EXHIBIT 4.3
▇▇▇▇▇▇▇ RESOURCES CORPORATION
$150,000,000
7.55% SENIOR NOTES DUE 2007
FIRST SUPPLEMENTAL INDENTURE
▇▇▇▇▇▇▇ RESOURCES CORPORATION,
as Issuer,
and
BANKERS TRUST COMPANY,
as Trustee
Dated as of
_______________________, 2001
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as
of __________________, 2001, between ▇▇▇▇▇▇▇ Resources Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(hereinafter called the "Company"), and Bankers Trust Company, a banking
corporation existing under the laws of the State of New York, as trustee (the
"Trustee");
WHEREAS, the Company and the Trustee have heretofore executed and
delivered an indenture dated as of February 1, 1997 (hereinafter called the
"Original Indenture") to provide for the issuance of the Company's 7.55% Senior
Notes due 2007 (the "Notes"); and
WHEREAS, on May 7, 2001, the Company, The ▇▇▇▇▇▇▇▇ Companies, Inc., a
Delaware corporation ("▇▇▇▇▇▇▇▇"), and Resources Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of ▇▇▇▇▇▇▇▇ (the "Acquisition Sub"),
entered into an Agreement and Plan of Merger (the "Merger Agreement") pursuant
to which, subject to the satisfaction of the conditions set forth in the Merger
Agreement, either the Company will be merged with and into the Acquisition Sub
(the "Forward Merger") or the Acquisition Sub (or another direct or indirect.,
wholly-owned subsidiary of ▇▇▇▇▇▇▇▇) will be merged with and into the Company
(the "Reverse Merger"') (the Forward Merger and the Reverse Merger,
collectively, the "Merger"; and
WHEREAS, in the event of the Forward Merger, pursuant to Section 5.02
of the Original Indenture, subject to satisfaction of the conditions set forth
in Section 5.01 of the Original Indenture, the Acquisition Sub will assume all
the obligations of the Company under the Original Indenture and the Notes or, in
the event of the Reverse Merger, the obligations of the Company under the
Indenture and the Notes will continue; and
WHEREAS, it is intended by the Company that the Amendments (as defined
below) effected pursuant to the Consent Solicitation Statement (as defined
below) and this Supplemental Indenture shall be treated as an integrated
transaction with the Forward Merger and as a part of such "reorganization"
within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as
amended; and
WHEREAS, Section 9.02 of the Original Indenture provides, among other
things, that, with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding, the Company and the
Trustee may enter into indentures supplemental to the Original Indenture for the
purpose of amending any provision of the Original Indenture or the Notes (other
than as provided in Section 9.02 of the Original indenture); and
WHEREAS, the Company desires (i) to conform certain provisions of the
Original Indenture to the Senior Indenture, dated as of November 10, 1997, as
amended to the date hereof, between ▇▇▇▇▇▇▇▇, as Issuer, and Bank One Trust
Company, NA. (formerly The First National Bank of Chicago), as trustee (the
"▇▇▇▇▇▇▇▇ Indenture"), by (a) modifying the covenant dealing with restrictions
on liens and related provisions of the Original Indenture arid (b) eliminating
the cross-default and judgment default provisions of the Original Indenture and
(ii) to amend the
reporting covenant contained in the Original Indenture to require ▇▇▇▇▇▇▇▇
instead of the Company to provide to the Securities and Exchange Commission or
to the Trustee periodic business and financial information specified by Section
13 or Section 15(d) of the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"), including Annual Reports on Form 10-K; and
WHEREAS, all action on the part of the Company necessary to authorize
its execution, delivery and performance of the Original Indenture, as further
supplemented by this First Supplemental Indenture, has been duly taken; and
WHEREAS. ▇▇▇▇▇▇▇▇ has solicited the consent of the Holders of the Notes
to certain amendments to the Original Indenture (the "Amendments") pursuant to
that certain Consent Solicitation Statement dated July 18, 2001 (the "Consent
Solicitation Statement"); and
WHEREAS, Holders of at least a majority in aggregate principal amount
of the Notes have consented to the Amendments and instruments evidencing such
consent have been delivered to the Trustee; and
WHEREAS, the Company desires and has requested the Trustee to join in
the execution and delivery of this Supplemental Indenture for the purpose of
amending the Original Indenture;
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, it is mutually covenanted and agreed for the equal and
ratable benefit of all Holders of the Notes as follows, effective upon execution
hereof by the Trustee:
DEFINITION
Section 1.1 Definition. When used herein, "Consent Solicitation
Completion Event" shall mean such time as each of the following events shall
have occurred: (i) the Merger shall have been consummated in accordance with the
terms and conditions set forth in the Merger Agreement and (ii) each Holder of
Notes that has validly consented to the Amendments pursuant to the Consent
Solicitation Statement shall have received payment for its consent in accordance
with the Consent Solicitation Statement.
