maturing not more than one year
after the date of acquisition, issued by a Person (other than an Affiliate
of the Company) organized and in existence under the laws of the United
States of America or any foreign country recognized by the United States of
America with a rating at the time as of which any investment therein is
made of "P-2" (or higher) according to Moody's or "A-2" (or higher)
according to S&P or "R-1" (or higher) by Dominion Bond Rating Service
Limited or Canadian Bond Rating Service, Inc. (in the case of a Canadian
issuer);
(5) investments in securities with maturities of six months or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A"
by S&P or "A" by Moody's; and
(6) investments in asset-backed securities maturing within one year of
the date of acquisition thereof with a long-term rating at the time as of
which any investment therein is made of "A3" (or higher) by Dominion Bond
Rating Service Limited or Canadian Bond Rating Service, Inc. (in the case
of a Canadian issuer).
"Unrestricted Subsidiary" means:
(1) Denbury Carbonics, L.L.C. and Tallahatchie Resources, Inc;
(2) any Subsidiary of the Company that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors in
the manner provided below; and
(3) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Company (including
any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or
Indebtedness of, or holds any Lien on any property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that either (A) the Subsidiary to be so
designated has total assets of $1,000 or less or (B) if such Subsidiary has
assets greater than $1,000, such designation would be permitted under the
covenant described under "-- Certain Covenants -- Limitation on Restricted
Payments." The Board of Directors may designate any Unrestricted Subsidiary to
be a Restricted Subsidiary; provided, however, that immediately after giving
effect to such designation (x) the Company could Incur $1.00 of additional
Indebtedness under paragraph (a) of the covenant described under "-- Certain
Covenants -- Limitation on Indebtedness" and (y) no Default shall have occurred
and be continuing. Any such designation by the Board of Directors shall be
evidenced by the Company to the Trustee by promptly filing with the Trustee a
copy of the board resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
provisions.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
"Volumetric Production Payments" means production payment obligations
recorded as deferred revenue in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
58
"Wholly Owned Subsidiary" means a Restricted Subsidiary all the Capital
Stock of which (other than directors' qualifying shares and shares held by other
Persons to the extent such shares are required by applicable law to be held by a
Person other than the Company or a Restricted Subsidiary) is owned by the
Company or one or more Wholly Owned Subsidiaries.
59
CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS
GENERAL
The following is a summary of the material U.S. federal income tax
consequences to holders exchanging old notes for new notes pursuant to the
exchange offer. This discussion is based on currently existing provisions of the
Internal Revenue Code of 1986, as amended, the "Code," existing, temporary and
proposed Treasury regulations promulgated thereunder, Internal Revenue Services,
or "IRS" rulings and pronouncements, reports of congressional committees,
judicial decisions and current administrative rulings and practice, all as in
effect or proposed on the date hereof, and all of which are subject to change at
any time, possibly with retroactive effect or different interpretation.
This discussion is limited to initial purchasers of the old notes who hold
the old notes as capital assets within the meaning of section 1221 of the Code,
capital assets generally referring to property held for investment and not for
sale to customers in the ordinary course of a trade or business. This discussion
is for general information only and does not address all of the tax consequences
that may be relevant to particular initial purchasers in light of their
particular circumstances or to certain types of initial purchasers, such as
persons having a functional currency other than the U.S. dollar, persons subject
to special rules applicable to former citizens and residents of the U.S.,
persons subject to the alternative minimum tax, certain financial institutions,
insurance companies, tax-exempt organizations, dealers in securities or
currencies or persons holding the notes in connection with a hedging
transaction, straddle, conversion transaction or other integrated transaction,
corporations treated as foreign or domestic personal holding companies,
controlled foreign corporations, or passive foreign investment companies.
Moreover, this discussion does not address any of the U.S. federal income tax
consequences to holders that do not acquire new notes pursuant to the exchange
offer, nor does it address the applicability or effect of any state, local or
foreign tax laws and any changes or proposed changes in applicable tax laws or
interpretations thereof.
We have not sought and will not seek any rulings from the IRS regarding our
position discussed herein. We cannot assure you that the IRS will not take a
different position concerning the U.S. federal income tax consequences of
exchanging old notes for new notes.
EXCHANGE OFFER
The exchange of old notes for new notes pursuant to the exchange offer will
not be treated as a taxable "exchange" for U.S. federal income tax purposes
because the new notes will not be considered to differ materially in kind or
extent from the old notes. New notes received by a holder of old notes will be
treated as a continuation of the old notes in the hands of such holder.
Accordingly, there will not be any U.S. federal income tax consequences to the
holders exchanging old notes for new notes pursuant to the exchange offer. A
holder's holding period of new notes will include the holding period of the old
notes exchanged therefor and the adjusted tax basis of the new notes should be
the same as the adjusted tax basis of the old notes exchanged therefor
immediately before the exchange.
ALL HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS WITH REGARD TO THE
APPLICATION OF THE TAX CONSIDERATIONS DISCUSSED ABOVE TO THEIR PARTICULAR
SITUATIONS AS WELL AS THE APPLICATION OR EFFECT OF ANY STATE, LOCAL, FOREIGN OR
OTHER TAX LAWS AND ANY CHANGES OR PROPOSED CHANGES IN APPLICABLE TAX LAWS OR
INTERPRETATIONS THEREOF.
60
PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account pursuant to
this exchange offer must acknowledge that it will deliver a prospectus in
connection with any resale of such new notes. This prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of new notes received in exchange for old notes where
such old notes were acquired as a result of market-making activities or other
trading activities. We have agreed that, for a period of 180 days after the
expiration date, we will make this prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until , 2001, all dealers effecting transactions in the new
notes may be required to deliver a prospectus.
We will not receive any proceeds from any sale of new notes by
broker-dealers. New notes received by broker-dealers for their own account
pursuant to the exchange offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the new notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or at negotiated prices. Any such resale may be
made directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such new notes. Any broker-dealer that
resells new notes that were received by it for its own account pursuant to the
exchange offer and any broker or dealer that participates in a distribution of
such new notes may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of new notes and any commission
or concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The letter of transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the expiration date we will promptly send
additional copies of this prospectus and any amendment or supplement to this
prospectus to any broker-dealer that requests such documents in the letter of
transmittal. We have agreed to pay all expenses incident to the exchange offer
(including the expenses of one counsel for the holders of the new notes) other
than commissions or concessions of any brokers or dealers and will indemnify the
holders of the securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
NOTICE TO CANADIAN RESIDENTS
Any resale of the notes in Canada must be made under applicable securities
laws which will vary depending on the relevant jurisdiction, and which may
require resales to be made under available statutory exemptions or under a
discretionary exemption granted by the applicable Canadian securities regulatory
authority. Note holders resident in Canada are advised to seek legal advice
prior to any resale of the notes.
LEGAL MATTERS
Certain legal matters with respect to the exchange offer will be passed
upon for us by Jenkens & Gilchrist, A Professional Corporation, Houston, Texas.
61
EXPERTS
The consolidated financial statements of the Company as of and for the
years ended December 31, 1998, 1999 and 2000, incorporated in this prospectus by
reference have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
With respect to the unaudited interim financial information of the Company
for the periods ended March 31, 2001 and 2000 and June 30, 2001 and 2000 which
are incorporated herein by reference, Deloitte & Touche LLP have applied limited
procedures in accordance with professional standards for a review of such
information. However, as stated in their reports included in the Company's
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001 and June
30, 2001 and incorporated herein by reference, they did not audit and they do
not express an opinion on that interim financial information. Accordingly, the
degree of reliance on their reports on such information should be restricted in
light of the limited nature of the review procedures applied. Deloitte & Touche
LLP are not subject to the liability provisions of Section 11 of the Securities
Act of 1933 for their reports on the unaudited interim financial information
because those reports are not "reports" or a "part" of the registration
statement prepared or certified by an accountant within the meaning of Sections
7 and 11 of the Act.
The balance sheet of Matrix as of December 31, 2000, and the related
statements of income, stockholders' equity and cash flows for the year then
ended incorporated herein by reference have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and is incorporated herein in reliance upon the authority of said firm
as experts in accounting and auditing in giving said report.
With respect to the unaudited interim financial information of Matrix Oil
and Gas for the quarter ended March 31, 2001, which is incorporated herein by
reference, Arthur Andersen LLP has applied limited procedures in accordance with
professional standards for a review of that information. However, their separate
report thereon states that they did not audit and they do not express an opinion
on that interim financial information. Accordingly, the degree of reliance on
their report on that information should be restricted in light of the limited
nature of the review procedures applied. In addition Arthur Andersen LLP is not
subject to the liability provisions of Section 11 of the Securities Act of 1933
for their report on the unaudited interim financial information because that
report is not a "report" or a "part" of the registration statement prepared or
certified by the accountants within the meaning of Sections 7 and 11 of the Act.
Certain estimates of our oil and natural gas reserves and related
information incorporated by reference in this prospectus have been derived from
engineering reports prepared by DeGolyer and MacNaughton as of June 30, 2001 and
December 31, 2000 and by Netherland, Sewell and Associates, Inc. for the prior
years, and all such information has been so included on the authority of such
firms as experts regarding the matters contained in their reports.
62
$75,000,000 9% SERIES B SENIOR SUBORDINATED
NOTES DUE 2008
---------------------------------------------------------------------------
(DRI LOGO)
OFFER TO EXCHANGE
ALL OUTSTANDING 9% SERIES B SENIOR SUBORDINATED
NOTES DUE 2008 FOR 9% SERIES B
SENIOR SUBORDINATED NOTES DUE 2008
WHICH HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933
------------------------------
PROSPECTUS
OCTOBER , 2001
------------------------------
Until , 2002, all dealers that effect transactions in these
securities, whether or not participating in this offering, may be required to
deliver a prospectus. This is in addition to the dealers' obligation to deliver
a prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the Delaware General Corporation Law of the State of
Delaware ("DGCL") provides that a Delaware corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation), by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise, against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no cause to believe his conduct was
unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the court in which such action or suit was brought shall
determine that despite the adjudication of liability, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 of the DGCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of an action, suit
or proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith, that
indemnification provided for by Section 145 of the DGCL shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or enterprise, against any liability
asserted against him or incurred by him in any such capacity or arising out of
his status as such whether or not the corporation would have the power to
indemnify him against such liabilities under such Section 145.
Our certificate of incorporation provides that we shall indemnify certain
persons, including officers, directors, employees and agents, to the fullest
extent permitted by Section 145 of the DGCL of the State of Delaware. Reference
is made to the Certificate of Incorporation incorporated by reference to Exhibit
3(a) of our Quarterly Report on Form 10-Q for the quarter ended March 31, 1999.
Our directors and officers are insured against losses arising from any claim
against them as such for wrongful acts or omission, subject to certain
limitations.
II-1
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits. The following exhibits are part of this Registration
Statement:
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
2(a) Agreement and Plan of Merger and Reorganization, by and
among Denbury Resources Inc., Denbury Offshore, Inc., and
Matrix Oil & Gas, Inc., and its shareholders, dated as of
June 4, 2001 (incorporated by reference to Exhibit 2 of the
Registrant's Current Report on Form 8-K, dated June 15,
2001).
3(a) Certificate of Incorporation of Denbury Resources Inc. filed
with the Delaware Secretary of State on April 20, 1999
(incorporated by reference to Exhibit 3(a) of the
Registrant's Form 10-Q for the quarter ended March 31,
1999).
3(b) Bylaws of Denbury Resources Inc., a Delaware corporation,
adopted April 20, 1999 (incorporated by reference to Exhibit
3(b) of the Registrant's Form 10-Q for the quarter ended
March 31, 1999).
4(a) Form of Indenture between Denbury Management and Chase Bank
of Texas, National Association, as trustee (incorporated by
reference to Exhibit 4(b) of Registrant's Registration
Statement on Form S-3 dated February 19, 1998).
4(b) First Supplemental Indenture dated as of April 21, 1999,
between Denbury Resources Inc., a Delaware corporation, and
Chase Bank of Texas, National Association, as Trustee,
relating to Denbury Management, Inc.'s 9% Senior
Subordinated Notes due 2008 (incorporated by reference to
Exhibit 4(a) of the Registrant's Form 10-Q for the quarter
ended March 31, 1999).
4(c)* Indenture dated as of August 15, 2001, among Denbury
Resources Inc., a Delaware corporation, certain of its
subsidiaries and The Chase Manhattan Bank.
4(d)* Registration Rights Agreement dated August 8, 2001.
5* Opinion of Jenkens & Gilchrist, A Professional Corporation.
12* Statement regarding Computation of Ratios.
15(a)* Letter from Deloitte & Touche LLP, independent accountants,
as to unaudited interim financial information.
15(b)* Letter from Arthur Andersen LLP, independent accountants, as
to unaudited interim financial information.
23(a)* Consent of Deloitte & Touche LLP.
23(b)* Consent of Arthur Andersen LLP.
23(c)* Consent of Netherland, Sewell & Associates, Inc.
23(d)* Consent of DeGolyer and MacNaughton.
23(e)* Consent of Jenkens & Gilchrist, A Professional Corporation
(included in Exhibit 5).
24* Powers of Attorney (included on signature page).
25* Statement of eligibility of trustee under the indenture
filed herewith as Exhibit 4(c).
99(a)* Form of Letter of Transmittal.
99(b)* Form of Notice of Guaranteed Delivery.
99(c)* Form of Letter to Registered Holders and DTC Participants.
99(d)* Form of Letter to Clients.
99(e)* Form of Instructions to Registered Holder and/or Book-Entry
Transfer Participant from beneficial owner.
---------------
* Filed herewith.
ITEM 22. UNDERTAKINGS
The undersigned Registrant hereby undertakes that insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
II-2
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. If a claim for indemnification against such
liabilities (other than payment by the Registrant of expenses incurred or paid
by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes:
(a) to respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of Form
S-4, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This undertaking also includes documents filed subsequent to the effective
date of the Registration Statement through the date of responding to the
request.
(b) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 (and where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference into the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) to supply by means of a post- effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the Registration Statement when
it became effective.
The undersigned Registrant hereby undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this Registration Statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
undersigned undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other Items of the applicable form.
Registrant hereby undertakes that every prospectus (i) that is filed
pursuant to the immediately preceding paragraph, or (ii) that purports to meet
the requirements of section 10(a)(3) of the Securities Act and is used in
connection with an offering of securities subject to Rule 415, will be filed as
a part of an amendment to the Registration Statement and will not be used until
such amendment is effective, and that, for purposes of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act the registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Plano, State of Texas, on
October 19, 2001.
DENBURY RESOURCES INC.
BY: /s/ PHIL RYKHOEK
------------------------------------
Phil Rykhoek
Chief Financial Officer
Each person whose signature appears below as a signatory to this
registration statement constitutes and appoints Gareth Roberts and Phil Rykhoek,
or either one of them, his true and lawful attorney-in-fact and agent with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and all
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated, in multiple counterparts with the effect
of one original.
SIGNATURES TITLE DATE
---------- ----- ----
/s/ GARETH ROBERTS Chief Executive Officer and October 19, 2001
---------------------------------------------------- Director
Gareth Roberts (Principal Executive Officer)
/s/ PHIL RYKHOEK Chief Financial Officer and October 19, 2001
---------------------------------------------------- Secretary
Phil Rykhoek (Principal Financial Officer)
/s/ MARK C. ALLEN Chief Accounting Officer October 19, 2001
---------------------------------------------------- and Controller
Mark C. Allen (Principal Accounting
Officer)
/s/ RONALD G. GREENE Chairman of the Board October 19, 2001
---------------------------------------------------- and Director
Ronald G. Greene
/s/ DAVID I. HEATHER Director October 19, 2001
----------------------------------------------------
David I. Heather
/s/ WIELAND F. WETTSTEIN Director October 8, 2001
----------------------------------------------------
Wieland F. Wettstein
/s/ CARRIE A. WHEELER Director October 19, 2001
----------------------------------------------------
Carrie A. Wheeler
II-4
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
2(a) Agreement and Plan of Merger and Reorganization, by and
among Denbury Resources Inc., Denbury Offshore, Inc., and
Matrix Oil & Gas, Inc., and its shareholders, dated as of
June 4, 2001 (incorporated by reference to Exhibit 2 of the
Registrant's Current Report on Form 8-K, dated June 15,
2001).
3(a) Certificate of Incorporation of Denbury Resources Inc. filed
with the Delaware Secretary of State on April 20, 1999
(incorporated by reference to Exhibit 3(a) of the
Registrant's Form 10-Q for the quarter ended March 31,
1999).
3(b) Bylaws of Denbury Resources Inc., a Delaware corporation,
adopted April 20, 1999 (incorporated by reference to Exhibit
3(b) of the Registrant's Form 10-Q for the quarter ended
March 31, 1999).
4(a) Form of Indenture between Denbury Management and Chase Bank
of Texas, National Association, as trustee (incorporated by
reference to Exhibit 4(b) of Registrant's Registration
Statement on Form S-3 dated February 19, 1998).
4(b) First Supplemental Indenture dated as of April 21, 1999,
between Denbury Resources Inc., a Delaware corporation, and
Chase Bank of Texas, National Association, as Trustee,
relating to Denbury Management, Inc.'s 9% Senior
Subordinated Notes due 2008 (incorporated by reference to
Exhibit 4(a) of the Registrant's Form 10-Q for the quarter
ended March 31, 1999).
4(c)* Indenture dated as of August 15, 2001, among Denbury
Resources Inc., a Delaware corporation, certain of its
subsidiaries and The Chase Manhattan Bank.
4(d)* Registration Rights Agreement dated August 8, 2001.
5* Opinion of Jenkens & Gilchrist, A Professional Corporation.
12* Statement regarding Computation of Ratios.
15(a)* Letter from Deloitte & Touche LLP, independent accountants,
as to unaudited interim financial information.
15(b)* Letter from Arthur Andersen LLP, independent accountants, as
to unaudited interim financial information.
23(a)* Consent of Deloitte & Touche LLP.
23(b)* Consent of Arthur Andersen LLP.
23(c)* Consent of Netherland, Sewell & Associates, Inc.
23(d)* Consent of DeGolyer and MacNaughton.
23(e)* Consent of Jenkens & Gilchrist, A Professional Corporation
(included in Exhibit 5).
24* Powers of Attorney (included on signature page).
25* Statement of eligibility of trustee under the indenture
filed herewith as Exhibit 4(c).
99(a)* Form of Letter of Transmittal.
99(b)* Form of Notice of Guaranteed Delivery.
99(c)* Form of Letter to Registered Holders and DTC Participants.
99(d)* Form of Letter to Clients.
99(e)* Form of Instructions to Registered Holder and/or Book-Entry
Transfer Participant from beneficial owner.
---------------
* Filed herewith.
EX-4.C
3
d90789ex4-c.txt
INDENTURE DATED AS OF AUGUST 15, 2001
EXHIBIT 4(c)
================================================================================
DENBURY RESOURCES INC.,
Issuer
9% Series B Senior Subordinated Notes Due 2008
----------
INDENTURE
Dated as of August 15, 2001
----------
THE CHASE MANHATTAN BANK,
Trustee
================================================================================
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ---------
310(a)(1) ..................................................... 7.10
(a)(2) ..................................................... 7.10
(a)(3) ..................................................... N.A.
(a)(4) ..................................................... N.A.
(a)(5) ..................................................... 7.10
(b) ..................................................... 7.08; 7.10
(c) ..................................................... N.A.
311(a) ..................................................... 7.11
(b) ..................................................... 7.11
(c) ..................................................... N.A.
312(a) ..................................................... 2.05
(b) ..................................................... 13.03
(c) ..................................................... 13.03
313(a) ..................................................... 7.06
(b)(1) ..................................................... 7.06
(b)(2) ..................................................... 7.06
(c) ..................................................... 13.02
(d) ..................................................... 7.06
314(a) ..................................................... 4.02; 4.12;
13.02
(b) ..................................................... N.A.
(c)(1) ..................................................... 2.02; 13.04
(c)(2) ..................................................... 2.02; 13.04
(c)(3) ..................................................... N.A.
(d) ..................................................... N.A.
(e) ..................................................... 13.05
(f) ..................................................... N.A.
315(a) ..................................................... 7.01
(b) ..................................................... 7.05; 13.02
(c) ..................................................... 7.01
(d) ..................................................... 7.01
(e) ..................................................... 6.11
316(a)(last sentence) ..................................................... 13.06
(a)(1)(A) ..................................................... 6.05
(a)(1)(B) ..................................................... 6.04
(a)(2) ..................................................... N.A.
(b) ..................................................... 6.07
(c) ..................................................... N.A.
317(a)(1) ..................................................... 6.08
(a)(2) ..................................................... 6.09
(b) ..................................................... 2.04
318(a) ..................................................... 13.01
(b) ..................................................... N.A.
(c) ..................................................... N.A.
N.A. means Not Applicable.
----------
Note: This Cross-Reference Table shall not, for any
purpose, be deemed to be part of the Indenture.
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions...................................... 1
SECTION 1.02. Other Definitions................................ 33
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act.................................. 33
SECTION 1.04. Rules of Construction............................ 34
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating.................................. 35
SECTION 2.02. Execution and Authentication..................... 35
SECTION 2.03. Registrar and Paying Agent....................... 36
SECTION 2.04. Paying Agent To Hold Money in Trust.............. 37
SECTION 2.05. Securityholder Lists............................. 37
SECTION 2.06. Transfer and Exchange............................ 37
SECTION 2.07. Replacement Securities........................... 37
SECTION 2.08. Outstanding Securities........................... 38
SECTION 2.09. Temporary Securities............................. 38
SECTION 2.10. Cancelation...................................... 39
SECTION 2.11. Defaulted Interest............................... 39
SECTION 2.12. CUSIP Numbers.................................... 39
SECTION 2.13. Issuance of Additional Securities................ 39
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee............................... 40
SECTION 3.02. Selection of Securities To Be
Redeemed....................................... 40
SECTION 3.03. Notice of Redemption............................. 41
SECTION 3.04. Effect of Notice of Redemption................... 41
SECTION 3.05. Deposit of Redemption Price...................... 42
SECTION 3.06. Securities Redeemed in Part...................... 42
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities............................ 42
SECTION 4.02. SEC Reports...................................... 42
SECTION 4.03. Limitation on Indebtedness....................... 43
SECTION 4.04. Incurrence of Layered Indebtedness............... 46
SECTION 4.05. Limitation on Restricted Payments................ 46
SECTION 4.06. Limitation on Restrictions on
Distributions from Restricted
Subsidiaries................................... 48
SECTION 4.07. Limitation on Sales of Assets and
Subsidiary Stock............................... 49
SECTION 4.08. Limitation on Affiliate Transactions............. 52
SECTION 4.09. Change of Control................................ 54
SECTION 4.10. Limitation on the Sale or Issuance
of Capital Stock of Restricted
Subsidiaries................................... 55
SECTION 4.11. Limitation on Liens.............................. 56
SECTION 4.12. Compliance Certificate........................... 56
SECTION 4.13. Further Instruments and Acts..................... 56
SECTION 4.14. Future Subsidiary Guarantors..................... 56
ARTICLE 5
Successor Company
SECTION 5.01. When Company May Merge or Transfer
Assets......................................... 57
SECTION 5.02. When Subsidiary Guarantors May Merge or
Transfer Assets................................ 58
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default................................ 59
SECTION 6.02. Acceleration..................................... 61
SECTION 6.03. Other Remedies................................... 62
SECTION 6.04. Waiver of Past Defaults.......................... 62
SECTION 6.05. Control by Majority.............................. 62
SECTION 6.06. Limitation on Suits.............................. 63
SECTION 6.07. Rights of Holders To Receive
Payment........................................ 63
SECTION 6.08. Collection Suit by Trustee....................... 63
SECTION 6.09. Trustee May File Proofs of Claim................. 64
SECTION 6.10. Priorities....................................... 64
SECTION 6.11. Undertaking for Costs............................ 64
SECTION 6.12. Waiver of Stay or Extension Laws................. 65
ii
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee................................ 65
SECTION 7.02. Rights of Trustee................................ 67
SECTION 7.03. Individual Rights of Trustee..................... 67
SECTION 7.04. Trustee's Disclaimer............................. 68
SECTION 7.05. Notice of Defaults............................... 68
SECTION 7.06. Reports by Trustee to Holders.................... 68
SECTION 7.07. Compensation and Indemnity....................... 68
SECTION 7.08. Replacement of Trustee........................... 69
SECTION 7.09. Successor Trustee by Merger...................... 70
SECTION 7.10. Eligibility; Disqualification.................... 71
SECTION 7.11. Preferential Collection of Claims
Against Company................................ 71
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance..................................... 71
SECTION 8.02. Conditions to Defeasance......................... 72
SECTION 8.03. Application of Trust Money....................... 74
SECTION 8.04. Repayment to Company............................. 74
SECTION 8.05. Indemnity for Government
Obligations.................................... 74
SECTION 8.06. Reinstatement.................................... 74
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders....................... 75
SECTION 9.02. With Consent of Holders.......................... 76
SECTION 9.03. Compliance with Trust Indenture Act.............. 77
SECTION 9.04. Revocation and Effect of Consents
and Waivers.................................... 77
SECTION 9.05. Notation on or Exchange of
Securities..................................... 78
SECTION 9.06. Trustee To Sign Amendments....................... 78
SECTION 9.07. Payment for Consent.............................. 78
iii
ARTICLE 10
Subordination of the Securities
SECTION 10.01. Agreement To Subordinate......................... 78
SECTION 10.02. Liquidation, Dissolution,
Bankruptcy..................................... 79
SECTION 10.03. Default on Designated Senior
Indebtedness................................... 79
SECTION 10.04. Acceleration of Payment of
Securities..................................... 81
SECTION 10.05. When Distribution Must Be Paid Over.............. 81
SECTION 10.06. Subrogation...................................... 81
SECTION 10.07. Relative Rights.................................. 81
SECTION 10.08. Subordination May Not Be Impaired by
Company........................................ 82
SECTION 10.09. Rights of Trustee and Paying Agent............... 82
SECTION 10.10. Distribution or Notice to
Representative................................. 82
SECTION 10.11. Article 10 Not To Prevent Events of
Default or Limit Right To
Accelerate..................................... 82
SECTION 10.12. Trust Moneys Not Subordinated.................... 82
SECTION 10.13. Trustee Entitled To Rely......................... 83
SECTION 10.14. Trustee To Effectuate Subordination.............. 83
SECTION 10.15. Trustee Not Fiduciary for Holders
of Senior Indebtedness of the
Company........................................ 84
SECTION 10.16. Reliance by Holders of Senior
Indebtedness of the Company on
Subordination Provisions....................... 84
ARTICLE 11
Subsidiary Guarantees
SECTION 11.01. Subsidiary Guarantees............................ 84
SECTION 11.02. Limitation on Liability.......................... 87
SECTION 11.03. Successors and Assigns........................... 87
SECTION 11.04. No Waiver........................................ 87
SECTION 11.05. Modification..................................... 87
SECTION 11.06. Release of Subsidiary Guarantor.................. 88
iv
ARTICLE 12
Subordination of Subsidiary Guarantees
SECTION 12.01. Agreement To Subordinate........................ 88
SECTION 12.02. Liquidation, Dissolution,
Bankruptcy.................................... 88
SECTION 12.03. Default on Designated Senior
Indebtedness of Subsidiary Guarantor.......... 89
SECTION 12.04. Demand for Payment.............................. 90
SECTION 12.05. When Distribution Must Be Paid Over............. 91
SECTION 12.06. Subrogation..................................... 91
SECTION 12.07. Relative Rights................................. 91
SECTION 12.08. Subordination May Not Be Impaired
by Subsidiary Guarantor....................... 91
SECTION 12.09. Rights of Trustee and Paying Agent.............. 91
SECTION 12.10. Distribution or Notice to
Representative................................ 92
SECTION 12.11. Article 12 Not To Prevent Defaults
Under the Subsidiary Guarantee or Limit
Right to Demand Payment....................... 92
SECTION 12.12. Trustee Entitled To Rely........................ 92
SECTION 12.13. Trustee To Effectuate Subordination............. 93
SECTION 12.14. Trustee Not Fiduciary for Holders of
Senior Indebtedness of Subsidiary
Guarantor..................................... 93
SECTION 12.15. Reliance by Holders of Senior
Indebtedness on Subordination
Provisions.................................... 93
ARTICLE 13
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls.................... 94
SECTION 13.02. Notices......................................... 94
SECTION 13.03. Communication by Holders with Other
Holders....................................... 95
SECTION 13.04. Certificate and Opinion as to
Conditions Precedent.......................... 95
SECTION 13.05. Statements Required in Certificate
or Opinion.................................... 95
SECTION 13.06. When Securities Disregarded..................... 96
SECTION 13.07. Rules by Trustee, Paying Agent and
Registrar..................................... 96
SECTION 13.08. Legal Holidays.................................. 96
SECTION 13.09. Governing Law................................... 96
SECTION 13.10. No Recourse Against Others...................... 96
SECTION 13.11. Successors...................................... 97
v
SECTION 13.12. Multiple Originals.............................. 97
SECTION 13.13. Table of Contents; Headings..................... 97
SECTION 13.14. Severability.................................... 97
Appendix A Provisions Relating to Initial
Securities, Exchange Securities and Private
Exchange Securities
Exhibit 1 to Form of Initial Security
Appendix A
Exhibit A Form of Face of Exchange Security or Private
Exchange Security
Exhibit B Form of Supplemental Indenture
vi
INDENTURE dated as of August 15, 2001, among
DENBURY RESOURCES INC., a Delaware corporation (the
"Company"), certain of the Company's subsidiaries
signatory hereto (each, a "Subsidiary Guarantor" and,
collectively, the "Subsidiary Guarantors") and THE
CHASE MANHATTAN BANK (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
Initial Securities, Exchange Securities and Private Exchange Securities
(collectively, the "Securities"):
ARTICLE 1
Definitions and Incorporation by Reference
Section 1.01. Definitions.
"Additional Assets" means (i) any property or assets (other than
Indebtedness and Capital Stock) in the Oil and Gas Business; (ii) the Capital
Stock of a Person that becomes a Restricted Subsidiary as a result of the
acquisition of such Capital Stock by the Company or another Restricted
Subsidiary; or (iii) Capital Stock constituting a minority interest in any
Person that at such time is a Restricted Subsidiary; provided, however, that any
such Restricted Subsidiary described in clauses (ii) or (iii) above is primarily
engaged in the Oil and Gas Business.
"Additional Securities" means, subject to the Company's compliance
with Section 4.03, 9% Series B Senior Subordinated Notes Due 2008 issued from
time to time after the Issue Date under the terms of this Indenture (other than
pursuant to Section 2.06, 2.07, 2.09, 3.06 or 9.05 of this Indenture and other
than Exchange Securities or Private Exchange Securities issued pursuant to an
exchange offer for other Securities outstanding under this Indenture)
"Adjusted Consolidated Net Tangible Assets" or "ACNTA" means (without
duplication), as of the date of determination, (a) the sum of (i) the discounted
future net revenue from proved crude oil and natural gas reserves of the Company
and its Restricted Subsidiaries calculated in accordance with SEC guidelines
before any state or federal income taxes, as estimated in a reserve report
prepared as of the end of the Company's most recently completed fiscal
2
year, which reserve report is prepared or reviewed by independent petroleum
engineers, as increased by, as of the date of determination, the discounted
future net revenue of (A) estimated proved crude oil and natural gas reserves of
the Company and its Restricted Subsidiaries attributable to acquisitions
consummated since the date of such year-end reserve report, and (B) estimated
crude oil and natural gas reserves of the Company and its Restricted
Subsidiaries attributable to extensions, discoveries and other additions and
upward determinations of estimates of proved crude oil and natural gas reserves
(including previously estimated development costs incurred during the period and
the accretion of discount since the prior year end) due to exploration,
development or exploitation, production or other activities which reserves were
not reflected in such year-end reserve report which would, in the case of
determinations made pursuant to clauses (A) and (B), in accordance with standard
industry practice, result in such determinations, in each case calculated in
accordance with SEC guidelines (utilizing the prices utilized in such year- end
reserve report), and decreased by, as of the date of determination, the
discounted future net revenue attributable to (C) estimated proved oil and gas
reserves of the Company and its Restricted Subsidiaries reflected in such
year-end reserve report produced or disposed of since the date of such year-end
reserve report and (D) reductions in the estimated crude oil and natural gas
reserves of the Company and its Restricted Subsidiaries reflected in such
year-end reserve report since the date of such year-end reserve report
attributable to downward determinations of estimates of proved crude oil and
natural gas reserves due to exploration, development or exploitation, production
or other activities conducted or otherwise occurring since the date of such
year-end reserve report which would, in the case of determinations made pursuant
to clauses (C) and (D), in accordance with standard industry practice, result in
such determinations, in each case calculated in accordance with SEC guidelines
(utilizing the prices utilized in such year-end reserve report); provided,
however, that, in the case of each of the determinations made pursuant to
clauses (A) through (D), such increases and decreases shall be as estimated by
the Company's engineers, except that if as a result of such acquisitions,
dispositions, discoveries, extensions or revisions, there is a Material Change
which is an increase, then such increases and decreases in the discounted future
net revenue shall be confirmed in writing by an independent petroleum engineer,
(ii) the capitalized costs that are attributable to crude oil and natural gas
properties of the Company and its Restricted Subsidiaries to which no proved
crude oil and natural gas reserves are attributed, based on the Company's books
and records as of a
3
date no earlier than the date of the Company's latest annual or quarterly
financial statements, (iii) the Net Working Capital on a date no earlier than
the date of the Company's latest annual or quarterly financial statements and
(iv) the greater of (I) the net book value on a date no earlier than the date of
the Company's latest annual or quarterly financial statements and (II) the
appraised value, as estimated by independent appraisers, of other tangible
assets of the Company and its Restricted Subsidiaries as of a date no earlier
than the date of the Company's latest audited financial statements (provided
that the Company shall not be required to obtain such an appraisal of such
assets if no such appraisal has been performed), minus (b) to the extent not
otherwise taken into account in the immediately preceding clause (a), the sum of
(i) minority interests, (ii) any natural gas balancing liabilities of the
Company and its Restricted Subsidiaries reflected in the Company's latest
audited financial statements, (iii) the discounted future net revenue,
calculated in accordance with SEC guidelines (utilizing the same prices utilized
in the Company's year-end reserve report), attributable to reserves subject to
participation interests, overriding royalty interests or other interests of
third parties, pursuant to participation, partnership, vendor financing or other
agreements then in effect, or which otherwise are required to be delivered to
third parties, (iv) the discounted future net revenue, calculated in accordance
with SEC guidelines (utilizing the same prices utilized in the Company's year-
end reserve report), attributable to reserves that are required to be delivered
to third parties to fully satisfy the obligations of the Company and its
Restricted Subsidiaries with respect to Volumetric Production Payments on the
schedules specified with respect thereto and (v) the discounted future net
revenue, calculated in accordance with SEC guidelines, attributable to reserves
subject to Dollar- Denominated Production Payments that, based on the estimates
of production included in determining the discounted future net revenue
specified in the immediately preceding clause (a)(i) (utilizing the same prices
utilized in the Company's year-end reserve report), would be necessary to
satisfy fully the obligations of the Company and its Restricted Subsidiaries
with respect to Dollar-Denominated Production Payments on the schedules
specified with respect thereto.
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of
4
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. For purposes of
Sections 4.05, 4.07 and 4.08 only, "Affiliate" shall also mean any beneficial
owner of Capital Stock representing 10% or more of the total voting power of the
Voting Stock (on a fully diluted basis) of the Company or of rights or warrants
to purchase such Capital Stock (whether or not currently exercisable) and any
Person who would be an Affiliate of any such beneficial owner pursuant to the
first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of (i) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying shares or
shares required by applicable law to be held by a Person other than the Company
or a Restricted Subsidiary), (ii) all or substantially all the assets of any
division or line of business of the Company or any Restricted Subsidiary or
(iii) any other assets of the Company or any Restricted Subsidiary outside of
the ordinary course of business of the Company or such Restricted Subsidiary.
Notwithstanding the foregoing, none of the following shall be deemed to be an
Asset Disposition: (1) a disposition by a Restricted Subsidiary to the Company
or by the Company or a Restricted Subsidiary to a Wholly Owned Subsidiary, (2)
for purposes of Section 4.07 only, a disposition that constitutes a Restricted
Payment permitted by Section 4.05, a disposition of all or substantially all the
assets of the Company in compliance with Section 5.01 or a disposition that
constitutes a Change of Control pursuant to clause (iii) of the definition
thereof, (3) the sale or transfer (whether or not in the ordinary course of
business) of crude oil and natural gas properties or direct or indirect
interests in real property; provided, however, that at the time of such sale or
transfer such properties do not have associated with them any proved reserves,
(4) the abandonment, farm-out, lease or sublease of developed or undeveloped
crude oil and natural gas properties in the ordinary course of business, (5) the
trade or exchange by the Company or any Restricted Subsidiary of any crude oil
and natural gas property owned or held by the Company or such Restricted
Subsidiary for any crude oil and natural gas property owned or held by another
Person or (6) the sale or transfer of hydrocarbons or other mineral products or
surplus or obsolete equipment, in each case in the ordinary course of business.
5
"Attributable Debt" in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the present value (discounted at the interest
rate implicit in the Sale/Leaseback Transaction, compounded annually) of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the
sum of the products of the numbers of years from the date of determination to
the dates of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred Stock multiplied by
the amount of such payment by (ii) the sum of all such payments.
"Board of Directors" means the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of such Board.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligation" means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"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 any Preferred
Stock, but excluding any debt securities convertible into such equity.
