EXHIBIT 4.8
THE SECURITY REPRESENTED HEREBY WAS ORIGINALLY ISSUED AS OF DECEMBER 22,
2003, HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM
REGISTRATION THEREUNDER. THE SECURITY REPRESENTED HEREBY IS ALSO SUBJECT
TO THE CONDITIONS SPECIFIED IN THE NOTE PURCHASE AGREEMENT AMONG THE
COMPANY AND THE ORIGINAL HOLDER HEREOF AND CERTAIN INVESTORS, DATED AS OF
DECEMBER 22, 2003, AS AMENDED, AND THE COMPANY RESERVES THE RIGHT TO
REFUSE THE TRANSFER OF THIS SECURITY UNTIL THE CONDITIONS THEREIN HAVE
BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF SUCH NOTE PURCHASE
AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY'S PRINCIPAL
PLACE OF BUSINESS WITHOUT CHARGE.
THIS INSTRUMENT AND THE OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATED TO
THE PRIOR PAYMENT IN FULL OF THE SUPERIOR DEBT (AS DEFINED HEREINAFTER).
AMENDED AND RESTATED
JUNIOR SUBORDINATED
PROMISSORY NOTE
July 22, 2004 $51,000,000
Quest Cherokee, LLC, a Delaware limited liability company (the "Company"),
hereby promises to pay to the order of Cherokee Energy Partners LLC, a Delaware
limited liability company, the principal amount of $51,000,000 together with
interest thereon calculated in accordance with the provisions of this Amended
and Restated Junior Subordinated Promissory Note (the "Note").
This Note is an amendment and restatement, and not a novation, of the
Junior Subordinated Promissory Note which was issued on December 22, 2003 (the
"Original Note") pursuant to a Note Purchase Agreement, dated as of December 22,
2003 (such agreement to which the initial holder is a party, as amended and
modified on July 22, 2004, and from time to time thereafter, the "Purchase
Agreement"), by and among the Company and the initial holder of the Original
Note. Interest on the outstanding principal amount has accrued under the
Original Note from the date thereof (the "Date of Issuance") and shall accrue
hereunder from the date hereof. For purposes of this Note, "Junior Notes" means
this Note and all other notes issued on the Date of Issuance or at any time
thereafter in substantially the same form whether issued pursuant to the
Purchase Agreement or otherwise (including any PIK Notes as defined in Section 6
hereof). The Purchase Agreement contains terms governing the rights of the
holder of this Note, and all provisions of the Purchase Agreement are hereby
incorporated herein by reference.
1. Payment of Interest. Interest shall accrue at the rate of fifteen
percent (15%) per annum on the unpaid principal amount of this Note from time to
time outstanding. Interest shall be computed on the basis of a 365 or 366-day
year (as applicable) and the actual number of days elapsed, and shall be payable
on each Interest Payment Date (as defined in the Purchase Agreement); provided
that, except to the extent same is permitted to be paid in cash under the Senior
Credit Agreement (as defined in Section 6 hereof) on each Interest Payment Date,
the Company shall pay interest in kind by either (i) issuing a PIK Note to the
holder hereof in principal amount equal to the amount of the interest due on
such Interest Payment Date or (ii) deferring the interest due on such Interest
Payment Date and all interest so deferred pursuant to this clause (ii) shall be
added to and become a part of the principal of this Note as of the Interest
Payment Date upon which it was deferred, and shall thereafter earn interest as
provided herein. Except as provided in the last sentence of this Section 1, in
all events an amount of accrued and unpaid interest (including any interest
represented by a PIK Note or otherwise previously added to principal) shall be
paid by the Company in cash, on each Interest Payment Date occurring after the
fifth anniversary of the date hereof, equal to the least amount of such accrued
and unpaid interest such that the Note shall not have at any time "significant
original issue discount" within the meaning of section 163(i)(2) of the Internal
Revenue Code of 1986. Any accrued interest which for any reason has not
theretofore been paid shall be paid in full on the date on which the final
principal payment on this Note is made. Except for interest paid by the issuance
of a PIK Note or deferred and paid-in-kind in accordance with the terms hereof,
interest shall be paid only if such payment is permitted by the terms of the
Senior Credit Agreement and only to the extent therefor pursuant to Section 5.4
of the Company's Amended and Restated Limited Liability Company Agreement.