ARTICLE TWO
AMENDMENTS TO ORIGINAL INDENTURE
Section 2.1 Amended Definitions. Upon the occurrence of the Consent
Solicitation Completion Event, Section 1.01 of the Original Indenture shall be
amended as follows:
(a) the definition of each term that is used in the Original
Indenture only in the Sections or subsections thereof that are deleted pursuant
to Section 2.2. hereof shall be deleted;
(b) the following definitions shall be added:
"Consolidated Funded Indebtedness" means the
aggregate of all outstanding Funded Indebtedness of the Company and its
Restricted Subsidiaries, determined on a consolidated basis in accordance with
GAAP;
"▇▇▇▇▇▇▇▇" means The ▇▇▇▇▇▇▇▇ Companies, Inc., a
Delaware corporation, and any successor corporations thereto; and
(c) the definitions of "Consolidated Net Tangible Assets" and
"Funded Indebtedness" shall be replaced with the following definitions:
"Consolidated Net Tangible Assets" means the total
assets appearing on a consolidated balance sheet of the Company and its
Restricted Subsidiaries on a consolidated basis, less:
(1) intangible assets, unamortized debt discount and
expense and stock expense and other deferred debits;
(2) all current and accrued liabilities (other than
Consolidated Funded Indebtedness and capitalized rentals or leases); deferred
credits (other than deferred investment tax credits), deferred gains and
deferred income and ▇▇▇▇▇▇▇▇ recorded as revenues deferred pending the outcome
of a rate proceeding (less applicable income taxes) to the extent refunds
thereof shall not have been finally determined;
(3) all reserves (other than for deferred Federal
income taxes arising from timing differences) not already deducted from assets;
(4) all advances made by the Company or its
Restricted Subsidiaries to finance oil or natural gas exploration and
development to the extent that the Indebtedness related thereto and of an equal
amount is excluded from Funded indebtedness by virtue of the proviso to the
definition thereof;
(5) an amount equal to the amount excluded from
Funded Indebtedness representing "production payment" financing of oil or
natural gas exploration and development by the Company or its Restricted
Subsidiaries on a consolidated basis; and
(6) appropriate allowance for minority stockholder
interests;
"Funded Indebtedness" means any Indebtedness which
matures more than one year after the date as of which Funded Indebtedness is
being determined less any such Indebtedness as will be retired through or by
means of any deposit or payment required to be made within one year from such
date under any prepayment provision, sinking fund, purchase fund or otherwise;
provided, however, that such term shall not include Indebtedness of the Company
or any of its Restricted Subsidiaries incurred to finance outstanding advances
to others to finance oil or natural gas exploration and development to the
extent that the latter are not in default in their obligations to the Company or
such Restricted Subsidiary, nor shall such term
include Indebtedness of the Company or any of its Restricted Subsidiaries
incurred to finance oil or natural gas exploration and development by means
commonly referred to as a "production payment" to the extent that the Company or
any of its Restricted Subsidiaries have not guaranteed the repayment of the
production payment.
Section 2.2 Amended Provisions. Upon the occurrence of the Consent
Solicitation Completion Event, the text of each of the following Sections or
subsections of the Original Indenture shall be amended as follows:
(a) Section 4.03 SEC Reports; Financial Statements. References
to "the Company" in Section 4.03 shall be replaced with references to
"▇▇▇▇▇▇▇▇".