6
"Change of Control" means the occurrence of any of the following
events:
(i) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than a Permitted Holder, is or becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that for purposes of this clause (i) such person shall be
deemed to have "beneficial ownership" of all shares that such person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than 40% of the
total voting power of the Voting Stock of the Company (for the purposes of
this clause (i), such person shall be deemed to beneficially own any Voting
Stock of a specified corporation held by a parent corporation, if such
person is the beneficial owner (as defined in this clause (i)), directly or
indirectly, of more than 40% of the voting power of the Voting Stock of
such parent corporation);
(ii) during any period of two consecutive years from and after the
Issue Date, individuals who at the beginning of such period constituted the
Board of Directors of the Company (together with any new directors whose
election by such Board of Directors or whose nomination for election by the
shareholders of the Company was approved by a vote of a majority of the
directors of the Company then still in office who were either directors at
the beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a majority
of the Board of Directors then in office;
(iii) the shareholders of the Company shall have approved any plan of
liquidation or dissolution of the Company; or
(iv) the merger or consolidation of the Company with or into another
Person or the merger of another Person with or into the Company, or the
sale, lease, conveyance or transfer of all or substantially all the assets
of the Company and its Restricted Subsidiaries, taken as a whole, to
another Person (other than a Person that is controlled (as defined in the
definition of "Affiliate") by the Permitted Holders), and, in the case of
any such merger or consolidation, the securities of the Company that are
outstanding immediately prior to such transaction and which
7
represent 100% of the aggregate voting power of the Voting Stock of the
Company are changed into or exchanged for cash, securities or property,
unless pursuant to such transaction such securities are changed into or
exchanged for, in addition to any other consideration, securities of the
surviving corporation that represent immediately after such transaction, at
least a majority of the aggregate voting power of the Voting Stock of the
surviving corporation.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in the preamble to this
Indenture until a successor replaces it and, thereafter, means the successor
and, for purposes of any provision contained herein and required by the TIA,
each other obligor on the indenture securities.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of (i) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters ending at least 45 days prior to the
date of such determination to (ii) Consolidated Interest Expense for such four
fiscal quarters; provided, however, that (1) if the Company or any Restricted
Subsidiary has Incurred any Indebtedness since the beginning of such period that
remains outstanding or if the transaction giving rise to the need to calculate
the Consolidated Coverage Ratio is an Incurrence of Indebtedness, or both,
EBITDA and Consolidated Interest Expense for such period shall be calculated
after giving effect on a pro forma basis to such Indebtedness as if such
Indebtedness had been Incurred on the first day of such period and the discharge
of any other Indebtedness repaid, repurchased, defeased or otherwise discharged
with the proceeds of such new Indebtedness as if such discharge had occurred on
the first day of such period, (2) if the Company or any Restricted Subsidiary
has repaid, repurchased, defeased or otherwise discharged any Indebtedness since
the beginning of such period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged on the date of the transaction
giving rise to the need to calculate the Consolidated Coverage Ratio, EBITDA and
Consolidated Interest Expense for such period shall be calculated on a pro forma
basis as if such discharge had occurred on the first day of such period and as
if the Company or such Restricted Subsidiary had not earned the interest income
actually earned during such period in respect of cash or Temporary Cash
Investments used to repay, repurchase, defease or otherwise discharge such
Indebtedness, (3) if since the beginning of such period the Company or any
8
Restricted Subsidiary shall have made any Asset Disposition (other than an Asset
Disposition involving assets having a fair market value of less than the greater
of two and one-half percent (2.5%) of Adjusted Consolidated Net Tangible Assets
as of the end of the Company's then most recently completed fiscal year and $3.0
million), then EBITDA for such period shall be reduced by an amount equal to
EBITDA (if positive) directly attributable to the assets which are the subject
of such Asset Disposition for such period, or increased by an amount equal to
EBITDA (if negative) directly attributable thereto for such period and
Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased,
defeased or otherwise discharged with respect to the Company and its continuing
Restricted Subsidiaries in connection with such Asset Disposition for such
period (or, if the Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and its
continuing Restricted Subsidiaries are no longer liable for such Indebtedness
after such sale), (4) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an Investment in
any Restricted Subsidiary (or any Person which becomes a Restricted Subsidiary)
or an acquisition (including by way of lease) of assets, including any
acquisition of assets occurring in connection with a transaction requiring a
calculation to be made hereunder, EBITDA and Consolidated Interest Expense for
such period shall be calculated after giving pro forma effect thereto (including
the Incurrence of any Indebtedness) as if such Investment or acquisition
occurred on the first day of such period and (5) if since the beginning of such
period any Person (that subsequently became a Restricted Subsidiary or was
merged with or into the Company or any Restricted Subsidiary since the beginning
of such period) shall have made any Asset Disposition, any Investment or
acquisition of assets that would have required an adjustment pursuant to clause
(3) or (4) above if made by the Company or a Restricted Subsidiary during such
period, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto as if such Asset Disposition,
Investment or acquisition occurred on the first day of such period. For purposes
of this definition, whenever pro forma effect is to be given to an acquisition
of assets, the amount of income or earnings relating thereto and the amount of
Consolidated Interest Expense associated with any Indebtedness Incurred in
connection therewith, the pro forma calculations shall be
9
determined in good faith by a responsible financial or accounting Officer of the
Company. If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest of such Indebtedness shall be calculated as
if the rate in effect on the date of determination had been the applicable rate
for the entire period (taking into account any Interest Rate Agreement
applicable to such Indebtedness if such Interest Rate Agreement has a remaining
term in excess of 12 months).
"Consolidated Current Liabilities" as of the date of determination
means the aggregate amount of liabilities of the Company and its consolidated
Restricted Subsidiaries which would properly be classified as current
liabilities (including taxes accrued as estimated) on a consolidated balance
sheet of the Company and its Restricted Subsidiaries at such date, after
eliminating (i) all intercompany items between the Company and any Restricted
Subsidiary and (ii) all current maturities of long-term Indebtedness, all as
determined in accordance with GAAP consistently applied.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, plus, to the extent
not included in such total interest expense, and to the extent incurred by the
Company or its Restricted Subsidiaries, without duplication, (i) interest
expense attributable to Capital Lease Obligations and imputed interest with
respect to Attributable Debt, (ii) capitalized interest, (iii) non-cash interest
expense, (iv) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing, (v) net costs
(including amortization of fees and up-front payments) associated with interest
rate caps and other interest rate and currency options that, at the time entered
into, resulted in the Company and its Restricted Subsidiaries being net payees
as to future payouts under such caps or options, and interest rate and currency
swaps and forwards for which the Company or any of its Restricted Subsidiaries
has paid a premium, (vi) dividends (excluding dividends paid in shares of
Capital Stock which is not Disqualified Stock) in respect of all Disqualified
Stock held by Persons other than the Company or a Wholly Owned Subsidiary, (vii)
interest accruing on any Indebtedness of any other Person to the extent such
Indebtedness is Guaranteed by the Company or any Restricted Subsidiary or
secured by a Lien on assets of the Company or any Restricted Subsidiary to the
extent such Indebtedness constitutes Indebtedness of the Company or any
Restricted Subsidiary (whether or not such Guarantee or Lien is called upon);
provided, however,
10
"Consolidated Interest Expense" shall not include any (x) amortization of costs
relating to original debt issuances other than the amortization of debt discount
related to the issuance of zero coupon securities or other securities with an
original issue price of not more than 90% of the principal thereof, (y)
Consolidated Interest Expense with respect to any Indebtedness Incurred pursuant
to Section 4.03(b)(8) and (z) noncash interest expense Incurred in connection
with interest rate caps and other interest rate and currency options that, at
the time entered into, resulted in the Company and its Restricted Subsidiaries
being either neutral or net payors as to future payouts under such caps or
options.
"Consolidated Net Income" means, for any period, the net income of the
Company and its Subsidiaries determined on a consolidated basis in accordance
with GAAP; provided, however, that there shall not be included in such
Consolidated Net Income: (i) any net income of any Person (other than the
Company) if such Person is not a Restricted Subsidiary, except that (A) subject
to the exclusion contained in clause (iv) below, the Company's equity in the net
income of any such Person for such period shall be included in such Consolidated
Net Income up to the aggregate amount of cash actually distributed by such
Person during such period to the Company or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or other
distribution paid to a Restricted Subsidiary, to the limitations contained in
clause (iii) below) and (B) the Company's equity in a net loss of any such
Person for such period shall be included in determining such Consolidated Net
Income; (ii) any net income (or loss) of any Person acquired by the Company or a
Subsidiary in a pooling of interests transaction for any period prior to the
date of such acquisition; (iii) any net income of any Restricted Subsidiary
(other than a Subsidiary Guarantor) if such Restricted Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or the making
of distributions by such Restricted Subsidiary, directly or indirectly, to the
Company, except that (A) subject to the exclusion contained in clause (iv)
below, the Company's equity in the net income of any such Restricted Subsidiary
for such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Restricted Subsidiary
during such period to the Company or another Restricted Subsidiary as a dividend
or other distribution (subject, in the case of a dividend or other distribution
paid to another Restricted Subsidiary, to the limitation contained in this
clause) and (B) the Company's equity in a net loss of any such Restricted
Subsidiary for such period shall be included
11
in determining such Consolidated Net Income; (iv) any gain or loss realized upon
the sale or other disposition of any assets of the Company or its Subsidiaries
(including pursuant to any sale-and-leaseback arrangement) which is not sold or
otherwise disposed of in the ordinary course of business and any gain or loss
realized upon the sale or other disposition of any Capital Stock of any Person;
(v) extraordinary gains or losses; (vi) any non-cash compensation expense
realized for grants of performance shares, stock options or stock awards to
officers, directors and employees of the Company or any of its Restricted
Subsidiaries; (vii) any write-downs of non-current assets; provided, however,
that any ceiling limitation write-downs under SEC guidelines shall be treated as
capitalized costs, as if such write-downs had not occurred; and (viii) the
cumulative effect of a change in accounting principles. Notwithstanding the
foregoing, for the purposes of Section 4.05 only, there shall be excluded from
Consolidated Net Income any dividends, repayments of loans or advances or other
transfers of assets from Unrestricted Subsidiaries to the Company or a
Restricted Subsidiary to the extent such dividends, repayments or transfers
increase the amount of Restricted Payments permitted under Section
4.05(a)(3)(E).
"Consolidated Net Tangible Assets", as of any date of determination,
means the total amount of assets (less accumulated depreciation and
amortization, allowances for doubtful receivables, other applicable reserves and
other properly deductible items) which would appear on a balance sheet of the
Company and its Restricted Subsidiaries, determined on a consolidated basis in
accordance with GAAP, and after giving effect to purchase accounting and after
deducting therefrom Consolidated Current Liabilities and, to the extent
otherwise included, the amounts of: (i) minority interests in Restricted
Subsidiaries held by Persons other than the Company or a Restricted Subsidiary;
(ii) excess of cost over fair value of assets of businesses acquired, as
determined in good faith by the Board of Directors; (iii) any revaluation or
other write-up in book value of assets subsequent to February 26, 1998 as a
result of a change in the method of valuation in accordance with GAAP
consistently applied; (iv) unamortized debt discount and expenses and other
unamortized deferred charges, goodwill, patents, trademarks, service marks,
trade names, copyrights, licenses, organization or developmental expenses and
other intangible items; (v) treasury stock; (vi) cash set apart and held in a
sinking or other analogous fund established for the purpose of redemption or
other retirement of Capital Stock to the extent such obligation is not reflected
in Consolidated Current Liabilities; and (vii) Investments in and assets of
Unrestricted Subsidiaries.
12
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Company and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP, as of the end of the most recent fiscal quarter
of the Company ending at least 45 days prior to the taking of any action for the
purpose of which the determination is being made, as (i) the par or stated value
of all outstanding Capital Stock of the Company plus (ii) paid-in capital or
capital surplus relating to such Capital Stock plus (iii) any retained earnings
or earned surplus less (A) any accumulated deficit and (B) any amounts
attributable to Disqualified Stock.
"Credit Agreement" means that certain Second Amended and Restated
Credit Agreement, dated October 13, 2000, as amended, by and among the Company
and Bank of America, N.A. (or any successor thereto or replacement thereof), as
administrative agent and as a lender, and certain other institutions, as
lenders, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case as
amended, restated, modified, renewed, refunded, replaced, refinanced or
increased in whole or in part, from time to time.
"Credit Facilities" means, with respect to the Company or any
Restricted Subsidiary, one or more debt facilities (including the Credit
Agreement) or commercial paper facilities with banks or other institutional
lenders providing for revolving credit loans, term loans, production payments,
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time.
"Currency Agreement" means in respect of a Person any foreign exchange
contract, currency swap agreement or other similar agreement to which such
Person is a party or a beneficiary.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Designated Senior Indebtedness" in respect of a Person means (i) all
the obligations of such Person under any Credit Facility (including the Credit
Agreement) and (ii) any other Senior Indebtedness of such Person which, at the
date of determination, has an aggregate principal amount
13
outstanding of, or under which, at the date of determination, the holders
thereof are committed to lend up to, at least $20 million and is specifically
designated by such Person in the instrument evidencing or governing such Senior
Indebtedness as "Designated Senior Indebtedness" for purposes of this Indenture.
"Disqualified Stock" means, with respect any Person, any Capital Stock
that by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or upon the happening of any event, (i) matures
or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise,
(ii) is convertible or exchangeable for Indebtedness or Disqualified Stock or
(iii) is redeemable, in whole or in part, at the option of the holder thereof,
in each case described in the immediately preceding clauses (i), (ii) or (iii),
on or prior to the Stated Maturity of the Securities; provided, however, that
any Capital Stock that would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require such Person to
purchase or redeem such Capital Stock upon the occurrence of an "asset sale" or
"change of control" occurring prior to the Stated Maturity of the Securities
shall not constitute Disqualified Stock if (x) the "asset sale" or "change of
control" provisions applicable to such Capital Stock are not more favorable to
the holders of such Capital Stock than the provisions of Sections 4.07 and 4.09
and (y) any such requirement only becomes operative after compliance with such
corresponding terms applicable to the Securities, including the purchase of any
Securities tendered pursuant thereto. The amount of any Disqualified Stock that
does not have a fixed redemption, repayment or repurchase price will be
calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were redeemed, repaid or repurchased on any date on which the
amount of such Disqualified Stock is to be determined pursuant to the Indenture;
provided, however, that if such Disqualified Stock could not be required to be
redeemed, repaid or repurchased at the time of such determination, the
redemption, repayment or repurchase price will be the book value of such
Disqualified Stock as reflected in the most recent financial statements of such
Person.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"EBITDA" for any period means the sum of Consolidated Net Income, plus
Consolidated Interest Expense
14
plus the following to the extent deducted in calculating such Consolidated Net
Income: (a) provision for taxes based on income or profits, (b) depletion and
depreciation expense, (c) amortization expense, (d) exploration expense (if
applicable to the Company after February 26, 1998), (e) unrealized foreign
exchange losses and (f) all other non-cash charges (excluding any such non-cash
charge to the extent that it represents an accrual of or reserve for cash
charges in any future period or amortization of a prepaid cash expense that was
paid in a prior period except such amounts as the Company determines in good
faith are nonrecurring), and less, to the extent included in calculating such
Consolidated Net Income and in excess of any costs or expenses attributable
thereto and deducted in calculating such Consolidated Net Income, the sum of (x)
the amount of deferred revenues that are amortized during such period and are
attributable to reserves that are subject to Volumetric Production Payments, (y)
amounts recorded in accordance with GAAP as repayments of principal and interest
pursuant to Dollar-Denominated Production Payments and (z) unrealized foreign
exchange gains. Notwithstanding the foregoing, the provision for taxes based on
the income or profits of, and the depletion, depreciation, amortization,
exploration and other non-cash charges of, a Restricted Subsidiary shall be
added to Consolidated Net Income to compute EBITDA only to the extent (and in
the same proportion) that the net income of such Restricted Subsidiary was
included in calculating Consolidated Net Income and only if a corresponding
amount would be permitted at the date of determination to be dividended to the
Company by such Restricted Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to such Restricted Subsidiary or its stockholders.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing 9% Senior Subordinated Notes" means the Company's 9% Senior
Subordinated Notes due 2008 issued under an indenture dated as of February 26,
1998, as amended and supplemented by a supplemental indenture dated as of April
21, 1999.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect on February 26, 1998, including those set forth
in (i) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the
15
Financial Accounting Standards Board, (iii) such other statements by such other
entity as approved by a significant segment of the accounting profession, and
(iv) the rules and regulations of the SEC governing the inclusion of financial
statements (including pro forma financial statements) in periodic reports
required to be filed pursuant to Section 13 of the Exchange Act, including
opinions and pronouncements in staff accounting bulletins and similar written
statements from the accounting staff of the SEC.
"Guarantee" means, without duplication, any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of
any Person and any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness of such Person (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take-or-pay or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guarantee Agreement" means a supplemental indenture, substantially in
the form attached hereto as Exhibit B, pursuant to which a Subsidiary Guarantor
or any other Person becomes subject to the applicable terms and conditions of
this Indenture.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Oil and Gas Hedging Contract, Interest Rate Agreement or
Currency Agreement.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary. The term "Incurrence" when used
as a noun shall
16
have a correlative meaning. The accretion of principal of a non-interest bearing
or other discount security shall not be deemed the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication), (i) the principal of and premium (if any)
in respect of (A) indebtedness of such Person for money borrowed and (B)
indebtedness evidenced by notes, debentures, bonds or other similar instruments
for the payment of which such Person is responsible or liable; (ii) all Capital
Lease Obligations of such Person and all Attributable Debt in respect of
Sale/Leaseback Transactions entered into by such Person; (iii) all obligations
of such Person issued or assumed as the deferred purchase price of property
(which purchase price is due more than six months after the date of taking
delivery of title to such property), including all obligations of such Person
for the deferred purchase price of property under any title retention agreement
(but excluding trade accounts payable arising in the ordinary course of
business); (iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing
obligations (other than obligations described in (i) through (iii) above)
entered into in the ordinary course of business of such Person to the extent
such letters of credit are not drawn upon or, if and to the extent drawn upon,
such drawing is reimbursed no later than the tenth Business Day following
receipt by such Person of a demand for reimbursement following payment on the
letter of credit); (v) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified Stock (but
excluding any accrued dividends); (vi) all obligations of such Person relating
to any Production Payments; (vii) all obligations of the type referred to in
clauses (i) through (vi) of other Persons and all dividends of other Persons for
the payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including by means
of any Guarantee (including, with respect to any Production Payment, any
warranties or guarantees of production or payment by such Person with respect to
such Production Payment but excluding other contractual obligations of such
Person with respect to such Production Payment); (viii) all obligations of the
type referred to in clauses (i) through (vii) of other Persons secured by any
Lien on any property or asset of such first- mentioned Person (whether or not
such obligation is assumed by such first-mentioned Person), the amount of such
obligation being deemed to be the lesser of the value of such property or assets
or the amount of the obligation so
17
secured and (ix) to the extent not otherwise included in this definition,
Hedging Obligations of such Person. The amount of Indebtedness of any Person at
any date shall be the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability, assuming the
contingency giving rise to the obligation was to have occurred on such date, of
any Guarantees outstanding at such date.
None of the following shall constitute Indebtedness: (i) indebtedness
arising from agreements providing for indemnification or adjustment of purchase
price or from guarantees securing any obligations of the Company or any of its
Subsidiaries pursuant to such agreements, incurred or assumed in connection with
the disposition of any business, assets or Subsidiary of the Company, other than
guarantees or similar credit support by the Company or any of its Subsidiaries
of Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or Subsidiary for the purpose of financing such acquisition;
(ii) any trade payables or other similar liabilities to trade creditors and
other accrued current liabilities incurred in the ordinary course of business as
the deferred purchase price of property; (iii) any liability for Federal, state,
local or other taxes owed or owing by such Person; (iv) amounts due in the
ordinary course of business to other royalty and working interest owners; (v)
obligations arising from guarantees to suppliers, lessors, licensees,
contractors, franchisees or customers incurred in the ordinary course of
business; (vi) obligations (other than express Guarantees of indebtedness for
borrowed money) in respect of Indebtedness of other Persons arising in
connection with (A) the sale or discount of accounts receivable, (B) trade
acceptances and (C) endorsements of instruments for deposit in the ordinary
course of business; (vii) obligations in respect of performance bonds provided
by the Company or its Subsidiaries in the ordinary course of business and
refinancing thereof; (viii) obligations arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business, provided,
however, that such obligation is extinguished within two Business Days of its
Incurrence; and (ix) obligations in respect of any obligations under workers'
compensation laws and similar legislation.
"Indenture" means this Indenture as amended or supplemented from time
to time, including the provisions of the TIA that are deemed to be a part of and
govern this Indenture and any supplemental indenture, respectively.
18
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement or other financial agreement or arrangement designed
to protect the Company or any Restricted Subsidiary against fluctuations in
interest rates.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers or joint interest partners or drilling
partnerships sponsored by the Company or any Restricted Subsidiary in the
ordinary course of business that are recorded as accounts receivable on the
balance sheet of the lender) or other extensions of credit (including by way of
Guarantee or similar arrangement) or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition of
Capital Stock, Indebtedness or other similar instruments issued by such Person.
Except as otherwise provided for herein, the amount of an Investment shall be
its fair value at the time the Investment is made and without giving effect to
subsequent changes in value. For purposes of the definition of "Unrestricted
Subsidiary", the definition of "Restricted Payment" and Section 4.05, (i)
"Investment" shall include the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of any
Subsidiary of the Company at the time that such Subsidiary is designated an
Unrestricted Subsidiary; provided, however, that upon a redesignation of such
Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue
to have a permanent "Investment" in an Unrestricted Subsidiary equal to an
amount (if positive) equal to (x) the Company's "Investment" in such Subsidiary
at the time of such redesignation less (y) the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market value of the
net assets of such Subsidiary at the time of such redesignation; and (ii) any
property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer, in each case as determined
in good faith by the Board of Directors.
"Issue Date" means August 15, 2001.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Limited Recourse Production Payments" means, with respect to any
Production Payments, Indebtedness, the terms
19
of which limit the liability of the Company and its Restricted Subsidiaries
solely to the hydrocarbons covered by such Production Payments; provided,
however, that no default with respect to such Indebtedness would permit any
holder of any other Indebtedness of the Company or any Restricted Subsidiary to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.
"Material Change" means an increase or decrease (excluding changes
that result solely from changes in prices and changes resulting from the
Incurrence of previously estimated future development costs) of more than 25%
during a fiscal quarter in the discounted future net revenues from proved crude
oil and natural gas reserves of the Company and its Restricted Subsidiaries,
calculated in accordance with clause (a)(i) of the definition of Adjusted
Consolidated Net Tangible Assets; provided, however, that the following will be
excluded from the calculation of Material Change: (i) any acquisitions during
the fiscal quarter of oil and gas reserves that have been estimated by
independent petroleum engineers and with respect to which a report or reports of
such engineers exist and (ii) any disposition of properties existing at the
beginning of such fiscal quarter that have been disposed of in compliance with
Section 4.07.
"Moody's" means Moody's Investor's Service, Inc. and its successors.
"Net Available Cash" from an Asset Disposition means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Indebtedness or other
obligations relating to such properties or assets or received in any other
noncash form) in each case net of (i) all legal, title and recording tax
expenses, commissions and other fees (including financial and other advisory
fees) and expenses incurred, and all Federal, state, provincial, foreign and
local taxes required to be accrued as a liability under GAAP, as a consequence
of such Asset Disposition, (ii) all payments made on any Indebtedness which is
secured by any assets subject to such Asset Disposition, in accordance with the
terms of any Lien upon or other security agreement of any kind with respect to
such assets, or which must by its terms, or in order to obtain a necessary
consent to such Asset Disposition, or by applicable law, be repaid out of the
proceeds from such Asset Disposition, (iii) all distributions and other payments
required to be made to
20
minority interest holders in Subsidiaries or joint ventures as a result of such
Asset Disposition and (iv) the deduction of appropriate amounts provided by the
seller as a reserve, in accordance with GAAP, against any liabilities associated
with the property or other assets disposed in such Asset Disposition and
retained by the Company or any Restricted Subsidiary after such Asset
Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Net Present Value" means, with respect to any proved hydrocarbon
reserves, the discounted future net cash flows associated with such reserves,
determined in accordance with the rules and regulations (including
interpretations thereof) of the SEC in effect on February 26, 1998.
"Net Working Capital" means (a) all current assets of the Company and
its Restricted Subsidiaries minus (b) all current liabilities of the Company and
its Restricted Subsidiaries, except current liabilities included in
Indebtedness, determined in accordance with GAAP.
"Non-recourse Purchase Money Indebtedness" means Indebtedness (other
than Capital Lease Obligations) of the Company or any Subsidiary Guarantor
incurred in connection with the acquisition by the Company or such Subsidiary
Guarantor in the ordinary course of business of fixed assets used in the Oil and
Gas Business (including office buildings and other real property used by the
Company or such Subsidiary Guarantor in conducting its operations) with respect
to which (i) the holders of such Indebtedness agree that they will look solely
to the fixed assets so acquired which secure such Indebtedness, and neither the
Company nor any Restricted Subsidiary (a) is directly or indirectly liable for
such Indebtedness or (b) provides credit support, including any undertaking,
Guarantee, agreement or instrument that would constitute Indebtedness (other
than the grant of a Lien on such acquired fixed assets), and (ii) no default or
event of default with respect to such Indebtedness would cause, or permit (after
notice or passage of time or otherwise), any holder of any other Indebtedness of
the Company or a Subsidiary Guarantor to declare a default or event of default
on such other Indebtedness or cause the payment, repurchase, redemption,
defeasance or
21
other acquisition or retirement for value thereof to be accelerated or payable
prior to any scheduled principal payment, scheduled sinking fund payment or
maturity.
"Obligations" means with respect to any Indebtedness all obligations
for principal, premium, interest, penalties, fees, indemnifications,
reimbursements, and other amounts payable pursuant to the documentation
governing such Indebtedness.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
"Oil and Gas Business" means the business of the exploration for, and
exploitation, development, acquisition, production, processing (but not
refining), marketing, storage and transportation of, hydrocarbons, and other
related energy and natural resource businesses (including oil and gas services
businesses related to the foregoing).
"Oil and Gas Hedging Contract" means any oil and gas purchase or
hedging agreement, and other agreement or arrangement, in each case, that is
designed to provide protection against oil and gas price fluctuations.
"Oil and Gas Liens" means (i) Liens on any specific property or any
interest therein, construction thereon or improvement thereto to secure all or
any part of the costs incurred for surveying, exploration, drilling, extraction,
development, operation, production, construction, alteration, repair or
improvement of, in, under or on such property and the plugging and abandonment
of wells located thereon (it being understood that, in the case of oil and gas
producing properties, or any interest therein, costs incurred for "development"
shall include costs incurred for all facilities relating to such properties or
to projects, ventures or other arrangements of which such properties form a part
or which relate to such properties or interests); (ii) Liens on an oil or gas
producing property to secure obligations Incurred or guarantees of obligations
Incurred in connection with or necessarily incidental to commitments for the
purchase or sale of, or the transportation or distribution of, the products
derived from such property; (iii) Liens arising under partnership agreements,
oil and gas leases, overriding royalty agreements, net profits agreements,
production
22
payment agreements, royalty trust agreements, incentive compensation programs on
terms that are reasonably customary in the Oil and Gas Business for geologists,
geophysicists and other providers of technical services to the Company or a
Restricted Subsidiary, master limited partnership agreements, farm-out
agreements, farm-in agreements, division orders, contracts for the sale,
purchase, exchange, transportation, gathering or processing of oil, gas or other
hydrocarbons, unitizations and pooling designations, declarations, orders and
agreements, development agreements, operating agreements, production sales
contracts, area of mutual interest agreements, gas balancing or deferred
production agreements, injection, repressuring and recycling agreements, salt
water or other disposal agreements, seismic or geophysical permits or
agreements, and other agreements which are customary in the Oil and Gas
Business; provided, however, that in all instances such Liens are limited to the
assets that are the subject of the relevant agreement, program, order or
contract; (iv) Liens arising in connection with Production Payments; and (v)
Liens on pipelines or pipeline facilities that arise by operation of law.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Permitted Business Investment" means any investment made in the
ordinary course of, and of a nature that is or shall have become customary in,
the Oil and Gas Business, including investments or expenditures for actively
exploiting, exploring for, acquiring, developing, producing, processing,
gathering, marketing or transporting oil and gas through agreements,
transactions, interests or arrangements which permit one to share risks or
costs, comply with regulatory requirements regarding local ownership or satisfy
other objectives customarily achieved through the conduct of Oil and Gas
Business jointly with third parties, including (i) ownership interests in oil
and gas properties, processing facilities, gathering systems, pipelines or
ancillary real property interests and (ii) Investments in the form of or
pursuant to operating agreements, processing agreements, farm-in agreements,
farm-out agreements, development agreements, area of mutual interest agreements,
unitization agreements, pooling agreements, joint bidding agreements, service
contracts, joint venture agreements, partnership agreements (whether general or
limited), subscription agreements, stock purchase agreements and other similar
agreements (including for limited liability Companies) with third parties,
excluding, however, Investments in corporations other than Restricted
Subsidiaries.
23
"Permitted Holders" means TPG Advisors, Inc. or any Person who on
February 26, 1998 was an Affiliate thereof or any Person controlled by TPG
Advisors, Inc.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in (i) a Restricted Subsidiary or a Person that will, upon
the making of such Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted Subsidiary is an Oil and
Gas Business; (ii) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Company or a Restricted Subsidiary;
provided, however, that such Person's primary business is an Oil and Gas
Business; (iii) Temporary Cash Investments; (iv) receivables owing to the
Company or any Restricted Subsidiary if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms; provided, however, that such trade terms may include such
concessionary trade terms as the Company or any such Restricted Subsidiary deems
reasonable under the circumstances; (v) payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the ordinary
course of business; (vi) loans or advances to employees made in the ordinary
course of business; (vii) stock, obligations or securities received in
settlement of debts created in the ordinary course of business and owing to the
Company or any Restricted Subsidiary or in satisfaction of judgments; (viii) any
Person to the extent such Investment represents the non-cash portion of the
consideration received for an Asset Disposition as permitted pursuant to Section
4.07; (ix) Permitted Business Investments; (x) Investments intended to promote
the Company's strategic objectives in the Oil and Gas Business in an aggregate
amount not to exceed 5.0% of ACNTA (determined as of the date of the making of
any such Investment) at any one time outstanding (which Investments shall be
deemed to be no longer outstanding only upon and to the extent of the return of
capital thereof); and (xi) Investments made pursuant to Hedging Obligations of
the Company and the Restricted Subsidiaries.
"Permitted Liens" means, with respect to any Person, (a) Liens
existing as of the Issue Date; (b) Liens securing the Securities, any Subsidiary
Guarantee and other obligations arising under the Indenture; (c) any Lien
24
existing on any property of a Person at the time such Person is merged or
consolidated with or into the Company or a Restricted Subsidiary or becomes a
Restricted Subsidiary (and not incurred in anticipation of or in connection with
such transaction), provided that such Liens are not extended to other property
of the Company or the Restricted Subsidiaries; (d) any Lien existing on any
property at the time of the acquisition thereof (and not incurred in
anticipation of or in connection with such transaction), provided that such
Liens are not extended to other property of the Company or the Restricted
Subsidiaries; (e) any Lien incurred in the ordinary course of business
incidental to the conduct of the business of the Company or the Restricted
Subsidiaries or the ownership of their property including (i) easements, rights
of way and similar encumbrances, (ii) rights or title of lessors under leases
(other than Capital Lease Obligations), (iii) rights of collecting banks having
rights of setoff, revocation, refund or chargeback with respect to money or
instruments of the Company or the Restricted Subsidiaries on deposit with or in
the possession of such banks, (iv) Liens imposed by law, including Liens under
workers' compensation or similar legislation and mechanics', carriers',
warehousemen's, materialmen's, suppliers' and vendors' Liens, (v) Liens incurred
to secure performance of obligations with respect to statutory or regulatory
requirements, performance or return-of-money bonds, surety bonds or other
obligations of a like nature and incurred in a manner consistent with industry
practice and (vi) Oil and Gas Liens, in each case which are not incurred in
connection with the borrowing of money, the obtaining of advances or credit or
the payment of the deferred purchase price of property (other than trade
accounts payable arising in the ordinary course of business); (f) Liens for
taxes, assessments and governmental charges not yet due or the validity of which
are being contested in good faith by appropriate proceedings, promptly
instituted and diligently conducted, and for which adequate reserves have been
established to the extent required by GAAP as in effect at such time; (g) Liens
incurred to secure appeal bonds and judgment and attachment Liens, in each case
in connection with litigation or legal proceedings that are being contested in
good faith by appropriate proceedings, so long as reserves have been established
to the extent required by GAAP as in effect at such time and so long as such
Liens do not encumber assets by an aggregate amount (together with the amount of
any unstayed judgments against the Company or any Restricted Subsidiary but
excluding any such Liens to the extent securing insured or indemnified judgments
or orders) in excess of $10.0 million; (h) Liens securing Hedging Obligations of
the Company and its Restricted Subsidiaries; (i) Liens securing purchase money
25
Indebtedness or Capital Lease Obligations, provided that such Liens attach only
to the property acquired with the proceeds of such purchase money Indebtedness
or the property which is the subject of such Capital Lease Obligations; (j)
Liens securing Non-recourse Purchase Money Indebtedness granted in connection
with the acquisition by the Company or any Restricted Subsidiary in the ordinary
course of business of fixed assets used in the Oil and Gas Business (including
the office buildings and other real property used by the Company or such
Restricted Subsidiary in conducting its operations), provided that (i) such
Liens attach only to the fixed assets acquired with the proceeds of such
Non-recourse Purchase Money Indebtedness and (ii) such Non-recourse Purchase
Money Indebtedness is not in excess of the purchase price of such fixed assets;
(k) Liens resulting from the deposit of funds or evidences of Indebtedness in
trust for the purpose of decreasing or legally defeasing Indebtedness of the
Company or any Restricted Subsidiary so long as such deposit of funds is
permitted under Section 4.05; (l) Liens resulting from a pledge of Capital Stock
of a Person that is not a Restricted Subsidiary to secure obligations of such
Person and any refinancings thereof; (m) Liens to secure any permitted
extension, renewal, refinancing, refunding or exchange (or successive
extensions, renewals, refinancings, refundings or exchanges), in whole or in
part, of or for any Indebtedness secured by Liens referred to in clauses (a),
(b), (c), (d), (i) and (j) above; provided, however, that (i) such new Lien
shall be limited to all or part of the same property (including future
improvements thereon and accessions thereto) subject to the original Lien and
(ii) the Indebtedness secured by such Lien at such time is not increased to any
amount greater than the sum of (A) the outstanding principal amount or, if
greater, the committed amount of the Indebtedness secured by such original Lien
immediately prior to such extension, renewal, refinancing, refunding or exchange
and (B) an amount necessary to pay any fees and expenses, including premiums,
related to such refinancing, refunding, extension, renewal or replacement; and
(n) Liens in favor of the Company or a Restricted Subsidiary. Notwithstanding
anything in this definition to the contrary, the term "Permitted Liens" shall
not include Liens resulting from the creation, Incurrence, issuance, assumption
or Guarantee of any Production Payments other than (i) any such Liens existing
as of the Issue Date, (ii) Production Payments in connection with the
acquisition of any property after the Issue Date, provided that any such Lien
created in connection therewith is created, incurred, issued, assumed or
Guaranteed in connection with the financing of, and within 60 days after the
acquisition of, such property and (iii) Production Payments other than those
described in clauses (i) and (ii) of this sentence, to the
26
extent such Production Payments constitute Asset Dispositions made pursuant to
and in compliance with Section 4.07 and (iv) incentive compensation programs for
geologists, geophysicists and other providers of technical services to the
Company and any Restricted Subsidiary; provided, however, that, in the case of
the immediately foregoing clauses (i), (ii), (iii) and (iv), any Lien created in
connection with any such Production Payments shall be limited to the property
that is the subject of such Production Payments.
"Permitted Marketing Obligations" means Indebtedness of the Company or
any Restricted Subsidiary under letter of credit or borrowed money obligations,
or in lieu of or in addition to such letters of credit or borrowed money,
guarantees of such Indebtedness or other obligations of the Company or any
Restricted Subsidiary by any other Restricted Subsidiary, as applicable, related
to the purchase by the Company or any Restricted Subsidiary of hydrocarbons for
which the Company or such Restricted Subsidiary has contracts to sell; provided,
however, that in the event that such Indebtedness or obligations are guaranteed
by the Company or any Restricted Subsidiary, then either (i) the Person with
which the Company or such Restricted Subsidiary has contracts to sell has an
investment grade credit rating from S&P or Moody's, or in lieu thereof, a Person
guaranteeing the payment of such obligated Person has an investment grade credit
rating from S&P or Moody's, or (ii) such Person posts, or has posted for it, a
letter of credit in favor of the Company or such Restricted Subsidiary with
respect to all such Person's obligations to the Company or such Restricted
Subsidiary under such contracts.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
The term "principal" of a Security means the principal of the Security
plus the premium, if any, payable
27
on the Security which is due or overdue or is to become due at the relevant
time.
"Production Payments" means, collectively, Dollar-Denominated
Production Payments and Volumetric Production Payments.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Subsidiary existing on February
26, 1998 or Incurred in compliance with the Indenture including Indebtedness
that Refinances Refinancing Indebtedness; provided, however, that (i) such
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced, (ii) such Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being Refinanced, (iii) such Refinancing Indebtedness has an aggregate principal
amount (or if Incurred with original issue discount, an aggregate issue price)
that is equal to or less than the aggregate principal amount (or if Incurred
with original issue discount, the aggregate accreted value) then outstanding or
committed (plus fees and expenses, including any premium and defeasance costs)
under the Indebtedness being Refinanced and (iv) if the Indebtedness being
Refinanced is Non-recourse Purchase Money Indebtedness, such Refinancing
Indebtedness satisfies clauses (i) and (ii) of the definition of "Non-recourse
Purchase Money Indebtedness"; provided further, however, that Refinancing
Indebtedness shall not include (x) Indebtedness of a Subsidiary that Refinances
Indebtedness of the Company or (y) Indebtedness of the Company or a Restricted
Subsidiary that Refinances Indebtedness of an Unrestricted Subsidiary.