2. Payment of Principal on Note.
(a) Maturity. The Company shall pay the principal amount
outstanding under this Note (including interest deferred and added to the
principal amount of this Note as provided in Section 1 above) together with all
accrued and unpaid interest on such principal amount, to the holder of this Note
on the Final Maturity Date (as defined in the Purchase Agreement as in effect on
the date hereof).
(b) Prepayments.
(i) Upon notice given as provided in subsection (ii) below,
the Company may at any time and from time to time prepay all or any
proportion of the outstanding principal amount of the Note, plus accrued
interest on the outstanding principal amount of the Note through the date
of prepayment; provided that (A) such prepayment is permitted by the terms
of the Senior Credit Agreement and (B) such prepayment shall be made pro
rata among the holders of the Junior Notes on the basis of the outstanding
principal amount of the Junior Note held by each holder.
(ii) The Company shall send written notice of its election to
make a prepayment on the Junior Notes to the holder of this Note by
registered or certified mail, return receipt requested, at least three (3)
Business Days prior to the date of prepayment. Such notice shall specify
the date fixed for prepayment, the aggregate principal amount
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outstanding, the aggregate amount of interest accrued on the outstanding
principal amount of this Note through the date of prepayment specified in
the Company's notice.
(c) Time of Payment. If any payment of principal, interest or
premium shall become due on a day which is not a Business Day (as defined
below), such payment shall be made on the next succeeding Business Day and such
extension of time shall in such case be included in computing interest in
connection with such payment. The term "Business Day" as used herein means any
day other than Saturday or Sunday or public holiday under the laws of the State
of New York or other day on which banking institutions are authorized or
obligated to close in the City of New York in the State of New York.
(d) Form of Payment. Unless otherwise indicated herein, any
payment to be made hereunder shall be made at the direction of the holder hereof
by cashier's or certified check to or upon the order of the holder or by wire
transfer of immediately available funds to an account designated by the holder.
3. Subordination: Restrictions on Payment.
Anything in this Note or the Purchase Agreement to the contrary
notwithstanding, the obligations of the Company in respect of the principal,
interest, fees and charges on this Note shall be subordinate and junior in right
of payment, to the extent and in the manner hereinafter set forth, to the prior
payment in full in cash of all Superior Debt. By its acceptance hereof, the
payee and each other present and future holder of this Note and beneficial owner
of any interest in this Note or any other Subordinated Debt (collectively,
including the payee, the "holders" of Subordinated Debt) irrevocably agree, for
the directly intended and enforceable benefit of each present and future holder
of Superior Debt, that the Subordinated Debt is hereby subordinated to the
Superior Debt on the following terms:
(a) In the event that the Company makes a general assignment for
the benefit of creditors; or an order, judgment or decree is entered
adjudicating the Company bankrupt or insolvent; or any order for relief with
respect to the Company is entered under the Federal Bankruptcy Code; or the
Company petitions or applies to any tribunal for the appointment of a custodian,
trustee, receiver or liquidator of the Company or of any substantial part of the
assets of the Company, or commences any proceeding relating to the Company under
any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction; or any such petition or
application is filed, or any such proceeding is commenced, against the Company
(collectively referred to as an "Insolvency Event"), or upon any acceleration of
Superior Debt, then:
(i) the holders of Superior Debt shall be entitled to
receive payment in full in cash of all principal, premium, interest, fees,
charges and other amounts then due on all Superior Debt (including
interest, fees, charges and other amounts accruing thereon after the
commencement of any such Insolvency Event at the rate provided in the
documentation for such Superior Debt (irrespective of whether such
interest, fees, charges or other amounts are allowed as a claim in such
proceedings)) before the holder of this Note is entitled to receive any
payment of any kind or character on account of principal, interest or
other amounts due (or past due) upon this Note, and the holders of
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Superior Debt shall be entitled to receive for application in payment
thereof all payments and distributions of any kind or character, whether
in cash, property or securities or by set-off or otherwise, which may be
payable or deliverable in any such proceedings in respect of this Note;
and
(ii) any payment or distribution of assets of the Company, of
any kind or character, whether in cash, property or securities, to which
the holder of this Note would be entitled except for the provisions of
this Section 3(a) shall be paid or delivered by the Company (or any
receiver or trustee in such proceedings) directly to the Senior Agent for
the benefit of the holders of Superior Debt for application of such
payment or distribution among the holders of the Superior Debt according
to the priorities of such debt, until all Superior Debt (including
interest, fees, charges and other amounts accrued thereon after the date
of commencement of such proceedings at the rate provided in the
documentation for such Superior Debt (irrespective of whether such
interest, fees, charges or other amounts are allowed as a claim in such
proceedings)) shall have been paid in full in cash.
(b) In any proceedings with respect to any Insolvency Event, or
the application of the assets of the Company to the payment or liquidation
thereof, or upon the dissolution or other winding up of the business of the
Company or upon the sale of all or substantially all of the assets of the
Company, then, and in any such event, (A) each holder of the Superior Debt shall
be entitled to receive full and indefeasible payment and satisfaction in cash of
the Superior Debt prior to the payment of all or any part of the Subordinated
Debt by the Company, other than a distribution of Reorganization Subordinated
Securities if the Senior Agent and the holder of this Note shall have entered
into such amendments to this Note as the Senior Agent may reasonably request to
reflect the continued subordination of the Reorganization Subordinated
Securities to the Superior Debt, and (B) any payment or distribution of any kind
or character from the Company of its assets, whether in cash, securities or
other property, which shall be payable or deliverable upon or with respect to
any or all of the Subordinated Debt, other than a distribution of Reorganization
Subordinated Securities if the Senior Agent and the holder of this Note shall
have entered into such amendments to this Note as the Senior Agent may
reasonably request to reflect the continued subordination of the Reorganization
Subordinated Securities to the Superior Debt, shall be paid or delivered
directly to the Senior Agent for the benefit of the holders of the Superior Debt
for application to the Superior Debt in accordance with the priorities thereof,
due or not due, until such Superior Debt shall have first been fully and
indefeasibly paid in cash and satisfied and all financing arrangements
terminated. The holder of this Note irrevocably authorizes, empowers and directs
all receivers, trustees, liquidators, custodians, conservators and others having
authority in the premises to effect all such payments and distributions, and the
holder of this Note also irrevocably authorizes, empowers and directs the Senior
Agent to demand, ▇▇▇ for, collect and receive every such payment or distribution
for the benefit of the Senior Lenders. Any amounts collected or received by the
Senior Agent pursuant to the authority granted hereby, shall be paid or
delivered directly to holders of the Superior Debt for application to the
Superior Debt in accordance with the priorities thereof, due or not due, until
such Superior Debt shall have first been fully and indefeasibly paid in cash and
satisfied and all financing arrangements terminated. The holder of this Note
agrees to execute and deliver to the Senior Agent or its representative all such
further instruments confirming the authorization referred to in the foregoing
clause and
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agrees not to initiate or prosecute or encourage any other person to initiate or
prosecute any claim, action or other proceeding challenging the enforceability
of the Superior Debt or any liens and security interests securing the Superior
Debt. The holder of this Note agrees to execute, verify, deliver and file any
proofs of claim in respect of the Subordinated Debt requested by the Senior
Agent in connection with any such proceeding and hereby irrevocably authorizes,
empowers and appoints the Senior Agent its agent and attorney-in-fact to (i)
execute, verify, deliver and file such proofs of claim upon the failure of the
holder of this Note promptly to do so (and, in any event, prior to 30 days
before the expiration of the time to file any such proof) and (ii) vote such
claim in any such proceeding upon the failure of the holder of this Note to do
so prior to 15 days before the expiration of the time to vote any such claim;
provided that the Senior Agent shall not have any obligation to execute, verify,
deliver, file and/or vote any such proof of claim. In the event that the Senior
Agent votes any claim in accordance with the authority granted hereby, no holder
shall be entitled to change or withdraw such vote. The Superior Debt shall
continue to be treated as Superior Debt and the provisions of this Note shall
continue to cover the relative rights and priorities of the Senior Lenders, on
the one hand, and the holder of this Note, on the other hand, even if all or
part of the Superior Debt or the security interests securing the Superior Debt
are subordinated, set aside, avoided or disallowed in connection with any such
proceeding and this Note shall be reinstated if at any time any payment of any
of the Superior Debt is rescinded or must otherwise be returned by any holder of
Superior Debt or any representative of such holder.