(b) Section 4.09 Limitation on Liens. Subsections (a) through
(i) of Section 4.09 shall be deleted in their entirety and replaced with the
following subsections (a) through (bb):
(a) Any purchase money Lien created by the Company or
a Restricted Subsidiary to secure all or part of the purchase price of
any property (or to secure a loan made to enable the Company or a
Restricted Subsidiary to acquire the property described in such Lien),
provided that the principal amount of the Indebtedness secured by any
such Lien, together with all other Indebtedness secured by a Lien on
such property, shall not exceed the purchase price of the property
acquired;
(b) Any Lien existing on any property at the tune of
the acquisition thereof by the Company or a Restricted Subsidiary
whether or not assumed by the Company or a Restricted Subsidiary, and
any Lien on any property acquired or constructed by the Company or a
Restricted Subsidiary and created not later than 12 months after (i)
such acquisition or completion of such construction or (ii)
commencement of full operation of such property, whichever is later;
provided, however, that, if assumed or created by the Company or a
Restricted Subsidiary, the principal amount of the Indebtedness secured
by such ▇▇▇▇, together with all other Indebtedness secured by a Lien on
such property, shall not exceed the purchase price of the property,
acquired and/or the cost of the property constructed;
(c) Any Lien created or assumed by the Company or a
Restricted Subsidiary on any contract for the sale of any product or
service or any rights thereunder or any proceeds therefrom, including
accounts and other receivables, related to the operation or use of any
property acquired or constructed by the Company or a Restricted
Subsidiary and created not later than 12 months after (i) such
acquisition or completion of such construction or (ii) commencement of
full operation of such property, whichever is later;
(d) Any Lien existing on any property of a Restricted
Subsidiary at the time it becomes a Restricted Subsidiary;
(e) Any refunding or extension of maturity, in whole
or in part, of any Lien created or assumed in accordance with the
provisions of subdivision (a), (b), (c) or (d) above or (j) or (bb)
below, provided that the principal amount of the Indebtedness secured
by such refunding Lien or extended Lien shall not exceed the principal
amount of the indebtedness secured by the Lien to be refunded or
extended outstanding at the time of such refunding or extension and
that such refunding Lien or extended Lien shall be limited in Lien to
the same property that secured the Lien so refunded or extended;
(f) Any Lien created or assumed by the Company or a
Restricted Subsidiary to secure loans to the Company or a Restricted
Subsidiary maturing within 12 months of the date of creation thereof
and not renewable or extendible by the terms thereof at the option of
the obligor beyond such 12 months, and made in the ordinary course of
business;
(g) Mechanics' or materialmen's Liens or any Lien or
charge arising by reason of pledges or deposits to secure payment of
workmen's compensation or other insurance, good faith deposits in
connection with tenders or leases of real estate, bids or contracts
(other than contracts for the payment of money), deposits to secure
public or statutory obligations, deposits to secure or in lieu of
surety, stay or appeal bonds and deposits as security for the payment
of taxes or assessments or other similar charges;
(h) Any Lien arising by reason of deposits with or
the giving of any form of security to any governmental agency or any
body created or approved by law or governmental regulation for any
purpose at any time as required by law or governmental regulation as a
condition to the transaction of any business, or the exercise of any
privilege or license, or to enable the Company or a Restricted
Subsidiary to maintain self-insurance or to participate in any fund for
liability on any insurance risks or in connection with workmen's
compensation, unemployment insurance, old age pensions or other social
security or to share in the privileges or benefits required for
companies participating in such arrangements;
(i) Any Lien which is payable, both with respect to
principal and interest, solely out of the proceeds of oil, gas, coal or
other minerals or timber to be produced from the property subject
thereto and to be sold or delivered by the Company or a Restricted
Subsidiary, including any interest of the character commonly referred
to as a "production payment";
(j) Any Lien created or assumed by a Restricted
Subsidiary on oil, gas, coal or other mineral or timber property, owned
or leased by a Restricted Subsidiary to secure loans to such Restricted
Subsidiary for the purposes of developing such properties, including
any interest of the character commonly referred to as a "production
payment"; provided, however, that neither the Company nor any other
Restricted Subsidiary shall assume or guarantee such loans or otherwise
be liable in respect thereto;
(k) Lions upon rights-of-way;
(l) Undetermined Liens and charges Incidental to
construction or maintenance;
(m) The right reserved to, or vested in, any
municipality or governmental or other public authority or railroad by
the terms of any right, power, franchise, grant, license, permit or by
any provision of law, to terminate or to require annual or other
periodic payments as a condition to the continuance of such right,
power, franchise, grant, license or permit;
(n) The Lien of taxes and assessments which are not
at the time delinquent;
(o) Any Liens of specified taxes and assessments
which are delinquent but the validity of which is being contested in
good faith at the time by the Company or a Restricted Subsidiary;
(p) Any Liens reserved in leases for rent and for
compliance with the terms of the lease in the case of leasehold
estates;
(q) Defects and irregularities in the titles to any