"Representative" means any trustee, agent or representative (if any)
for an issue of Senior Indebtedness of the Company or of any Subsidiary
Guarantor.
"Restricted Payment" with respect to any Person means (i) the
declaration or payment of any dividends or any other distributions of any sort
in respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving such Person) or similar payment
28
to the direct or indirect holders of its Capital Stock (other than (x) dividends
or distributions payable solely in its Capital Stock (other than Disqualified
Stock), (y) dividends or distributions payable solely to the Company or a
Restricted Subsidiary, and (z) pro rata dividends or other distributions made by
a Subsidiary that is not a Wholly Owned Subsidiary to minority stockholders (or
owners of an equivalent interest in the case of a Subsidiary that is an entity
other than a corporation)), (ii) the purchase, redemption or other acquisition
or retirement for value of any Capital Stock of the Company held by any Person
or of any Capital Stock of a Restricted Subsidiary held by any Affiliate of the
Company (other than a Restricted Subsidiary), including the exercise of any
option to exchange any Capital Stock (other than into Capital Stock of the
Company that is not Disqualified Stock), (iii) the purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value, prior to
scheduled maturity, scheduled repayment or scheduled sinking fund payment of any
Subordinated Obligations of such Person (other than the purchase, repurchase or
other acquisition of Subordinated Obligations of such Person purchased in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of acquisition) or
(iv) the making of any Investment (other than a Permitted Investment) in any
Person.
"Restricted Subsidiary" means any Subsidiary of the Company that is
not an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Company, Inc., and its successors.
"Sale/Leaseback Transaction" means an arrangement relating to property
owned on February 26, 1998 or thereafter acquired whereby the Company or a
Restricted Subsidiary transfers such property to a Person and the Company or a
Restricted Subsidiary leases it from such Person, provided that the fair market
value of such property (as reasonably determined by the Board of Directors
acting in good faith) is $10 million or more.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company secured
by a Lien.
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"Senior Indebtedness" means with respect to any Person (i)
Indebtedness of such Person, and all obligations of such Person under any Credit
Facility, whether outstanding on the Issue Date or thereafter Incurred and (ii)
accrued and unpaid interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating such Person to the
extent post-filing interest is allowed in such proceeding) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness evidenced by
notes, debentures, bonds or other similar instruments for the payment of which
such Person is responsible or liable unless, with respect to obligations
described in the immediately preceding clause (i) or (ii), in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is provided that such obligations are not superior in right of payment to the
Securities or the applicable Subsidiary Guarantee; provided, however, that
Senior Indebtedness shall not include (1) any obligation of such Person to any
Subsidiary of such Person, (2) any liability for Federal, state, local or other
taxes owed or owing by such Person, (3) any accounts payable or other liability
to trade creditors arising in the ordinary course of business (including
guarantees thereof or instruments evidencing such liabilities), (4) any
Indebtedness of such Person (and any accrued and unpaid interest in respect
thereof) which is subordinate or junior in any respect to any other Indebtedness
or other obligation of such Person or (5) that portion of any Indebtedness which
at the time of Incurrence is Incurred in violation of this Indenture (other
than, in the case of the Company or any Subsidiary Guarantor that Guarantees any
Credit Facility, Indebtedness under any Credit Facility that is Incurred on the
basis of a representation by the Company or the applicable Subsidiary Guarantor
to the applicable lenders that such Person is permitted to Incur such
Indebtedness under this Indenture).
"Senior Subordinated Indebtedness" means (i) with respect to the
Company, the Securities, the Existing 9% Senior Subordinated Notes and any other
Indebtedness of the Company that specifically provides that such Indebtedness is
to rank pari passu with the Securities in right of payment and is not
subordinated by its terms in right of payment to any Indebtedness or other
obligation of the Company which is not Senior Indebtedness of the Company and
(ii) with respect to each Subsidiary Guarantor, its Guarantee of the Securities
and the Existing 9% Senior Subordinated Notes and any other Indebtedness of such
Person that specifically provides that such Indebtedness rank pari passu with
its applicable Subsidiary Guarantee in right of payment and is not subordinated
by its terms in right of payment to any
30
Indebtedness or other obligation of such Person which is not Senior Indebtedness
of such Person.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the Company or any
Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter
Incurred) which is subordinate or junior in right of payment to, in the case of
the Company, the Securities or, in the case of a Subsidiary Guarantor, its
Subsidiary Guarantee pursuant to a written agreement to that effect.
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including
partnership interests) 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 (i) such Person,
(ii) such Person and one or more Subsidiaries of such Person or (iii) one or
more Subsidiaries of such Person.
"Subsidiary Guarantor" means each Subsidiary designated as such on the
signature pages hereto and any other Subsidiary that has issued a Subsidiary
Guarantee.
"Subsidiary Guarantee" means a Guarantee by a Subsidiary Guarantor of
the Company's obligations with respect to the Securities.
"Temporary Cash Investments" means any of the following: (i) any
investment in direct obligations of the United States of America or any agency
thereof or obligations guaranteed by the United States of America or any agency
thereof, (ii) investments in time deposit accounts, certificates of deposit and
money market deposits maturing within one year of the date of acquisition
thereof
31
issued by a bank or trust company which is organized under the laws of the
United States of America, any state thereof or any foreign country recognized by
the United States of America, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $200.0 million (or the
foreign currency equivalent thereof) and has outstanding debt which is rated "A"
(or such similar equivalent rating) or higher by at least one nationally
recognized credit rating organization (as defined in Rule 436 under the
Securities Act) or any money-market fund sponsored by a registered broker dealer
or mutual fund distributor whose assets consist of obligations of the types
described in clauses (i), (ii), (iii), (iv) and (v) hereof, (iii) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (i) above entered into with a bank meeting the
qualifications described in clause (ii) above, (iv) investments in commercial
paper, maturing not more than 180 days after the date of acquisition, issued by
a Person (other than an Affiliate of the Company) organized and in existence
under the laws of the United States of America or any foreign country recognized
by the United States of America with a rating at the time as of which any
investment therein is made of "P-2" (or higher) according to Moody's or "A-2"
(or higher) according to S&P or "R-1" (or higher) by Dominion Bond Rating
Service Limited or Canadian Bond Rating Service, Inc. (in the case of a Canadian
issuer), (v) investments in securities with maturities of six months or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least "A" by S&P or "A" by
Moody's and (vi) Investments in asset-backed securities maturing within one year
of the date of acquisition thereof with a long-term rating at the time as of
which any investment therein is made of "A3" (or higher) by Dominion Bond Rating
Service Limited or Canadian Bond Rating Service, Inc. (in the case of a Canadian
issuer).
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
Sections 77aaa-77bbbb), as in effect on the date of this Indenture except as
provided in Section 9.03; 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 amendments, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the party named as such in the preamble to this
Indenture until a successor replaces it and, thereafter, means the successor.
32
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer this Indenture.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"Unrestricted Subsidiary" means (i) Denbury Carbonics, L.L.C. and
Tallahatchie Resources, Inc., (ii) any Subsidiary of the Company that at the
time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below and (iii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of
the Company (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Capital Stock or Indebtedness of, or holds any Lien on any property of, the
Company or any other Subsidiary of the Company that is not a Subsidiary of the
Subsidiary to be so designated; provided, however, that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if such
Subsidiary has assets greater than $1,000, such designation would be permitted
under Section 4.05. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided, however, that immediately
after giving effect to such designation (x) the Company could Incur $1.00 of
additional Indebtedness under Section 4.03(a) and (y) no Default shall have
occurred and be continuing. Any such designation by the Board of Directors shall
be evidenced by the Company to the Trustee by promptly filing with the Trustee a
copy of the board resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
provisions. The Company represents and warrants that Denbury Carbonics, L.L.C.
and Tallahatchie Resources, Inc. each have total assets of $1,000 or less.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Volumetric Production Payments" means production payment obligations
recorded as deferred revenue in accordance with GAAP, together with all
undertakings and
33
obligations in connection therewith.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all the
Capital Stock of which (other than directors' qualifying shares and shares held
by other Persons to the extent such shares are required by applicable law to be
held by a Person other than the Company or a Restricted Subsidiary) is owned by
the Company or one or more Wholly Owned Subsidiaries.
Section 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction"............... 4.08(a)
"Bankruptcy Law"...................... 6.01
"Blockage Notice"..................... 10.03
"covenant defeasance option".......... 8.01(b)
"Custodian" .......................... 6.01
"Subsidiary Guarantor Blockage
Notice"........................... 12.03
"Subsidiary Guarantor Payment
Blockage Period................... 12.03
"Event of Default".................... 6.01
"Excess Proceeds"..................... 4.07(a)
"Excess Proceeds Offer"............... 4.07(b)(i)
"Excess Proceeds Payment"............. 4.07(b)(i)
"Excess Proceeds Payment Date"........ 4.07(b)(ii)
"Guaranteed Obligations".............. 11.01
"legal defeasance option"............. 8.01(b)
"Legal Holiday"....................... 13.08
"pay the Securities".................. 10.03
"Paying Agent"........................ 2.03
"Payment Blockage Period"............. 10.03
"Registrar"........................... 2.03
"Successor Company"................... 5.01
"Unrestricted Affiliate".............. 4.08(b)
Section 1.03. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in
34
and made a part of this Indenture. The following TIA terms have the following
meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"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 other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
Section 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(7) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the Company dated such date prepared in
accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such
35
Preferred Stock or (ii) the maximum mandatory redemption or mandatory
repurchase price with respect to such Preferred Stock, whichever is
greater.
ARTICLE 2
The Securities
Section 2.01. Form and Dating. Provisions relating to the Initial
Securities, the Private Exchange Securities and the Exchange Securities are set
forth in Appendix A hereto which is hereby incorporated in and expressly made
part of this Indenture. The Initial Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit 1 to Appendix A
which is hereby incorporated in and expressly made a part of this Indenture. The
Private Exchange Securities and the Exchange Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A,
which is hereby incorporated in and expressly made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Company is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Company). Each Security shall be dated the date of its authentication.
The terms of the Securities set forth in Appendix A and Exhibit A are part of
the terms of this Indenture.
Section 2.02. Execution and Authentication. Two Officers shall sign
the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall
be valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
On the Issue Date, the Trustee shall authenticate and deliver $75.0
million of 9% Series B Senior Subordinated Notes Due 2008 and, at any time and
from time to time thereafter, the Trustee shall authenticate and deliver
Securities for original issue in an aggregate principal
36
amount specified in such order, in each case upon receipt of a written order of
the Company signed by two Officers or by an Officer and either an Assistant
Secretary or an Assistant Treasurer of the Company; provided that the Trustee
shall be entitled to receive an Officers' Certificate and an Opinion of Counsel
of the Company that it may reasonably request in connection with such
authentication of Securities. Such order shall specify the amount of Securities
to be authenticated, the date on which the original issue of Securities is to be
authenticated and the aggregate principal amount of Securities then authorized
and, in the case of an issuance of Additional Securities pursuant to Section
2.13 after the Issue Date, shall certify that such issuance is in compliance
with Section 4.03.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Securities. Unless limited by the terms of
such appointment, 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 any Registrar, Paying Agent or agent for service of notices and
demands.
Section 2.03. Registrar and Paying Agent. The Company shall maintain
an office or agency where Securities may be presented for registration of
transfer or for exchange, which office shall maintain the names and addresses of
Securityholders (the "Registrar"), and an office or agency where Securities may
be presented for payment (the "Paying Agent"). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
have one or more co-registrars and one or more additional paying agents. The
term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities.
37
Section 2.04. Paying Agent To Hold Money in Trust. Prior to 11:00
a.m., New York City time, on each due date of the principal and interest on any
Security, the Company shall deposit with the Paying Agent a sum sufficient to
pay such principal and interest when so becoming due. The Company shall require
each Paying Agent (other than the Trustee) to agree in writing that the Paying
Agent shall hold in trust for the benefit of Securityholders or the Trustee all
money held by the Paying Agent for the payment of principal of or interest on
the Securities and shall notify the Trustee of any default by the Company in
making any such payment. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and hold it as a separate
trust fund. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed by the Paying
Agent. Upon complying with this Section, the Paying Agent shall have no further
liability for the money delivered to the Trustee.
Section 2.05. Securityholder Lists. 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 Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business 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 Securityholders.
Section 2.06. Transfer and Exchange. The Securities shall be issued in
registered form and shall be transferable only upon the surrender of a Security
for registration of transfer. When a Security is presented to the Registrar or a
co-registrar with a request to register a transfer, the Registrar shall register
the transfer as requested if the requirements of Section 8-401(1) of the Uniform
Commercial Code are met. When Securities are presented to the Registrar or a
co-registrar with a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met.
Section 2.07. Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and
38
the Trustee shall authenticate and deliver a replacement Security if the
requirements of Section 8-405 of the Uniform Commercial Code are met and the
Holder satisfies any other reasonable requirements of the Trustee. If required
by the Trustee or the Company, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Company and the Trustee to protect the
Company, the Trustee, the Paying Agent, the Registrar and any co-registrar from
any loss which any of them may suffer if a Security is replaced. The Company and
the Trustee may charge the Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company.
Section 2.08. Outstanding Securities. Securities outstanding at any
time are all Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancelation and those described in this Section
as not outstanding. A Security does not cease to be out standing because the
Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Securities
(or portions thereof) to be redeemed or maturing, as the case may be, and the
Paying Agent is not prohibited from paying such money to the Securityholders on
that date pursuant to the terms of this Indenture, then on and after that date
such Securities (or portions thereof) cease to be outstanding and interest on
them ceases to accrue.
Section 2.09. Temporary Securities. Until definitive Securities are
ready for delivery, the Company may prepare and the Trustee shall authenticate
and deliver temporary Securities. 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 shall authenticate definitive Securities
and deliver them in exchange for temporary Securities.
39
Section 2.10. Cancelation. The Company at any time may deliver
Securities to the Trustee for cancelation. 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 and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancelation and deliver a certificate of such destruction to the Company unless
the Company directs the Trustee to deliver canceled Securities to the Company.
The Company may not issue new Securities to replace Securities it has redeemed,
paid or delivered to the Trustee for cancelation.
Section 2.11. Defaulted Interest. If the Company defaults in a payment
of interest on the Securities, the Company shall pay defaulted interest (plus
interest on such defaulted interest to the extent lawful) in any lawful manner.
The Company may pay the defaulted interest to the Persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall mail promptly to each
Securityholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
Section 2.12. 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,
however, 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
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
Section 2.13. Issuance of Additional Securities. The Company shall be
entitled, subject to its compliance with Section 4.03, to issue Additional
Securities under this Indenture which shall have identical terms as the Initial
Securities issued on the Issue Date, other than with respect to the date of
issuance and issue price. The Initial Securities issued on the Issue Date, any
Additional Securities and all Exchange Securities or Private Exchange Securities
issued in exchange therefor shall be treated as a single class for all purposes
under this Indenture.
With respect to any Additional Securities, the Company shall set forth
in a resolution of the Board of
40
Directors and an Officers' Certificate, a copy of each which shall be delivered
to the Trustee, the following information:
(1) the aggregate principal amount of such Additional Securities to be
authenticated and delivered pursuant to this Indenture;
(2) the issue price, the issue date and the CUSIP number of such
Additional Securities; provided, however, that no Additional Securities may
be issued unless such Additional Securities are fungible in all respects
for federal income tax purposes with the Securities then outstanding; and
(3) whether such Additional Securities shall be Transfer Restricted
Securities and issued in the form of Initial Securities as set forth in
Appendix A to this Indenture or shall be issued in the form of Exchange
Securities as set forth in Exhibit A.
ARTICLE 3
Redemption
Section 3.01. Notices to Trustee. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date, the principal amount of Securities to
be redeemed and the paragraph of the Securities pursuant to which the redemption
will occur.
The Company shall give each notice to the Trustee provided for in this
Section at least 45 days before the redemption date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
Section 3.02. Selection of Securities To Be Redeemed. If fewer than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by a method that complies with applicable
legal and securities exchange requirements, if any, and that the Trustee in its
sole discretion considers fair and appropriate. The Trustee shall make the
selection from outstanding Securities not previously called for redemption. The
Trustee may select for redemption portions of the principal of Securities that
have
41
denominations larger than $1,000. Securities and portions of them the Trustee
selects shall be in amounts of $1,000 or a whole multiple of $1,000. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall notify the
Company, the Registrar and each Paying Agent promptly of the Securities or
portions of Securities to be redeemed.
Section 3.03. Notice of Redemption. At least 30 days but not more than
60 days before a date for redemption of Securities, the Company shall mail a
notice of redemption by first-class mail to each Holder of Securities to be
redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be redeemed,
the identification and principal amounts of the particular Securities to be
redeemed;
(6) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture, interest on Securities (or portions
thereof) called for redemption ceases to accrue on and after the redemption
date; and
(7) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
Section 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and
42
at the redemption price stated in the notice, subject to any condition or
contingency stated therein. Upon surrender to the Paying Agent, such Securities
shall be paid at the redemption price stated in the notice, plus accrued
interest to the redemption date. Failure to give notice or any defect in the
notice to any Holder shall not affect the validity of the notice to any other
Holder.
Section 3.05. Deposit of Redemption Price. Prior to the redemption
date, the Company shall deposit with the Paying Agent (or, if the Company or a
Subsidiary is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of and accrued interest on all Securities
to be redeemed on that date other than Securities or portions of Securities
called for redemption which have been delivered by the Company to the Trustee
for cancelation.
Section 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder (at the Company's expense) a new
Security equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE 4
Covenants
Section 4.01. Payment of Securities. The Company shall promptly pay
the principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Securityholders on that
date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Section 4.02. SEC Reports. Notwithstanding that the Company may not at
any time be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the SEC and provide the Trustee and
43
Securityholders with such annual reports and such information, documents and
other reports as are specified in Sections 13 and 15(d) of the Exchange Act and
applicable to a U.S. corporation subject to such Sections, such information,
documents and other reports to be so filed and provided at the times specified
for the filing of such information, documents and reports under such Sections.
In addition, the Company shall furnish to the Securityholders and to prospective
investors, upon the requests of such Securityholders, any information required
to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as
any Securities are not freely transferable under the Securities Act. The Company
also shall comply with the other provisions of TIA Section 314(a).
Section 4.03. Limitation on Indebtedness. (a) The Company shall not,
and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Company or a
Restricted Subsidiary may Incur Indebtedness if, on the date of such Incurrence
and after giving effect thereto, the Consolidated Coverage Ratio equals or
exceeds 2.25 to 1.0.
(b) Notwithstanding Section 4.03(a), the Company and any Restricted
Subsidiary may Incur the following Indebtedness:
(1) Indebtedness Incurred pursuant to any Credit Facility, so long as the
aggregate amount of all Indebtedness outstanding under all Credit
Facilities does not, at any one time, exceed the aggregate amount of
borrowing availability as of such date under all Credit Facilities that
determine availability on the basis of a borrowing base or other
asset-based calculation; provided, however, that in no event shall such
amount exceed the greater of (x) $300 million and (y) 75% of ACNTA as of
the date of such Incurrence;
(2) Indebtedness owed to and held by the Company or a Wholly Owned
Subsidiary; provided, however, that any subsequent issuance or transfer of
any Capital Stock which results in any such Wholly Owned Subsidiary ceasing
to be a Wholly Owned Subsidiary or any subsequent transfer of such
Indebtedness (other than to the Company or another Wholly Owned Subsidiary)
shall be deemed, in each case, to constitute the Incurrence of such
Indebtedness by the issuer thereof;
(3) Indebtedness of the Company represented by the Securities (other than
any Additional Securities);
44
(4) Indebtedness outstanding on February 26, 1998 (other than Indebtedness
described in paragraph (b) (1), (2) or (3) of this Section 4.03);
(5) Indebtedness of (A) a Restricted Subsidiary Incurred and outstanding on
or prior to the date on which such Restricted Subsidiary was acquired by
the Company (other than Indebtedness Incurred in connection with, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant to
which such Restricted Subsidiary became a Restricted Subsidiary or was
acquired by the Company) and (B) the Company or a Restricted Subsidiary
Incurred for the purpose of financing all or any part of the cost of
acquiring oil and gas properties, another Person (other than a Person that
was, immediately prior to such acquisition, a Subsidiary of the Company)
engaged in the Oil and Gas Business or all or substantially all the assets
of such a Person; provided, however, that in the case of each of clause (A)
and clause (B) above, on the date of such Incurrence and after giving
effect thereto, the Consolidated Coverage Ratio equals or exceeds 2.0 to
1.0;
(6) Refinancing Indebtedness in respect of Indebtedness Incurred pursuant
to Section 4.03(a) or Section 4.03(b)(3), (4), (5), this clause (6) or
clause (7) below; provided, however, that to the extent such Refinancing
Indebtedness directly or indirectly Refinances Indebtedness or Preferred
Stock of a Restricted Subsidiary described in Section 4.03(b)(5), such
Refinancing Indebtedness shall be Incurred only by such Restricted
Subsidiary or the Company;
(7) Non-recourse Purchase Money Indebtedness;
(8) Indebtedness with respect to Production Payments; provided, however,
that any such Indebtedness shall be Limited Recourse Production Payments;
provided further, however, that the Net Present Value of the reserves
related to such Production Payments shall not exceed 30% of ACNTA at the
time of Incurrence;
(9) Indebtedness consisting of the Subsidiary Guarantees and any Guarantee
by a Subsidiary Guarantor of Indebtedness Incurred by the Company pursuant
to paragraphs (b)(1) and (3) of this Section 4.03;
(10) Indebtedness consisting of Interest Rate Agreements directly related
to Indebtedness permitted
45
to be Incurred by the Company and its Restricted Subsidiaries pursuant to
the Indenture;
(11) Indebtedness under Oil and Gas Hedging Contracts and Currency
Agreements entered into in the ordinary course of business for the purpose
of limiting risks that arise in the ordinary course of business of the
Company and its Restricted Subsidiaries;
(12) Indebtedness in respect of bid, performance or surety obligations
issued by or for the account of the Company or any Restricted Subsidiary in
the ordinary course of business, including Guarantees and letters of credit
functioning as or supporting such bid, performance or surety obligations
(in each case other than for an obligation for money borrowed);
(13) Indebtedness of the Company or a Restricted Subsidiary Incurred to
finance capital expenditures and Refinancing Indebtedness Incurred in
respect thereof in an aggregate amount which, when taken together with the
amount of all other Indebtedness Incurred pursuant to this clause (13)
since February 26, 1998 and then outstanding, does not exceed $20 million;
(14) Permitted Marketing Obligations;
(15) In-kind obligations relating to oil and gas balancing positions
arising in the ordinary course of business; and
(16) Indebtedness in an aggregate amount which, together with the amount of
all other Indebtedness of the Company and its Restricted Subsidiaries
outstanding on the date of such Incurrence (other than Indebtedness
permitted by Section 4.03(a) or Section 4.03(b)(1)- (15)) does not exceed
$30 million.
(c) Notwithstanding the foregoing, the Company shall not, and shall
not permit any Subsidiary Guarantor to, Incur any Indebtedness pursuant to
Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to
Refinance any Subordinated Obligations unless such Indebtedness shall be
subordinated to the Securities or the relevant Subsidiary Guarantee, as the case
may be, to at least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with this Section 4.03, (i)
in the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness described in this Section 4.03, the
46
Company, in its sole discretion, will classify such item of Indebtedness and
only be required to include the amount and type of such Indebtedness in one of
the above clauses of this Section 4.03; provided that items of Indebtedness
Incurred since February 26, 1998 and prior to the Issue Date shall be deemed to
have been Incurred under the clause of this Section 4.03 corresponding to the
provision in the indenture governing the Existing 9% Senior Subordinated Notes
under which such items were incurred; and (ii) an item of Indebtedness may be
divided and classified in more than one of the types of Indebtedness described
in this Section 4.03.
Section 4.04. Incurrence of Layered Indebtedness. Notwithstanding
paragraphs (a) and (b) of Section 4.03 above, the Company shall not, and the
Company shall not permit any Subsidiary Guarantor to, Incur any Indebtedness if
such Indebtedness is subordinate or junior in ranking in any respect to any
Senior Indebtedness of the Company or such Subsidiary Guarantor, as applicable,
unless such Indebtedness is Senior Subordinated Indebtedness or is expressly
subordinated in right of payment to Senior Subordinated Indebtedness of such
Person.
Section 4.05. Limitation on Restricted Payments. (a) The Company shall
not, and shall not permit any Restricted Subsidiary, directly or indirectly, to
make a Restricted Payment if at the time the Company or such Restricted
Subsidiary makes such Restricted Payment: (1) a Default shall have occurred and
be continuing (or would result therefrom); (2) the Company is not able to Incur
an additional $1.00 of Indebtedness pursuant to Section 4.03(a); or (3) the
aggregate amount of such Restricted Payment and all other Restricted Payments
since February 26, 1998 would exceed the sum of (without duplication): (A) 50%
of the aggregate Consolidated Net Income of the Company accrued on a cumulative
basis commencing on the last day of the fiscal quarter immediately preceding
February 26, 1998, and ending on the last day of the fiscal quarter ending on or
immediately preceding the date of such proposed Restricted Payment (or, if such
aggregate Consolidated Net Income shall be a deficit, minus 100% of such
deficit); (B) the aggregate Net Cash Proceeds received by the Company from the
issuance or sale of its Capital Stock (other than Disqualified Stock) subsequent
to February 26, 1998 (other than an issuance or sale to a Subsidiary of the
Company and other than an issuance or sale to an employee stock ownership plan
or to a trust established by the Company or any of its Subsidiaries for the
benefit of their employees); (C) the aggregate Net Cash Proceeds received by the
Company from the issue or sale
47
subsequent to February 26, 1998 of its Capital Stock (other than Disqualified
Stock) to an employee stock ownership plan; provided, however, that if such
employee stock ownership plan incurs any Indebtedness with respect thereto, such
aggregate amount shall be limited to an amount equal to any increase in the
Consolidated Net Worth of the Company resulting from principal repayments made
by such employee stock ownership plan with respect to such Indebtedness; (D) the
amount by which Indebtedness of the Company is reduced on the Company's balance
sheet upon the conversion or exchange (other than by a Subsidiary of the
Company) subsequent to February 26, 1998, of any Indebtedness of the Company
convertible or exchangeable for Capital Stock (other than Disqualified Stock) of
the Company (less the amount of any cash, or the fair value of any other
property, distributed by the Company upon such conversion or exchange); and (E)
an amount equal to the sum of (i) the net reduction in Investments made by the
Company or any Restricted Subsidiary in any Person resulting from dividends,
repayments of loans or advances or other transfers of assets, in each case to
the Company or any Restricted Subsidiary from such Person, and (ii) the portion
(proportionate to the Company's equity interest in such Subsidiary) of the fair
market value of the net assets of an Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is designated a Restricted Subsidiary; provided,
however, that the foregoing sum shall not exceed, in the case of any such Person
or Unrestricted Subsidiary, the amount of Investments previously made (and
treated as a Restricted Payment) by the Company or any Restricted Subsidiary in
such Person or Unrestricted Subsidiary.
(b) The provisions of Section 4.05(a) shall not prohibit: (i)
dividends paid within 60 days after the date of declaration thereof if at such
date of declaration such dividend would have complied with this Section 4.05;
provided, however, that at the time of payment of such dividend, no other
Default shall have occurred and be continuing (or result therefrom); provided
further, however, that such dividend shall be included in the calculation of the
amount of Restricted Payments; (ii) any purchase or redemption of Capital Stock
or Subordinated Obligations of the Company made by exchange for, or out of the
proceeds of the substantially concurrent sale of, Capital Stock of the Company
(other than Disqualified Stock and other than Capital Stock issued or sold to a
Subsidiary of the Company or an employee stock ownership plan or to a trust
established by the Company or any of its Subsidiaries for the benefit of their
employees); provided, however, that (A) such purchase or redemption shall be
excluded in the calculation of the amount of Restricted Payments and (B) the
48
Net Cash Proceeds from such sale shall be excluded from the calculation of
amounts under Section 4.05(a)(3)(B) (but only to the extent that such Net Cash
Proceeds were used to purchase or redeem such Capital Stock as provided in this
clause (ii)); (iii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations of the Company
made by exchange for, or out of the proceeds of the substantially concurrent
sale of, Subordinated Obligations of the Company; provided, however, that such
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value shall be excluded in the calculation of the amount of Restricted
Payments; (iv) the repurchase of shares of, or options to purchase shares of,
common stock of the Company or any of its Subsidiaries from employees, former
employees, directors or former directors of the Company or any of its
Subsidiaries (or permitted transferees of such employees, former employees,
directors or former directors), pursuant to the terms of the agreements
(including employment agreements) or plans (or amendments thereto) approved by
the Board of Directors under which such individuals purchase or sell or are
granted the option to purchase or sell, shares of such common stock; provided,
however, that the aggregate amount of such repurchases shall not exceed $2.0
million in any calendar year; provided further, however, that such repurchases
shall be excluded in the calculation of the amount of Restricted Payments; (v)
loans made to officers, directors or employees of the Company or any Restricted
Subsidiary approved by the Board of Directors (or a duly authorized officer),
the net cash proceeds of which are used solely (A) to purchase common stock of
the Company in connection with a restricted stock or employee stock purchase
plan, or to exercise stock options received pursuant to an employee or director
stock option plan or other incentive plan, in a principal amount not to exceed
the exercise price of such stock options or (B) to refinance loans, together
with accrued interest thereon, made pursuant to item (A) of this clause (v);
provided, however, that such loans shall be excluded in the calculation of the
amount of Restricted Payments; or (vi) other Restricted Payments in an aggregate
amount not to exceed $20.0 million; provided, however, that such Restricted
Payments shall be excluded in the calculation of the amount of Restricted
Payments.
Section 4.06. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary (a) to pay dividends or make any other distributions on
its Capital Stock or pay any
49
Indebtedness owed to the Company or a Restricted Subsidiary, (b) to make any
loans or advances to the Company or a Restricted Subsidiary or (c) to transfer
any of its property or assets to the Company or a Restricted Subsidiary, except:
(i) any encumbrance or restriction in the Credit Agreement on the Issue Date or
pursuant to any other agreement in effect on the Issue Date; (ii) any
encumbrance or restriction with respect to a Restricted Subsidiary pursuant to
an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary
on or prior to the date on which such Restricted Subsidiary was acquired by the
Company (other than Indebtedness Incurred as consideration in, or to provide all
or any portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such Restricted
Subsidiary became a Restricted Subsidiary or was acquired by the Company) and
outstanding on such date; (iii) any encumbrance or restriction pursuant to an
agreement effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in clause (i) or (ii) of this covenant or this clause
(iii) or contained in any amendment to an agreement referred to in clause (i) or
(ii) of this covenant or this clause (iii); provided, however, that the
encumbrances and restrictions with respect to such Restricted Subsidiary
contained in any such refinancing agreement or amendment are no less favorable
to the Securityholders than encumbrances and restrictions with respect to such
Restricted Subsidiary contained in such agreements; (iv) any such encumbrance or
restriction consisting of customary nonassignment provisions in leases governing
leasehold interests to the extent such provisions restrict the transfer of the
lease or the property leased thereunder; (v) in the case of clause (c) above,
restrictions contained in security agreements or mortgages securing Indebtedness
of a Restricted Subsidiary to the extent such restrictions restrict the transfer
of the property subject to such security agreements or mortgages; and (vi) any
restriction with respect to a Restricted Subsidiary imposed pursuant to an
agreement entered into for the sale or disposition of all or substantially all
the Capital Stock or assets of such Restricted Subsidiary pending the closing of
such sale or disposition.
Section 4.07. Limitation on Sales of Assets and Subsidiary Stock. (a)
In the event and to the extent that the Net Available Cash received by the
Company or any Restricted Subsidiary from one or more Asset Dispositions (other
than an Asset Disposition referred to in Section 4.07(d)) occurring on or after
the Issue Date in any period of 12 consecutive months exceeds 15% of Adjusted
Consolidated Net Tangible Assets as of the beginning of such
50
12-month period, then the Company shall (i) within 180 days (in the case of (A)
below) or 18 months (in the case of (B) below) after the date such Net Available
Cash so received exceeds such 15% of Adjusted Consolidated Net Tangible Assets
(A) apply an amount equal to such excess Net Available Cash to repay Senior
Indebtedness of the Company or a Subsidiary Guarantor or Indebtedness of a
Restricted Subsidiary that is not a Subsidiary Guarantor, in each case owing to
a Person other than the Company or any Affiliate of the Company or (B) invest an
equal amount, or the amount not so applied pursuant to clause (A), in Additional
Assets or Permitted Business Investments or (ii) apply such excess Net Available
Cash (to the extent not applied pursuant to clause (i)) as provided in Section
4.07(b). The amount of such excess Net Available Cash required to be applied
during the applicable period and not applied as so required by the end of such
period shall constitute "Excess Proceeds."
(b)(i) If, as of the first day of any calendar month, the aggregate
amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer
(as defined below) totals at least $10 million, the Company must, not later than
the fifteenth Business Day of such month, make an offer (an "Excess Proceeds
Offer") to purchase from the Holders on a pro rata basis an aggregate principal
amount of Securities equal to the Excess Proceeds (rounded down to the nearest
multiple of $1,000) on such date, at a purchase price equal to 100% of the
principal amount of such Securities, plus, in each case, accrued interest (if
any) to the date of purchase (the "Excess Proceeds Payment"), but, if the terms
of any other Senior Subordinated Indebtedness require that an offer be made for
such Senior Subordinated Indebtedness contemporaneously with the Excess Proceeds
Offer, then the Excess Proceeds shall be prorated between the Excess Proceeds
Offer and the offer for such other Senior Subordinated Indebtedness in
accordance with the aggregate outstanding principal amounts (or, in the case of
other Senior Subordinated Indebtedness issued with significant original issue
discount, accreted value) of the Securities and such other Senior Subordinated
Indebtedness, and the aggregate principal amount of Securities for which the
Excess Proceeds Offer is made shall be reduced accordingly.
(ii) The Company shall commence any Excess Proceeds Offer with respect
to the Securities by mailing a notice to the Trustee and each Holder stating:
(A) that the Excess Proceeds Offer is being made pursuant to this Section 4.07
and that all Securities validly tendered will be accepted for payment on a pro
rata basis; (B) the purchase price and the date of purchase (which shall be a
51
Business Day no earlier than 30 days nor later than 60 days from the date such
notice is mailed) (the "Excess Proceeds Payment Date"); (C) that any Security
not tendered will continue to accrue interest pursuant to its terms; (D) that,
unless the Company defaults in the payment of the Excess Proceeds Payment, any
Security accepted for payment pursuant to the Excess Proceeds Offer shall cease
to accrue interest on and after the Excess Proceeds Payment Date; (E) that
Holders electing to have a Security purchased pursuant to the Excess Proceeds
Offer will be required to surrender the Security, together with the form
entitled "Option of Holder to Elect Purchase" on the reverse side of the
Security completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the Business Day immediately preceding the
Excess Proceeds Payment Date; (F) that Holders will be entitled to withdraw
their election if the Paying Agent receives, not later than the close of
business on the third Business Day immediately preceding the Excess Proceeds
Payment Date, a telegram, facsimile trans mission or letter setting forth the
name of such Holder, the principal amount of Securities delivered for purchase
and a statement that such Holder is withdrawing his election to have such
Securities purchased; and (G) that Holders whose Securities are being purchased
only in part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; provided, however, that each
Security purchased and each new Security issued shall be in a principal amount
of $1,000 or integral multiples thereof.
(iii) On the Excess Proceeds Payment Date, the Company shall (A)
accept for payment on a pro rata basis Securities or portions thereof tendered
pursuant to the Excess Proceeds Offer, (B) deposit with the Paying Agent money
sufficient to pay the purchase price of all Securities or portions thereof so
accepted, and (C) deliver, or cause to be delivered, to the Trustee all
Securities or portions thereof so accepted together with an Officers'
Certificate specifying the Securities or portions thereof so accepted for
payment by the Company. The Paying Agent shall promptly mail to the Holders of
Securities so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and mail to such Holders a new Security
equal in principal amount to any unpurchased portion of the Security
surrendered; provided, however, that each Security purchased and each new
Security issued shall be in a principal amount of $1,000 or integral multiples
thereof. The Company will publicly announce the results of the Excess Proceeds
Offer as soon as practicable after the Excess Proceeds Payment Date. For
purposes of this Section 4.07, the Trustee shall act as the Paying Agent.
52
(c) In the event of the transfer of substantially all (but not all)
the property and assets of the Company as an entirety to a Person in a
transaction permitted by Section 5.01, the Successor Company shall be deemed to
have sold the properties and assets of the Company not so transferred for
purposes of this Section 4.07, and shall comply with the provisions of this
Section 4.07 with respect to such deemed sale as if it were an Asset Disposition
and the Successor Company shall be deemed to have received Net Available Cash in
an amount equal to the fair market value (as determined in good faith by the
Board of Directors) of the properties and assets not so transferred or sold.
(d) In the event of an Asset Disposition by the Company or any
Restricted Subsidiary that consists of a sale of hydrocarbons and results in
Production Payments, the Company or such Restricted Subsidiary shall apply an
amount equal to the Net Available Cash received by the Company or such
Restricted Subsidiary to (i) reduce Senior Indebtedness of the Company or a
Subsidiary Guarantor or Indebtedness of a Restricted Subsidiary that is not a
Subsidiary Guarantor, in each case owing to a Person other than the Company or
any Affiliate of the Company, within 180 days after the date such Net Available
Cash is so received, or (ii) invest in Additional Assets or Permitted Business
Investments within 18 months after the date such Net Available Cash is so
received.
(e) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations thereunder in the event that such Excess Proceeds are received by
the Company under this Section 4.07 and the Company is required to repurchase
Securities as described above. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section
4.07, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.07 by virtue thereof.
(e) The amounts of "Net Available Cash" and "Excess Proceeds"
outstanding as of the Issue Date under the indenture governing the Existing 9%
Senior Subordinated Notes shall be deemed to be Net Available Cash or Excess
Proceeds, as applicable, for purposes of this Section 4.07.
Section 4.08. Limitation on Affiliate Transactions. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, enter into or
permit to exist any transaction (including the purchase, sale, lease
53
or exchange of any property, employee compensation arrangements or the rendering
of any service) with any Affiliate of the Company (an "Affiliate Transaction")
unless the terms thereof (1) are no less favorable to the Company or such
Restricted Subsidiary than those that could be obtained at the time of such
transaction in arm's-length dealings with a Person who is not such an Affiliate,
(2) if such Affiliate Transaction involves an amount in excess of $10.0 million,
are set forth in writing and have been approved by the Board of Directors,
including a majority of the members of the Board of Directors having no personal
stake in such Affiliate Transaction, and (3) if such Affiliate Transaction
involves an amount in excess of $20.0 million, have been determined by a
nationally recognized investment banking firm or other qualified independent
appraiser to be fair, from a financial standpoint, to the Company and its
Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale
of hydrocarbons or other mineral products to an Affiliate of the Company or the
entering into or performance of Oil and Gas Hedging Contracts, gas gathering,
transportation or processing contracts or oil or natural gas marketing or
exchange contracts with an Affiliate of the Company, in each case, in the
ordinary course of business, so long as the terms of any such transaction are
approved by a majority of the members of the Board of Directors who are
disinterested with respect to such transaction, (ii) the sale to an Affiliate of
the Company of Capital Stock of the Company that does not constitute
Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness
(including Disqualified Stock) of the Company in connection with an offering of
such Indebtedness in a market transaction and on terms substantially identical
to those of other purchasers in such market transaction, (iii) transactions
contemplated by any employment agreement or other compensation plan or
arrangement existing on the Issue Date or thereafter entered into by the Company
or any of its Restricted Subsidiaries in the ordinary course of business, (iv)
the payment of reasonable fees to directors of the Company and its Restricted
Subsidiaries who are not employees of the Company or any Restricted Subsidiary,
(v) transactions between or among the Company and its Restricted Subsidiaries,
(vi) transactions between the Company or any of its Restricted Subsidiaries and
Persons that are controlled (as defined in the definition of "Affiliate") by the
Company (an "Unrestricted Affiliate"); provided that no other Person that
controls (as so defined) or is under common control (as so defined) with the
Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted
Payments that are
54
permitted by the provisions of Section 4.05 and (viii) loans or advances to
employees in the ordinary course of business and approved by the Company's Board
of Directors in an aggregate principal amount not to exceed $2.5 million
outstanding at any one time.
Section 4.09. Change of Control. (a) Upon the occurrence of a Change
of Control, each Holder shall have the right to require that the Company
purchase such Holder's Securities at a purchase price in cash equal to 101% of
the principal amount thereof plus accrued and unpaid interest, if any, to the
date of purchase (subject to the right of Holders of record on the relevant
record date to receive interest on the relevant interest payment date), in
accordance with the terms contemplated in Section 4.09(b). In the event that at
the time of such Change of Control the terms of the Indebtedness under the
Credit Agreement restrict or prohibit the purchase of Securities pursuant to
this Section, then prior to the mailing of the notice to Holders provided for in
Section 4.09(b) below, but in any event within 30 days following any Change of
Control, the Company shall (i) repay in full the Indebtedness under the Credit
Agreement or (ii) obtain the requisite consent under the agreements governing
the Indebtedness under the Credit Agreement to permit the purchase of the
Securities as provided for in Section 4.09(b).
(b) Within 30 days following a Change of Control, the Company shall
mail a notice to each Holder with a copy to the Trustee stating: (1) that a
Change of Control has occurred and that such Holder has the right to require the
Company to purchase such Holder's Securities at a purchase price in cash equal
to 101% of the principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest on the relevant interest payment date);
(2) the circumstances and relevant facts regarding such Change of Control
(including information with respect to pro forma historical income, cash flow
and capitalization, in each case after giving effect to such Change of Control);
(3) the purchase date (which shall be no earlier than 30 days nor later than 60
days from the date such notice is mailed); and (4) the instructions determined
by the Company, consistent with this Section 4.09, that a Holder must follow in
order to have its Securities purchased.
(c) Holders electing to have a Security purchased will be required to
surrender the Security, with an appropriate form duly completed, to the Company
at the address specified in the notice at least three Business Days
55
prior to the purchase date. Holders will be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the purchase date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Security purchased.
(d) On the purchase date, all Securities purchased by the Company
under this Section shall be delivered to the Trustee for cancelation, and the
Company shall pay the purchase price plus accrued and unpaid interest, if any,
to the Holders entitled thereto.
(e) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the purchase of Securities pursuant to this
Section 4.09. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.09, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.09 by virtue
thereof.
(f) The Company will not be required to make an offer to purchase
Securities as a result of a Change of Control pursuant to this Section 4.09 if a
third party (i) makes such offer in the manner, at the times and otherwise in
compliance with the requirements set forth in Section 4.09(b) and (ii) purchases
all Securities validly tendered and not withdrawn under such an offer.
Section 4.10. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries. The Company shall not sell or otherwise dispose of any
shares of Capital Stock of a Restricted Subsidiary, and shall not permit any
Restricted Subsidiary, directly or indirectly, to issue or sell or otherwise
dispose of any shares of its Capital Stock except (i) to the Company or a Wholly
Owned Subsidiary, (ii) if, immediately after giving effect to such issuance,
sale or other disposition, neither the Company nor any of its Subsidiaries own
any Capital Stock of such Restricted Subsidiary, (iii) if, immediately after
giving effect to such issuance, sale or other disposition, such Restricted
Subsidiary would no longer constitute a Restricted Subsidiary and any Investment
in such Person remaining after giving effect thereto is treated as a new
Investment by the Company and such Investment would be permitted to be made
under Section 4.05 if made on the date of such issuance,
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sale or other disposition or (iv) to the extent such shares represent directors'
qualifying shares or shares required by applicable law to be held by a Person
other than the Company or a Restricted Subsidiary.
Section 4.11. Limitation on Liens. The Company shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, enter into,
create, incur, assume or suffer to exist any Lien on or with respect to any
property of the Company or such Restricted Subsidiary, whether owned on the
Issue Date or acquired after the Issue Date, or any interest therein or any
income or profits therefrom, unless the Securities or any Subsidiary Guarantee
of such Restricted Subsidiary, as applicable, are secured equally and ratably
with (or prior to) any and all other obligations secured by such Lien, except
that the Company and its Restricted Subsidiaries may enter into, create, incur,
assume or suffer to exist Permitted Liens and Liens securing Senior
Indebtedness.
Section 4.12. Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default and whether or not the signers know of any Default that
occurred during such fiscal year. If they do, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take
with respect thereto. The Company also shall comply with TIA Section 314(a)(4).
Section 4.13. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
Section 4.14. Future Subsidiary Guarantors. The Company shall cause
each Restricted Subsidiary that represents at least 10% of the book assets of,
or 10% of the ACNTA of the Company and its Restricted Subsidiaries, taken as a
whole, and that has an aggregate of $15.0 million or more of Indebtedness and
Preferred Stock outstanding at any time to promptly Guarantee the Securities
pursuant to a Supplemental Indenture substantially in the form attached hereto
as Exhibit B.
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ARTICLE 5
Successor Company
Section 5.01. When Company May Merge or Transfer Assets. The Company
shall not consolidate with or merge with or into, or convey, transfer or lease,
in one trans action or a series of related transactions, all or substantially
all the assets of the Company and its Restricted Subsidiaries, taken as a whole,
to, any Person, unless:
(i) (A) the resulting, surviving or transferee Person (the "Successor
Company") shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and
(B) the Successor Company (if not the Company) shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of the Company under
the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and treating
any Indebtedness which becomes an obligation of the Successor Company or
any Restricted Subsidiary as a result of such transaction as having been
Incurred by the Successor Company or any Subsidiary as a result of such
transaction as having been Incurred by such Successor Company or such
Subsidiary at the time of such transaction), no Default shall have occurred
and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Company would be able to incur an additional $1.00 of
Indebtedness pursuant to Section 4.03(a);
(iv) immediately after giving effect to such transaction, the
Successor Company shall have Adjusted Consolidated Net Tangible Assets that
are not less than the Adjusted Consolidated Net Tangible Assets prior to
such transaction;
(v) in the case of a conveyance, transfer or lease of all or
substantially all the assets of the Company and its Restricted
Subsidiaries, taken as a whole, such assets shall have been so conveyed,
transferred or leased as an entirety or virtually as an entirety to one
Person; and
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(vi) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture;
provided, however, that clauses (iii) and (iv) shall not be applicable to any
such transaction solely between the Company and any Restricted Subsidiary.
The Successor Company shall be the successor to the Company and shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture, and the predecessor Company, except in the
case of a lease, shall be released from the obligation to pay the principal of
and interest on the Securities.
Section 5.02. When Subsidiary Guarantors May Merge or Transfer Assets.
The Company will not permit any Subsidiary Guarantor to consolidate with or
merge with or into, or convey, transfer or lease, in one transaction or a series
of transactions, all or substantially all of its assets to any Person unless:
(i) the resulting, surviving or transferee Person (if not such Subsidiary) shall
be a Person organized and existing under the laws of the jurisdiction under
which such Subsidiary was organized or under the laws of the United States of
America, or any State thereof or the District of Columbia, and, if such Person
is not the Company, such Person shall expressly assume, by executing a Guarantee
Agreement, all the obligations of such Subsidiary, if any, under its Subsidiary
Guarantee; (ii) immediately after giving effect to such transaction or
transactions on a pro forma basis (and treating any Indebtedness which becomes
an obligation of the resulting, surviving or transferee Person as a result of
such transaction as having been issued by such Person at the time of such
transaction), no Default shall have occurred and be continuing; (iii) in the
case of a conveyance, transfer or lease of all or substantially all the assets
of a Subsidiary Guarantor, such assets shall have been so conveyed, transferred
or leased as an entirety or virtually as an entirety to one Person; and (iv) the
Company delivers to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and such
Guarantee Agreement, if any, complies with this Indenture. The provisions of
clauses (i) and (ii) above shall not apply to any one or more transactions which
constitute an Asset Disposition if the Company has complied with the applicable
provisions of Section 4.07.
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ARTICLE 6
Defaults and Remedies
Section 6.01. Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in any payment of interest on any Security
when the same becomes due and payable, whether or not such payment shall be
prohibited by Article 10, and such default continues for a period of 30
consecutive days;
(2) the Company (i) defaults in the payment of the principal of any
Security when the same becomes due and payable at its Stated Maturity, upon
optional redemption, upon required purchase, upon declaration of
acceleration or otherwise, whether or not such payment shall be prohibited
by Article 10 or (ii) fails to redeem or purchase Securities when required
pursuant to this Indenture or the Securities, whether or not such
redemption or purchase shall be prohibited by Article 10;
(3) the Company fails to comply with Section 5.01;
(4) the Company fails to comply with Section 4.02, 4.03, 4.04, 4.05,
4.06, 4.07 (other than a failure to purchase Securities when required under
Section 4.07), 4.08, 4.09 (other than a failure to purchase Securities when
required under Section 4.09), 4.10, 4.11, 4.12 or 4.14 and such failure
continues for 30 consecutive days after the notice specified below;
(5) the Company fails to comply with any of its agreements contained
in the Securities or in this Indenture (other than those referred to in
(1), (2), (3) or (4) above) and such failure continues for 60 consecutive
days after the notice specified below;
(6) Indebtedness of the Company (other than Limited Recourse
Production Payments and Non-recourse Purchase Money Indebtedness) is not
paid within any applicable grace period after final maturity or the
maturity of such Indebtedness is accelerated by the holders thereof because
of a default (and such acceleration is not rescinded or annulled) and the
total amount of such Indebtedness unpaid or accelerated exceeds $10.0
million;
(7) the Company or any Significant Subsidiary
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pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
(9) any judgment or decree for the payment of money in an uninsured or
unindemnified amount in excess of $10.0 million or its foreign currency
equivalent at the time is rendered against the Company or a Significant
Subsidiary and is not discharged and either (A) an enforcement proceeding
has been commenced by any creditor upon such judgment or decree or (B)
there is a period of 60 days following the entry of such judgment or decree
during which such judgment or decree is not discharged, waived, bonded or
the execution thereof stayed, in either case 10 days after the notice
specified below; or
(10) any Subsidiary Guarantee ceases or otherwise fails to be in full
force and effect (other than in accordance with the terms of such
Subsidiary Guarantee)
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or any Subsidiary Guarantor denies or disaffirms its obligations under its
Subsidiary Guarantee if such default continues for a period of 10 days
after the notice specified below.
The foregoing will constitute "Events of Default" whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clause (4), (5), (9) or (10) is not an Event of
Default until the Trustee or the Holders of at least 25% in principal amount of
the Securities notify the Company of the Default and the Company does not cure
such Default within the time specified 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".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice, in the form of an Officers' Certificate, of
any Event of Default under clause (3) or (6) and any event which with the giving
of notice or the lapse of time would become an Event of Default under clause
(4), (5), (9) or (10), describing its status and what action the Company is
taking or proposes to take with respect thereto. The Trustee shall not be deemed
to have knowledge of any Default or Event of Default unless one of its Trust
Officers receives written notice thereof from the Company or any of the Holders.
Section 6.02. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(7) or (8) with respect to the
Company) occurs and is continuing, the Trustee by written notice to the Company,
or the Holders of at least 25% in principal amount of the outstanding Securities
by written notice to the Company and the Trustee, may declare the principal of
and accrued but unpaid interest on all the Securities to be due and payable.
Upon such a declaration, such principal and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.01(7) or (8) with
respect to the Company occurs and is continuing, the principal of
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and interest on all the 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 Security holders. The Holders of a majority in principal amount of the
outstanding Securities by written notice to the Trustee may rescind any such
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration. No such rescission shall affect any subsequent Default
or impair any right consequent thereto.
Section 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Past Defaults. The Holders of a majority in
principal amount of the Securities by written notice to the Trustee may waive an
existing or past Default and its consequences except (i) a Default in the
payment of the principal of or interest on a Security or (ii) a Default in
respect of a provision that under Section 9.02 cannot be amended without the
consent of each Securityholder affected. When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right.
Section 6.05. Control by Majority. The Holders of a majority in
principal amount of the outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
63
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to be furnished with
indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
Section 6.06. Limitation on Suits. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice
stating that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the outstanding
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders furnish, if required by the Trustee, to the
Trustee reasonable security or indemnity against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the furnishing of the required security or
indemnity; and
(5) the Holders of a majority in principal amount of the outstanding
Securities do not give the Trustee a direction inconsistent with the
request during such 60- day period.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
Section 6.07. Rights of Holders To Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of, premium (if any) or interest on the Securities held by
such Holder, on or after the respective due dates expressed in the Securities,
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
Section 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together
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with interest on any unpaid interest to the extent lawful) and the amounts
provided for in Section 7.07.
Section 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company or any Subsidiary
Guarantor their respective creditors or their respective property and, unless
prohibited by law or applicable regulations, may vote on behalf of the Holders
in any election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make 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 reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
Section 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness to the extent required by
Article 10 or 12;
THIRD: to Securityholders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such record
date, the Company shall mail to each Securityholder and the Trustee a notice
that states the record date, the payment date and amount to be paid.
Section 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this
65
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than an aggregate of 10%
in principal amount of the Securities.
Section 6.12. Waiver of Stay or Extension Laws. The Company (to the
extent it may lawfully do so) shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE 7
Trustee
Section 7.01. 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:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) 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
66
expressed therein, upon certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture. However, the Trustee
shall examine such certificates and opinions to determine whether or not
they conform to the 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 wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) 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.
(f) 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
advance, expend or risk its own funds or otherwise incur financial liability in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers. The Trustee, however, may so advance or expend its own funds
if, in its own reasonable judgment, the Trustee believes that repayment of such
funds or adequate indemnity against such risk or liability has been reasonably
assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
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(i) Notwithstanding anything to the contrary herein, the Trustee shall
have no duty to review the reports and information documents required to be
provided by Section 4.02 for the purposes of determining compliance with any
provisions of this Indenture.
Section 7.02. Rights of Trustee. (a) The Trustee may rely on any
document 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
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers' 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.
(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; provided, however, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be charged with knowledge of any Default or
Event of Default unless either (1) a Trust Officer shall have actual knowledge
of such Default or Event of Default or (2) written notice of such Default or
Event of Default shall have been given to the Trustee by the Company or any
other obligor on such Securities or by any Holder of the Securities.
Section 7.03. 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 its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
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Section 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in the Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
Section 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any Security
(including payments pursuant to the mandatory redemption provisions of such
Security, if any), the Trustee may withhold the notice if and so long as the
Trust Officer responsible for administering this Indenture and the Securities in
good faith determines that withholding notice is not opposed to the interests of
Securityholders.
Section 7.06. Reports by Trustee to Holders. Within sixty (60) days
after May 15 of each year, beginning with May 15, 2002, the Trustee shall mail
to each Securityholder a brief report dated as of May 15 of such year, that
complies with TIA Section 313(a). The Trustee also shall comply with TIA Section
313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
Section 7.07. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time reasonable compensation for its services, including
extraordinary services such as default administration. 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 or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents, counsel, accountants and experts. The
69
Company shall indemnify the Trustee against any and all loss, liability or
expense (including attorneys' fees) arising out of its acceptance of this trust
or incurred by it in connection with the administration of this trust and the
performance of its duties hereunder, including the costs and expenses of
enforcing this Indenture against the Company (including under Section 7.07). The
Trustee shall notify the Company promptly of any claim (whether asserted by any
Securityholder or the Company) for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee may
have separate counsel and the Company shall pay the fees and expenses of such
counsel. The Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee's own
wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section shall
survive the resignation or removal of the Trustee and the discharge of this
Indenture. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(7) or (8) with respect to the Company, the expenses
are intended to constitute expenses of administration under the Bankruptcy Law.
Section 7.08. Replacement of Trustee. The Trustee may resign at any
time by so notifying the Company. The Holders of a majority in principal amount
outstanding of the Securities may remove the Trustee by so notifying the Trustee
and may appoint a successor Trustee. A holder may petition a court of competent
jurisdiction to remove the Trustee in the manner and under the circumstances
contemplated by TIA Section 310(b)(iii). The Company shall remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
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If the Trustee resigns, is removed by the Company or by the Holders of
a majority in principal amount outstanding of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon 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
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time
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any of the Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the
Securities or in this Indenture provided that the certificate of the Trustee
shall have.
Section 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a). The Trustee shall have a
combined capital and surplus of at least $50.0 million as set forth in its most
recent annual report of condition. The Trustee shall comply with TIA Section
310(b); provided, however, that there shall be excluded from the operation of
TIA Section 310(b)(1) any indenture or indentures under which other securities
or certificates of interest or participation in other securities of the Company
are outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
Section 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
Section 8.01. Discharge of Liability on Securities; Defeasance. (a)
When (i) the Company delivers to the Trustee all outstanding Securities (other
than Securities replaced pursuant to Section 2.07) for cancelation or (ii) all
outstanding Securities have become due and payable, whether at maturity or as a
result of the mailing of a notice of redemption pursuant to Article 3 hereof and
the Company irrevocably deposits with the Trustee funds sufficient to pay at
maturity or upon redemption all outstanding Securities, including interest
thereon to maturity or such redemption date (other than Securities replaced
pursuant to Section 2.07), and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall, subject to Section
8.01(c), cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company.
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(b) Subject to Sections 8.01(c) and 8.02, the Company at any time may
terminate (i) all its obligations under the Securities and this Indenture
("legal defeasance option") or (ii) its obligations under Sections 4.02, 4.03,
4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12 and 4.14 and the operation of
Sections 6.01(4), 6.01(6), 6.01(7) (but only with respect to Significant
Subsidiaries), 6.01(8) (but only with respect to Significant Subsidiaries),
6.01(9) and 6.01(10) and its obligations under Sections 5.01(iii), (iv) and (v)
and under Section 5.02 ("covenant defeasance option"). The Company may exercise
its legal defeasance option notwithstanding its prior exercise of its covenant
defeasance option.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Section 6.01(4),
6.01(6), 6.01(7) (but only with respect to Significant Subsidiaries), 6.01(8)
(but only with respect to Significant Subsidiaries), 6.01(9) or 6.01(10) or
because of the failure of the Company to comply with Section 5.01(iii), (iv) or
(v) or with Section 5.02. If the Company exercises its legal defeasance option
or its covenant defeasance option, each Subsidiary Guarantor will be released
from all its obligations with respect to its Subsidiary Guarantee.
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.07, 7.07, 7.08 and this Article 8
shall survive until the Securities have been paid in full. Thereafter, the
Company's obligations in Sections 7.07, 8.04 and 8.05 shall survive.
Section 8.02. Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal and interest on
the Securities to maturity or redemption, as the case may be;
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(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing its
opinion that the payments of principal of and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all the Securities to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Section 6.01(7) or (8) with respect to the
Company occurs which is continuing at the end of the period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company and is not prohibited by Article 10;
(5) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(6) in the case of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel stating 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 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 Securityholders will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such legal defeasance had not
occurred;
(7) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Security holders will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; and
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(8) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities as contemplated by this Article
8 have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
Section 8.03. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities. Money and securities
so held in trust are not subject to Article 10.
Section 8.04. Repayment to Company. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any money or securities
held by them at any time which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof that would then be
required for the Company to exercise its legal defeasance option or its covenant
defeasance option pursuant to this Article 8.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Company for payment as general creditors.
Section 8.05. Indemnity for Government Obligations. The Company shall
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the principal
and interest received on such U.S. Government Obligations.
Section 8.06. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article 8 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
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Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to this Article 8
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article 8;
provided, however, that, if the Company has made any payment of interest on or
principal of 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.
ARTICLE 9
Amendments
Section 9.01. Without Consent of Holders. The Company, the Subsidiary
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to make any change in Article 10 or 12 that would limit or
terminate the benefits available to any holder of Senior Indebtedness of
the Company or any Subsidiary Guarantor (or Representatives therefor) under
Article 10 or 12;
(5) to add guarantees with respect to the Securities (including any
Subsidiary Guarantee) or to secure the Securities;
(6) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company or the Subsidiary Guarantors;
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(7) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA; or
(8) to make any change that does not adversely affect the rights of
any Securityholder.
An amendment under this Section may not make any change that adversely
affects the rights under Article 10 or 12 of any holder of Senior Indebtedness
of the Company or of a Subsidiary Guarantor then outstanding unless the holders
of such Senior Indebtedness (or any group or representative thereof authorized
to give a consent) consent to such change.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
Section 9.02. With Consent of Holders. The Company, the Subsidiary
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to any Securityholder but with the written consent of the Holders of at
least a majority in principal amount of the Securities. Without the consent of
each Securityholder affected, however, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on
any Security;
(3) reduce the principal of or extend the Stated Maturity of any
Security;
(4) reduce the premium payable upon a required purchase (to the extent
the Company has at the time become obligated by the terms of the Indenture
to effect a required purchase) or the redemption of any Security or change
the time at which any Security may be redeemed in accordance with Article 3
and paragraph 5 of the Securities;
(5) make any Security payable in money other than that stated in the
Security;
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(6) make any change in Article 10 or 12 or that adversely affects the
rights of any Securityholder under Article 10 or 12;
(7) make any change in Section 6.04 or 6.07 or the second sentence of
this Section; or
(8) make any change in any Subsidiary Guarantee that would adversely
affect the Securityholders.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
An amendment under this Section may not make any change that adversely
affects the rights under Article 10 or 12 of any holder of Senior Indebtedness
then outstanding unless the holders of such Senior Indebtedness (or any group or
representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
Section 9.03. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities shall comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents and Waivers. A consent
to an amendment or a waiver by a Holder of a Security shall bind the Holder and
every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent or waiver is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Security
or portion of the Security if the Trustee receives the notice of revocation
before the date the amendment or waiver becomes effective. After an amendment or
waiver becomes effective, it shall bind every Securityholder.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be
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taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders 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 after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
Section 9.05. Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
Section 9.06. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
Section 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid or agreed to be paid to all Holders that so consent, waive or
agree to amend in the time frame set forth in solicitation documents relating to
such consent, waiver or agreement.
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ARTICLE 10
Subordination of the Securities
Section 10.01. Agreement To Subordinate. The Company agrees, and each
Securityholder by accepting a Security agrees, that the Indebtedness evidenced
by the Securities are senior unsecured, general obligations of the Company,
subordinated in right of payment, to the extent and in the manner provided in
this Article 10, to the prior payment of all Senior Indebtedness of the Company,
whether outstanding on the Issue Date or thereafter incurred, including the
Company's obligations under the Credit Agreement, and that the subordination is
for the benefit of and enforceable by the holders of such Senior Indebtedness.
The Securities shall in all respects rank pari passu with all other Senior
Subordinated Indebtedness of the Company, and only Indebtedness of the Company
which is Senior Indebtedness shall rank senior to the Securities in accordance
with the provisions set forth herein. All provisions of this Article 10 shall be
subject to Section 10.12.
Section 10.02. Liquidation, Dissolution, Bankruptcy. Upon any payment
or distribution of the assets of the Company upon a total or partial liquidation
or a total or partial dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property:
(1) subject to the provisions of Section 10.12, holders of Senior
Indebtedness of the Company shall be entitled to receive payment in full of
such Senior Indebtedness before Securityholders shall be entitled to
receive any payment of principal of or interest on the Securities; and
(2) until the Senior Indebtedness of the Company is paid in full, any
payment or distribution to which Securityholders would be entitled but for
this Article 10 shall be made to holders of such Senior Indebtedness as
their interests may appear, except that Securityholders may receive shares
of stock and any debt securities that are subordinated to such Senior
Indebtedness to at least the same extent as the Securities.
Section 10.03. Default on Designated Senior Indebtedness. The Company
may not pay the principal of, premium (if any) or interest on the Securities or
make any deposit pursuant to Section 8.01 and may not repurchase,
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redeem or otherwise retire any Securities (collectively, "pay the Securities")
if (i) any Designated Senior Indebtedness of the Company is not paid when due or
(ii) any other default on Designated Senior Indebtedness of the Company occurs
and the maturity of such Designated Senior Indebtedness is accelerated in
accordance with its terms unless, in either case, (x) the default has been cured
or waived and any such acceleration has been rescinded or (y) such Designated
Senior Indebtedness has been paid in full; provided, however, that the Company
may pay the Securities without regard to the foregoing if the Company and the
Trustee receive written notice approving such payment from the Representative of
the Designated Senior Indebtedness with respect to which either of the events
set forth in clause (i) or (ii) of this sentence has occurred and is continuing.
During the continuance of any default (other than a default described in clause
(i) or (ii) of the preceding sentence) with respect to any Designated Senior
Indebtedness of the Company pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, the Company may not pay the Securities for a period (a "Payment
Blockage Period") commencing upon the receipt by the Trustee (with a copy to the
Company) of written notice (a "Blockage Notice") of such default from the
Representative of the holders of such Designated Senior Indebtedness specifying
an election to effect a Payment Blockage Period and ending 179 days thereafter
(or earlier if such Payment Blockage Period is terminated (i) by written notice
to the Trustee and the Company from the Person or Persons who gave such Blockage
Notice, (ii) because the default giving rise to such Blockage Notice is no
longer continuing or (iii) because such Designated Senior Indebtedness has been
repaid in full). Notwithstanding the provisions described in the immediately
preceding sentence, unless the holders of such Designated Senior Indebtedness
giving such Blockage Notice or the Representative of such holders shall have
accelerated the maturity of such Designated Senior Indebtedness, the Company
shall resume payments on the Securities after the end of such Payment Blockage
Period. The Securities shall not be subject to more than one Payment Blockage
Period in any consecutive 360-day period, irrespective of the number of defaults
with respect to Designated Senior Indebtedness of the Company during such
period. For purposes of this Section, no default or event of default which
existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Designated Senior Indebtedness initiating
such Payment Blockage Period shall be, or be made, the basis of the commencement
of a subsequent Payment Blockage Period by
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the Representative of such Designated Senior Indebtedness, whether or not within
a period of 360 consecutive days, unless such default or event of default shall
have been cured or waived for a period of not less than 90 consecutive days.
Section 10.04. Acceleration of Payment of Securities. If payment of
the Securities is accelerated because of an Event of Default, the Company or the
Trustee (upon receipt of the requisite information from the Company) shall
promptly notify the holders of Designated Senior Indebtedness (or their
Representatives) of the Company of the acceleration.
Section 10.05. When Distribution Must Be Paid Over. If a distribution
is made to Securityholders that because of this Article 10 should not have been
made to them, the Securityholders who receive the distribution shall hold it in
trust for holders of Senior Indebtedness of the Company and pay it over to them
as their interests may appear.
Section 10.06. Subrogation. After all Senior Indebtedness of the
Company is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of such Senior
Indebtedness to receive distributions applicable to such Senior Indebtedness. A
distribution made under this Article 10 to holders of Senior Indebtedness of the
Company which otherwise would have been made to Securityholders is not, as
between the Company and Securityholders, a payment by the Company on such Senior
Indebtedness.
Section 10.07. Relative Rights. This Article 10 defines the relative
rights of Securityholders and holders of Senior Indebtedness of the Company.
Nothing in this Indenture shall:
(1) impair, as between the Company and Security holders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their terms;
or
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness of the Company to receive distributions otherwise
payable to Securityholders.
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Section 10.08. Subordination May Not Be Impaired by Company. No right
of any holder of Senior Indebtedness of the Company to enforce the subordination
of the Indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
Section 10.09. Rights of Trustee and Paying Agent. Notwithstanding
Section 10.03, the Trustee or Paying Agent may continue to make payments on the
Securities and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives notice satisfactory to it that payments may not be made under this
Article 10. The Company, the Registrar or co-registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness may give the notice; provided,
however, that, if an issue of Senior Indebtedness of the Company has a
Representative, only the Representative may give the notice.
The Trustee in its individual or any other capa city may hold Senior
Indebtedness of the Company with the same rights it would have if it were not
Trustee. The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in
this Article 10 with respect to any such Senior Indebtedness which may at any
time be held by it, to the same extent as any other holder of such Senior
Indebtedness; and nothing in Article 7 shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article 10 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07.
Section 10.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness
of the Company, the distribution may be made and the notice given to their
Representative (if any).
Section 10.11. Article 10 Not To Prevent Events of Default or Limit
Right To Accelerate. The failure to make a payment pursuant to the Securities by
reason of any provision in this Article 10 shall not be construed as preventing
the occurrence of a Default. Nothing in this Article 10 shall have any effect on
the right of the Securityholders or the Trustee to accelerate the maturity of
the Securities.
Section 10.12. Trust Moneys Not Subordinated. Notwithstanding anything
contained herein to the contrary,
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payment from the money or the proceeds of U.S. Government Obligations deposited
in trust with the Trustee in accordance with the provisions of Article 8 for the
payment of principal of and interest on the Securities shall not be subordinated
to the prior payment of any Senior Indebtedness of the Company or subject to the
restrictions set forth in this Article 10, and none of the Securityholders shall
be obligated to pay over any such amount to the Company or any holder of such
Senior Indebtedness of the Company or any other creditor of the Company.
Section 10.13. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Security holders or (iii) upon the Representatives for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of such Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 10. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness of the Company to participate
in any payment or distribution pursuant to this Article 10, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and other facts pertinent to the rights of such Person under this Article 10,
and, if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment. The provisions of Sections 7.01 and 7.02 shall be
applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 10.
Section 10.14. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness of
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the Company as provided in this Article 10 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
Section 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness of the Company. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of the Company. The Trustee
undertakes to perform or to observe only such of the covenants and obligations
as are specifically set forth in this Article 10, and no implied covenants or
obligations with respect to such holders of such Senior Indebtedness shall be
implied in this Indenture against the Trustee.
Section 10.16. Reliance by Holders of Senior Indebtedness of the
Company on Subordination Provisions. Each Securityholder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness of the Company, whether such Senior Indebtedness was created or
acquired before or after the issuance of the Securities, to acquire and continue
to hold, or to continue to hold, such Senior Indebtedness and such holder of
such Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
ARTICLE 11
Subsidiary Guarantees
Section 11.01. Subsidiary Guarantees. Each Subsidiary Guarantor,
jointly and severally, as primary obligor and not merely as surety, hereby
irrevocably, fully and unconditionally Guarantees on a senior subordinated basis
to each Holder and to the Trustee and its successors and assigns (a) the full
and punctual payment of principal of and interest on the Securities when due,
whether at Stated Maturity, by acceleration, by redemption or otherwise, and all
other monetary obligations of the Company under this Indenture and the
Securities and (b) the full and punctual performance within applicable grace
periods of all other obligations of the Company under this Indenture and the
Securities (all the foregoing obligations hereinafter collectively called the
"Guaranteed Obligations"). Each Subsidiary Guarantor further agrees that the
Guaranteed Obligations may be extended or renewed, in whole or in part, without
notice or further assent from such Subsidiary Guarantor, and that such
Subsidiary Guarantor shall remain
85
bound under this Article 11 notwithstanding any extension or renewal of any such
Guaranteed Obligation.
Each Subsidiary Guarantor waives presentation to, demand of, payment
from and protest to the Company of any of the Guaranteed Obligations and also
waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice
of any default under the Securities or the Guaranteed Obligations. The
obligations of each Subsidiary Guarantor hereunder shall not be affected by (a)
the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Company or any other Person under this
Indenture, the Securities or any other agreement or otherwise; (b) any extension
or renewal of any thereof; (c) any rescission, waiver, amendment or modification
of any of the terms or provisions of this Indenture, the Securities or any other
agreement; (d) the release of any security held by any Holder or the Trustee for
the Guaranteed Obligations or any of them; (e) the failure of any Holder or
Trustee to exercise any right or remedy against any other guarantor of the
Guaranteed Obligations; or (f) except as provided in Section 11.06, any change
in the ownership of such Subsidiary Guarantor.
Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee
herein constitutes a Guarantee of payment, performance and compliance when due
(and not a Guarantee of collection) and waives any right to require that any
resort be had by any Holder or the Trustee to any security held for payment of
the Guaranteed Obligations.
Each Subsidiary Guarantee is, to the extent and manner set forth in
Article 12, subordinated and subject in right of payment to the prior payment in
full in cash or cash equivalents of all Senior Indebtedness of the Subsidiary
Guarantor giving such Subsidiary Guarantee and each Subsidiary Guarantee is
hereby made subject to such provisions of this Indenture.
Except as expressly set forth in Sections 8.01(b), 11.02 and 11.06,
the obligations of each Subsidiary Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Subsidiary Guarantor herein shall not be
discharged or impaired or otherwise affected by the failure
86
of any Holder or the Trustee to assert any claim or demand or to enforce any
remedy under this Indenture, the Securities or any other agreement, by any
waiver or modification of any thereof, by any default, failure or delay, wilful
or otherwise, in the performance of the Guaranteed Obligations, or by any other
act or thing or omission or delay to do any other act or thing which may or
might in any manner or to any extent vary the risk of such Subsidiary Guarantor
or would otherwise operate as a discharge of such Subsidiary Guarantor as a
matter of law or equity.
Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal of or interest on any Guaranteed
Obligation is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay
the principal of or interest on any Guaranteed Obligation when and as the same
shall become due, whether at maturity, by acceleration, by redemption or
otherwise, or to perform or comply with any other Guaranteed Obligation, each
Subsidiary Guarantor shall, upon receipt of written demand by the Trustee,
forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an
amount equal to the sum of (i) the unpaid principal amount of such Guaranteed
Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations
(but only to the extent not prohibited by law) and (iii) all other monetary
Guaranteed Obligations of the Company to the Holders and the Trustee.
Each Subsidiary Guarantor agrees that it shall not be entitled to any
right of subrogation in respect of any Guaranteed Obligations guaranteed hereby
until payment in full of all Guaranteed Obligations and all obligations to which
the Guaranteed Obligations are subordinated as provided in Article 12. Each
Subsidiary Guarantor further agrees that, as between it, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
Guaranteed Obligations Guaranteed hereby may be accelerated as provided in
Article 6 for the purposes of such Subsidiary Guarantor's Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations Guaranteed hereby, and (y)
in the event of any declaration of acceleration of
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such Guaranteed Obligations as provided in Article 6, such Guaranteed
Obligations (whether or not due and payable) shall forthwith become due and
payable by such Subsidiary Guarantor for the purposes of this Section.
Each Subsidiary Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under this Section.
SECTION 11.02. Limitation on Liability. Any term or provision of this
Indenture to the contrary notwithstanding, the maximum, aggregate amount of the
obligations guaranteed hereunder by any Subsidiary Guarantor shall not exceed
the maximum amount that can be hereby guaranteed without rendering this
Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable
law relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
Section 11.03. Successors and Assigns. This Article 11 shall be
binding upon each Subsidiary Guarantor and its successors and assigns and shall
enure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
Section 11.04. No Waiver. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article 11 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 11 at law,
in equity, by statute or otherwise.
Section 11.05. Modification. No modification, amendment or waiver of
any provision of this Article 11, nor the consent to any departure by any
Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall
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entitle such Subsidiary Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
SECTION 11.06. Release of Subsidiary Guarantor. This Subsidiary
Guarantee as to any Subsidiary Guarantor shall terminate and be of no further
force or effect (i) upon the sale (including any sale pursuant to any exercise
of remedies by a holder of Senior Indebtedness of such Subsidiary Guarantor) or
other disposition (including by way of consolidation or merger) of such
Subsidiary Guarantor or (ii) upon the sale or disposition of all or
substantially all of the assets of such Subsidiary Guarantor, in each case other
than to the Company or an Affiliate of the Company; provided, however, that such
sale or transfer shall be deemed to constitute an Asset Disposition and the
Company shall comply with all applicable provisions of Section 4.06 with respect
to such Asset Disposition.
ARTICLE 12
Subordination of Subsidiary Guarantees
Section 12.01. Agreement To Subordinate. Each Subsidiary Guarantor
agrees, and each Securityholder by accepting a Security agrees, that the
Obligations of such Subsidiary Guarantor under its Subsidiary Guarantee are
subordinated in right of payment, to the extent and in the manner provided in
this Article 12, to the prior payment in full in cash or cash equivalents of all
Senior Indebtedness of such Subsidiary Guarantor and that the subordination is
for the benefit of and enforceable by the holders of such Senior Indebtedness.
The Obligations of each Subsidiary Guarantor under its Subsidiary Guarantee
shall in all respects rank pari passu with all other Senior Subordinated
Indebtedness of such Subsidiary Guarantor and only Senior Indebtedness of such
Subsidiary Guarantor (including such Subsidiary Guarantor's Guarantees of Senior
Indebtedness of the Company) shall rank senior to the Subsidiary Guarantee of
such Subsidiary Guarantor in accordance with the provisions set forth herein.
Section 12.02. Liquidation, Dissolution, Bankruptcy. Upon any payment
or distribution of the assets of any Subsidiary Guarantor to creditors upon a
total or partial liquidation or a total or partial dissolution of such
Subsidiary Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Subsidiary Guarantor or its
property:
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(1) holders of Senior Indebtedness of such Subsidiary Guarantor shall
be entitled to receive payment in full of such Senior Indebtedness in cash
or cash equivalents before Securityholders shall be entitled to receive any
payment pursuant to the Subsidiary Guarantee of such Subsidiary Guarantor;
and
(2) until the Senior Indebtedness of such Subsidiary Guarantor is paid
in full in cash or cash equivalents, any distribution to which
Securityholders would be entitled but for this Article 12 shall be made to
holders of such Senior Indebtedness as their interests may appear, except
that Securityholders may receive shares of stock and any debt securities of
such Subsidiary Guarantor that are subordinated to Senior Indebtedness, and
to any debt securities received by holders of Senior Indebtedness, of such
Subsidiary Guarantor to at least the same extent as the Subsidiary
Guarantee of such Subsidiary Guarantor are subordinated to Senior
Indebtedness of such Subsidiary Guarantor.
Section 12.03. Default on Designated Senior Indebtedness of Subsidiary
Guarantor. No Subsidiary Guarantor may make any payment pursuant to its
Subsidiary Guarantee or repurchase, redeem or otherwise retire or defease any
Securities or other Obligations (collectively, "pay its Subsidiary Guarantee")
if (i) any Designated Senior Indebtedness of such Subsidiary Guarantor is not
paid when due or (ii) any other default on Designated Senior Indebtedness of
such Subsidiary Guarantor occurs and the maturity of such Designated Senior
Indebtedness is accelerated in accordance with its terms unless, in either case,
(x) the default has been cured or waived and any such acceleration has been
rescinded or (y) such Designated Senior Indebtedness has been paid in full;
provided, however, that such Subsidiary Guarantor may pay its Subsidiary
Guarantee without regard to the foregoing if such Subsidiary Guarantor and the
Trustee receive written notice approving such payment from the Representative of
the Designated Senior Indebtedness with respect to which either of the events
set forth in clause (i) or (ii) of this sentence has occurred and is continuing.
During the continuance of any default (other than a default described in clause
(i) or (ii) of the preceding sentence) with respect to any Designated Senior
Indebtedness of such Subsidiary Guarantor pursuant to which the maturity thereof
may be accelerated immediately without further notice (except such notice as may
be required to effect such
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acceleration) or the expiration of any applicable grace periods, such Subsidiary
Guarantor may not pay its Guarantee for a period (a "Subsidiary Guarantor
Payment Blockage Period") commencing upon the receipt by the Trustee (with a
copy to such Subsidiary Guarantor) of written notice (a "Subsidiary Guarantor
Blockage Notice") of such default from the Representative of the holders of such
Designated Senior Indebtedness specifying an election to effect a Subsidiary
Guarantor Payment Blockage Period and ending 179 days thereafter (or earlier if
such Subsidiary Guarantor Payment Blockage Period is terminated (i) by written
notice to the Trustee and such Subsidiary Guarantor from the Person or Persons
who gave such Subsidiary Guarantor Blockage Notice, (ii) because the default
giving rise to such Subsidiary Guarantor Blockage Notice is no longer continuing
or (iii) because such Designated Senior Indebtedness has been repaid in full).
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the provisions contained in the first sentence of this Section),
unless the holders of Designated Senior Indebtedness giving such Subsidiary
Guarantor Blockage Notice or the Representative of such holders shall have
accelerated the maturity of such Designated Senior Indebtedness, such Subsidiary
Guarantor shall resume payments pursuant to its Subsidiary Guarantee after the
end of such Subsidiary Guarantor Payment Blockage Period. A Subsidiary Guarantee
shall not be subject to more than one Subsidiary Guarantor Payment Blockage
Period in any consecutive 360-day period, irrespective of the number of defaults
with respect to Designated Senior Indebtedness of such Subsidiary Guarantor
during such period. For purposes of this Section, no default or event of default
which existed or was continuing on the date of the commencement of any
Subsidiary Guarantor Payment Blockage Period with respect to the Designated
Senior Indebtedness initiating such Subsidiary Guarantor Payment Blockage Period
shall be, or be made, the basis of the commencement of a subsequent Subsidiary
Guarantor Payment Blockage Period by the Representative of such Designated
Senior Indebtedness, whether or not within a period of 360 consecutive days,
unless such default or event of default shall have been cured or waived for a
period of not less than 90 consecutive days.
Section 12.04. Demand for Payment. If a demand for payment is made on
a Subsidiary Guarantor pursuant to Article 11, the Trustee shall promptly notify
the holders of the Designated Senior Indebtedness (or their Representatives) of
such Subsidiary Guarantor of such demand.
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Section 12.05. When Distribution Must Be Paid Over. If a distribution
is made to Securityholders that because of this Article 12 should not have been
made to them, the Securityholders who receive the distribution shall hold it in
trust for holders of the relevant Senior Indebtedness and pay it over to them or
their Representative as their interests may appear.
Section 12.06. Subrogation. After all Senior Indebtedness of a
Subsidiary Guarantor is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of such Senior
Indebtedness to receive distributions applicable to Senior Indebtedness. A
distribution made under this Article 12 to holders of such Senior Indebtedness
which otherwise would have been made to Securityholders is not, as between the
relevant Subsidiary Guarantor and Securityholders, a payment by such Subsidiary
Guarantor on such Senior Indebtedness.
Section 12.07. Relative Rights. This Article 12 defines the relative
rights of Securityholders and holders of Senior Indebtedness of a Subsidiary
Guarantor. Nothing in this Indenture shall:
(1) impair, as between such Subsidiary Guarantor and Securityholders,
the obligation of such Subsidiary Guarantor, which is absolute and
unconditional, to pay the Obligations to the extent set forth in Article
11; or
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a default by such Subsidiary Guarantor under its
Subsidiary Guarantee, subject to the rights of holders of Senior
Indebtedness of such Subsidiary Guarantor to receive distributions
otherwise payable to Securityholders.
Section 12.08. Subordination May Not Be Impaired by Subsidiary
Guarantor. No right of any holder of Senior Indebtedness of any Subsidiary
Guarantor to enforce the subordination of the Obligations of such Subsidiary
Guarantor shall be impaired by any act or failure to act by such Subsidiary
Guarantor or by its failure to comply with this Indenture.
Section 12.09. Rights of Trustee and Paying Agent. Notwithstanding
Section 12.03, the Trustee or Paying Agent may continue to make payments
pursuant to any Subsidiary Guarantee and shall not be charged with knowledge of
the existence of facts that would prohibit the making of any such payments
unless, not less than two Business Days
92
prior to the date of such payment, a Trust Officer of the Trustee receives
written notice satisfactory to it that payments may not be made under this
Article 12. The Company, such Subsidiary Guarantor, the Registrar or co-
registrar, the Paying Agent, a Representative or a holder of Senior Indebtedness
of such Subsidiary Guarantor may give the notice; provided, however, that, if an
issue of Senior Indebtedness of such Subsidiary Guarantor has a Representative,
only the Representative may give the notice.
The Trustee in its individual or any other capa city may hold Senior
Indebtedness of any Subsidiary Guarantor with the same rights it would have if
it were not Trustee. The Registrar and co-registrar and the Paying Agent may do
the same with like rights. The Trustee shall be entitled to all the rights set
forth in this Article 12 with respect to any Senior Indebtedness of any
Subsidiary Guarantor which may at any time be held by it, to the same extent as
any other holder of such Senior Indebtedness of such Subsidiary Guarantor; and
nothing in Article 7 shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article 12 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
Section 12.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness
of any Subsidiary Guarantor, the distribution may be made and the notice given
to their Representative (if any).
Section 12.11. Article 12 Not To Prevent Defaults Under a Subsidiary
Guarantee or Limit Right To Demand Payment. The failure to make a payment
pursuant to a Subsidiary Guarantee by reason of any provision in this Article 12
shall not be construed as preventing the occurrence of a default under such
Subsidiary Guarantee. Nothing in this Article 12 shall have any effect on the
right of the Securityholders or the Trustee to make a demand for payment on any
Subsidiary Guarantor pursuant to its Subsidiary Guarantee.
Section 12.12. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 12, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section
12.02 are pending, (ii) upon a certificate of the liquidating trustee or agent
or other Person making such payment or distribution to the Trustee or to the
Security holders or (iii) upon the Representative for the holders of Senior
Indebtedness of any Subsidiary Guarantor for the
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purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of such Senior Indebtedness and other Indebtedness of
such Subsidiary Guarantor, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article 12. In the event that the Trustee determines, in good faith, that
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness of such Subsidiary Guarantor to participate in any payment
or distribution pursuant to this Article 12, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness of such Subsidiary Guarantor held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article 12, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The provisions of Sections 7.01 and 7.02 shall
be applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 12.
Section 12.13. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to acknowledge
or effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness of any Subsidiary Guarantor as provided in this Article 12
and appoints the Trustee as attorney-in-fact for any and all such purposes.
Section 12.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness of Subsidiary Guarantor. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of any Subsidiary Guarantor
and shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Securityholders or the Company or any other Person, money or
assets to which any holders of such Senior Indebtedness shall be entitled by
virtue of this Article 12 or otherwise.
Section 12.15. Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Security holder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness of any Subsidiary Guarantor, whether such Senior Indebtedness was
created or acquired before or after the issuance of the Securities, to acquire
and
94
continue to hold, or to continue to hold, such Senior Indebtedness and such
holder of Senior Indebtedness shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness.
ARTICLE 13
Miscellaneous
Section 13.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
Section 13.02. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company or any Subsidiary Guarantor:
Denbury Resources Inc.
5100 Tennyson Parkway, Suite 3000
Plano, Texas 775024
Attention of Corporate Secretary
if to the Trustee:
The Chase Manhattan Bank
600 Travis Street, Suite 1150
Houston, Texas 77002
Attention of Global Trust Services
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 mailed to a Securityholder shall be mailed
to the Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
95
above, it is duly given, whether or not the addressee receives it.
Section 13.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
Section 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee 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
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 13.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(2) 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;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
96
Any Officers' Certificate may be based, insofar as it relates to legal matters,
upon an Opinion of Counsel, unless any such Officer knows or in the exercise of
reasonable care should have known that such Opinion of Counsel is erroneous. Any
Opinion of Counsel may be based, insofar as it relates to factual matters,
information with respect to which is in possession of the Company, upon an
Officers' Certificate, unless such counsel knows or in the exercise of
reasonable care should have known that such Officers' Certificate is erroneous.
Section 13.06. When Securities Disregarded. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee actually knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities outstanding at the
time shall be considered in any such determination.
Section 13.07. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Securityholders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
Section 13.08. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions are not required to be open in the
State of New York or in the State of Texas. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue with respect to such payment for the
intervening period. If a regular record date is a Legal Holiday, the record date
shall not be affected.
Section 13.09. Governing Law. This Indenture and the Securities shall
be governed by, and construed in accordance with, the laws of the State of New
York but without giving effect to applicable principles of conflicts of law to
the extent that the application of the laws of another jurisdiction would be
required thereby.
Section 13.10. 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 this Indenture or for
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any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
Section 13.11. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
Section 13.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
Section 13.13. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
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 13.14. Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
DENBURY RESOURCES INC.,
by /s/ PHIL RYKHOEK
-----------------------------------
Name: Phil Rykhoek
Title: Chief Financial
Officer and Secretary
SUBSIDIARY GUARANTORS:
DENBURY ENERGY SERVICES, INC.,
by /s/ PHIL RYKHOEK
-----------------------------------
Name: Phil Rykhoek
Title: Chief Financial
Officer and Secretary
DENBURY MARINE, L.L.C.,
by /s/ PHIL RYKHOEK
-----------------------------------
Name: Phil Rykhoek
Title: Chief Financial
Officer and Secretary
DENBURY OFFSHORE, INC.,
by /s/ PHIL RYKHOEK
-----------------------------------
Name: Phil Rykhoek
Title: Chief Financial
Officer and Secretary
TRUSTEE:
THE CHASE MANHATTAN BANK,
as Trustee
by /s/ MAURI J. COWEN
-----------------------------------
Name: Mauri J. Cowen
Title: Vice President and
Trust Officer
APPENDIX A
PROVISIONS RELATING TO INITIAL SECURITIES,
EXCHANGE SECURITIES
AND PRIVATE EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Temporary Regulation S Global Security or beneficial
interest therein, the rules and procedures of the Depository, Euroclear,
Clearstream and Cedel for such a Temporary Regulation S Global Security, in each
case to the extent applicable to such transaction and as in effect from time to
time.
"Cedel" means Cedel Bank, S.A., or any successor securities clearing
agency.
"Clearstream" means Clearstream Banking, societe anonyme, or any
successor securities clearing agency.
"Definitive Security" means a certificated Initial Security or
Exchange Security or Private Exchange Security bearing, if required, the
restricted securities legend set forth in Section 2.3(e).
"Depository" means The Depository Trust Company, its nominees and
their respective successors.
"Distribution Compliance Period", with respect to any 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 under the Securities Act) in reliance
on Regulation S and (ii) the date on which such Securities are issued.
"Euroclear" means the Euroclear Clearance System or any successor
securities clearing agency.
"Exchange Securities" means (1) the 9% Series B Senior Subordinated
Notes Due 2008 to be issued pursuant to this Indenture in connection with a
Registered Exchange Offer pursuant to the Registration Agreement and (2)
Additional Securities, if any, issued pursuant to a registration statement filed
with the SEC under the Securities Act.
"Initial Purchasers" means (1) with respect to the Initial Securities
issued on the Issue Date, Credit Suisse
2
First Boston Corporation, Banc of America Securities LLC and Lehman Brothers
Inc. and (2) with respect to each issuance of Additional Securities, the Persons
purchasing such Additional Securities under the related Purchase Agreement.
"Initial Securities" means (1) $75,000,000 aggregate principal amount
of 9% Series B Senior Subordinated Notes Due 2008 issued under this Indenture on
the Issue Date and (2) Additional Securities, if any, issued in a transaction
exempt from the registration requirements of the Securities Act.
"Private Exchange" means the offer by the Company, pursuant to a
Registration Agreement, to the Initial Purchasers to issue and deliver to each
Initial Purchaser, in exchange for the Initial Securities held by the Initial
Purchaser as part of its initial distribution, a like aggregate principal amount
of Private Exchange Securities.
"Private Exchange Securities" means any 9% Series B Senior
Subordinated Notes Due 2008 issued in connection with a Private Exchange.
"Purchase Agreement" means (1) with respect to the Initial Securities
issued on the Issue Date, the Purchase Agreement dated August 8, 2001, among the
Company, the Subsidiary Guarantors and the Initial Purchasers and (2) with
respect to each issuance of Additional Securities, the purchase agreement or
underwriting agreement among the Company and the Persons purchasing such
Additional Securities.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registered Exchange Offer" means the offer by the Company, pursuant
to a Registration Agreement, to certain Holders of Initial Securities, to issue
and deliver to such Holders, in exchange for the Initial Securities, a like
aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Agreement" means (1) with respect to the Initial
Securities issued on the Issue Date, the Registration Rights Agreement dated
August 8, 2001, among the Company, the Subsidiary Guarantors and the Initial
Purchasers and (2) with respect to each issuance of Additional Securities issued
in a transaction exempt from the registration requirements of the Securities
Act, the registration rights agreement, if any, among the Company and the
Persons purchasing such Additional Securities under the related Purchase
Agreement.
3
"Rule 144A Securities" means all Initial Securities offered and sold
to QIBs in reliance on Rule 144A.
"Securities" means the Initial Securities, the Exchange Securities and
the Private Exchange Securities, treated as a single class.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a Global
Security (as appointed by the Depository), or any successor person thereto and
shall initially be the Trustee.
"Shelf Registration Statement" means the registration statement issued
by the Company in connection with the offer and sale of Initial Securities or
Private Exchange Securities pursuant to a Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities and any
other Securities that bear or are required to bear the legend set forth in
Section 2.3(e) hereto.
1.2 Other Definitions
Defined in
Term Section:
---- ----------
"Agent Members"..........................................2.1(b)
"Global Security"........................................2.1(a)
"Permanent Regulation S Global Security".................2.1(a)
"Regulation S"...........................................2.1(a)
"Rule 144A"..............................................2.1(a)
"Rule 144A Global Security"..............................2.1(a)
"Temporary Regulation S Global Security".................2.1(a)
2. The Securities
2.1 (a) Form and Dating. The Initial Securities will be offered and sold by
the Company, from time to time, pursuant to one or more Purchase Agreements. The
Initial Securities will be resold initially only to QIBs in reliance on Rule
144A under the Securities Act ("Rule 144A") and in reliance on Regulation S
under the Securities Act ("Regulation S"). Initial Securities may thereafter be
transferred to, among others, QIBs and purchasers in reliance
4
on Regulation S, subject to the restrictions on transfer set forth herein.
Initial Securities initially resold pursuant to Rule 144A 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
Initial Securities initially resold pursuant to Regulation S shall be issued
initially in the form of one or more temporary global securities in definitive,
fully registered form (collectively, the "Temporary Regulation S Global
Security"), in each case without interest coupons and with the global securities
legend and restricted securities legend set forth in Exhibit 1 hereto, which
shall be deposited on behalf of the purchasers of the Initial Securities
represented thereby with the Securities Custodian, and registered in the name of
the Depository or a nominee of the Depository, duly executed by the Company and
authenticated by the Trustee as provided in this Indenture. Beneficial ownership
interests in the Temporary Regulation S Global Security will not be exchangeable
for interests in the Rule 144A Global Security, a permanent global security (the
"Permanent Regulation S Global Security"), or any other Security without a
legend containing restrictions on transfer of such Security prior to the
expiration of the Distribution Compliance Period and then only upon
certification in form reasonably satisfactory to the Trustee that beneficial
ownership interests in such Temporary Regulation S Global Security are owned
either by non-U.S. persons or U.S. persons who purchased such interests in a
transaction that did not require registration under the Securities Act. The Rule
144A Global Security, the Temporary Regulation S Global Security and the
Permanent Regulation S Global Security 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 Depository or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a
Global Security deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(b), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depository for such
Global Security or Global Securities or the nominee of such Depository and (b)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instructions or held by the Trustee as custodian for the
Depository.
5
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository or by the Trustee as the custodian of the
Depository or under such Global Security, and the Company, the Trustee and any
agent of the Company or the Trustee shall be entitled to treat the Depository 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 Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(c) Definitive Securities. Except as provided in Section 2.3 or 2.4,
owners of beneficial interests in Global Securities shall not be entitled to
receive physical delivery of Definitive Securities.
2.2 Authentication. The Trustee shall authenticate and deliver: (1) on the
Issue Date, an aggregate principal amount of $75,000,000 9% Series B Senior
Subordinated Notes Due 2008, (2) any Additional Securities for an original issue
in an aggregate principal amount specified in the written order of the Company
pursuant to Section 2.02 of the Indenture and (3) Exchange Securities or Private
Exchange Securities for issue only in a Registered Exchange Offer or a Private
Exchange, respectively, pursuant to a Registration Agreement, for a like
principal amount of Initial Securities, upon a written order of the Company
signed by two Officers or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company. Such order shall specify the amount of the
Securities to be authenticated, the date on which the original issue of
Securities is to be authenticated and whether the Securities are to be Initial
Securities, Exchange Securities or Private Exchange Securities. In the case of
any issuance of Additional Securities pursuant to Section 2.13 of the Indenture,
such order shall certify that such issuance is in compliance with Section 4.03
of the Indenture.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar or a
co-registrar with a request:
(x) to register the transfer of such Definitive
Securities; or
(y) to exchange such Definitive Securities for an
6
equal principal amount of Definitive Securities of other authorized
denominations,
the Registrar or co-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:
(i) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar
or co- registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing; and
(ii) if such Definitive Securities are required to bear a restricted
securities legend, they are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act, pursuant to
Section 2.3(b) or pursuant to clause (A), (B) or (C) below, and are
accompanied by the following additional information and documents, as
applicable:
(A) if such Definitive Securities are being delivered to the
Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect; or
(B) if such Definitive Securities are being transferred to the
Company, a certification to that effect; or
(C) if such Definitive Securities are being transferred (x)
pursuant to an exemption from registration in accordance with Rule
144A, Regulation S or Rule 144 under the Securities Act; or (y) in
reliance upon another exemption from the requirements of the
Securities Act: (i) a certification to that effect (in the form set
forth on the reverse of the 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 2.3(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 Rule 144A Global Security or a Permanent Regulation S
Global Security except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Definitive
7
Security, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Trustee, together with:
(i) certification, in the form set forth on the reverse of the
Security, that such Definitive Security is either (A) being transferred to
a QIB in accordance with Rule 144A or (B) is being transferred after
expiration of the "distribution compliance period" of Regulation S by a
Person who initially purchased such Security in reliance on Regulation S to
a buyer who elects to hold its interest in such security in the form of a
beneficial interest in the Permanent Regulation S Security; 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 Rule 144A Global Security (in the case of a transfer
pursuant to clause (b)(i)(A)) or Permanent Regulation S Security (in the
case of a transfer pursuant to clause (b)(i)(B)) to reflect an increase in
the aggregate principal amount of the Securities represented by the Rule
144A Global Security or Permanent Regulation S Security, as applicable,
such instructions to contain information regarding the Depository 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 Depository and the Securities Custodian, the
aggregate principal amount of Securities represented by the Rule 144A Global
Security or Permanent Regulation S Security, as applicable, 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 Rule 144A Global Security or
Permanent Regulation S Security, as applicable, equal to the principal amount of
the Definitive Security so canceled. If no Rule 144A Global Securities or
Permanent Regulation S Securities, as applicable, are then outstanding, the
Company shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officers' Certificate, a new Rule 144A Global
Security or Permanent Regulation S Security, as applicable, in the appropriate
principal amount.
(c) Transfer and Exchange of Global Securities.
8
(i) The transfer and exchange of Global Securities or beneficial
interests therein shall be effected through the Depository, in accordance
with this Indenture (including applicable restrictions on transfer set
forth herein, if any) and the procedures of the Depository therefor. A
transferor of a beneficial interest in a Global Security shall deliver to
the Registrar a written order given in accordance with the Depository's
procedures containing information regarding the participant account of the
Depository to be credited with a beneficial interest in the Global
Security. The Registrar shall, in accordance with such instructions
instruct the Depository to credit to the account of the Person specified in
such instructions a beneficial interest in the Global Security and to debit
the account of the Person making the transfer the beneficial interest in
the Global Security being transferred.
(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 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 the Global Security from which such interest is being
transferred.
(iii) Notwithstanding any other provisions of this Appendix A (other
than the provisions set forth in Section 2.4), a Global Security may not be
transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(iv) In the event that a Global Security is exchanged for Definitive
Securities pursuant to Section 2.4 prior to the consummation of a
Registered Exchange Offer or the effectiveness of a 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 2.3 (including the certification
requirements set forth on the reverse of the Initial Securities intended to
ensure that such transfers comply with Rule 144A or Regulation S, as the
case may be) and such other procedures as may from time to time be adopted
by the Company.
9
(d) Restrictions on Transfer of Temporary Regulation S Global
Securities. During the Distribution Compliance Period, beneficial ownership
interests in Temporary Regulation S Global Securities may only be sold, pledged
or transferred through Euroclear, Clearstream or Cedel in accordance with the
Applicable Procedures and only (i) to the Company, (ii) 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, (iii) in an offshore transaction in
accordance with Regulation S or (iv) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 (if applicable) under the
Securities Act, in each case in accordance with any applicable securities laws
of any state of the United States.
(e) Legend.
(i) Except as permitted by the following paragraphs (ii), (iii) and
(iv), 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:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS
SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
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.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO THE COMPANY, (II) INSIDE THE UNITED STATES TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE
THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144
10
THEREUNDER (IF AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V)
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
Each Definitive Security will also bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
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
(including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act, the Registrar
shall permit the transferee thereof to exchange such Transfer Restricted
Security for a certificated Security that does not bear the legend set
forth above and rescind any restriction on the transfer of such Transfer
Restricted Security, if the transferor thereof certifies in writing to the
Registrar that such sale or transfer was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Security).
(iii) After a transfer of any Initial Securities or Private Exchange
Securities pursuant to and during the period of the effectiveness of a
Shelf Registration Statement with respect to such Initial Securities or
Private Exchange Securities, as the case may be, all requirements
pertaining to legends on such Initial Securities or such Private Exchange
Securities will cease to apply, the requirements that Initial Securities or
Private Exchange Securities issued to certain Holders be issued in global
form will cease to apply to such Initial Securities or Private Exchange
Securities, and certificated Initial Securities or Private Exchange
Securities or Initial Securities or Private Exchange Securities in global
form, in each case without restrictive transfer legends, will be available
to the transferee of the Holder of such Initial Securities or Private
Exchange Securities upon exchange of such transferring Holder's
certificated Initial Securities or Private Exchange Securities or
directions to transfer such Holder's interest in the Global Security, as
applicable.
11
(iv) Upon the consummation of a Registered Exchange Offer with respect
to the Initial Securities, all requirements pertaining to such Initial
Securities that Initial Securities issued to certain Holders be issued in
global form will still apply with respect to Holders of such Initial
Securities that do not exchange their Initial Securities, and Exchange
Securities in certificated or global form will be available to Holders that
exchange such Initial Securities in such Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect to the
Initial Securities pursuant to which Holders of such Initial Securities are
offered Private Exchange Securities in exchange for their Initial
Securities, all requirements pertaining to such Initial Securities that
Initial Securities issued to certain Holders be issued in global form will
still apply with respect to Holders of such Initial Securities that do not
exchange their Initial Securities, and Private Exchange Securities in
global form with the global securities legend and the restricted securities
legend set forth in Exhibit 1 hereto will be available to Holders that
exchange such Initial Securities in such Private Exchange.
(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, redeemed, repurchased or canceled, such Global Security
shall be returned to the Depository 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 certificated Securities, 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
shall execute and the Trustee shall authenticate certificated Securities
and Global Securities at the Registrar's or co-registrar's request.
12
(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 3.06, 4.09 and 9.05 of the Indenture).
(iii) The Registrar or co-registrar shall not be required to register
the transfer of or exchange of (a) any Definitive Security selected for
redemption in whole or in part pursuant to Article 3 of this Indenture,
except the unredeemed portion of any Definitive Security being redeemed in
part, or (b) any Security for a period beginning 15 Business Days before
the mailing of a notice of an offer to repurchase or redeem Securities or
15 Business Days before an interest payment date.
(iv) Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent, the Registrar or any
co-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, the Registrar or any
co-registrar shall be affected by notice to the contrary.
(v) All Securities issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this 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
Depository or other Person with respect to the accuracy of the records of
the Depository 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 Depository) of any notice (including any notice of
redemption) 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
13
payments to be made to Holders under the Securities shall be given or made
only to or upon the order of the registered Holders (which shall be the
Depository 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 Depository subject to the applicable rules and procedures of the
Depository. The Trustee may rely and shall be fully protected in relying
upon information furnished by the Depository with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no 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 Depository 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.
2.4 Definitive Securities.
(a) A Global Security deposited with the Depository or with the
Trustee as Securities Custodian for the Depository pursuant to Section 2.1 shall
be transferred to the beneficial owners thereof in the form of Definitive
Securities in an aggregate principal amount equal to the principal amount of
such Global Security, in exchange for such Global Security, only if such
transfer complies with Section 2.3 and (i) the Depository notifies the Company
that it is unwilling or unable to continue as Depository for such Global
Security or if at any time such Depository ceases to be a "clearing agency"
registered under the Exchange Act and a successor Depository is not appointed by
the Company within 90 days of such notice, or (ii) an Event of Default has
occurred and is continuing or (iii) the Company, in its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
Definitive Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section shall be surrendered by the Depository to the
Trustee located at its corporate trust office in the Borough of Manhattan, The
City of New York, or in Dallas, Texas, to be so transferred, in whole or from
time to time in part, without charge, and the Trustee shall authenticate and
deliver, upon such transfer of
14
each portion of such Global Security, an equal aggregate principal amount of
Definitive Securities of authorized denominations. Any portion of a Global
Security transferred pursuant to this Section shall be executed, authenticated
and delivered only in denominations of $1,000 principal amount and any integral
multiple thereof and registered in such names as the Depository shall direct.
Any Definitive Security delivered in exchange for an interest in the Global
Security shall, except as otherwise provided by Section 2.3(e), bear the
restricted securities legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b), the registered Holder
of a Global Security shall be entitled to 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 this
Indenture or the Securities.
(d) In the event of the occurrence of either of the events specified
in Section 2.4(a), the Company shall promptly make available to the Trustee a
reasonable supply of Definitive Securities in definitive, fully registered form
without interest coupons.
EXHIBIT 1 TO APPENDIX A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. 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.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I)
TO THE COMPANY, (II) INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (III) OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE
904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (V)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE
2
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
[Temporary Regulation S Global Security Legend]
[BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE RULE 144A GLOBAL NOTE OR THE
PERMANENT REGULATION S GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING AN INTEREST IN
THE NOTES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING
RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE "40-DAY DISTRIBUTION
COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER
THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM REASONABLY
SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED EITHER BY
NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A TRANSACTION
THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT. DURING SUCH 40-DAY
DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY
REGULATION S GLOBAL NOTE MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH THE
EUROCLEAR SYSTEM, CLEARSTREAM OR CEDEL S.A. AND ONLY (I) TO THE COMPANY, (II)
INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED
STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT,
OTHER THAN IN CANADA, OR TO OR FOR THE BENEFIT OF A RESIDENT OF CANADA PURSUANT
TO A PROSPECTUS QUALIFYING THE NOTES FOR SALE UNDER THE SECURITIES LAW IN ANY
PROVINCE OR TERRITORY OF CANADA IN WHICH THE PURCHASER RESIDES OR AN EXEMPTION
FROM THE PROSPECTUS REQUIREMENTS OF SUCH LAWS, (IV) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT. HOLDERS OF INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE
WILL NOTIFY ANY PURCHASER OF SUCH RESALE RESTRICTIONS, IF THEN APPLICABLE.]
[Definitive Securities Legend]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE 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.]
3
[OID Legend]
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT. FOR PURPOSES OF
SECTION 1273 OF THE CODE, THE ISSUE PRICE IS $[ ] AND THE AMOUNT OF ORIGINAL
ISSUE DISCOUNT IS $[ ], IN EACH CASE PER $1000 PRINCIPAL AMOUNT OF THIS
SECURITY. FOR PURPOSES OF SECTION 1275 OF THE CODE, THE ISSUE DATE OF THIS
SECURITY IS [ ]. FOR PURPOSES OF SECTION 1272 OF THE CODE, THE YIELD TO
MATURITY (COMPOUNDED SEMI-ANNUALLY) IS [ ]%.
4
CUSIP No. $
ISIN No.
No.
9% Series B Senior Subordinated Notes Due 2008
DENBURY RESOURCES INC., a Delaware corporation, promises to pay to
CEDE & CO., or registered assigns, the principal sum of [ ] Dollars on
March 1, 2008.
Interest Payment Dates: March 1 and September 1.
Record Dates: February 15 and August 15.
Additional provisions of this Security are set forth on the other side of this
Security.
Dated: [ ]
DENBURY RESOURCES INC.
by
-------------------------------
Name:
Title:
-------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE CHASE MANHATTAN BANK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
-----------------------------
Authorized Signatory
5
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
9% Series B Senior Subordinated Notes Due 2008
1. Interest
Denbury Resources Inc., a Delaware 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 Security at the rate per annum shown above; provided, however, that if a
Registration Default (as defined in the Registration Rights Agreement) occurs,
additional interest will accrue on this Security at a rate of 0.50% per annum
(increasing by an additional 0.50% per annum after each consecutive 90-day
period that occurs after the date on which such Registration Default occurs up
to a maximum additional interest rate of 2.00%) 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. The Company will pay interest
semiannually on March 1 and September 1 of each year. Interest on the Securities
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from [ ]. Interest will be computed on the basis of
a 360-day year of twelve 30-day months. The Company shall pay interest on
overdue principal at the rate borne by the Securities plus 1% per annum, and it
shall pay interest on overdue installments of interest at the same rate to the
extent lawful.
2. Method of Payment
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the February 15 or August 15 next preceding the interest payment
date even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of Securities (including
principal, premium and interest) will be made by wire transfer of immediately
available funds to the accounts specified by the holders thereof or, if no U.S.
dollar account maintained by the payee with a bank in the United States is
designated by any holder to the Trustee or the Paying Agent at least 30 days
prior to the relevant due date for payment (or such other date as the Trustee
may accept in its discretion), by mailing a check to the registered address of
such holder.
6
3. Paying Agent and Registrar
Initially, The Chase Manhattan Bank (the "Trustee"), will act as
Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice. The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or
co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of
August 15, 2001 among the Company, the Subsidiary Guarantors and the Trustee.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the
Indenture (the "Act"). Terms defined in the Indenture and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all such terms, and Securityholders are referred to the Indenture and the Act
for a statement of those terms.
The Securities are general unsecured, senior subordinated obligations
of the Company. The Company may, subject to Article 4 of the Indenture, issue
additional Securities under the Indenture. The Initial Securities issued on the
Issue Date, any Additional Securities and all Exchange Securities or Private
Exchange Securities issued in exchange therefor will be treated as a single
class for all purposes under the Indenture. The Indenture imposes certain
limitations on the Incurrence of Indebtedness by the Company and certain of its
Subsidiaries, the payment of dividends and other distributions on the Capital
Stock of the Company and certain of its Subsidiaries, the purchase or redemption
of Capital Stock of the Company and of certain Capital Stock of such
Subsidiaries, the sale or transfer of assets and Subsidiary stock, the creation
of Liens and transactions with Affiliates. In addition, the Indenture limits the
ability of the Company and certain of its Subsidiaries to restrict distributions
and dividends from Subsidiaries. The Indenture also restricts the ability of the
Company and the Subsidiary Guarantors to consolidate or merge with or into, or
to transfer all or substantially all their assets to, another Person.
7
The Indenture also provides that the Subsidiary Guarantors will
Guarantee the Securities pursuant to the Subsidiary Guarantees. The Subsidiary
Guarantees will secure the due and punctual payment of the principal of and
interest, if any, on the Securities and all other amounts payable by the Company
under the Indenture and the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise. The Subsidiary
Guarantees will unconditionally guarantee the Guaranteed Obligations on a senior
subordinated basis pursuant to the terms of the Indenture.
5. Optional Redemption
The Securities will not be redeemable at the option of the Company
prior to March 1, 2003. On and after March 1, 2003, the Securities shall be
redeemable, at the Company's option, in whole or in part, at any time or from
time to time at the following redemption prices (expressed in percentages of
principal amount), plus accrued and unpaid interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the 12-month period commencing on March 1 of the years set forth below:
Period Percentage
------ ----------
2003...................................................... 104.500%
2004...................................................... 103.000
2005...................................................... 101.500
2006 and thereafter....................................... 100.000
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Securities to be redeemed
at his registered address. Securities in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. If money sufficient to
pay the redemption price of and accrued interest on all Securities (or portions
thereof) to be redeemed on the redemption date is deposited with the Paying
Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Securities
(or such portions thereof) called for redemption.
8
7. Put Provisions
Upon a Change of Control, any Holder of Securities will have the
right, subject to certain conditions, to cause the Company to purchase all or
any part of the Securities of such Holder at a purchase price equal to 101% of
the principal amount of the Securities to be purchased plus accrued interest to
the date of purchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the related interest payment date) as
provided in, and subject to the terms of, the Indenture.
8. Subordination
The Securities and each Subsidiary Guarantee are subordinated to
Senior Indebtedness, as defined in the Indenture, of the Company or the
applicable Subsidiary Guarantor, as the case may be. To the extent provided in
the Indenture, such Senior Indebtedness must be paid before the Securities or
the applicable Subsidiary Guarantee may be paid. The Company and each Subsidiary
Guarantor agree, and each Securityholder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and authorize the Trustee to
give it effect and appoints the Trustee as attorney-in-fact for such purpose.
9. 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 register the transfer of
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange 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 any
Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
10. Persons Deemed Owners
The registered Holder of this Security shall be treated as the owner
of it for all purposes.
9
11. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its 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 for payment.
12. 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, including
the Subsidiary Guarantees, if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the Securities then
outstanding and (ii) any default or noncompliance with any provisions may be
waived with the written consent of the Holders of at least a majority in
principal amount of the Securities then outstanding. Subject to certain
exceptions set forth in the Indenture, without notice to or the consent of any
Securityholder, the Company, the Subsidiary Guarantors and the Trustee may amend
the Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities
(provided that the uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Code, or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B) of the Code), or
to make any change to the subordination provisions of the Indenture that would
limit or terminate the benefits available to any holder of Senior Indebtedness
(or its Representative) of the Company or any Subsidiary Guarantor, or to add
guarantees (including Subsidiary Guarantees) with respect to the Securities, or
to secure the Securities, or to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power conferred on the
Company or any Subsidiary Guarantor, or to make any change that does not
adversely
10
affect the rights of any Securityholder, or to comply with any requirement of
the SEC in connection with qualifying the Indenture under the Act. No amendment
may be made to the subordination provisions of the Indenture that adversely
affects the rights of any holder of Senior Indebtedness of the Company or of any
Subsidiary Guarantor then outstanding unless the holders of such Senior
Indebtedness (or their Representative) consent to such change.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for 30 days
in payment of interest on the Securities when due; (ii) default in payment of
principal on the Securities at maturity, upon redemption pursuant to paragraph
5 of the Securities, upon declaration or otherwise, or failure by the Company to
redeem or purchase Securities when required; (iii) failure by the Company to
comply with its obligations under certain covenants; (iv) failure by the Company
to comply with other agreements in the Indenture or the Securities, in certain
cases subject to notice and lapse of time; (v) certain accelerations (including
failure to pay within any grace period after final maturity) of other
Indebtedness of the Company or any Significant Subsidiary (other than Limited
Recourse Indebtedness) if the amount accelerated (or so unpaid) exceeds $10.0
million; (vi) certain events of bankruptcy, insolvency or reorganization with
respect to the Company or a Significant Subsidiary; (vii) any judgment or decree
for the payment of money in excess of $10.0 million is rendered against the
Company or a Significant Subsidiary, remains outstanding for a period of 60 days
following such judgment or decree and is not discharged, waived or stayed within
10 days after notice; or (viii) any Subsidiary Guarantee ceases or otherwise
fails to be in full force and effect (other than in accordance with the terms of
such Subsidiary Guarantee) or any Subsidiary Guarantor denies or disaffirms its
obligations under its Subsidiary Guarantee if such default continues for a
period of 10 days after notice thereof to the Company. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable
immediately. Certain events of bankruptcy, insolvency or reorganization are
Events of Default which will result in the Securities being due and payable
immediately upon the occurrence of such Events of Default. A default under
clauses (iv), (v), (vii) or (viii) will not constitute an Event of Default until
the Trustee or the Holders of 25% in principal amount of the outstanding
Securities notifies the Company of the default and the Company
11
does not cure such default within the time specified after receipt of such
notice.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default (except a Default
in payment of principal or interest) if it determines that withholding notice is
in the interest of the Holders.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the 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 owed
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.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company
or the Trustee 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.
17. 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.
18. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint
12
tenants with rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
19. 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 as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
20. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Security, by acceptance hereof, acknowledges and
agrees to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.
21. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture. Requests may
be made to:
Denbury Resources Inc.
5100 Tennyson Parkway, Suite 3000
Plano, Texas 775024
Attention of Chief Financial Officer
13
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
--------------------------------------------------------------------------------
Date: Your Signature:
------------------------ ---------------------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer of any 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 after the later of the date of original issuance
of such Securities and the last date, if any, on which such Securities were
owned by the Company or any Affiliate of the Company, the undersigned confirms
that such Securities are being 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 of 1933; or
(3) [ ] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is
14
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 of 1933; 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 of
1933; or
(5) [ ] pursuant to the exemption from registration provided by
Rule 144 under the Securities Act of 1933.
If such transfer is being made pursuant to an offshore transaction in
accordance with Rule 904 under the Securities Act, the undersigned further
certifies that:
(i) the offer of the Securities was not made to a person in the United
States;
(ii) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(iii) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903 or Rule 904 of Regulation
S, as applicable;
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(v) we have advised the transferee of the transfer restrictions
applicable to the Securities; and
(vi) if the circumstances set forth in Rule 904(b) under the
Securities Act are applicable, we have complied with the additional
conditions therein, including (if applicable) sending a confirmation or
other notice stating that the Securities may be offered and sold during the
distribution compliance period specified in Rule 903 of Regulation S only
in accordance with the
15
provisions of Regulation S; pursuant to registration of the Securities
under the Securities Act; or pursuant to an available exemption from the
registration requirements under the Securities Act.
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 registering any such transfer of the
Securities, such legal opinions, certifications and other information as the
Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the exemption
provided by Rule 144 under such Act.
----------------------------------
Signature
Signature Guarantee:
------------------------------------ ----------------------------------
Signature must be guaranteed Signature
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
--------------------------------------------------------------------------------
16
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated:
------------------- -----------------------------------------
NOTICE: To be executed by an executive
officer
17
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
Signature of
Principal amount authorized
Amount of decrease Amount of increase of this Global signatory of
in Principal in Principal Security following Trustee or
Date of Amount of this Amount of this such decrease or Securities
Exchange Global Security Global Security increase Custodian
-------- ------------------ ------------------ ------------------ ------------
18
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 or Section 4.09 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.06 or Section 4.09 of the Indenture, state the
amount in principal amount: $
Date: Your Signature:
----------------- --------------------------------------
(Sign exactly as your name appears on
the other side of this Security.)
Signature Guarantee:
----------------------------------------------------------
(Signature must be guaranteed)
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT A
[FORM OF FACE OF EXCHANGE SECURITY
OR PRIVATE EXCHANGE SECURITY]
[OID Legend]
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT. FOR PURPOSES OF SECTION
1273 OF THE CODE, THE ISSUE PRICE IS $[ ] AND THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT IS $[ ], IN EACH CASE PER $1000 PRINCIPAL AMOUNT OF THIS SECURITY.
FOR PURPOSES OF SECTION 1275 OF THE CODE, THE ISSUE DATE OF THIS SECURITY IS
[ ]. FOR PURPOSES OF SECTION 1272 OF THE CODE, THE YIELD TO MATURITY
(COMPOUNDED SEMI-ANNUALLY) IS [ ]%.(1,2)
--------
(1) If the Security is to be issued in global form add the Global
Securities Legend from Exhibit 1 to Appendix A and the attachment from such
Exhibit 1 captioned "[TO BE ATTACHED TO GLOBAL SECURITIES] - SCHEDULE OF
INCREASES OR DECREASES IN GLOBAL SECURITY".
(2) If the Security is a Private Exchange Security issued in a Private
Exchange to an Initial Purchaser holding an unsold portion of its initial
allotment, add the Restricted Securities Legend from Exhibit 1 to Appendix
A and replace the Assignment Form included in this Exhibit A with the
Assignment Form included in such Exhibit 1.
2
CUSIP No. $
ISIN No.
No.
9% Series B Senior Subordinated Notes Due 2008
DENBURY RESOURCES INC., a Delaware corporation, promises to pay to
CEDE & CO., or registered assigns, the principal sum of [ ] Dollars on
March 1, 2008.
Interest Payment Dates: March 1 and September 1.
Record Dates: February 15 and August 15.
Additional provisions of this Security are set forth on the other side of this
Security.
Dated: [ ]
DENBURY RESOURCES INC.
by
-------------------------------
Name:
Title:
-------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE CHASE MANHATTAN BANK,
that this is one of
the Securities referred
to in the Indenture.
by
-----------------------------
Authorized Signatory
3
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY
OR PRIVATE EXCHANGE SECURITY]
9% Series B Senior Subordinated Notes Due 2008
1. Interest
Denbury Resources Inc., a Delaware 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 Security at the rate per annum shown above[; provided, however, that if
a Registration Default (as defined in the Registration Rights Agreement) occurs,
additional interest will accrue on this Security at a rate of 0.50% per annum
(increasing by an additional 0.50% per annum after each consecutive 90-day
period that occurs after the date on which such Registration Default occurs up
to a maximum additional interest rate of 2.00%) 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.](3). The Company will pay
interest semiannually on March 1 and September 1 of each year. Interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from [ ]. Interest will be computed on the
basis of a 360-day year of twelve 30-day months. The Company shall pay interest
on overdue principal at the rate borne by the Securities plus 1% per annum, and
it shall pay interest on overdue installments of interest at the same rate to
the extent lawful.
2. Method of Payment
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the February 15 or August 15 next preceding the
interest payment date even if Securities are canceled after the record date and
on or before the interest payment date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts.
--------
(3) Insert if at the date of issuance of the Exchange Security or
Private Exchange Security (as the case may be) any Registration Default has
occurred with respect to the related Initial Securities during the interest
period in which such date of issuance occurs.
4
Payments in respect of Securities (including principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by the holders thereof or, if no U.S. dollar account maintained by the
payee with a bank in the United States is designated by any holder to the
Trustee or the Paying Agent at least 30 days prior to the relevant due date for
payment (or such other date as the Trustee may accept in its discretion), by
mailing a check to the registered address of such holder.
3. Paying Agent and Registrar
Initially, The Chase Manhattan Bank (the "Trustee"), will act
as Paying Agent and Registrar. The Company may appoint and change any Paying
Agent, Registrar or co-registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent,
Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as
of August 15, 2001 among the Company, the Subsidiary Guarantors and the Trustee.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the
Indenture (the "Act"). Terms defined in the Indenture and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all such terms, and Securityholders are referred to the Indenture and the Act
for a statement of those terms.
The Securities are general unsecured, senior subordinated
obligations of the Company. The Company may, subject to Article 4 of the
Indenture, issue additional Securities under the Indenture. The Initial
Securities issued on the Issue Date, any Additional Securities and all Exchange
Securities or Private Exchange Securities issued in exchange therefor will be
treated as a single class for all purposes under the Indenture. The Indenture
imposes certain limitations on the Incurrence of Indebtedness by the Company and
certain of its Subsidiaries, the payment of dividends and other distributions on
the Capital Stock of the Company and certain of its Subsidiaries, the purchase
or redemption of Capital Stock of the Company and of certain Capital Stock of
such Subsidiaries, the sale or transfer of assets and Subsidiary stock, the
creation of Liens and transactions with Affiliates. In addition, the Indenture
limits the ability of
5
the Company and certain of its Subsidiaries to restrict distributions and
dividends from Subsidiaries. The Indenture also restricts the ability of the
Company and the Subsidiary Guarantors to consolidate or merge with or into, or
to transfer all or substantially all their assets to, another Person.
The Indenture also provides that the Subsidiary Guarantors
will Guarantee the Securities pursuant to the Subsidiary Guarantees. The
Subsidiary Guarantees will secure the due and punctual payment of the principal
of and interest, if any, on the Securities and all other amounts payable by the
Company under the Indenture and the Securities when and as the same shall be due
and payable, whether at maturity, by acceleration or otherwise. The Subsidiary
Guarantees will unconditionally guarantee the Guaranteed Obligations on a senior
subordinated basis pursuant to the terms of the Indenture.
5. Optional Redemption
The Securities will not be redeemable at the option of the
Company prior to March 1, 2003. On and after March 1, 2003, the Securities shall
be redeemable, at the Company's option, in whole or in part, at any time or from
time to time at the following redemption prices (expressed in percentages of
principal amount), plus accrued and unpaid interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the 12-month period commencing on March 1 of the years set forth below:
Period Percentage
------ ----------
2003............................................ 104.500%
2004............................................ 103.000
2005............................................ 101.500
2006 and thereafter............................. 100.000
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Securities to be
redeemed at his registered address. Securities in denominations larger than
$1,000 may be redeemed
6
in part but only in whole multiples of $1,000. If money sufficient to pay the
redemption price of and accrued interest on all Securities (or portions thereof)
to be redeemed on the redemption date is deposited with the Paying Agent on or
before the redemption date and certain other conditions are satisfied, on and
after such date interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions, to cause the Company to purchase all
or any part of the Securities of such Holder at a purchase price equal to 101%
of the principal amount of the Securities to be purchased plus accrued interest
to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the related interest payment
date) as provided in, and subject to the terms of, the Indenture.
8. Subordination
The Securities and each Subsidiary Guarantee are subordinated
to Senior Indebtedness, as defined in the Indenture, of the Company or the
applicable Subsidiary Guarantor, as the case may be. To the extent provided in
the Indenture, such Senior Indebtedness must be paid before the Securities or
the applicable Subsidiary Guarantee may be paid. The Company and each Subsidiary
Guarantor agree, and each Securityholder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and authorize the Trustee to
give it effect and appoints the Trustee as attorney-in-fact for such purpose.
9. 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 register the
transfer of or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange 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 any Securities for a period of 15 days
7
before a selection of Securities to be redeemed or 15 days before an interest
payment date.
10. Persons Deemed Owners
The registered Holder of this Security shall be treated as the
owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its 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 for payment.
12. 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,
including the Subsidiary Guarantees, if the Company deposits with the Trustee
money or U.S. Government Obligations for the payment of principal and interest
on the Securities to redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the Securities then
outstanding and (ii) any default or noncompliance with any provisions may be
waived with the written consent of the Holders of at least a majority in
principal amount of the Securities then outstanding. Subject to certain
exceptions set forth in the Indenture, without notice to or the consent of any
Securityholder, the Company, the Subsidiary Guarantors and the Trustee may amend
the Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities
(provided that the uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Code, or in a manner such that the
uncertificated Securities are described in
8
Section 163(f)(2)(B) of the Code), or to make any change to the subordination
provisions of the Indenture that would limit or terminate the benefits available
to any holder of Senior Indebtedness (or its Representative) of the Company or
any Subsidiary Guarantor, or to add guarantees (including Subsidiary Guarantees)
with respect to the Securities, or to secure the Securities, or to add to the
covenants of the Company for the benefit of the Holders, or to surrender any
right or power conferred on the Company or any Subsidiary Guarantor, or to make
any change that does not adversely affect the rights of any Securityholder, or
to comply with any requirement of the SEC in connection with qualifying the
Indenture under the Act. No amendment may be made to the subordination
provisions of the Indenture that adversely affects the rights of any holder of
Senior Indebtedness of the Company or of any Subsidiary Guarantor then
outstanding unless the holders of such Senior Indebtedness (or their
Representative) consent to such change.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Securities when due; (ii) default in
payment of principal on the Securities at maturity, upon redemption pursuant to
paragraph 5 of the Securities, upon declaration or otherwise, or failure by the
Company to redeem or purchase Securities when required; (iii) failure by the
Company to comply with its obligations under certain covenants; (iv) failure by
the Company to comply with other agreements in the Indenture or the Securities,
in certain cases subject to notice and lapse of time; (v) certain accelerations
(including failure to pay within any grace period after final maturity) of other
Indebtedness of the Company or any Significant Subsidiary (other than Limited
Recourse Indebtedness) if the amount accelerated (or so unpaid) exceeds $10.0
million; (vi) certain events of bankruptcy, insolvency or reorganization with
respect to the Company or a Significant Subsidiary; (vii) any judgment or decree
for the payment of money in excess of $10.0 million is rendered against the
Company or a Significant Subsidiary, remains outstanding for a period of 60 days
following such judgment or decree and is not discharged, waived or stayed within
10 days after notice; or (viii) any Subsidiary Guarantee ceases or otherwise
fails to be in full force and effect (other than in accordance with the terms of
such Subsidiary Guarantee) or any Subsidiary Guarantor denies or disaffirms its
obligations under its Subsidiary Guarantee if such default continues for a
period of 10 days after notice thereof to the Company. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
9
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable
immediately. Certain events of bankruptcy, insolvency or reorganization are
Events of Default which will result in the Securities being due and payable
immediately upon the occurrence of such Events of Default. A default under
clauses (iv), (v), (vii) or (viii) will not constitute an Event of Default until
the Trustee or the Holders of 25% in principal amount of the outstanding
Securities notifies the Company of the default and the Company does not cure
such default within the time specified after receipt of such notice.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default (except a Default in payment of principal or interest) if it determines
that withholding notice is in the interest of the Holders.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the 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 owed 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.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or the Trustee 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.
10
17. 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.
18. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), 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).
19. 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 as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
[20. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Security, by acceptance hereof, acknowledges and
agrees to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.](4)
21. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
--------
(4) Delete if this Security is not being issued in exchange for an Initial
Security.
11
The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture. Requests may
be made to:
Denbury Resources Inc.
5100 Tennyson Parkway, Suite 3000
Plano, Texas 775024
Attention of Chief Financial Officer
12
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
--------------------------------------------------------------------------------
Date: Your Signature:
----------------- ---------------------------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 or Section 4.09 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.06 or Section 4.09 of the Indenture, state the
amount in principal amount: $
Date: Your Signature:
--------------- --------------------------------------
(Sign exactly as your name appears on
the other side of this Security.)
Signature Guarantee:
----------------------------------------------------------
(Signature must be guaranteed)
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of , among [SUBSIDIARY GUARANTOR] (the "New
Subsidiary Guarantor"), a subsidiary of Denbury Resources Inc.
(or its successor) (the "Company"), DENBURY RESOURCES INC., a
Delaware corporation, on behalf of itself and the Subsidiary
Guarantors (the "Existing Subsidiary Guarantors") under the
Indenture referred to below, and THE CHASE MANHATTAN BANK, as
trustee under the indenture referred to below (the "Trustee").
WITNESSETH:
WHEREAS the Company has heretofore executed and delivered to the
Trustee an Indenture (the "Indenture"), dated as of August 15, 2001, providing
for the issuance of 9% Series B Senior Subordinated Notes Due 2008 (the
"Securities");
WHEREAS Section 4.14 of the Indenture provides that under certain
circumstances the Company is required to cause the New Subsidiary Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Subsidiary Guarantor shall unconditionally guarantee all of the
Company's obligations under the Securities pursuant to a Subsidiary Guarantee on
the terms and conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the
Company and Existing Subsidiary Guarantors are authorized to execute and deliver
this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor, the Company, the Existing Subsidiary Guarantors and the
Trustee mutually covenant and agree for the equal and ratable benefit of the
holders of the Securities as follows:
1. Definitions. (a) Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2
(b) For all purposes of this Supplement, except as otherwise herein
expressly provided or unless the context otherwise requires: (i) the terms and
expressions used herein shall have the same meanings as corresponding terms and
expressions used in the Indenture; and (ii) the words "herein," "hereof" and
"hereby" and other words of similar import used in this Supplement refer to this
Supplement as a whole and not to any particular section hereof.
2. Agreement to Guarantee. The New Subsidiary Guarantor hereby agrees,
jointly and severally with all other Subsidiary Guarantors, to guarantee the
Company's obligations under the Securities on the term and subject to the
conditions set forth in Article 11 of the Indenture and to be bound by all other
applicable provisions of the Indenture.
3. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
6. Counterparts. 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.
7. Effect of Headings. The Section headings herein are for convenience
only and shall not effect the construction thereof.
3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW SUBSIDIARY GUARANTOR],
by
-------------------------------------
Name:
Title:
DENBURY RESOURCES INC., on behalf
of itself and the Existing
Subsidiary Guarantors,
by
-------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee,
by
-------------------------------------
Name:
Title:
EX-4.D
4
d90789ex4-d.txt
REGISTRATION RIGHTS AGREEMENT
EXHIBIT 4(d)
$75,000,000
DENBURY RESOURCES INC.
9% SERIES B SENIOR SUBORDINATED NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
August 8 2001
Credit Suisse First Boston Corporation
As Representative of the Several Initial Purchasers
Eleven Madison Avenue
New York, New York 10010-3629
Dear Sirs:
Denbury Resources Inc., a Delaware corporation (the "Issuer"), proposes
to issue and sell, upon the terms set forth in a purchase agreement of even date
herewith (the "Purchase Agreement"), to the several initial purchasers named in
Schedule A to the Purchase Agreement (collectively, the "Initial Purchasers"),
$75,000,000 aggregate principal amount of its 9% Series B Senior Subordinated
Notes Due 2008 (the "Initial Securities") to be guaranteed (the "Guaranties") by
each Subsidiary Guarantor (the "Guarantors" and, collectively with the Issuer,
the "Company"). The Initial Securities will be issued pursuant to an Indenture,
dated as of August 15, 2001 (the "Indenture"), among the Issuer, the Guarantors
named therein and Chase Bank of Texas, National Association, as trustee (the
"Trustee"). As an inducement to the Initial Purchasers to enter into the
Purchase Agreement, the Company agrees with the Initial Purchasers, for the
benefit of the Initial Purchasers and the holders of the Securities (as defined
below) (collectively the "Holders"), as follows:
1. Registered Exchange Offer. Unless not permitted by applicable law
(after the Company has complied with the ultimate paragraph of this Section 1),
the Company shall prepare and, not later than 90 days (such 90th day being a
"Filing Deadline") after the date on which the Initial Purchasers purchase the
Initial Securities pursuant to the Purchase Agreement (the "Closing Date"), file
with the Securities and Exchange Commission (the "Commission") a registration
statement (the "Exchange Offer Registration Statement") on an appropriate form
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to a proposed offer (the "Registered Exchange Offer") to the Holders of
Transfer Restricted Securities (as defined in Section 6 hereof), who are not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer, to issue and deliver to such Holders, in exchange for
the Initial Securities, a like aggregate principal amount of debt securities of
the Company issued under the Indenture, identical in all material respects to
the Initial Securities and registered under the Securities Act (the "Exchange
Securities"). The Company shall use its best efforts to (i) cause such Exchange
Offer Registration Statement to become effective under the Securities Act within
180 days after the Closing Date (such 180th day being an "Effectiveness
Deadline") and (ii) keep the Exchange Offer Registration Statement effective for
not less than 30 days (or longer, if required by applicable law) after the date
notice
of the Registered Exchange Offer is mailed to the Holders (such period being
called the "Exchange Offer Registration Period").
If the Company commences the Registered Exchange Offer, the Company (i)
will be entitled to consummate the Registered Exchange Offer 30 days after such
commencement (provided that the Company has accepted all the Initial Securities
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer) and (ii) will be required to consummate the Registered Exchange
Offer no later than 40 days after the date on which the Exchange Offer
Registration Statement is declared effective (such 40th day being the
"Consummation Deadline").
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act, acquires the
Exchange Securities in the ordinary course of such Holder's business and has no
arrangements with any person to participate in the distribution of the Exchange
Securities and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Securities Act and without material restrictions under the securities
laws of the several states of the United States.
The Company acknowledges that, pursuant to current interpretations by
the Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Initial Securities, acquired for its own account as a
result of market making activities or other trading activities, for Exchange
Securities (an "Exchanging Dealer"), is required to deliver a prospectus
containing the information set forth in (a) Annex A hereto on the cover, (b)
Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of
the Exchange Offer" section, and (c) Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell
Securities (as defined below) acquired in exchange for Initial Securities
constituting any portion of an unsold allotment, is required to deliver a
prospectus containing the information required by Items 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in connection with such sale.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the prospectus
contained therein, in order to permit such prospectus to be lawfully delivered
by all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided, however, that (i) in the
case where such prospectus and any amendment or supplement thereto must be
delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be
the lesser of 180 days and the date on which all Exchanging Dealers and the
Initial Purchasers have sold all Exchange Securities held by them (unless such
period is extended pursuant to Section 3(j) below) and (ii) the Company shall
make such prospectus and any amendment or supplement thereto available to any
broker-dealer for use in connection with any resale of any Exchange Securities
for a period of not less than 180 days after the consummation of the Registered
Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "Private Exchange") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company
issued under the Indenture and identical in all material respects to the Initial
Securities (the "Private
2
Exchange Securities"). The Initial Securities, the Exchange Securities and the
Private Exchange Securities are herein collectively called the "Securities".
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than
30 days (or longer, if required by applicable law) after the date
notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last business day
on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered
and not withdrawn pursuant to the Registered Exchange Offer and the
Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to
each Holder of the Initial Securities, Exchange Securities or Private
Exchange Securities, as the case may be, equal in principal amount to
the Initial Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the date of original issue of the Initial
Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule
405 of the Securities Act, of the Company or if it is an affiliate, such Holder
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable,
3
(iv) if such Holder is not a broker-dealer, that it is not engaged in, and does
not intend to engage in, the distribution of the Exchange Securities and (v) if
such Holder is a broker-dealer, that it will receive Exchange Securities for its
own account in exchange for Initial Securities that were acquired as a result of
market-making activities or other trading activities and that it will be
required to acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any prospectus
forming part of any Exchange Offer Registration Statement, and any supplement to
such prospectus, does not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
If following the date hereof there has been announced a change in
Commission policy with respect to exchange offers that in the reasonable opinion
of counsel to the Company raises a substantial question as to whether the
Registered Exchange Offer is permitted by applicable federal law, the Company
will seek a no-action letter or other favorable decision from the Commission
allowing the Company to consummate the Registered Exchange Offer. The Company
will pursue the issuance of such a decision to the Commission staff level. In
connection with the foregoing, the Company will take all such other actions as
may be requested by the Commission or otherwise required in connection with the
issuance of such decision, including without limitation (i) participating in
telephonic conferences with the Commission, (ii) delivering to the Commission
staff an analysis prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that the Registered
Exchange Offer should be permitted and (iii) diligently pursuing a resolution
(which need not be favorable) by the Commission staff.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated by the
220th day after the Closing Date, (iii) any Initial Purchaser so requests with
respect to the Initial Securities (or the Private Exchange Securities) not
eligible to be exchanged for Exchange Securities in the Registered Exchange
Offer and held by it following consummation of the Registered Exchange Offer or
(iv) any Holder (other than an Exchanging Dealer) is not eligible to participate
in the Registered Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer) that participates in the Registered Exchange Offer, such
Holder does not receive freely tradeable Exchange Securities on the date of the
exchange and any such Holder so requests, the Company shall take the following
actions (the date on which any of the conditions described in the foregoing
clauses (i) through (iv) occur, including in the case of clauses (iii) or (iv)
the receipt of the required notice, being a "Trigger Date"):
(a) The Company shall promptly (but in no event more than 45
days after the Trigger Date (such 45th day being a "Filing Deadline"))
file with the Commission and thereafter use its best efforts to cause
to be declared effective ((1) in the case of clause (i) above, no later
than 180 days after the Closing Date and (2) in the case of clause
(ii), (iii) or (iv) above, no later than 80 days after the Trigger Date
(such 180th day or 80th day, as applicable being an "Effectiveness
Deadline")) a registration statement (the "Shelf Registration
Statement" and, together with the Exchange Offer Registration
Statement, a "Registration Statement") on an appropriate form under the
Securities Act relating to the offer and sale of the Transfer
Restricted Securities by the Holders thereof from time to time in
accordance with the methods of distribution set forth in the Shelf
4
Registration Statement and Rule 415 under the Securities Act
(hereinafter, the "Shelf Registration"); provided, however, that no
Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all the provisions
of this Agreement applicable to such Holder.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of
the relevant Securities, for a period of two years (or for such longer
period if extended pursuant to Section 3(j) below) from the date of its
effectiveness or such shorter period that will terminate when all the
Securities covered by the Shelf Registration Statement (i) have been
sold pursuant thereto or (ii) can be sold pursuant to Rule 144 under
the Securities Act without any limitations under clauses (c), (e), (f)
and (h) of Rule 144. The Company shall be deemed not to have used its
best efforts to keep the Shelf Registration Statement effective during
the requisite period if it voluntarily takes any action that would
result in Holders of Securities covered thereby not being able to offer
and sell such Securities during that period, unless such action is
required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to
the contrary, the Company shall cause the Shelf Registration Statement
and the related prospectus and any amendment or supplement thereto, as
of the effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company shall (i) furnish to each Initial Purchaser,
prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment thereof and each supplement,
if any, to the prospectus included therein and, in the event that an
Initial Purchaser (with respect to any portion of an unsold allotment
from the original offering) is participating in the Registered Exchange
Offer or the Shelf Registration Statement, the Company shall use its
best efforts to reflect in each such document, when so filed with the
Commission, such comments as such Initial Purchaser reasonably may
propose; (ii) include the information set forth in Annex A hereto on
the cover, in Annex B hereto in the "Exchange Offer Procedures" section
and the "Purpose of the Exchange Offer" section and in Annex C hereto
in the "Plan of Distribution" section of the prospectus forming a part
of the Exchange Offer Registration Statement and include the
information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; (iii) if requested
by an Initial Purchaser, include the information required by Items 507
or 508 of Regulation S-K under the Securities Act, as applicable, in
the prospectus forming a part of the Exchange Offer Registration
Statement; (iv) include within the prospectus contained in the Exchange
Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a
summary statement of the positions taken or policies made by the staff
of the Commission with respect to the potential "underwriter" status of
any broker-dealer that is the beneficial owner (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of Exchange Securities received by such broker-dealer
in the Registered Exchange Offer (a "Participating Broker-Dealer"),
whether such positions or policies have been publicly disseminated
5
by the staff of the Commission or such positions or policies, in the
reasonable judgment of the Initial Purchasers based upon advice of
counsel (which may be in-house counsel), represent the prevailing views
of the staff of the Commission; and (v) in the case of a Shelf
Registration Statement, include the names of the Holders who propose to
sell Securities pursuant to the Shelf Registration Statement as selling
securityholders.
(b) The Company shall give written notice to the Initial
Purchasers, the Holders of the Securities and any Participating
Broker-Dealer from whom the Company has received prior written notice
that it will be a Participating Broker-Dealer in the Registered
Exchange Offer (which notice pursuant to clauses (ii)-(v) hereof shall
be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when the Registration Statement or any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the suspension of
the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the
Company to make changes in the Registration Statement or the
prospectus in order that the Registration Statement or the
prospectus do not contain an untrue statement of a material
fact nor omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the
case of the prospectus, in light of the circumstances under
which they were made) not misleading.
(c) The Company shall make every reasonable effort to obtain
the withdrawal at the earliest possible time of any order suspending
the effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration, without charge,
at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer and
each Initial Purchaser, and to any other Holder who so requests,
without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if any Initial Purchaser or any such
Holder requests, all exhibits thereto (including those incorporated by
reference).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of
the Shelf Registration, without charge, as many copies
6
of the prospectus (including each preliminary prospectus) included in
the Shelf Registration Statement and any amendment or supplement
thereto as such person may reasonably request. The Company consents,
subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by each of the
selling Holders of the Securities in connection with the offering and
sale of the Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(g) The Company shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other
persons required to deliver a prospectus following the Registered
Exchange Offer, without charge, as many copies of the final prospectus
included in the Exchange Offer Registration Statement and any amendment
or supplement thereto as such persons may reasonably request. The
Company consents, subject to the provisions of this Agreement, to the
use of the prospectus or any amendment or supplement thereto by any
Initial Purchaser, if necessary, any Participating Broker-Dealer and
such other persons required to deliver a prospectus following the
Registered Exchange Offer in connection with the offering and sale of
the Exchange Securities covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration
Statement.
(h) Prior to any public offering of the Securities pursuant to
any Registration Statement the Company shall register or qualify or
cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification
of the Securities for offer and sale under the securities or "blue sky"
laws of such states of the United States as any Holder of the
Securities reasonably requests in writing and do any and all other acts
or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement;
provided, however, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not
then so qualified or (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction where it
is not then so subject.
(i) The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders may request a
reasonable period of time prior to sales of the Securities pursuant to
such Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 3(b) above during the period for
which the Company is required to maintain an effective Registration
Statement, the Company shall promptly prepare and file a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus and any other required document so that, as thereafter
delivered to Holders of the Securities or purchasers of Securities, the
prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If the Company notifies the
Initial Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer in accordance with paragraphs (ii) through
(v) of Section 3(b) above to suspend the use of the prospectus until
the requisite changes to the prospectus have been made, then the
Initial Purchasers, the Holders of the Securities and any such
Participating Broker-Dealers shall suspend use of such prospectus, and
the period of effectiveness of the Shelf Registration Statement
provided for in Section 2(b) above and the Exchange Offer Registration
Statement provided for in Section 1 above shall each be extended by the
number of days from and including the date of the giving of such notice
to and including the date when the Initial Purchasers, the Holders of
the
7
Securities and any known Participating Broker-Dealer shall have
received such amended or supplemented prospectus pursuant to this
Section 3(j).
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for the
Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Initial Securities, the Exchange
Securities or the Private Exchange Securities, as the case may be, in a
form eligible for deposit with The Depository Trust Company.
(l) The Company will comply with all rules and regulations of
the Commission to the extent and so long as they are applicable to the
Registered Exchange Offer or the Shelf Registration and will make
generally available to its security holders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) an earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90
days, if such period is a fiscal year) beginning with the first month
of the Company's first fiscal quarter commencing after the effective
date of the Registration Statement, which statement shall cover such
12-month period.
(m) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended, in a timely manner
and containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(n) The Company may require each Holder of Securities to be
sold pursuant to the Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of
the Securities as the Company may from time to time reasonably require
for inclusion in the Shelf Registration Statement, and the Company may
exclude from such registration the Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time
after receiving such request.
(o) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form)
and take all such other action, if any, as any Holder of the Securities
shall reasonably request in order to facilitate the disposition of the
Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall
(i) make reasonably available for inspection by the Holders of the
Securities, any underwriter participating in any disposition pursuant
to the Shelf Registration Statement and any attorney, accountant or
other agent retained by the Holders of the Securities or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause the
Company's officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Holders of
the Securities or any such underwriter, attorney, accountant or agent
in connection with the Shelf Registration Statement, in each case, as
shall be reasonably necessary to enable such persons to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchasers by you and, on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in
Section 4 hereof.
8
(q) In the case of any Shelf Registration, the Company, if
requested by any Holder of Securities covered thereby, shall cause (i)
its counsel to deliver an opinion and updates thereof relating to the
Securities in customary form addressed to such Holders and the managing
underwriters, if any, thereof and dated, in the case of the initial
opinion, the effective date of such Shelf Registration Statement (it
being agreed that the matters to be covered by such opinion shall
include, without limitation, the due incorporation and good standing of
the Company and its subsidiaries; the qualification of the Company and
its subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of the
type referred to in Section 3(o) hereof; the due authorization,
execution, authentication and issuance, and the validity and
enforceability, of the applicable Securities; the absence of material
legal or governmental proceedings involving the Company and its
subsidiaries; the absence of governmental approvals required to be
obtained in connection with the Shelf Registration Statement, the
offering and sale of the applicable Securities, or any agreement of the
type referred to in Section 3(o) hereof; the compliance as to form of
such Shelf Registration Statement and any documents incorporated by
reference therein and of the Indenture with the requirements of the
Securities Act and the Trust Indenture Act, respectively; and, as of
the date of the opinion and as of the effective date of the Shelf
Registration Statement or most recent post-effective amendment thereto,
as the case may be, the absence from such Shelf Registration Statement
and the prospectus included therein, as then amended or supplemented,
and from any documents incorporated by reference therein of an untrue
statement of a material fact or the omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any such documents,
in the light of the circumstances existing at the time that such
documents were filed with the Commission under the Exchange Act); (ii)
its officers to execute and deliver all customary documents and
certificates and updates thereof requested by any underwriters of the
applicable Securities and (iii) its independent public accountants to
provide to the selling Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form and covering
matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested
by any Initial Purchaser or any known Participating Broker-Dealer, the
Company shall cause (i) its counsel to deliver to such Initial
Purchaser or such Participating Broker-Dealer a signed opinion in the
form set forth in Section 6(c) of the Purchase Agreement with such
changes as are customary in connection with the preparation of a
Registration Statement and (ii) its independent public accountants to
deliver to such Initial Purchaser or such Participating Broker-Dealer a
comfort letter, in customary form, meeting the requirements as to the
substance thereof as set forth in Section 6(a) of the Purchase
Agreement, with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Initial Securities by Holders to
the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall mark, or caused to be
marked, on the Initial Securities so exchanged that such Initial
Securities are being canceled in exchange for the Exchange Securities
or the Private Exchange Securities, as the case may be; in no event
shall the Initial Securities be marked as paid or otherwise satisfied.
(t) The Company will use its best efforts to (a) if the
Initial Securities have been rated prior to the initial sale of such
Initial Securities, confirm such ratings will apply to the Securities
covered by a Registration Statement, or (b) if the Initial Securities
were not previously rated, cause the Securities covered by a
Registration Statement to be rated with the appropriate rating
agencies,
9
if so requested by Holders of a majority in aggregate principal amount
of Securities covered by such Registration Statement, or by the
managing underwriters, if any.
(u) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the "Rules") of
the National Association of Securities Dealers, Inc. ("NASD")) thereof,
whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, the Company will assist such broker-dealer in complying with
the requirements of such Rules, including, without limitation, by (i)
if such Rules, including Rule 2720, shall so require, engaging a
"qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Registration Statement relating
to such Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by
such Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (iii) providing such information to
such broker-dealer as may be required in order for such broker-dealer
to comply with the requirements of the Rules.
(v) The Company shall use its best efforts to take all other
steps necessary to effect the registration of the Securities covered by
a Registration Statement contemplated hereby.
4. Registration Expenses. (a) All expenses incident to the Company's
performance of and compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement is ever filed or becomes
effective, including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing
certificates for the Securities to be issued in the Registered Exchange
Offer and the Private Exchange and printing of Prospectuses), messenger
and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company;
(v) all application and filing fees in connection with
listing the Exchange Securities on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified
public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Company will bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any person, including special experts, retained by the Company.
(b) In connection with any Registration Statement required by this
Agreement, the Company will reimburse the Initial Purchasers and the Holders of
Transfer Restricted Securities who are tendering Initial
10
Securities in the Registered Exchange Offer and/or selling or reselling
Securities pursuant to the "Plan of Distribution" contained in the Exchange
Offer Registration Statement or the Shelf Registration Statement, as applicable,
for the reasonable fees and disbursements of not more than one counsel, who
shall be Cravath, Swaine & Moore unless another firm shall be chosen by the
Holders of a majority in principal amount of the Transfer Restricted Securities
for whose benefit such Registration Statement is being prepared.
5. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder of the Securities, any Participating Broker-Dealer and each
person, if any, who controls such Holder or such Participating Broker-Dealer
within the meaning of the Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are referred to
collectively as the "Indemnified Parties") from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Securities) to which each
Indemnified Party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to a
Shelf Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein and (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus relating
to a Shelf Registration Statement, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Holder or Participating
Broker-Dealer from whom the person asserting any such losses, claims, damages or
liabilities purchased the Securities concerned, to the extent that a prospectus
relating to such Securities was required to be delivered by such Holder or
Participating Broker-Dealer under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of such Holder or
Participating Broker-Dealer results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Securities to such person, a copy of the final prospectus if the Company
had previously furnished copies thereof to such Holder or Participating
Broker-Dealer; provided further, however, that this indemnity agreement will be
in addition to any liability which the Company may otherwise have to such
Indemnified Party. The Company shall also indemnify underwriters, their officers
and directors and each person who controls such underwriters within the meaning
of the Securities Act or the Exchange Act to the same extent as provided above
with respect to the indemnification of the Holders of the Securities if
requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act from
and against any losses, claims, damages or liabilities or any actions in respect
thereof, to which the Company or any such controlling person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but in
each
11
case only to the extent that the untrue statement or omission or alleged untrue
statement or omission was made in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company by or on
behalf of such Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall reimburse, as
incurred, the Company for any legal or other expenses reasonably incurred by the
Company or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder may
otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 5
of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 5,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action, and does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the exchange of the Securities
pursuant to the Registered Exchange Offer, or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
such Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 5(d), the Holders of the Securities shall not be required to contribute
any amount in excess of the amount by which the net proceeds received
12
by such Holders from the sale of the Securities pursuant to a Registration
Statement exceeds the amount of damages which such Holders have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls such indemnified party within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as such indemnified
party and each person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the sale
of the Securities pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "Additional Interest") with respect to the Securities shall be
assessed as follows if any of the following events occur (each such event in
clauses (i) through (iv) below being herein called a "Registration Default"):
(i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing
Deadline;
(ii) any Registration Statement required by this Agreement is not
declared effective by the Commission on or prior to the
applicable Effectiveness Deadline;
(iii) the Registered Exchange Offer has not been consummated on or
prior to the Consummation Deadline; or
(iv) any Registration Statement required by this Agreement has been
declared effective by the Commission but (A) such Registration
Statement thereafter ceases to be effective or (B) such
Registration Statement or the related prospectus ceases to be
usable in connection with resales of Transfer Restricted
Securities during the periods specified herein because either
(1) any event occurs as a result of which the related
prospectus forming part of such Registration Statement would
include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein in the light of the circumstances under which they
were made not misleading, or (2) it shall be necessary to
amend such Registration Statement or supplement the related
prospectus, to comply with the Securities Act or the Exchange
Act or the respective rules thereunder.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue on the Securities over and above the
interest set forth in the title of the Securities from and including the date on
which any such Registration Default shall occur to but excluding the date on
which all such Registration Defaults have been cured, at a rate of 0.50% per
annum (the "Additional Interest Rate") for the first 90-day period immediately
following the occurrence of such Registration Default. The Additional Interest
Rate shall increase by an additional 0.50% per annum with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum Additional Interest Rate of 2.0% per annum.
13
(b) A Registration Default referred to in Section 6(a)(iv) hereof shall
be deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related prospectus or (y) other material events, with respect
to the Company that would need to be described in such Shelf Registration
Statement or the related prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe such events;
provided, however, that in any case if such Registration Default occurs for a
continuous period in excess of 30 days, Additional Interest shall be payable in
accordance with the above paragraph from the day such Registration Default
occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section 6(a)
will be payable in cash on the regular interest payment dates with respect to
the Securities. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest Rate by the principal amount of
the Securities and further multiplied by a fraction, the numerator of which is
the number of days such Additional Interest Rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
(d) "Transfer Restricted Securities" means each Security until (i) the
date on which such Security has been exchanged by a person other than a
broker-dealer for a freely transferable Exchange Security in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered
Exchange Offer of an Initial Security for an Exchange Note, the date on which
such Exchange Note is sold to a purchaser who receives from such broker-dealer
on or prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which such Security has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which such
Security is distributed to the public pursuant to Rule 144 under the Securities
Act or is saleable pursuant to Rule 144(k) under the Securities Act.
7. Rules 144 and 144A. The Company shall use its best efforts to file
the reports required to be filed by it under the Securities Act and the Exchange
Act in a timely manner and, if at any time the Company is not required to file
such reports, it will, upon the request of any Holder of Securities, make
publicly available other information so long as necessary to permit sales of
their securities pursuant to Rules 144 and 144A. The Company covenants that it
will take such further action as any Holder of Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Initial Securities identified to the
Company by the Initial Purchasers upon request. Upon the request of any Holder
of Initial Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("Managing Underwriters") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering.
14
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 1 and 2 hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Sections 1 and
2 hereof. The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Initial Purchasers, to:
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-8278
Attention: Transactions Advisory Group
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019-7475
Fax No.: (212) 474-3700
Attention: Stephen L. Burns, Esq.
15
(3) if to the Company, at its address as follows:
Denbury Resources Inc.
5100 Tennyson Parkway
Suite 3000
Plano, Texas 75024
Fax No.: (972) 673-2150
Attention: Phil Rykhoek
with a copy to:
Jenkens & Gilchrist, PC
1100 Louisiana Street, Suite 1800
Houston, TX 77002
Fax No.: (713) 951-3314
Attention: Donald Brodsky, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(e) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(g) Counterparts. This Agreement 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
(j) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Securities Held by the Company. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
16
(l) Each of the Issuer and the Guarantors hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
17
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuer a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers, the Issuer and the Guarantors in
accordance with its terms.
Very truly yours,
DENBURY RESOURCES INC.
By /s/ PHIL RYKHOEK
-------------------------------------------
Name: Phil Rykhoek
Title: Chief Financial Officer
DENBURY ENERGY SERVICES, INC.
By /s/ PHIL RYKHOEK
-------------------------------------------
Name: Phil Rykhoek
Title: Chief Financial Officer
DENBURY MARINE, L.L.C.
By /s/ PHIL RYKHOEK
-------------------------------------------
Name: Phil Rykhoek
Title: Chief Financial Officer
DENBURY OFFSHORE, INC.
By /s/ PHIL RYKHOEK
-------------------------------------------
Name: Phil Rykhoek
Title: Chief Financial Officer
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
by /s/ TIMOTHY E. PERRY
------------------------------------
Name: Timothy E. Perry
Title: Director
Acting on behalf of itself and as the Representative
of the several Initial Purchasers
18
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
19
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in
exchange for Initial Securities, where such Initial Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
20
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until , 2001, all dealers
effecting transactions in the Exchange Securities may be required to deliver a
prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange Securities
by broker-dealers. Exchange Securities received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Securities or a combination of
such methods of resale, at market prices prevailing at the time of resale, at
prices related to such prevailing market prices or negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
such broker-dealer or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for its
own account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit on any
such resale of Exchange Securities and any commission or concessions received by
any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will promptly
send additional copies of this Prospectus and any amendment or supplement to
this Prospectus to any broker-dealer that requests such documents in the Letter
of Transmittal. The Company has agreed to pay all expenses incident to the
Exchange Offer (including the expenses of one counsel for the Holders of the
Securities) other than commissions or concessions of any brokers or dealers and
will indemnify the Holders of the Securities (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act.
--------
(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
21
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
--------------------------------------------------
Address:
--------------------------------------------------
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
22
EX-5
5
d90789ex5.txt
OPINION OF JENKENS & GILCHRIST
EXHIBIT 5
[JENKENS & GILCHRIST LETTERHEAD]
October 22, 2001
Denbury Resources Inc.
5100 Tennyson Pkwy., Ste. 3000
Plano, Texas 75024
Ladies and Gentlemen:
We have acted as securities counsel to Denbury Resources Inc.,
a Delaware corporation ("Denbury"), and the following subsidiaries of Denbury:
Denbury Energy Services, Inc., a Texas corporation, Denbury Marine, L.L.C., a
Louisiana limited liability company, and Denbury Offshore, Inc., a Delaware
corporation (the "Subsidiary Guarantors"), in connection with the registration
statement filed by Denbury on Form S-4 (the "Registration Statement"), under the
Securities Act of 1933, as amended (the "Act"), relating to the proposed
exchange of up to $75,000,000 in principal amount of Denbury's new 9% Series B
Senior Subordinated Notes Due 2008 (the "New Notes") for the same principal
amount of Denbury's issued and outstanding, privately placed 9% Series B Senior
Subordinated Notes due 2008 (the "Old Notes"). Denbury's payment obligations
under the Old Notes are jointly and severally guaranteed by the Subsidiary
Guarantors (the "Old Guarantees"), and Denbury's payment obligations under the
New Notes will be jointly and severally guaranteed by the Subsidiary Guarantors
(the "New Guarantees"). The Old Notes and Old Guarantees were issued, and New
Notes and New Guarantees are to be issued, pursuant to the Indenture, dated as
of August 15, 2001 (the "Indenture") filed as Exhibit 4 (c) to the Registration
Statement, among Denbury, the Subsidiary Guarantors and The Chase Manhattan Bank
(the "Trustee").
In connection with the foregoing, we have examined, among other things,
the Registration Statement, the Indenture filed as Exhibit 4 (c) to the
Registration Statement, the form of the New Notes and originals or copies of all
corporate records and of all agreements, certificates and other documents that
we have deemed relevant and necessary as a basis for the opinions hereinafter
expressed.
Denbury Resources Inc.
October 22, 2001
Page 2
In addition, we have made other investigations of applicable law that
we have deemed necessary to enable us to provide you with the opinions hereafter
expressed. In conducting our examination, we have assumed the genuineness of all
signatures, the legal capacity of all individual signatories, the accuracy of
all documents submitted to us as originals and the conformity to originals of
all documents submitted to us as copies. In addition, we have assumed and
without independent investigation have relied upon the factual accuracy of the
representations, warranties and other information contained in the items we
examined. As to any facts material to the opinions hereafter expressed that were
not independently established or verified, we have relied upon the statements or
certificates of officers of Denbury, the Subsidiary Guarantors, public officials
and others.
We have assumed that the Trustee has the requisite power and authority
to enter into and perform its obligations under the Indenture, that the
Indenture has been duly authorized, executed and delivered by the Trustee, and
that the Indenture constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms.
Based upon the foregoing, and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion that:
(1) When the Registration Statement has become effective under the
Securities Act, the New Notes have been duly executed by Denbury and duly
authenticated by the Trustee and the New Notes have been issued in exchange for
the Old Notes in accordance with the terms of the Indenture, then the New Notes
will constitute valid and binding obligations of Denbury; and
(2) When the Registration Statement has become effective under the
Securities Act, the New Notes have been duly executed by Denbury and duly
authenticated by the Trustee and the New Notes have been issued in exchange for
the Old Notes in accordance with the terms of the Indenture, then the New
Guarantees will constitute valid and binding obligations of the Subsidiary
Guarantors as to the New Notes in accordance with the terms of the New
Guarantees.
Our opinions above are subject to applicable bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally; general principles
of equity (regardless of whether enforceability is considered in a proceeding at
law or in equity); and the exercise of the discretionary power of any court or
other authority before which may be brought any proceeding seeking equitable or
other remedies. We express no opinion as to the sufficiency of the waivers of
defenses by the Subsidiary Guarantors contained in the second paragraph of
Section 11.01 of the Indenture governing the New Notes.
Denbury Resources Inc.
October 22, 2001
Page 3
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to this firm under the caption
"Legal Matters" in the Prospectus forming a part of the Registration Statement.
In giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act.
We express no opinion as to the laws of any jurisdiction other than the
State of Texas, the State of Louisiana, the State of New York (under which the
Indenture is governed), the Delaware General Corporation Law and the federal
laws of the United States of America.
The opinions expressed herein are given as of the date hereof and we
undertake no obligations to supplement this letter if any applicable law changes
after such date or if we become aware of any facts that might change the
opinions expressed herein after such date or for any other reason.
Respectfully submitted,
Jenkens & Gilchrist,
A Professional Corporation
By: /s/ DONALD W. BRODSKY
--------------------------------------
Donald W. Brodsky
Authorized Signatory
DWB:klb
EX-12
6
d90789ex12.txt
STATMENT RE COMPUTATION OF RATIOS
EXHIBIT 12
DENBURY RESOURCES INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
--------------------------------------------- -----------------
1996 1997 1998 1999 2000 2000 2001
------ ------ -------- ------ ------ ------- -------
EARNINGS:
Pretax income from continuing
operations 14,056 23,798 (302,765) 4,614 74,933 25,158 73,143
Fixed charges 4,080 1,262 17,763 16,186 15,712 7,427 9,507
------ ------ -------- ------ ------ ------- -------
EARNINGS 18,136 25,060 (285,002) 20,800 90,645 32,585 82,650
------ ------ -------- ------ ------ ------- -------
FIXED CHARGES:
Interest expense 1,993 1,111 17,534 15,795 15,255 7,218 9,245
Interest component of rent
expense 116 151 229 391 457 209 262
Imputed preferred dividend 1,281
Preferred dividend tax effect 690
------ ------ -------- ------ ------ ------- -------
FIXED CHARGES 4,080 1,262 17,763 16,186 15,712 7,427 9,507
------ ------ -------- ------ ------ ------- -------
RATIO OF EARNINGS TO FIXED
CHARGES 4.4 19.9 __(a) 1.3 5.8 4.4 8.7
====== ====== ======== ====== ====== ======= =======
---------------
(a) Earnings were inadequate to cover fixed charges in 1998 by $285.0 million.
The deficiency was primarily due to a $280 million writedown of our full
cost pool as a result of the low oil prices during 1998.
EX-15.A
7
d90789ex15-a.txt
LETTER FROM DELOITTE & TOUCHE LLP
EXHIBIT 15(a)
Denbury Resources Inc.:
We have made a review, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited interim financial
information of Denbury Resources Inc. for the periods ended March 31, 2001 and
August 2, 2001 and 2000, and June 30, 2001 and 2000, as indicated in our reports
dated May 2, 2001; because we did not perform an audit, we expressed no opinion
on that information.
We are aware that our reports referred to above, which were included in the
Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001
and June 30, 2001 are being incorporated by reference in this Registration
Statement.
We are also aware that the aforementioned reports, pursuant to Rule 436(c) under
the Securities Act of 1933, are not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Dallas, Texas
October 22, 2001
EX-15.B
8
d90789ex15-b.txt
LETTER FROM ARTHUR ANDERSEN LLP
EXHIBIT 15(b)
October 22, 2001
Denbury Resources Inc.
5100 Tennyson Parkway
Suite 3000
Dallas, TX 77002
Gentlemen:
We are aware that Denbury Resources Inc. has incorporated by reference in its
Registration Statement on Form S-4, covering the sale of 9% Series B Senior
Subordinated Notes Due 2008, its Form 8-K/A dated July 24, 2001, which includes
our report dated June 22, 2001, covering the unaudited interim financial
information for Matrix Oil & Gas, Inc. for the quarter ended March 31, 2001,
contained therein. Pursuant to Regulation C of the Securities Act of 1933, that
report is not considered a part of the registration statement prepared or
certified by our firm or a report prepared or certified by our firm within the
meaning of Sections 7 and 11 of the Act.
Very truly yours,
/s/ Arthur Andersen LLP
Arthur Andersen LLP
EX-23.A
9
d90789ex23-a.txt
CONSENT OF DELOITTE & TOUCHE LLP
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Denbury Resources Inc. on Form S-4 of our report dated February 22, 2001,
appearing in the Annual Report on Form 10-K of Denbury Resources Inc. for the
year ended December 31, 2000 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Dallas, Texas
October 22, 2001
EX-23.B
10
d90789ex23-b.txt
CONSENT OF ARTHUR ANDERSEN LLP
EXHIBIT 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 16, 2001
(except with respect to Note 13, as to which the date is June 22, 2001) included
in the company's Form 8-K/A dated July 24, 2001 and to all references to our
Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
New Orleans, Louisiana
October 22, 2001
EX-23.C
11
d90789ex23-c.txt
CONSENT OF NETHERLAND, SEWELL & ASSOCIATES INC
EXHIBIT 23(c)
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS AND GEOLOGISTS
We hereby consent to the references to our firm and to our reports, or
information contained therein, dated as of December 31, 1998 and December 31,
1999, in the Registration Statement on Form S-4 of Denbury Resources Inc., a
Delaware corporation, to be filed with the Securities and Exchange Commission on
or about October 17, 2001.
NETHERLAND, SEWELL & ASSOCIATES, INC.
By: /s/ Frederick D. Sewell
---------------------------------
Frederic D. Sewell
President
Dallas, Texas
October 16, 2001
EX-23.D
12
d90789ex23-d.txt
CONSENT OF DEGOLYER AND MACNAUGHTON
EXHIBIT 23(d)
DEGOLYER AND MACNAUGHTON
4925 GREENVILLE AVENUE, SUITE 400
ONE ENERGY SQUARE
DALLAS, TEXAS 75206
October 19, 2001
Denbury Resources Inc.
5100 Tennyson Parkway, Suite 3000
Plano, Texas 75024
Ladies and Gentlemen:
We consent to the use of the name DeGolyer and MacNaughton and
to references to DeGolyer and MacNaughton and to references to our "Appraisal
Report as of December 31, 2001, on Certain Properties owned by Denbury Resources
Inc. - SEC Case," (our Report) or information contained therein, which were
prepared for Denbury Resources Inc., under the heading "Experts" of the
Registration Statement on Form S-4 to be filed on or about October 22, 2001. We
further consent to the use of the name DeGolyer and MacNaughton and to
references to DeGolyer and MacNaughton and to our Report or information
contained therein under the headings "Financial Highlights," "Selected Operating
Data," and "Notes to Consolidated Financial Statements - Note 9. Supplemental
Reserve Information (unaudited)" of Denbury Resources Inc.'s Form 10-K for the
fiscal year ended December 31, 2000, which is incorporated by reference in the
Form S-4.
Very truly yours,
/s/ DeGOLYER and MacNAUGHTON
----------------------------
DeGOLYER and MacNAUGHTON
EX-25
13
d90789ex25.txt
STATEMENT OF ELIGIBILITY
EXHIBIT 25
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ____
----------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
13-4994650
(I.R.S. Employer Identification Number)
712 MAIN STREET, HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip code)
LEE BOOCKER, 712 MAIN STREET, 26TH FLOOR
HOUSTON, TEXAS 77002 (713) 216-2448
(Name, address and telephone number of agent for service)
DENBURY RESOURCES INC.
(Exact name of obligor as specified in its charter)
DELAWARE 75-2815171
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
5100 TENNYSON PARKWAY, SUITE 3000
DALLAS, TEXAS 75024
(Address of principal executive offices) (Zip code)
SENIOR SUBORDINATED NOTES
(Title of indenture securities)
================================================================================
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
State of New York Banking Department
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee. (See Note on Page
7.)
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEE.
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH
ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(a) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER
INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 4. (CONTINUED)
(b) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE
CLAIM THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION
310(b)(1) OF THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER
ANY SUCH OTHER INDENTURE, INCLUDING A STATEMENT AS TO HOW THE
INDENTURE SECURITIES WILL RANK AS COMPARED WITH THE SECURITIES
ISSUED UNDER SUCH OTHER INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICER OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR REPRESENTATIVE
OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON
HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF
THE TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN IN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY COL. C
------------- -------------- ------------ -----------------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
2
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES
OF THE TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN IN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY COL. C
-------------- -------------- ------------ -----------------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO THE SECURITIES OF THE
OBLIGOR OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN
DEFAULT BY THE TRUSTEE.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
WHETHER THE BENEFICIALLY OR PERCENT OF
SECURITIES HELD AS COLLATERAL CLASS
ARE VOTING SECURITY FOR REPRESENTED BY
OR NONVOTING OBLIGATIONS IN AMOUNT GIVEN IN
TITLE OF CLASS SECURITIES DEFAULT COL. C
-------------- ------------ ------------------ ---------------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
TEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL
SECURITY FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE
OBLIGOR, FURNISH THE FOLLOWING
3
INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH UNDERWRITER ANY OF WHICH ARE
SO OWNED OR HELD BY THE TRUSTEE.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR PERCENT OF
HELD AS COLLATERAL CLASS
NAME OF ISSUER SECURITY FOR REPRESENTED BY
AND AMOUNT OBLIGATIONS IN AMOUNT GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ------------------ ----------------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES
OF CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL
SECURITY FOR OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE
KNOWLEDGE OF THE TRUSTEE (1) OWNS 10% OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH
THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR PERCENT OF
HELD AS COLLATERAL CLASS
NAME OF ISSUER SECURITY FOR REPRESENTED BY
AND AMOUNT OBLIGATIONS IN AMOUNT GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ------------------ ---------------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF
A PERSON OWNING 50% OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL
SECURITY FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE
KNOWLEDGE OF THE TRUSTEE, OWNS 50% OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OR
SUCH PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
4
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR PERCENT OF
HELD AS COLLATERAL CLASS
NAME OF ISSUER SECURITY FOR REPRESENTED BY
AND AMOUNT OBLIGATIONS IN AMOUNT GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ------------------ ---------------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS
INDEBTED TO THE TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
------------ ----------- --------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(a) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not, nor has there been, a default with respect to the
securities under this indenture. (See Note on Page 7.)
ITEM 13. (CONTINUED)
(b) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There has not been a default under any such indenture or series.
(See Note on Page 7.)
5
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE
EACH SUCH AFFILIATION.
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN
TRUSTEE IS AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE
QUALIFIED UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF
ELIGIBILITY.
o 1. A copy of the articles of association of the trustee now
in effect.
# 2. A copy of the certificate of authority of the trustee to
commence business.
* 3. A copy of the certificate of authorization of the trustee
to exercise corporate trust powers.
+ 4. A copy of the existing bylaws of the trustee.
5. Not applicable.
6. The consent of the United States institutional trustees
required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
NOTE REGARDING INCORPORATED EXHIBITS
Effective August 1, 2000, Chase Bank of Texas, National Association
merged into The Chase Manhattan Bank, a New York banking corporation. The
exhibits incorporated below relate to The Chase Manhattan Bank. The report of
condition attached as Exhibit 7 is that of The Chase Manhattan Bank for the
second quarter, 2001.
6
o Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as exhibits to
the Form S-4 File No. 333-46070.
# Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as exhibits to
the Form S-4 File No. 333-46070.
* The Trustee is authorized under the banking law of the State of New
York to exercise corporate trust powers.
+ Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as exhibits to
the Form S-4 File No. 333-46070.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment
by the trustee of all facts on which to base responsive answers to Items 2 and
13, the answers to said Items are based on incomplete information. Such Items
may, however, be considered as correct unless amended by an amendment to this
Form T-1.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939 THE
TRUSTEE, THE CHASE MANHATTAN BANK, A NEW YORK BANKING CORPORATION AND SUCCESSOR
TO CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, HAS DULY CAUSED THIS STATEMENT OF
ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO AUTHORIZED,
ALL IN THE CITY OF HOUSTON, AND STATE OF TEXAS, ON THE 22ND DAY OF OCTOBER,
2001.
THE CHASE MANHATTAN BANK,
AS TRUSTEE
By: /s/ MAURI J. COWEN
--------------------------------
Mauri J. Cowen
Vice President and Trust Officer
7
EXHIBIT 6
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
The undersigned is trustee under an Indenture between Denbury Resources
Inc., a Delaware corporation (the "Company") and The Chase Manhattan Bank, as
Trustee, entered into in connection with the issuance of the Company's Senior
Subordinated Notes.
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned hereby consents that reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ MAURI J. COWEN
--------------------------------
Mauri J. Cowen
Vice President and Trust Officer
EXHIBIT 7
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 2001,
in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ..................................................... $ 21,536
Interest-bearing balances ............................................. 31,428
Securities:
Held to maturity securities ................................................ 481
Available for sale securities .............................................. 60,903
Federal funds sold and securities purchased under
agreements to resell .................................................. 42,824
Loans and lease financing receivables:
Loans and leases held for sale ........................................ 3,856
Loans and leases, net of unearned income .............................. 155,575
Less: Allowance for loan and lease losses ............................. 2,276
Loans and leases, net of unearned income and
allowance ............................................................. 153,299
Trading Assets ............................................................. 66,636
Premises and fixed assets (including capitalized leases) ................... 4,468
Other real estate owned .................................................... 45
Investments in unconsolidated subsidiaries and
associated companies .................................................. 353
Customers' liability to this bank on acceptances
outstanding ........................................................... 346
Intangible assets
Goodwill .............................................................. 1,785
Other Intangible assets ............................................... 4,365
Other assets ............................................................... 19,923
--------
TOTAL ASSETS ............................................................... $412,248
========
LIABILITIES
Deposits
In domestic offices ..................................................... $ 137,865
Noninterest-bearing ..................................................... 56,799
Interest-bearing ........................................................ 81,066
In foreign offices, Edge and Agreement
subsidiaries and IBF's .................................................. 113,924
Noninterest-bearing .................................................. 6,537
Interest-bearing ........................................................ 107,387
Federal funds purchased and securities sold under agree-
ments to repurchase .......................................................... 65,474
Trading liabilities .......................................................... 39,611
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases) ............................... 10,573
Bank's liability on acceptances executed and outstanding ..................... 346
Subordinated notes and debentures ............................................ 6,355
Other liabilities ............................................................ 14,772
TOTAL LIABILITIES ............................................................ 388,920
Minority Interest in consolidated subsidiaries ............................... 89
EQUITY CAPITAL
Perpetual preferred stock and related surplus ................................ 0
Common stock ................................................................. 1,211
Surplus (exclude all surplus related to preferred stock) .................... 12,715
Retained earnings ........................................................ 9,985
Accumulated other comprehensive income ................................... (672)
Other equity capital components .............................................. 0
TOTAL EQUITY CAPITAL ......................................................... 23,239
---------
TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL ..................... $ 412,248
=========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in- structions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON JR. )
DOUGLAS A. WARNER III ) DIRECTORS
WILLIAM H. GRAY III )
EX-99.A
14
d90789ex99-a.txt
FORM OF LETTER OF TRANSMITTAL
EXHIBIT 99(a)
LETTER OF TRANSMITTAL
OFFER TO EXCHANGE
9% SERIES B SENIOR SUBORDINATED NOTES DUE 2008
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OUTSTANDING
9% SERIES B SENIOR SUBORDINATED NOTES DUE 2008
OF
DENBURY RESOURCES INC.
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON , 2001, UNLESS THE OFFER IS EXTENDED (THE "EXPIRATION DATE").
TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE
EXPIRATION DATE.
The Exchange Agent For The Exchange Offer Is:
THE CHASE MANHATTAN BANK
By Hand, Overnight Courier or Facsimile Transmissions
Registered or Certified Mail: (Eligible Institutions Only):
The Chase Manhattan Bank (214) 468-6228
2001 Bryan Street, 9th Floor
Dallas, Texas 75201 To Confirm Receipt Call:
Attn: Mr. Frank Ivins (214) 468-6228
For Questions or Information Call:
Ms. Mauri J. Cowen
(713) 216-6686
---------------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges receipt of the Prospectus dated ,
, of Denbury Resources Inc., a Delaware corporation (the "Company"),
and this Letter of Transmittal, which together constitute the Company's offer to
exchange (the "Exchange Offer") an aggregate principal amount of up to
$75,000,000 of the Company's 9% Series B Senior Subordinated Notes due 2008,
(the "Old Notes") for the same aggregate principal amount of the Company's
issued and outstanding 9% Series B Senior Subordinated Notes due 2008 (the "New
Notes") that have been registered under the Securities Act of 1933 (the
"Securities Act"). As used in this Letter of Transmittal, the Prospectus, as the
same may be amended or supplemented from time to time, is referred to as the
"Prospectus."
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the same meanings
given them in the Prospectus.
This Letter of Transmittal is to be completed by holders of Old Notes
either if (a) Old Notes are to be forwarded herewith or (b) tenders of Old Notes
are to be made by book-entry transfer to an account maintained by The Chase
Manhattan Bank (the "Exchange Agent") at The Depository Trust Company (the
"Book-Entry Transfer Facility" or "DTC") pursuant to the procedures set forth in
"The Exchange Offer -- Procedures for Tendering" in the Prospectus.
Holders of Old Notes whose certificates (the "Certificates") for such Old
Notes are not immediately available or who cannot deliver their Certificates and
all other required documents to the Exchange Agent on or prior to the Expiration
Date (as defined in the Prospectus) or who cannot complete the procedures for
book-entry transfer on a timely basis, must tender their Old Notes according to
the guaranteed delivery procedures set forth in "The Exchange
Offer -- Procedures for Tendering" in the Prospectus.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
The undersigned has completed the appropriate boxes below and signed this
Letter of Transmittal to indicate the action the undersigned desires to take
with respect to the Exchange Offer.
-------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD NOTES 1 2 3
-------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES)
OF REGISTERED HOLDER(S) CERTIFICATE AGGREGATE PRINCIPAL PRINCIPAL AMOUNT OF OLD
(PLEASE FILL IN, IF BLANK)* NUMBER(S)** AMOUNT OLD NOTES NOTES TENDERED***
-------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
TOTAL
-------------------------------------------------------------------------------------------------------------
* The name(s) and address(es) of the registered holder(s) of the Old Notes tendered hereby should be
printed above, if they are not already set forth above, as they appear on the Certificates representing
such Old Notes. The Certificate number(s) and the Old Notes that the undersigned wishes to tender should
be indicated in the appropriate boxes above.
** Need not be completed if Old Notes are being tendered by book-entry transfer.
*** Old Notes may be tendered in whole or in part in denominations of $1,000 and integral multiples thereof.
Unless otherwise indicated in this column, a holder will be deemed to have tendered all Old Notes
represented by the Old Notes indicated in Column 2. See Instruction 4.
-------------------------------------------------------------------------------------------------------------
2
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
-----------------------------------------------
Account Number
--------------------------------------------------------------
Transaction Code Number
-----------------------------------------------------
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s)
--------------------------------------------------------
Window Ticket Number (if any)
-----------------------------------------------
Date of Execution of Notice of Guaranteed Delivery
----------------------
Name of Institution which Guaranteed Delivery
------------------------------
IF GUARANTEED DELIVERY IS TO BE MADE BY BOOK-ENTRY TRANSFER:
Name of Tendering Institution
-----------------------------------------------
Account Number
--------------------------------------------------------------
Transaction Code Number
-----------------------------------------------------
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD NOTES
ARE TO BE RETURNED BY CREDITING THE BOOK-ENTRY TRANSFER FACILITY ACCOUNT
NUMBER SET FORTH ABOVE.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD NOTES FOR YOUR
OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF
THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
--------------------------------------------------------------------------
Address:
-----------------------------------------------------------------------
3
Ladies and Gentlemen:
The undersigned hereby tenders to the Company, the above described
aggregate principal amount of the Company's 9% Series B Senior Subordinated
Notes due 2008 (the "Old Notes") in exchange for a like aggregate principal
amount of the Company's 9% Series B Senior Subordinated Notes due 2008 that have
been registered under the Securities Act (the "New Notes") upon the terms and
subject to the conditions set forth in the Prospectus and in this Letter of
Transmittal (which, together with the Prospectus, constitute the "Exchange
Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Old Notes tendered herewith in accordance with the terms and
conditions of the Exchange Offer (including, if the Exchange Offer is extended
or amended, the terms and conditions of any such extension or amendment), the
undersigned hereby exchanges, assigns and transfers to or upon the order of the
Company all right, title and interest in and to the Old Notes that are being
tendered herewith.
The undersigned hereby irrevocably constitutes and appoints the Exchange
Agent as its agent and attorney-in-fact (with full knowledge that the Exchange
Agent is also acting as agent of the Company in connection with the Exchange
Offer) with respect to the tendered Old Notes, with full power of substitution
(such power of attorney being deemed to be an irrevocable power coupled with an
interest), subject only to the right of withdrawal described in the Prospectus,
to (1) deliver Certificates for Old Notes to the Company together with all
accompanying evidences of transfer and authenticity to, or upon the order of,
the Company, upon receipt by the Exchange Agent, as the undersigned's agent, of
the New Notes to be issued in exchange for such Old Notes, (2) present
Certificates for such Old Notes for transfer, and to transfer the Old Notes, on
the books of the Company, and (3) receive for the account of the Company all
benefits and otherwise exercise all rights of beneficial ownership of such Old
Notes, all in accordance with the terms and conditions of the Exchange Offer.
The undersigned is the registered owner of all the tendered Old Notes and
the undersigned represents that it has received from each beneficial owner of
the tendered Old Notes for which it holds Old Notes (collectively, the
"Beneficial Owners") a duly completed and executed from of "Instruction to
Registered Holder and/or Book-Entry Transfer Facility Participant from
Beneficial Owner" accompanying this Letter of Transmittal, instructing the
undersigned to take the action described in this Letter of Transmittal.
For each Old Note accepted for exchange, the holder of such Old Note will
receive a New Note having a principal amount equal to that of the surrendered
Old Note. The New Notes will bear interest at a rate of 9% per annum.
Accordingly, registered holders of New Notes on the relevant record date for the
first interest payment date following the consummation of the Exchange Offer
will receive interest accruing from the last interest payment date on which
interest was paid on the Old Notes surrendered in exchange therefor or, if no
interest has been paid, from August 15, 2001. Interest on the Exchange Notes
will be payable semi-annually on March 1 and September 1 of each year commencing
on March 1, 2002.
The undersigned, hereby represents and warrants that the undersigned has
full power and authority to tender, exchange, assign and transfer the Old Notes
tendered hereby and that, when the same are accepted for exchange, the Company
will acquire good, marketable and unencumbered title thereto, free and clear of
all liens, restrictions, charges and encumbrances, and that the Old Notes
tendered hereby are not subject to any adverse claims or proxies. The
undersigned and each Beneficial Owner will, upon request, execute and deliver
any additional documents deemed by the Company or the Exchange Agent to be
necessary or desirable to complete the tender, exchange, assignment and transfer
of the Old Notes tendered hereby, and the undersigned will comply with its
obligations under the Registration Rights Agreement. The undersigned has read
and agrees to all of the terms of the Exchange Offer.
If any tendered Old Notes are not exchanged pursuant to the Exchange Offer
for any reason, Certificates for such nonexchanged Old Notes will be returned
(or, in the case of Old Notes tendered by book-entry transfer, such Old Notes
will be credited to an account maintained at DTC), without expense to the
tendering holder, promptly following the expiration or termination of the
Exchange Offer.
4
The undersigned understands that tenders of Old Notes pursuant to any one
of the procedures described in "The Exchange Offer -- Procedures for Tendering"
in the Prospectus and in the instructions attached hereto will, upon the
Company's acceptance for exchange of such tendered Old Notes, constitute a
binding agreement between the undersigned and the Company upon the terms and
subject to the conditions of the Exchange Offer. The undersigned recognizes
that, under certain circumstances set forth in the Prospectus, the Company may
not be required to accept for exchange any of the Old Notes tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the New Notes be issued
in the name(s) of the undersigned or, in the case of a book-entry transfer of
Old Notes, that such New Notes be credited to the account indicated above
maintained at DTC. If applicable, substitute Certificates representing Old Notes
not exchanged or not accepted for exchange will be issued to the undersigned or,
in the case of a book-entry transfer of Old Notes, will be credited to the
account indicated above maintained at DTC. Similarly, unless otherwise indicated
under "Special Delivery Instructions," please deliver New Notes to the
undersigned at the address shown below the undersigned's signature.
By tendering Old Notes and executing this Letter of Transmittal, the
undersigned hereby represents and agrees that (1) neither the undersigned nor
any Beneficial Owner of Old Notes participating in the Exchange Offer is an
affiliate (within the meaning of Rule 405 under the Securities Act) of the
Company, (2) neither the undersigned nor any Beneficial Owner of Old Notes
participating in the Exchange Offer is engaged in, nor intends to engage in, and
has no arrangement or understanding with any person to participate in, a
distribution of the New Notes and (3) the undersigned and each Beneficial Owner
of Old Notes participating in the Exchange Offer is acquiring the New Notes in
its ordinary course of their respective businesses.
By tendering Old Notes and executing this Letter of Transmittal or
effecting delivery of an Agent's Message in lieu thereof, the undersigned hereby
represents and agrees that if it or any Beneficial Owner of Old Notes
participating in the Exchange Offer is a broker-dealer or if the undersigned or
any Beneficial Owner of Old Notes is using the Exchange Offer to participate in
a distribution of the New Notes, such person (1) could not under SEC policy as
in effect on the date hereof rely on the position of the SEC enunciated in
Morgan Stanley & Co. Incorporated (available June 5, 1991) and Exxon Capital
Holdings Corporation (available May 13, 1988), as interpreted in the SEC's
letter to Shearman & Sterling (available July 2, 1993), and similar no-action
letters and (2) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a resale transaction and
that such a resale transaction must be covered by an effective registration
statement containing the selling security holder information required by Item
507 or 508, as applicable, of Regulation S-K if the resales are of New Notes
obtained by the undersigned or such Beneficial Owner in exchange for Old Notes
acquired by the undersigned or such Beneficial Owner directly from the Company.
The Company has agreed that the Prospectus may be used by a Participating
Broker-Dealer (as defined below) in connection with resales of New Notes
received in exchange for Old Notes, where such Old Notes were acquired by such
Participating Broker-Dealer for its own account as a result of market-making
activities or other trading activities, for a period ending the earlier of 180
days after the date on which the registration statement containing the
Prospectus was first declared effective by the SEC and the date on which such
broker-dealer is no longer required to deliver a Prospectus in connection with
market making or other trading activities, subject to extension under certain
limited circumstances described in the Prospectus (the "Delivery Period"), or,
if earlier, when all such New Notes have been disposed of by such Participating
Broker-Dealer. If the undersigned is a Participating Broker-Dealer that will
receive New Notes for its own account in exchange for Old Notes that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a Prospectus in connection with any resale of
such New Notes; however, by so acknowledging and by delivering a Prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. In that regard, each broker-dealer who acquired
Old Notes for its own account as a result of market-making or other trading
activities (a "Participating Broker-Dealer"), by tendering such Old Notes and
executing this
5
Letter of Transmittal, agrees that, upon receipt of any notice from the Company
of the existence of any fact or the happening of any event that makes any
statement of a material fact made in the registration statement of which the
Prospectus is a part (the "Registration Statement"), the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue in any material respect, or that requires the making of any
additions to or changes in the Registration Statement or the Prospectus in order
to make the statements therein not misleading in any material respect, such
Participating Broker-Dealer will forthwith discontinue disposition of New Notes
until such Participating Broker-Dealer's receipt of the copies of a supplemented
or amended Prospectus that does not contain any untrue statement of a material
fact or omit to state any material fact that is necessary to make the statements
therein not misleading or until it is advised in writing by the Company that the
use of the Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the Prospectus. If
so directed by the Company, each Participating Broker-Dealer will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Participating Broker-Dealer's possession, of the Prospectus that
was being used at the time of receipt of such notice. In the event the Company
shall give any such notice, the Delivery Period shall be extended by the number
of days during the period from and including the date of the giving of such
notice of the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any document incorporated by reference
therein untrue in any material respect, or that requires the making of any
additions to or changes in the Registration Statement or the Prospectus in order
to make the statements therein not misleading in any material respect to and
including the date when each Participating Broker-Dealer shall have received the
copies of such supplemented or amended Prospectus or shall have received advice
from the Company that the use of the Prospectus may be resumed.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Old Notes tendered hereby.
All authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OLD NOTES"
ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE OLD NOTES AS
SET FORTH IN SUCH BOX.
6
HOLDER(S) SIGN HERE
(SEE INSTRUCTIONS 2,5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON PAGE )
(NOTE: SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
Must be signed by registered holder(s) exactly as name(s) appear(s) on
Certificate(s) for the Old Notes hereby tendered or by any person(s) authorized
to become the registered holder(s) by endorsements and documents transmitted
herewith (including such opinions of counsel, certifications and other
information as may be required by the Company for the Old Notes to comply with
the restrictions on transfer applicable to the Old Notes). If signature is by an
attorney-in-fact, executor, administrator, trustee, guardian, officer of a
corporation or another acting in a fiduciary capacity or representative
capacity, please set forth the signer's full title. See Instruction 5.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Signature(s) Of Holder(s))
Date
---------------------------------------------------------------------------
Name(s)
-----------------------------------------------------------------------
(Please Print)
Capacity (Full Title)
-------------------------------------------------------
Address:
-----------------------------------------------------------------------
--------------------------------------------------------------------------------
(Include Zip Code)
--------------------------------------------------------------------------------
Area Code and Telephone Number
--------------------------------------------------------------------------------
(Tax Identification Or Social Security Number(s))
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 2 AND 5)
--------------------------------------------------------------------------------
(Authorized Signature)
Date:
---------------------------------------------------------------------------
Name of Firm
---------------------------------------------------------------------------
Capacity (Full Title)
-------------------------------------------------------
Address
-----------------------------------------------------------------------
--------------------------------------------------------------------------------
(Include Zip Code)
--------------------------------------------------------------------------------
Area Code and Telephone Number
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 2, 5 AND 6)
To be completed ONLY if the New Notes or Old Notes not tendered are to be issued
in the name of someone other than the registered holder of the Old Notes whose
name(s) appear(s) above.
Issue
[ ] Old Notes not tendered to:
[ ] New Notes, to:
Name(s)
-----------------------------------------------------------------------
Address
-----------------------------------------------------------------------
--------------------------------------------------------------------------------
(Include Zip Code)
--------------------------------------------------------------------------------
Area Code and Telephone Number
--------------------------------------------------------------------------------
(Tax Identification or Social Security Number(s))
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 2, 5 AND 6)
To be completed ONLY if New Notes or Old Notes not tendered are to be sent to
someone other than the registered holder of the Old Notes whose name(s)
appear(s) above, or such registered holder(s) at an address other than that
shown above.
Mail
[ ] Old Notes not tendered to:
[ ] New Notes, to:
Name(s)
-----------------------------------------------------------------------
Address
-----------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Include Zip Code)
--------------------------------------------------------------------------------
Area Code and Telephone Number
--------------------------------------------------------------------------------
(Tax Identification or Social Security Number(s))
7
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED DELIVERY
PROCEDURES. This Letter of Transmittal is to be completed either if (a)
Certificates are to be forwarded herewith or (b) tenders are to be made pursuant
to the procedures for tender by book-entry transfer set forth in "The Exchange
Offer -- Procedures for Tendering" in the Prospectus. Certificates, or timely
confirmation of a book-entry transfer of such Old Notes into the Exchange
Agent's account at DTC, as well as this Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, and any other documents required by this Letter of Transmittal, must
be received by the Exchange Agent at its address set forth herein on or prior to
the Expiration Date.
ANY BENEFICIAL OWNER OF TENDERED OLD NOTES WHO IS NOT THE REGISTERED HOLDER
MUST ARRANGE PROMPTLY WITH THE REGISTERED HOLDER TO EXECUTE AND DELIVER THIS
LETTER OF TRANSMITTAL ON ITS BEHALF THROUGH THE EXECUTION AND DELIVERY TO THE
REGISTERED HOLDER OF THE INSTRUCTIONS OF REGISTERED HOLDER AND/OR BOOK-ENTRY
TRANSFER FACILITY PARTICIPANT FROM BENEFICIAL OWNER FORM ACCOMPANYING THIS
LETTER OF TRANSMITTAL.
Holders who wish to tender their Old Notes and (1) whose Old Notes are not
immediately available or (2) who cannot deliver their Old Notes, this Letter of
Transmittal and all other required documents to the Exchange Agent on or prior
to the Expiration Date or (3) who cannot complete the procedures for delivery by
book-entry transfer on a timely basis, may tender their Old Notes by properly
completing and duly executing a Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedures set forth in "The Exchange Offer -- Procedures
for Tendering" in the Prospectus. Pursuant to those procedures: (1) a tender
must be made by or through an Eligible Institution (as defined below); (2) a
properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form made available by the Company, must be received by the
Exchange Agent on or prior to the Expiration Date; and (3) the Certificates (or
a book-entry confirmation (as defined in the Prospectus)) representing all
tendered Old Notes, in proper form for transfer, together with a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees and any other documents required by this
Letter of Transmittal, must be received by the Exchange Agent within three New
York Stock Exchange, Inc. trading days after the date of execution of such
Notice of Guaranteed Delivery, all as provided in "The Exchange
Offer -- Procedures for Tendering" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice. For Old Notes to be
properly tendered pursuant to the guaranteed delivery procedure, the Exchange
Agent must receive a Notice of Guaranteed Delivery on or prior to the Expiration
Date. As used herein and in the Prospectus, "Eligible Institution" means a firm
or other entity identified in Rule 17Ad-15 under the Exchange Act as "an
eligible guarantor institution," including (as such terms are defined therein)
(1) a bank; (2) a broker, dealer, municipal securities broker or dealer or
government securities broker or dealer; (3) a credit union; (4) a national
securities exchange, registered securities association or clearing agency; or
(5) a savings association that is a participant in a Securities Transfer
Association.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING HOLDER
AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE
AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED,
PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
8
The Company will not accept any alternative, conditional or contingent
tenders. Each tendering holder, by execution of a Letter of Transmittal (or
facsimile thereof), waives any right to receive any notice of the acceptance of
such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(1) this Letter of Transmittal is signed by the registered holder of
Old Notes tendered herewith, unless such holder(s) has completed either the
box entitled "Special Issuance Instructions" or the box entitled "Special
Delivery Instructions" above, or
(2) such Old Notes are tendered for the account of a firm that is an
Eligible Institution.
In all other cases, an Eligible Institution must guarantee the signature(s)
on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Notes" is inadequate, the Certificate number(s) and/or the
principal amount of Old Notes and any other required information should be
listed on a separate signed schedule which is attached to this Letter of
Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Notes will be
accepted only in the principal amount of $1,000 and integral multiples thereof.
If less than all the Old Notes evidenced by any Certificate submitted are to be
tendered, fill in the principal amount of Old Notes which are to be tendered in
the box entitled "Principal Amount of Old Notes Tendered." In such case, new
Certificate(s) for the remainder of the Old Notes that were evidenced by your
old Certificate(s) will be sent to the registered holder of the Old Notes
promptly after the Expiration Date unless special issuance or special delivery
instructions are given. See Instruction 6. All Old Notes represented by
Certificates delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Notes may be withdrawn
at any time on or prior to the Expiration Date. In order for a withdrawal to be
effective on or prior to that time, a written, telegraphic or facsimile
transmission of such notice of withdrawal must be timely received by the
Exchange Agent at its address set forth above or in the Prospectus on or prior
to the Expiration Date. Any such notice of withdrawal must specify the name of
the person who tendered the Old Notes to be withdrawn, the aggregate principal
amount of Old Notes to be withdrawn, and (if Certificates for Old Notes have
been tendered) the name of the registered holder of the Old Notes as set forth
on the Certificate for the Old Notes, if different from that of the person who
tendered such Old Notes. If Certificates for the Old Notes have been delivered
or otherwise identified to the Exchange Agent, then prior to the physical
release of such Certificates for the Old Notes, the tendering holder must submit
the serial numbers shown on the particular Certificates for the Old Notes to be
withdrawn and the signature on the notice of withdrawal must be guaranteed by an
Eligible Institution, except in the case of Old Notes tendered for the account
of an Eligible Institution. If Old Notes have been tendered pursuant to the
procedures for book-entry transfer set forth in the Prospectus under "The
Exchange Offer -- Procedures for Tendering," the notice of withdrawal must
specify the name and number of the account at DTC to be credited with the
withdrawal of Old Notes, in which case a notice of withdrawal will be effective
if delivered to the Exchange Agent by written, telegraphic or facsimile
transmission. Withdrawals of tenders of Old Notes may not be rescinded. Old
Notes properly withdrawn will not be deemed validly tendered for purposes of the
Exchange Offer, but may be retendered at any subsequent time on or prior to the
Expiration Date by following any of the procedures described in the Prospectus
under "The Exchange Offer -- Procedures for Tendering."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company, in its
sole discretion, whose determination shall be final and binding on all parties.
None of the Company or any affiliates or assigns of the Company or the Exchange
Agent or any other person shall be under any duty to give any notification of
any irregularities or incur any liability for failure to give any such
notification. Any Old Notes which have been tendered but which are withdrawn
will be returned to the holder thereof without cost to such holder promptly
after withdrawal.
9
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Old
Notes tendered hereby, the signature(s) must correspond exactly with the name(s)
as written on the face of the Certificate(s) without alteration, enlargement or
any change whatsoever.
If any tendered Old Notes are registered in different name(s) on several
Certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal (or facsimiles thereof) as there are different
registrations of Certificates.
If any of the Old Notes tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If this Letter of Transmittal or any Certificates or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing and must submit proper evidence
satisfactory to the Company, in its sole discretion, of each such person's
authority so to act.
When this Letter of Transmittal is signed by the registered owner(s) of the
Old Notes listed and transmitted hereby, no endorsement(s) of Certificate(s) or
separate bond power(s) are required unless New Notes are to be issued in the
name of a person other than the registered holder(s).
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Old Notes listed, the Certificates must be endorsed
or accompanied by appropriate bond powers, signed exactly as the name or names
of the registered owner(s) appear(s) on the Certificates, and also must be
accompanied by such opinions of counsel, certifications and other information as
the Company may require in accordance with the restrictions on transfer
applicable to the Old Notes. Signatures on the Letter of Transmittal and such
Certificates or bond powers must be guaranteed by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New Notes are to be
issued in the name of a person other than the signer of this Letter of
Transmittal, or if New Notes are to be sent to someone other than the signer of
this Letter of Transmittal or to an address other than that shown above, the
appropriate boxes on this Letter of Transmittal should be completed.
Certificates for Old Notes not exchanged will be returned by mail or, if
tendered by book-entry transfer, by crediting the account indicated above
maintained at DTC. See Instruction 4.
7. IRREGULARITIES. The Company will determine, in its sole discretion, all
questions as to the form of documents, validity, eligibility (including time of
receipt) and acceptance for exchange of any tender of Old Notes, which
determination shall be final and binding on all parties. The Company reserves
the absolute right to reject any and all tenders determined by it not to be in
proper form or the acceptance of which, or exchange for which, may, in the view
of counsel to the Company, be unlawful. The Company also reserves the absolute
right, subject to applicable law, to waive any of the conditions of the Exchange
Offer set forth in the Prospectus under "The Exchange Offer" or any conditions
or irregularity in any tender of Old Notes of any particular holder whether or
not similar conditions or irregularities are waived in the case of other
holders. The Company's interpretation of the terms and conditions of the
Exchange Offer (including this Letter of Transmittal and the instructions
hereto) will be final and binding. No tender of Old Notes will be deemed to have
been validly made until all irregularities with respect to such tender have been
cured or waived. The Company or any affiliates or assigns of the Company, the
Exchange Agent, or any other person shall not be under any duty to give
notification of any irregularities in tenders or incur any liability for failure
to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions and
requests for assistance may be directed to the Exchange Agent at its address and
telephone number set forth on the front of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and the
Letter of Transmittal may be obtained from the Exchange Agent.
9. BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income tax
law, a holder whose tendered Old Notes are accepted for exchange is required to
provide the Exchange Agent with such
10
holder's correct taxpayer identification number ("TIN") on Substitute Form W-9
below. If the Exchange Agent is not provided with the correct TIN, the Internal
Revenue Service (the "IRS") may subject the holder or other payee to a monetary
penalty. In addition, payments to such holders or other payees with respect to
Old Notes exchanged pursuant to the Exchange Offer may be subject to 31% backup
withholding.
The box "Awaiting TIN" in Part 1 of the Substitute Form W-9 may be checked
if the tendering holder has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future. If that box is checked, the
holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid back-up withholding.
Notwithstanding that the box "Awaiting TIN" in Part 1 is checked and the
Certificate of Awaiting Taxpayer Identification Number is completed, the
Exchange Agent will withhold 31% of all payments made prior to the time a
properly certified TIN is provided to the Exchange Agent. The Exchange Agent
will retain such amounts withheld during the 60 day period following the date of
the Substitute Form W-9. If the holder furnishes the Exchange Agent with its TIN
within 60 days after the date of the Substitute Form W-9, the amounts retained
during the 60 day period will be remitted to the holder and no further amounts
shall be retained or withheld from payments made to the holder thereafter. If,
however, the holder has not provided the Exchange Agent with its TIN within such
60 day period, amounts withheld will be remitted to the IRS as backup
withholding. In addition, 31% of all payments made thereafter will be withheld
and remitted to the IRS until a correct TIN is provided.
The holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered owner of
the Old Notes or of the last transferee appearing on the transfers attached to,
or endorsed on, the Old Notes. If the Old Notes are registered in more than one
name or are not in the name of the actual owner, consult the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional guidance on which number to report.
Certain holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting requirements. Such holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" in Part 2 to
avoid possible erroneous backup withholding. A foreign person may qualify as an
exempt recipient by submitting a properly completed IRS Form W-8, signed under
penalties of perjury, attesting to that holder's exempt status. Please consult
the enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional guidance on which holders are exempt from
backup withholding.
Backup withholding is not an additional U.S. Federal income tax. Rather,
the U.S. Federal income tax liability of a person subject to backup withholding
will be reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained from the IRS.
10. NO CONDITIONAL TENDERS. No alternative, conditional, irregular or
contingent tenders will be accepted. All tendering holders of Old Notes, by
execution of this Letter of Transmittal, shall waive any right to receive notice
of the acceptance of their Old Notes for exchanges.
11. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Old Notes have been lost, destroyed or stolen, the holder should
promptly notify the Exchange Agent. The holder will then be instructed as to the
steps that must be taken in order to replace the Certificate(s). This Letter of
Transmittal and related documents cannot be processed until the procedures for
replacing lost, destroyed or stolen Certificate(s) have been completed.
12. SECURITY TRANSFER TAXES. Holders who tender their Old Notes for
exchange will not be obligated to pay any transfer taxes in connection
therewith. If, however, New Notes are to be delivered to, or are to be issued in
the name of, any person other than the registered holder of the Old Notes
tendered, or if a transfer tax is imposed for any reason other than the exchange
of Old Notes in connection with the Exchange Offer, then the amount of any such
transfer tax (whether imposed on the registered holder or any other persons)
will be payable by the tendering holder. If satisfactory evidence of payment of
such
11
taxes or exemption therefrom is not submitted with the Letter of Transmittal,
the amount of such transfer taxes will be billed directly to such tendering
holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL OTHER
REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE
EXPIRATION DATE.
12
TO BE COMPLETED BY ALL TENDERING SECURITY HOLDERS
(SEE INSTRUCTION 9)
PAYOR'S NAME: THE CHASE MANHATTAN BANK
----------------------------------------------------------------------------------------------------------
PART 1 -- PLEASE PROVIDE YOUR TIN TIN: ---------------------------
ON THE LINE AT RIGHT AND CERTIFY Social Security Number
SUBSTITUTE BY SIGNING AND DATING BELOW OR
FORM W-9 Employer Identification
Number
Awaiting TIN [ ]
DEPARTMENT OF THE TREASURY -----------------------------------------------------------------------
INTERNAL REVENUE SERVICE PART 2 -- For Payees exempt from backup withholding, see the enclosed
Guidelines and complete as instructed therein.
PAYOR'S REQUEST FOR -----------------------------------------------------------------------
TAXPAYER IDENTIFICATION CERTIFICATION -- UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
NUMBER
("TIN") AND CERTIFICATION (1) The number shown on this form is my correct taxpayer identification
number (or I am waiting for a number to be issued to me),
(2) I am not subject to backup withholding either because (a) I am
exempt from backup withholding, (b) I have not been notified by the
Internal Revenue Service ("IRS") that I am subject to backup
withholding as a result of a failure to report all interest or
dividends, or (c) the IRS has notified me that I am no longer
subject to backup withholding, and
(3) All other information provided on this form is true and correct.
SIGNATURE DATE
--------------------------------------- -----------------
----------------------------------------------------------------------------------------------------------
You must cross out item (2) in the Certification if you have been notified
by the IRS that you are subject to backup withholding because of under reporting
interest or dividends on your tax return and you have not been notified by the
IRS that you are no longer subject to backup withholding.
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU PURSUANT TO
THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR
ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
MARKED "AWAITING TIN" IN PART 1 OF SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (1) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (2) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number by the time of payment, 31% of all
reportable payments made to me on account of the Exchange Offer will be retained
until I provide a taxpayer identification number to the Exchange Agent and that,
if I do not provide my taxpayer identification number within 60 days, such
retained amounts shall be remitted to the IRS as backup withholding, and 31% of
all reportable payments made to me thereafter will be withheld and remitted to
the Internal Revenue Service until I provide a taxpayer identification number.
----------------------------------------------------- ------------------------------------
Signature Date
13
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER TAXPAYER IDENTIFICATION NUMBER TO GIVE THE
PAYER. Social security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
GIVE THE GIVE THE EMPLOYER
SOCIAL SECURITY IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF -- FOR THIS TYPE OF ACCOUNT: NUMBER OF --
------------------------- --------------- ------------------------- -----------------
1. The individual's account The individual 6. A valid trust, estate, or The legal entity (do
pension trust not furnish the
2. Two or more individuals The actual owner of the identifying number of
(joint account) account or, if combined the personal
funds, any one of the representative or
individuals(1) trustee unless the
legal entity itself
3. Custodian account of The minor(2) is not designated in
a minor (Uniform Gift to the account title)(4)
Minors Act)
7. Corporate account The corporation
4. a. The usual revocable The grantor-trustee(1)
savings trust account 8. Partnership The partnership
(grantor is also trustee)
9. Association, club, The organization
b. So-called trust account The actual owner(1) religious, charitable,
that is not a legal or educational or other
valid trust under state tax-exempt organization
law
10. A broker or registered The broker or nominee
5. Sole proprietorship The owner(3) nominee
account
11. Account with the The public entity
Department of
Agriculture in the name
of a public entity (such
as a state or local
government, school
district, or prison) that
receives agricultural
program payments
(1) List first and circle the name of the person whose number you furnish. If
only one person on a joint account has a social security number, that
person's number must be furnished.
(2) Circle the minor's name and furnish the minor's social security number.
(3) You must show your individual name. You may also enter your business or
"doing business as" name. You may use either your social security number
or, if you have one, your employer identification number.
(4) List first and circle the name of the legal trust, estate or pension trust.
NOTE: If no name is circled when there is more than one name listed, the
number will be considered to be that of the first name listed.
14
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
OBTAINING A NUMBER
If you do not have a taxpayer identification number or you don't know
your number, obtain Form SS-5, Application for a Social Security Number Card, or
Form SS-4, Application for Employer Identification Number, at the local office
of the Social Security Administration or the Internal Revenue Service (the
"IRS") and apply for a number. You may also obtain Form SS-4 by calling the IRS
at 1-800-TAX-FORM.
If you do not have a TIN, but have applied for one, write "Applied for"
in the space for the TIN, sign and date the form and return it to the Exchange
Agent.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments
include the following:
o An organization exempt from tax under section 501(a), or an
individual retirement account.
o The United States or any wholly-owned agency or
instrumentality thereof.
o A State, the District of Columbia, a possession of the United
States or any political subdivision or wholly-owned agency or
instrumentality thereof.
o A foreign government, a political subdivision of a foreign
government, or any wholly-owned agency or instrumentality
thereof.
o An international organization or any wholly-owned agency or
instrumentality thereof.
Payee specifically exempted from backup withholding on interest and
dividend payments include the following:
o A corporation.
o A financial institution.
o A registered dealer in securities or commodities registered in
the U.S., the District of Columbia, or a possession of the
U.S.
o A real estate investment trust.
o A common trust fund operated by a bank under section 584(a).
o An exempt charitable remainder trust, or a non-exempt trust
described in section 4947.
o An entity registered at all times during the tax year under
the Investment Company Act of 1940.
o A foreign central bank issue.
o A middleman known in the investment community as a nominee or
who is listed in the most recent publication of the American
Society of Corporate Secretaries, Inc., Nominee List.
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
o Payments to nonresident aliens subject to withholding under
section 1441.
15
o Payments to partnerships not engaged in a trade or business in
the U.S. and which have at least one nonresident partner.
o Payments of patronage dividends not paid in money.
o Payments made by certain foreign organizations.
o Section 404(k) payments made by an ESOP.
Payments of interest not generally subject to backup withholding
include the following:
o Payments of interest on obligations issued by individuals.
Note: You may be subject to backup withholding if this
interest is $600 or more and is paid in the course of the
payer's trade or business and you have not provided your
correct taxpayer identification number to the payer.
o Payments of tax-exempt interest (including exempt-interest
dividends under section 852).
o Payments described in section 6049(b) (5) to non-resident
aliens.
o Payments on tax-free covenant bonds under section 1451.
o Payments made by certain foreign organizations.
Exempt payees described above should file Form W-9 to avoid possible
erroneous backup withholding. FILE THE FORM W-9 WITH THE PAYER. FURNISH YOUR
TAXPAYER IDENTIFICATION NUMBER. WRITE "EXEMPT" ON THE FACE OF THE FORM AND
RETURN IT TO THE PAYER.
Certain payments other than dividends that are not subject to
information reporting are also not subject to backup withholding. For details,
see the regulations under sections 6041, 6041A(a), 6045, 6050A, 6050N and their
regulations.
Privacy Act Notice--Section 6109 requires most recipients of dividend,
interest or other payments to give taxpayer identification numbers to payers who
must report the payments to the IRS. The IRS uses the number for identification
purposes and to help verify the accuracy of tax returns. The IRS also may
provide this information to the Department of Justice for civil and criminal
litigation and to cities, states, and the District of Columbia to carry out
their tax laws. Payers must be given the numbers whether or not recipients are
required to file tax returns. Payers must generally withhold 31% of taxable
interest, dividends and certain other payments to a payee who does not furnish a
taxpayer identification number to a payer. Certain penalties may also apply.
PENALTIES
(1) Penalty for failure to furnish taxpayer identification number--If
you fail to furnish your taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) Civil penalty for false information with respect to withholding--If
you make a false statement with no reasonable basis which results in no
imposition of backup withholding, you are subject to a penalty of $500.
(3) Criminal penalty for falsifying information--Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
16
EX-99.B
15
d90789ex99-b.txt
FORM OF NOTICE OF NOTICE OF GUARANTEED DELIVERY
EXHIBIT 99(b)
NOTICE OF GUARANTEED DELIVERY
OFFER TO EXCHANGE
9% SERIES B SENIOR SUBORDINATED NOTES DUE 2008
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OUTSTANDING
9% SERIES B SENIOR SUBORDINATED NOTES DUE 2008
OF
DENBURY RESOURCES INC.
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used to accept the Exchange Offer (as defined below) if (1)
Certificates for the 9% Series B Senior Subordinated Notes due 2008 (the "Old
Notes") of Denbury Resources Inc., a Delaware corporation (the "Company"), being
tendered are not immediately available, or (2) time will not permit the Old
Notes, the Letter of Transmittal or any other required documents to be delivered
to The Chase Manhattan Bank (the "Exchange Agent") on or prior to 5:00 p.m., New
York City time, on the expiration date referred to in the Prospectus defined
below or (3) the procedures for delivery by book-entry transfer cannot be
completed on a timely basis. This Notice of Guaranteed Delivery may be delivered
by hand, overnight courier or mail, or by facsimile transmission, to the
Exchange Agent at the address set forth below. See "The Exchange
Offer -- Procedures for Tendering" in the Prospectus.
The Exchange Agent For The Exchange Offer Is:
THE CHASE MANHATTAN BANK
By Hand, Overnight Courier or Facsimile Transmissions
Registered or Certified Mail: (Eligible Institutions Only):
The Chase Manhattan Bank (214) 468-6228
2001 Bryan Street, 9th Floor
Dallas, Texas 75201 To Confirm Receipt Call:
Attn: Mr. Frank Ivins (214) 468-6228
For Questions or Information Call:
Ms. Mauri J. Cowen
(713) 216-6686
---------------------
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA
FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
Ladies and Gentlemen:
The undersigned hereby tenders to Denbury Resources Inc. (the "Company"),
upon the terms and subject to the conditions set forth in the Prospectus dated
, (as the same may be amended or supplemented from time to time, the
"Prospectus"), and the related Letter of Transmittal (which together constitute
the "Exchange Offer"), receipt of which is hereby acknowledged, the aggregate
principal amount of the Old Notes set forth below pursuant to the guaranteed
delivery procedures set forth in the Prospectus under the caption "The Exchange
Offer -- Procedures for Tendering."
Aggregate principal
amount tendered*: $
-------------------------------------------------------------
Certificate No(s).
of Old Notes
(if available):
-----------------------------------------------------------------
Aggregate principal
amount represented by the
Old Notes Certificate(s): $
-----------------------------------------------------
---------------
* Must be in integral multiples of $1,000.
IF THE OLD NOTES WILL BE TENDERED BY
BOOK-ENTRY TRANSFER, PLEASE PROVIDE THE
FOLLOWING INFORMATION:
DTC Account Number:
-------------------------------------------------------------
Please print the following information:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Name(s) of Registered Holder(s))
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Address)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(City, State and Zip)
--------------------------------------------------------------------------------
(Area Code and Telephone Number)
All authority herein conferred or agreed to be conferred shall survive the death
or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned.
PLEASE SIGN HERE
x ----------------------------------------- -----------------------------------------
x ----------------------------------------- -----------------------------------------
(Signature(s) of Owner(s) or (Date)
Authorized Signatory)
THE GUARANTEE ON THE NEXT PAGE MUST BE COMPLETED
2
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein): (1) a bank; (2) a
broker, dealer, municipal securities broker or dealer or government securities
broker or dealer; (3) a credit union; (4) a national securities exchange,
registered securities association or clearing agency; or (5) a savings
association that is a participant in a Securities Transfer Association (each of
the foregoing being referred to as an "Eligible Institution"), hereby guarantees
to deliver to the Exchange Agent, at its address set forth above, either the Old
Notes tendered hereby in proper form for transfer, or confirmation of the
book-entry transfer of such Old Notes to the Exchange Agent's account at The
Depositary Trust Company ("DTC") pursuant to the procedures for book-entry
transfer set forth in the Prospectus, in either case together with one or more
properly completed and duly executed Letter(s) of Transmittal (or facsimile
thereof or, instead, Agent's Message) and any other required documents within
three New York Stock Exchange trading days after the date of the execution of
this Notice of Guaranteed Delivery.
--------------------------------------------- ---------------------------------------------
Name of Firm Authorized Signature
--------------------------------------------- ---------------------------------------------
Address Title
--------------------------------------------- ---------------------------------------------
Zip Code Type or Print Name
--------------------------------------------- ---------------------------------------------
Area Code and Telephone Number Date
NOTE: DO NOT SEND CERTIFICATES FOR OLD NOTES WITH THIS FORM. CERTIFICATES FOR
OLD NOTES SHOULD ONLY BE SENT WITH THE LETTER OF TRANSMITTAL.
3
EX-99.C
16
d90789ex99-c.txt
FORM OF LETTER TO REGISTERED HOLDERS & DTC
EXHIBIT 99(c)
LETTER TO REGISTERED HOLDERS AND DTC PARTICIPANTS
OFFER TO EXCHANGE
9% SERIES B SENIOR SUBORDINATED NOTES DUE 2008
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OUTSTANDING
9% SERIES B SENIOR SUBORDINATED NOTES DUE 2008
OF
DENBURY RESOURCES INC.
To Registered Holders and Depository
Trust Company Participants:
We are enclosing herewith the material listed below relating to the offer
by Denbury Resources Inc. (the "Company") to exchange its 9% Series B Senior
Subordinated Notes due 2008 (the "New Notes") that have been registered under
the Securities Act of 1933 (the "Securities Act") for the same principal amount
of its issued and outstanding 9% Series B Senior Subordinated Notes due 2008
(the "Old Notes") upon the terms and subject to the conditions set forth in the
Company's Prospectus, dated , and the related Letter of Transmittal
(which together constitute the "Exchange Offer").
Enclosed herewith are copies of the following documents:
1. Prospectus dated ;
2. Letter of Transmittal (together with accompanying Substitute Form
W-9 Guidelines);
3. Notice of Guaranteed Delivery;
4. Letter, to accompany the instruction form referred to in item 5
below, which may be sent to your clients for whose account you hold Old
Notes in your name or in the name of your nominee; and
5. Instruction to Registered Holder and/or Book-Entry Transfer
Participant from Beneficial Owner (which may be sent from your clients to
you with such clients' instructions with regard to the Exchange Offer).
We urge you to contact your clients promptly. Please note that the Exchange
Offer will expire at 5:00 p.m., New York City time, on , ,
unless extended.
The Exchange Offer is not conditioned upon any minimum number of Old Notes
being tendered.
Pursuant to the Letter of Transmittal, each holder of Old Notes will
represent to the Company that (1) neither the person who signs the Letter of
Transmittal nor any beneficial owner of Old Notes participating in the Exchange
Offer is an affiliate (within the meaning of Rule 405 under the Securities Act)
of the Company, (2) neither the person who signs the Letter of Transmittal nor
any beneficial owner of Old Notes participating in the Exchange Offer is engaged
in, nor intends to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the New Notes and (3) the person who
signs the Letter of Transmittal and each beneficial owner of Old Notes
participating in the Exchange Offer is acquiring the New Notes in the ordinary
course of their respective businesses.
By tendering Old Notes and executing the Letter of Transmittal, each holder
of Old Notes will also represent and agree that if it or a beneficial owner of
Old Notes is a broker-dealer or if it or a beneficial owner of Old Notes is
using the Exchange Offer to participate in a distribution of the New Notes, such
persons (1) could not under SEC policy as in effect on the date hereof rely on
the position of the SEC
enunciated in Morgan Stanley & Co. Incorporated (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in
the SEC's letter to Shearman & Sterling (available July 2, 1993), and similar
no-action letters and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a resale
transaction and that such a resale transaction must be covered by an effective
registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K if the resales are
of New Notes obtained by the holder of Old Notes in exchange for Old Notes
acquired by the person executing the Letter of Transmittal or a beneficial owner
of Old Notes directly from the Company.
The enclosed Instruction to Registered Holder and/or Book-Entry Transfer
Participant from Owner contains an authorization by the beneficial owners of the
Old Notes for you to make certain representations.
The Company will not pay any fee or commission to any broker or dealer or
to any other persons (other than the Exchange Agent) in connection with the
solicitation of tenders of Old Notes pursuant to the Exchange Offer. The Company
will pay or cause to be paid any transfer taxes payable on the transfer of Old
Notes to it, except as otherwise provided in Instruction 12 of the enclosed
Letter of Transmittal.
Additional copies of the enclosed material may be obtained from the
Exchange Agent, The Chase Manhattan Bank, at the address set forth in the Letter
of Transmittal and the Prospectus.
Very truly yours,
DENBURY RESOURCES INC.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU THE
AGENT OF DENBURY RESOURCES INC. OR THE CHASE MANHATTAN BANK OR AUTHORIZE YOU TO
USE ANY DOCUMENT OR MAKE ANY STATEMENT ON THEIR BEHALF IN CONNECTION WITH THE
EXCHANGE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS
CONTAINED THEREIN.
2
EX-99.D
17
d90789ex99-d.txt
FORM OF LETTER TO CLIENTS
EXHIBIT 99(d)
LETTER TO CLIENTS
OFFER TO EXCHANGE
9% SERIES B SENIOR SUBORDINATED NOTES DUE 2008
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OUTSTANDING
9% SERIES B SENIOR SUBORDINATED NOTES DUE 2008
OF
DENBURY RESOURCES INC.
To Our Clients:
We are enclosing herewith a Prospectus, dated , of Denbury
Resources Inc. (the "Company") and a related Letter of Transmittal (which
together constitute the "Exchange Offer") relating to the offer by the Company
to exchange its 9% Series B Senior Subordinated Notes due 2008 that have been
registered under the Securities Act of 1933 (the "Securities Act") for the same
principal amount of its issued and outstanding 9% Series B Senior Subordinated
Notes due 2008 (the "Old Notes") upon the terms and subject to the conditions
set forth in the Exchange Offer.
Please note that the Exchange Offer will expire at 5:00 p.m., New York City
time, on , unless extended.
The Exchange Offer is not conditioned upon any minimum number of Old Notes
being tendered.
We are the holder of record and/or participant in the book-entry transfer
facility of Old Notes held by us for your account. A tender of such Old Notes
can be made only by us as the record holder and/or participant in the book-entry
transfer facility and pursuant to your instructions. The Letter of Transmittal
is furnished to you for your information only and cannot be used by you to
tender Old Notes held by us for your account.
We request instructions as to whether you wish to tender any or all of the
Old Notes held by us for your account pursuant to the terms and conditions of
the Exchange Offer and that you confirm that we may on your behalf make the
representations contained in the Letter of Transmittal. Please complete and sign
the enclosed "Instructions to Registered Holder and/or Book-Entry Transfer
Participant from Beneficial Owner," which will provide us with such instructions
and confirmation.
Very truly yours,
EX-99.E
18
d90789ex99-e.txt
FORM OF INSTRUCTIONS TO REGISTERED HOLDER/BOOK ENT
EXHIBIT 99(e)
INSTRUCTIONS TO REGISTERED HOLDER AND/OR BOOK-ENTRY
TRANSFER PARTICIPANT FROM BENEFICIAL OWNER
OF
DENBURY RESOURCES INC.
9% SERIES B SENIOR SUBORDINATED NOTES DUE 2008
To Registered Holder and/or Participant of the Book-Entry Transfer Facility:
The undersigned hereby acknowledges receipt of the Prospectus dated
(the "Prospectus") of Denbury Resources Inc. (the "Company") and the
accompanying Letter of Transmittal (the "Letter of Transmittal") that together
constitute the Company's offer to exchange (the "Exchange Offer") an aggregate
principal amount of up to $75,000,000 of the Company's 9% Series B Senior
Subordinated Notes due 2008, (the "Old Notes") for the same aggregate principal
amount of the Company's issued and outstanding 9% Series B Senior Subordinated
Notes due 2008 (the "New Notes") that have been registered under the Securities
Act of 1933 (the "Securities Act").
This will instruct you, the registered holder and/or book-entry transfer
facility participant, as to the action to be taken by you relating to the
Exchange Offer with respect to the Old Notes held by you for the account of the
undersigned.
The aggregate face amount of the Old Notes held by you for the account of
the undersigned is (fill in amount):
$ of the 9% Series B Senior Subordinated Notes due 2008.
With respect to the Exchange Offer, the undersigned hereby instructs you
(check appropriate box):
[ ] To TENDER the following Old Notes held by you for the account of the
undersigned (insert principal amount of Old Notes to be tendered, (if
any):
$ of the 9% Series B Senior Subordinated Notes due 2008.
[ ] NOT to TENDER any Old Notes held by you for the account of the
undersigned.
If the undersigned instructs you to tender the Old Notes held by you for
the account of the undersigned, it is understood that you are authorized to
make, on behalf of the undersigned (and the undersigned, by its signature below,
hereby makes to you), the representations and warranties contained in the Letter
of Transmittal that are to be made with respect to the undersigned as a
beneficial owner, including but not limited to the representations, that (1) the
undersigned is not an affiliate (within the meaning of Rule 405 under the
Securities Act) of the Company, (2) the undersigned is not engaged in, and does
not intend to engage in, and has no arrangement or understanding with any person
to participate in, a distribution of the New Notes and (3) the undersigned is
acquiring the New Notes in the ordinary course of its business.
By tendering Old Notes and executing this Letter of Transmittal, the
undersigned will also be deemed to represent and agree that if it is a
broker-dealer or if it is using the Exchange Offer to participate in a
distribution of the New Notes, it (1) could not under SEC policy as in effect on
the date hereof rely on the position of the SEC enunciated in Morgan Stanley &
Co. Incorporated (available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the SEC's letter to Shearman &
Sterling (available July 2, 1993), and similar no-action letters and (2) must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with a resale transaction and that such a resale
transaction must be covered by an effective registration statement containing
the selling security holder information required by Item 507 or 508, as
applicable, of
Regulation S-K if the resales are of New Notes obtained by the undersigned in
exchange for Old Notes acquired by it directly from the Company.
SIGN HERE
Name of beneficial owner(s):
---------------------------------------------------
Signature(s):
------------------------------------------------------------------
Name(s) (please print):
--------------------------------------------------------
Address:
-----------------------------------------------------------------------
Telephone Number:
--------------------------------------------------------------
Taxpayer identification or Social Security Number:
------------------------------
Date:
--------------------------------------------------------------------------
2