(c) Except for payments of interest in kind, and the issuance of
Reorganization Subordinated Securities expressly permitted herein, no holder of
the Subordinated Debt will, except as otherwise agreed to by the Senior Agent
and the Required Lenders (as defined in Section 6 hereof) or to the extent
permitted under the Senior Credit Agreement, ask, demand, ▇▇▇ for, take or
receive from the Company, by set off or in any other manner, the whole or any
part of the Subordinated Debt (whether such amounts represent principal or
interest, or obligations which are due or not due, including costs, fees and
expenses with respect to the Junior Notes, direct or indirect, absolute or
contingent), including, without limitation, the taking of any negotiable
instruments evidencing such Subordinated Debt nor any security for any
Subordinated Debt, unless and until all Superior Debt, whether now existing or
hereafter arising directly between the Company and any holder of the Superior
Debt, or acquired outright, conditionally or as collateral security from another
by any holder the Superior Debt, shall have been fully and indefeasibly paid in
full in cash and satisfied and all financing arrangements and commitments
between the Company and all holders of the Superior Debt have been terminated.
(d) Any amendment or modification of the terms of Section 3 of
this Note shall not be effective against any Person who was a holder of Superior
Debt prior to or at the time of such amendment or modification unless such
holder of Superior Debt so consents in writing.
(e) The holders of Superior Debt may, at any time, in their
discretion, renew, amend, extend, increase, restate, refinance or otherwise
modify the terms and provisions of the Superior Debt so held or exercise or
release any of their rights under the Superior Debt including, without
limitation, the waiver of defaults thereunder and the amendment of any of the
terms or provisions thereof (or any notice evidencing or creating the same), or
the release of
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collateral securing the Superior Debt, all without notice to or
assent from the holder of this Note. No compromise, alteration, amendment,
renewal, restatement, refinancing or other change of, or waiver, consent or
other action in respect of any liability or obligation under or in respect of,
any terms, covenants or conditions of the Superior Debt (or any instrument
evidencing or creating the same), whether or not such release is in accordance
with the provisions of the Superior Debt (or any instrument evidencing or
creating the same), shall in any way alter or affect the enforceability of the
subordination provisions of this Note against the holder hereof.
(f) If, notwithstanding the provisions of Section 3 of this Note,
any payment or distribution of any kind or character (whether in cash,
securities or other property) or any security shall be received by the holder of
this Note in contravention of this Section 3 and before all the Superior Debt
shall have been paid in full in cash, such payment, distribution or security
shall be held in trust for the benefit of, and shall be immediately paid over or
delivered or transferred to the Senior Agent for the benefit of the holders of
Superior Debt or their duly appointed agents for application of such payment,
distribution or security among the holders of each class of Superior Debt
according to the priorities of such Superior Debt. Any such payments received by
the holder of this Note and delivered to the Senior Agent for the benefit of the
holders of the Superior Debt shall be deemed not to be a payment on this Note
for any reason whatsoever and the indebtedness under this Note shall remain as
if such erroneous payment had never been paid by the Company or received by the
holder of this Note. In the event of the failure of any holder of this Note to
endorse or assign any such payment, distribution or security, the Senior Agent
is hereby irrevocably authorized to endorse or assign the same.
(g) No present or future holder of Superior Debt shall be
prejudiced in its right to enforce the provisions of Section 3 of this Note by
any act or failure to act on the part of the Company or such holder or any other
holder of Superior Debt.
(h) The holder of this Note shall not take or continue any action,
or exercise or continue to exercise any rights, remedies or powers under the
terms of this Note, or exercise or continue to exercise any other right or
remedy at law or equity that such holder might otherwise possess, to collect any
amount due and payable in respect of this Note, including, without limitation,
the acceleration of this Note, the commencement of any foreclosure on any Lien,
the filing of any petition in bankruptcy or the taking advantage of any other
insolvency law of any jurisdiction.
(i) Subject to the indefeasible payment in full in cash of all
Superior Debt and the termination of all lending commitments under the Senior
Credit Agreement, the holder of this Note shall be subrogated to the rights of
the Senior Agent and Senior Lenders to receive payments and distributions with
respect to the Superior Debt until this Note is paid in full. The holder of this
Note agrees that in the event that all or any part of a payment made with
respect to the Superior Debt is recovered from the holders of the Superior Debt
in a proceeding with respect to an Insolvency Event or otherwise, any payment or
distribution received by the holder of this Note with respect to this Note at
any time after the date of the payment that is so recovered, whether pursuant to
the right of subrogation provided for in this Note or otherwise, shall be deemed
to have been received by the holder of this Note in trust as property of the
holders of the Superior Debt and the holder of this Note shall forthwith deliver
the same to the Senior Agent for the benefit of the Senior Lenders for
application to the Superior Debt until the
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Superior Debt is paid in full. A payment or distribution made pursuant to this
Section 3(i) to the Senior Agent or any Senior Lender which otherwise would have
been paid to or retained by the holder of this Note is not, as between the
Company and the holder of this Note, a payment by the Company to or on account
of the Superior Debt.
(j) The provisions of this Section 3 are solely for the purpose of
defining the relative rights of the holders of Superior Debt, on the one hand,
and the holder of this Note on the other, against the Company and its assets,
and nothing herein is intended to or shall impair, as between the Company and
the holder of this Note, the obligations of this Company which are absolute and
unconditional, to pay to the holder of this Note the principal and interest on
this Note as and when they become due and payable in accordance with their
terms, or is intended to or will affect the relative rights of the holder of
this Note and creditors of the Company other than the holders of the Superior
Debt, nor, except as provided in this Section 3, will anything herein or therein
prevent the holder of this Note from exercising all remedies otherwise permitted
by applicable law upon default under this Note subject to the rights, if any,
under this Section 3 of the holders of Superior Debt in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy and subject to this Section 3.
(k) Each holder of the Subordinated Debt has purchased or acquired
the Subordinated Debt held by it with the express understanding that:
(i) the Subordinated Debt constitutes the liability solely
of the Company;
(ii) no member of the Company has guaranteed or is otherwise
liable for any Subordinated Debt;
(iii) the Subordinated Debt is not secured by any mortgage,
lien, pledge, charge, financing statement, security interest,
hypothecation or other security device of any type (a "Lien"), nor is such
Subordinated Debt supported directly or indirectly by any direct or
indirect guaranty of any Person; and
(iv) such holder of Subordinated Debt will never ask, demand,
accept, receive or retain any guarantee of any Subordinated Debt, or any
collateral security for the payment of any Subordinated Debt, or any other
form of payment assurance as to any Subordinated Debt, from any member or
Subsidiary of the Company, and will not initiate or prosecute, or
encourage any other Person to initiate or prosecute any claim or other
proceeding.
(l) Except for the payment of interest in kind in accordance with
the terms of this Note, if by the terms of this Note any payment becomes due and
payable on account of the principal of or interest on this Note at any time and
payment hereon is not permitted under the Senior Credit Agreement, then the
holder of this Note hereby agrees that, notwithstanding the terms of this Note,
the date on which such payment would otherwise be due shall automatically be
deferred, extended and postponed until the date (the "Extension Date") such
payment is permitted pursuant to the terms of said Senior Credit Agreement, as
fully as if by the terms of this Note such payment was not due until the
Extension Date. The Company shall not be in any
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respect in default under this Note by reason of any such deferral, extension and
postponement to the Extension Date, and such deferral, extension and
postponement shall not otherwise subject the Company to any claim of default or
any enforcement remedy. The holder of this Note, in its capacity as a creditor,
and by its acceptance of this Note, covenants and agrees that it will not, and
will not encourage any other individual or entity to, at any time, contest the
validity, perfection, priority or enforceability of any Superior Debt and the
promissory notes issued pursuant thereto or any guarantees thereof or any of the
other Superior Loan Documents (as defined in Section 6 hereof) (or the liens and
security interests granted to the Collateral Agent (as defined in Section 6
hereof) pursuant thereto.
(m) Any and all payments and distributions on account of this Note
that are received by the Senior Agent or any Senior Lender as a result of this
Section 3 shall be distributed to the holders of the Superior Debt according to
the priorities of such Superior Debt.
4. Transfer of Note. This Note may be transferred subject to the
restrictions set forth in the Purchase Agreement. Upon any such transfer, the
holder shall send written notice to the Company specifying the new holder's name
and address. The term "Note" as used herein includes this Note and any notes or
other evidences of indebtedness issued in exchange for or in respect of this
Note or any portion hereof.
5. Events of Default.
(a) Definition. For purposes of this Note, an Event of Default
shall be deemed to have occurred if:
(i) the Company fails to pay (A) when due, the full amount
of any principal payment on any Junior Note or (B) within five days of the
date when due, the full amount of any interest then accrued on any Junior
Note; or
(ii) the Company or any subsidiary makes an assignment for
the benefit of creditors or admits in writing its inability to pay its
debts generally as they become due; or an order, judgment or decree is
entered adjudicating the Company or any Subsidiary bankrupt or insolvent;
or any order for relief with respect to the company or any Subsidiary is
entered under the Federal Bankruptcy Code; or the Company or any
Subsidiary petitions or applies to any tribunal for the appointment of a
custodian, trustee, receiver or liquidator of the Company or any
Subsidiary, or of any substantial part of the assets of the Company or any
Subsidiary, or commences any proceeding (other than a proceeding for the
voluntary liquidation and dissolution of any Subsidiary) relating to the
Company or any Subsidiary under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation
law of any jurisdiction; or any such petition or application is filed, or
any such proceeding is commenced, against the Company or any Subsidiary
and either (A) the Company or any such Subsidiary by any act indicates its
approval thereof, consent thereto or acquiescence therein or (B) such
petition, application or proceeding is not dismissed within 60 days.
(b) Consequences of Events of Default. Subject to the provisions
of Section 3 hereof, if an Event of Default has occurred and is continuing, the
holder or holders of the Junior
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Notes representing a majority of the aggregate principal amount of the Junior
Notes then outstanding may declare all or any portion of the outstanding
principal amount of the Junior Notes due and payable and demand immediate
payment of all or any portion of the outstanding principal amount of the Junior
Notes owned by such holder or holders. The Company shall give prompt written
notice of any such demand to the other holders of the Junior Notes, each of
which may demand immediate payment of all or any portion of such holder's Note.
6. Definitions. For purposes of this Note, the following capitalized
terms have the following meaning.
"Collateral Agent" has the meaning assigned to such term in the Superior
Loan Documents.
"paid in full", "paid in full in cash", "payment in full" or similar
phrases mean with respect to the Superior Debt, the final and indefeasible
payment in full in cash of such Superior Debt and the termination of all
commitments of the Senior Lenders (as applicable) pursuant to the Senior Credit
Agreement.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PIK Note" means a junior subordinated promissory note of the Company that
is substantially identical to this Note except for the stated principal amount
thereof.
"Refinancing Lender" means any Person which provides refinancing to the
Company of all or a portion of the Superior Debt outstanding prior to such
refinancing.
"Reorganization Subordinated Securities" means (a) any equity securities
issued in substitution of all or any portion of the Subordinated Debt that are
subordinated in right of payment to the Superior Debt (or any notes or other
securities issued in substitution of all or any portion of the Superior Debt),
and (b) any notes or other debt securities issued in substitution of all or any
portion of the Subordinated Debt that are subordinated to the Superior Debt (or
any notes or other securities issued in substitution of all or any portion of
the Superior Debt) to the same extent that the Subordinated Debt is subordinated
to the Superior Debt pursuant to the terms of this Note.
"Required Lenders" means Required Lenders as defined in the Senior Credit
Agreement.
"Senior Agent" means UBS AG, Stamford Branch, as Administrative Agent
under the Senior Credit Agreement, in its capacity as contractual representative
of the Senior Lenders pursuant to the Senior Credit Agreement and not in its
individual capacity as a Senior Lender, and any successor Administrative Agent
appointed pursuant to the Senior Credit Agreement (including any Refinancing
Lender or successor or replacement administrative agent under any successor or
new credit agreement entered into in connection with the refinancing,
replacement or substitution in whole or in part of the Superior Debt).
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"Senior Credit Agreement" means that certain Credit Agreement dated as of
July 22, 2004, by and among the Company, as Borrower, other guarantors party
thereto, as Guarantors, the lenders from time to time a party thereto, UBS
Securities LLC, as Arranger, Bookmanager, Documentation Agent and Syndication
Agent, the Senior Agent, as Issuing Bank ,LC Facility Issuing Bank,
Administrative Agent and Collateral Agent, and UBS Loan Finance LLC, as
Swingline Lender, as amended, modified or supplemented from time to time and any
replacement, successor or new credit agreement entered into in connection with
the refinancing thereof.
"Senior Lenders" means Lenders as defined in the Senior Credit Agreement.
"Subordinated Debt" means (i) indebtedness under the Junior Notes,
including, without limitation, principal, premium, interest and other
liabilities payable from time to time and similar obligations, premiums,
penalties, fees, indemnities or expenses, and regardless of whether direct or
indirect, now existing or hereafter arising, absolute or contingent, secured or
unsecured, or long or short term, (ii) obligations arising under guarantees
executed by the Company or any of its Subsidiaries of items described in (i)
above, and (iii) renewals, extensions, refundings, refinancings, deferrals,
restructurings, amendments and modifications of the items described in (i)
and/or (ii) above.
"Subsidiary" means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
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 that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control any managing director or general partner of such limited
liability company, partnership, association or other business entity.
"Superior Debt" means (i) the Obligations (as defined in the Senior Credit
Agreement) and the promissory notes issued pursuant thereto, including, without
limitation, principal, premium, interest and other liabilities payable from time
to time and similar obligations, interest accruing before and after any event of
insolvency at the rate provided in the documentation with respect thereto
(irrespective of whether such principal, premium, interest or other liabilities
are allowed as a claim in any such proceeding), premiums, penalties, fees,
indemnities or expenses, and regardless of whether direct or indirect, now
existing or hereafter arising, absolute or contingent, secured or unsecured, or
long or short term, (ii) obligations arising under guarantees executed by the
Company or any of its members or Subsidiaries of items described in (i) above,
and (iii) renewals, extensions, refundings, refinancings, deferrals,
restructurings, amendments and modifications of the items described in (i)
and/or (ii) above.
Amended and Restated Junior Subordinated Promissory Note
10
"Superior Loan Documents" means the "Loan Documents" as defined in the
Senior Credit Agreement.
7. Amendment and Waiver. Except as otherwise expressly provided herein,
the provisions of the Note may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed by
it, only if the Company has obtained the written consent of the holders of the
Junior Notes then outstanding and the Senior Agent and the Required Lenders with
respect to any Superior Debt then outstanding.
8. Cancellation. After all principal and accrued interest at any time
owed on this Note has been paid in full, this Note shall be surrendered to the
Company for cancellation and shall not be reissued.
9. Remedies Cumulative. No remedy herein conferred upon the holder of
this Note is intended to be exclusive of any other remedy, and each and every
such remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute
or otherwise.
10. Remedies not Waived. No course of dealing between the Company and
the holder of this Note or any delay on the part of the holder hereof in
exercising any rights hereunder shall operate as a waiver of any right of the
holder of this Note.
11. Covenants Bind Successors and Assigns. All the covenants,
stipulations, promises and agreements in this Note contained by or on behalf of
the Company shall bind its successors and assigns, whether so expressed or not.
12. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York.
13. Heading. The headings of the sections and subsections of this Note
are inserted for convenience only and do not constitute a part of this Note.
14. Third Party Beneficiary. The Company and the holder of this Note
acknowledge and agree that the Senior Agent and the Senior Lenders and each of
their successors and assigns are third party beneficiaries of the provisions of
Section 3 of this Note, and the provisions of Section 3 of this Note shall inure
to the benefit of and be enforceable by the Senior Agent and the Senior Lenders
and their respective successors and assigns.
15. Acceptance and Acknowledgment. By accepting this Note and advancing
the proceeds of the Subordinated Debt evidenced by this Note, the holder hereof
hereby agrees to, acknowledges and accepts, each of the terms and provisions of
this Note.
[Remainder Of Page Intentionally Left Blank]
Amended and Restated Junior Subordinated Promissory Note
11
IN WITNESS WHEREOF, the Company has executed and delivered this Note as of
July ____, 2004.
QUEST CHEROKEE, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Manager
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Amended and Restated Junior Subordinated Promissory Note