property (including rights-of-way and easements) which are not material
to the business of the Company and its Subsidiaries considered as a
whole;
(r) Any Liens securing Indebtedness neither assumed
nor guaranteed by the Company or a Restricted Subsidiary nor on which
it customarily pays interest, existing upon real estate or rights in or
relating to real estate (including rights-of-way and easements)
acquired by the Company or a Restricted Subsidiary, which Liens do not
materially impair the use of such property for the purposes for which
it is held by the Company or such Restricted Subsidiary;
(s) Easements, exceptions or reservations in any
property of the Company or a Restricted Subsidiary granted or reserved
for the purpose of pipelines, roads, telecommunication equipment and
cable, streets, alleys, highways, railroad purposes, the removal of
oil, gas, coal or other minerals or timber, and other like purposes, or
for the joint or common use of real property, facilities and equipment,
which do not materially impair the use of such property for the
purposes for which it is held by the Company or such Restricted
Subsidiary;
(t) Rights reserved to or vested in any municipality
or public authority to control or regulate any property of the Company
or a Restricted Subsidiary, or to use such property in any manner which
does not materially impair the use of such property for the purposes
far which it is held by the Company or such Restricted Subsidiary;
(u) Any obligations or duties, affecting the property
of the Company or a Restricted Subsidiary, to any municipality or
public authority with respect to any franchise, grant, license or
permit;
(v) The Liens of any judgments in an aggregate amount
not in excess or $1,000,000 or the Lien of any judgment the execution
of which has been stayed or which has been appealed and secured, if
necessary, by the filing of an appeal bond;
(w) Zoning laws and ordinances;
(x) Any Liens existing on any office equipment, data
processing equipment (including computer and computer peripheral
equipment) or transportation equipment (including motor vehicles,
aircraft and marine vessels);
(y) Any Liens created or assumed by the Company or a
Restricted Subsidiary on oil, gas, coal or other mineral or timber
property owned by the Company or a Restricted Subsidiary;
(z) Leases now or hereafter existing and any renewals
or extensions thereof;
(aa) Any Liens created by the Company or a Restricted
Subsidiary on any contract (or any rights thereunder or proceeds
therefrom) providing for advances by the Company or such Restricted
Subsidiary to finance gas exploration and development, which ▇▇▇▇ is
created to secure indebtedness incurred to finance such advances; and
(bb) Any Liens not permitted by clauses (a) through
(aa) above if at the time of, and after giving effect to, the creation
or assumption of any such Lien, the aggregate of all Indebtedness of
the Company and its Subsidiaries secured by all such Liens not so
permitted by clauses (a) through (aa) above do not exceed 5% of
Consolidated Net Tangible Assets.
(c) Section 6.01 Events of Default. Subsections (4) and (5) of
Section 6.01 shall be deleted in their entirety.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
Section 3.1 Execution as Supplemental Indenture. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture and, as provided in Article IX of the Original Indenture,
this Supplemental Indenture forms a part thereof. Except as herein expressly
otherwise defined, the use of the terms and expressions herein is in accordance
with the definitions, uses and constructions contained in the Original
Indenture.
Section 3.2 Responsibilities for Recitals, etc. The recitals herein
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representations
as to the validity or sufficiency of this Supplemental Indenture.
Section 3.3 Provisions Binding on Company's Successor. All of the
covenants, stipulations, promises and agreements made in this Supplemental
Indenture by the Company shall bind its successors and assigns whether so
expressed or not.
Section 3.4 Governing Law. This Supplemental Indenture shall be deemed
to be a contract made wider the laws of the State of New York and, for all
purposes, shall be construed in accordance with the laws of said State, without
regard to principles of conflicts of law.
Section 3.5 Execution and Counterparts. This Supplemental Indenture may
be executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same instrument.
Section 3.6 Trust Indenture Act to Control. If and to the extent that
any provision of this Supplemental Indenture limits, qualifies or conflicts with
another provision included in the Original Indenture or in this Supplemental
Indenture which is required to be included in or is deemed to be applicable to
this Supplemental Indenture by any of Sections 310 to 317, inclusive, of the
Trustee Indenture Act of 1939, as amended, such required or other applicable
provision shall control.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ Resources Corporation has caused this
Supplemental Indenture to be signed and acknowledged by its Chairman of the
Board and its President or one of its Vice Presidents and the same to be
attested to by its Secretary or one of its Assistant Secretaries, and Bankers
Trust Company, as Trustee, has caused this First Supplemental Indenture to be
signed and acknowledged by one of its Vice Presidents and the same to be
attested to by a duly authorized officer, all as of the day and year first
written above.
▇▇▇▇▇▇▇ Resources
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Chairman and CEO
By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President and CFO
Attest: By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Secretary
Bankers Trust Company, as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Account Manager
Attest: By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate