EXHIBIT 4.9
FIRST SUPPLEMENT TO SECURITY AGREEMENT,
PLEDGE AND FINANCING STATEMENT
This First Supplement to Security Agreement, Pledge and Financing
Statement (this "Supplement") is made and entered into as of March 2, 1994
by Mesa Operating Co., a Delaware corporation ("MOC") and the successor to
Mesa Operating Limited Partnership, formerly a Delaware limited partnership
("MOLP), in favor of Harris Trust and Savings Bank, as Trustee ("Trustee"),
for the pro rata benefit of the Noteholders under the Indenture described
herein.
W I T N E S S E T H
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WHEREAS, MOLP, MESA Inc., a Texas Corporation ("MESA Inc."), and Mesa
Capital Corporation, a Delaware corporation ("Capital"), entered into an
Indenture dated as of May 1, 1993 with the Trustee, which indenture has been
amended and supplemented by that certain First Supplemental Indenture dated
as of January 5, 1994 among MESA Inc., Capital and MOC (collectively,
"Mesa") (such indenture as amended and supplemented by such first
supplemental indenture and as may from time to time be further amended or
modified and in effect, being referenced herein as the "Indenture"); and
WHEREAS, as of May 1, 1993, MESA Inc., Capital and MOLP issued 12-3/4%
Secured Discount Notes due June 30, 1998 in the aggregate principal amount
of $569,564,000 (the "Original Notes") pursuant to the Indenture; and
WHEREAS, pursuant to the Indenture, MOLP entered into that certain
Security Agreement, Pledge and Financing Statement dated as of May 1, 1993
in favor of the Trustee, granting the Trustee a lien and security interest
to secure, among other things, the Original Notes (the "Original Pledge
Agreement"); and
WHEREAS, pursuant to the Merger Agreement dated as of January 5, 1994,
by and among Mesa Inc., MOLP, Mesa Merger Sub 1, Inc. (MOC's name prior to
the merger of MOLP with and into MOC) and certain other parties (the "Merger
Agreement"), MOC assumed all rights and obligations of MOLP, including
without limitation all rights and obligations pursuant to the Indenture, the
Original Notes and the Original Pledge Agreement; and
WHEREAS, pursuant to and in accordance with Section 2.15 of the
Indenture, contemporaneously with MOC's delivery of this Supplement, Mesa is
issuing additional 12-3/4% Secured Discount Notes due June 30, 1998 in the
aggregate principal amount of $48,169,000 (the "Additional Securities"); and
WHEREAS, it is a condition precedent to the effectiveness of the
Additional Securities that MOC execute and deliver this Supplement to
secure, among other things, the obligations of Mesa under the Indenture, the
Original Notes and Additional Securities;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged hereby, MOC and the Trustee hereby
agree as follows:
1. Capitalized Terms.
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Capitalized terms used but not defined herein have the respective
meanings assigned to such terms in the Original Pledge Agreement.
2. Amendment of Original Pledge Agreement.
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(a) The definition of "Collateral" is hereby amended by deleting each
reference to "MOLP" in such definition and substituting in lieu thereof
"MOC."
(b) The following definition is added to Section 1.1:
"MOC" shall mean Mesa Operating Co., a Delaware corporation.
(c) The definition of "Limited Partnership Interest" in Section 1.1 of
the Pledge Agreement is hereby amended in its entirety to read as follows:
"Limited Partnership Interest" shall mean a seventy-six and 34/100
percent (76.34%) limited partnership interest in HCLP, being part of
the limited partnership interest in HCLP owned by MOC.
(d) The second recital in the Original Pledge Agreement is hereby
amended and restated in its entirety as follows:
WHEREAS, pursuant to the Indenture, Mesa has issued $569,564,000
aggregate principal amount at maturity ($435,750,000 Accreted Value (as
defined in the Indenture) at May 1, 1993) of 12.75% Secured Discount Notes
due June 30, 1998; and
(e) The following definition of the term "Notes" is hereby added to
Section 1.1 of the Original Pledge Agreement:
"Notes" shall mean the 12.75% Secured Discount Notes issued pursuant to
the Indenture, bearing interest at the rates provided for in the
Indenture and providing for the payment of attorneys' fees and
acceleration of maturity as set forth in the Indenture, with a present
maturity date of June 30, 1998 or as otherwise provided in the
Indenture, all as more particularly described therein or in the
Indenture, including without limitation, the 12.75% Secured Discount
Notes dated as of May 1, 1993 in the aggregate principal amount of
$567,564,000 and such 12.75% Secured Discount Notes dated as of
March 1, 1994 in the aggregate principal amount of $48,169,000, and any
extension, renewal, refunding, increase, substitution, replacement,
consolidation, modification or rearrangement thereof or thereto.
(f) Exhibit A to the Original Pledge Agreement is hereby deleted and a
new Exhibit A in the form of Exhibit A attached hereto is substituted in
lieu thereof.
3. Grant of Security Interest.
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In order to secure the full and prompt payment, performance and
observance of the Indebtedness when due (whether at maturity, by
acceleration, upon redemption or otherwise), MOC (i) hereby grants, conveys,
assigns, transfers and sets over to the Trustee for the pro rata benefit of
the Noteholders and to each Noteholder a lien upon and security interest in
the Collateral, and (ii) pledges to Trustee for the pro rata benefit of the
Noteholders and each Noteholder the Certificate of Subordinated Partial
Interest, all upon and subject to the terms and provisions of this
Agreement. Such lien and security interest and pledge are made as security
only and shall not subject the Trustee or any Noteholder to, or transfer or
in any way affect or modify, any obligation of MOC with respect to HCLP, any
of the Collateral or any transaction involving or giving rise thereto.
4. Miscellaneous.
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4.1 Second Lien.
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The liens, security interests, assignments and pledges provided
for in this Supplement are junior and inferior to the liens, security
interests, assignments and pledges of the First Pledge. Further, the
Trustee hereby acknowledges that all of the rights, remedies, benefits and
obligations provided herein for the benefit of the Trustee are in all
respects subject to the terms of the Intercreditor Agreement. Until the
First Pledge is no longer outstanding, the parties hereto will not
supplement, amend or modify, directly or indirectly, the provisions of this
Section 4.1.
4.2 Relation to Original Pledge Agreement.
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Notwithstanding anything contained in the Original Pledge
Agreement to the contrary, the term "Indebtedness" as used herein and in the
Original Pledge Agreement shall include the indebtedness of Mesa to the
Noteholders described in the Original Pledge Agreement, the indebtedness of
Mesa owed to the Noteholders evidenced by the Additional Securities, and the
obligation of Mesa owed to the Noteholders under the Indenture, this
Supplement and the other Security Documents. All rights, powers and
remedies available to the Trustee under the Original Pledge Agreement shall
be exercisable by the Trustee under the Original Pledge Agreement as
supplemented hereby and the Original Pledge Agreement as supplemented hereby
shall remain in full force and effect. Each reference in such agreement,
this Supplement or any other instrument to the Original Pledge Agreement
shall mean and be a reference to the Original Pledge Agreement as
supplemented hereby.
4.3 Ratification of Liens.
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The liens and security interests granted by the Original Pledge
Agreement are hereby continued, modified, ratified, and confirmed in
accordance with the terms hereof. Except as expressly supplemented,
modified and amended hereby, the Original Pledge Agreement shall remain in
full force and effect.
4.4 Rights Cumulative.
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Each and every right, power and remedy herein given to the Trustee
shall be cumulative and not exclusive, and every right, power and remedy
whether specifically herein given or otherwise existing may be exercised
from time to time and so often and in such order as may be deemed expedient
by the Trustee and the exercise, or the beginning of the exercise, of any
such right, power or remedy shall not be deemed a waiver of the right to
exercise, at the same time or thereafter, any other right, power or remedy.
No delay or omission by the Trustee in the exercise of any right, power or
remedy shall impair any such right, power or remedy or operate as a waiver
thereof or of any other right, power or remedy then or thereafter existing.
4.5 Article and Section Headings.
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The article and section headings in this instrument are inserted
for convenience and shall not be considered a part of this instrument or
used in its interpretation.
4.6 Notices.
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The manner and place of service of all notices, requests, demands
or other communications to be sent hereunder shall be sent as set forth in
Section 12.02 of the Indenture.
4.7 Survival of Agreements.
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All representations and warranties of MOC herein and all covenants
and agreements herein not fully and finally performed before the effective
date or dates of this Supplement shall survive such date or dates. All
covenants and obligations in this Supplement are intended by the parties to
be, and shall be construed as, covenants running with the Lands.
4.8 Counterparts.
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This Supplement may be executed in any number of counterparts and
by different parties in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original, but all of which
when taken together shall constitute one and the same instrument.
4.9 Governing Law.
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Insofar as this Supplement relates to the creation, perfection or
foreclosure of liens and the enforcement of rights and remedies against the
Collateral, it shall be governed by the laws of the State of Texas. With
respect to all other matters, including without limitation the duties,
rights and obligations of the trustee, this Supplement shall be governed by
and construed in accordance with the laws of the State of New York. If any
provision hereof is invalid or unenforceable in any jurisdiction, the other
provisions hereof shall remain in full force and effect in such
jurisdiction, and the invalidity of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of any such provision in any
other jurisdiction.
MESA OPERATING CO.
By: /s/ William D. Ballew
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William D. Ballew
Controller
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By: /s/ E. Kay Liederman
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E. Kay Liederman
Vice President
Exhibit A
HUGOTON CAPITAL LIMITED PARTNERSHIP
Certificate of Subordinate Partial Interest
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Dated as of March 2, 1994
Pickens Hugoton Company, a Texas corporation and a general partner of
Hugoton Capital Limited Partnership, a Delaware limited partnership
("HCLP"), hereby certifies that Harris Trust and Savings Bank, as Trustee
(the "Trustee") for the pro rata benefit of the Noteholders (as defined in
that certain Indenture dated as of May 1, 1993 among Mesa Inc., a Texas
corporation ("Mesa Inc."), Mesa Capital Corporation, a Delaware corporation
("Capital"), and Mesa Operating Limited Partnership, formerly a Delaware
limited partnership ("MOLP"), as issuers, and the Trustee, as amended and
supplemented by that certain First Supplemental Indenture dated as of
January 5, 1994 among Mesa Inc., Capital and Mesa Operating Co., a Delaware
corporation and the successor to MOLP ("MOC")) is registered on the books
and records of HCLP as the holder of an interest in all rights to money
and/or property (and such money and/or property that MOC now has or
acquires) in respect of a eleven and 34/100 percent (11.34%) limited
partnership interest in HCLP, being part of the limited partnership interest
in HCLP owned by MOC (and being in addition to the sixty-five percent (65%)
limited partnership interest in HCLP referenced in that certain Certificate
of Subordinate Partial Interest dated as of January 5, 1994 and executed by
the undersigned), including, without limitation, any proceeds of sale by or
on behalf of MOC of such interest, and distributions by HCLP in respect of
such interest, whether regular, special or made in connection with the
partial or total liquidation of HCLP and whether attributable to profits,
the return of any contribution or investment or otherwise attributable to
such interest or the ownership thereof, and proceeds of all of the foregoing
(the "Collateral").
This Certificate is subject to the terms and conditions of the security
Agreement, Pledge and Financing Statement dated as of May 1, 1993 between
MOLP and the Trustee acting for the pro rata benefit of the Noteholders, as
amended and supplemented by the First Supplement to Security Agreement,
Pledge and Financing Statement dated as of March 1, 1994 between MOC and the
Trustee acting for the pro rata benefit of the Noteholders (such Security
Agreement, Pledge and Financing Statement as so amended and supplemented
being referenced herein as the "Agreement").
The interests evidenced by this Certificate are subordinate to the
prior liens on and security interest in the Collateral created by the First
Pledge as defined in the Agreement and are transferable only to the extent
the Collateral or any part thereof is transferred in accordance with the
Agreement.
Neither the Trustee nor any of the Noteholders shall become a
substituted limited partner of HCLP by virtue of the Agreement or this
Certificate.
PICKENS HUGOTON COMPANY
By: /s/ William D. Ballew
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William D. Ballew
Controller