EXHIBIT 4.12
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CODA ENERGY, INC.,
As Issuer
DIAMOND ENERGY OPERATING COMPANY
TAURUS ENERGY CORP.
ELECTRA RESOURCES, INC.
As Guarantors
AND
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
As Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of April 25, 1996
to
INDENTURE
Dated as of March 18, 1996
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$110,000,000
Series A and Series B
10 1/2% Senior Subordinated Notes Due 2006
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FIRST SUPPLEMENTAL INDENTURE, dated as of April 25, 1996, among CODA ENERGY,
INC., a Delaware corporation (the "Company"), as Issuer, DIAMOND ENERGY
OPERATING COMPANY, an Oklahoma corporation, TAURUS ENERGY CORP., a Texas
corporation, and ELECTRA RESOURCES, INC., a Texas corporation, as Guarantors
(collectively, the "Guarantors"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee (the "Trustee").
W I T N E S S E T H:
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WHEREAS, the Company and the Guarantors have heretofore executed and delivered
to the Trustee a certain indenture, dated as of March 18, 1996 (the
"Indenture"), pursuant to which $110,000,000 aggregate principal amount of 10
1/2% Senior Subordinated Notes Due 2006 (collectively, the "Notes") were issued
by the Company and unconditionally guaranteed by the Guarantors; and
WHEREAS the Company and the Guarantors desire and have requested the Trustee
to join with it in the execution and delivery of this First Supplemental
Indenture for the purpose of amending Sections 2.06 and 3.07 of the Indenture in
the manner set forth below; and
WHEREAS, Section 9.01 of the Indenture provides that a supplemental indenture
may be entered into among the Company, the Guarantors, and the Trustee without
the consent of holders of Notes for certain purposes; and
WHEREAS, the Company and the Guarantors have furnished the Trustee with
Officers' Certificates complying with the requirements of Sections 12.04 and
12.05 of the Indenture and stating that all conditions precedent provided for in
the Indenture with respect to this First Supplemental Indenture have been
complied with; and
WHEREAS, the Company has furnished the Trustee with an Opinion of Counsel
complying with the requirements of Sections 12.04 and 12.05 of the Indenture and
stating that in the opinion of such counsel all conditions precedent provided
for in the Indenture with respect to this First Supplement Indenture have been
complied with; and
WHEREAS, all things necessary to make this First Supplemental Indenture a
valid agreement of the Company and the Guarantors and the Trustee and a valid
amendment of and supplement to the Indenture have been done;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the
holders thereof it is mutually covenanted and agreed for the equal and
proportionate benefit of all holders of the Notes, as follows:
Section 1.01 Amendment of Section 2.06 of the Indenture.
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Section 2.06 of the Indenture is hereby amended by adding thereto a new
subsection (j) as follows:
(j) Transfer of a Beneficial Interest in "IAI" Global Note for Beneficial
Interest in "QIB" Global Note.
Any Person having a beneficial interest in that certain Global Note
(the "IAI Global Note") evidencing interest of Persons who initially
acquired Notes as "institutional accredited investors" (as defined in Rule
501 under the Securities Act) may request exchange of such beneficial
interest for a beneficial interest in that certain Global Note (the "QIB
Global Note") representing Notes initially issued to Persons who are
"qualified institutional buyers" (as defined in Rule 144A under the
Securities Act). Such exchange shall be completed by delivery to the
Trustee of written instructions or such other form of instructions as is
customary for the Depository, from the Depository or its nominee, on behalf
of any Person having a beneficial interest in a Global Note, and, in the
case of a Transfer Restricted Security, a certification to the effect that
such beneficial interest is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 or Rule 9.04 under the Securities
Act (in substantially the form of Exhibit B hereto) or pursuant to an
effective registration statement under the Securities Act.
Upon receipt of such instructions and additional information and
documents, the Trustee, or the Note Custodian at the direction of the
Trustee, shall, in accordance with the standing instructions and procedures
existing between the Depository and the Note Custodian, cause the aggregate
principal amount of the IAI Global Note to be reduced accordingly by
endorsement on that certain Schedule of Exchanges of Certificated
Securities and shall cause the aggregate principal amount of the QIB Global
Note to be increased accordingly by notation on that certain Schedule of
Exchanges of Certificated Securities. Notwithstanding any principal amount
shown outstanding on the face of any Global Note, the notations made on
said Schedule of Exchanges of Certificated Securities shall control for all
purposes.
Section 1.02 Amendment to Section 3.07 of the Indenture. Section 3.07 is
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hereby amended by deleting the existing clause (b) in its entirety and inserting
a new clause (b) therefore as follows:
(b) Notwithstanding the provisions of clause (a) of this Section 3.07,
at any time prior to March 12, 1999, the Company may, at its option, on any
one or more occasions, redeem up to $27.5 million in aggregate principal
amount of Notes at a redemption price of 110.50% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the redemption date, with the net proceeds of an offering of
common equity of the Company; provided that at least $82.5 million in
aggregate principal amount of Notes remains outstanding immediately after
the occurrence of such redemption; and provided, further, that such
redemption shall occur within 75 days of the date of the closing of such
offering of common equity of the Company.
ARTICLE TWO
Section 2.01 Defined Terms. All terms used in this First Supplemental
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Indenture not otherwise defined herein shall have the meanings ascribed thereto
in the Indenture.
Section 2.02 Execution in Counterparts. This first Supplemental
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Indenture may be executed in any number of counterparts. Each such counterpart
shall be an original, but such counterparts shall together constitute one and
the same instrument.
Section 2.03 Confirmation of Indenture. Except as amended and
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supplemented hereby, all of the provisions of the Indenture shall remain and
continue in full force and effect and are hereby confirmed in all respects.
IN WITNESS WHEREOF, the Company and each of the Guarantors has caused this
First Supplemental Indenture to be duly executed and the Trustee has caused this
First Supplemental Indenture to be duly executed, all as of the day and year
first above written.
CODA ENERGY, INC., as Issuer
Attest: By: /s/ Grant W. Henderson
/s/ Joe Callaway ----------------------------------------------
- ---------------- Name: Grant W. Henderson
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Title: President and Chief Financial Officer
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DIAMOND ENERGY OPERATING
COMPANY, as Guarantor
Attest: By: /s/ Grant W. Henderson
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/s/ Joe Callaway Name: Grant W. Henderson
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Title: Vice President
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TAURUS ENERGY CORP., as Guarantor
Attest: By: /s/ Grant W. Henderson
/s/ Joe Callaway ---------------------------------------------
- ---------------- Name: Grant W. Henderson
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Title: Vice President
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ELECTRA RESOURCES, INC., as Guarantor
Attest: By: /s/ Grant W. Henderson
/s/ Joe Callaway ---------------------------------------------
- ---------------- Name: Grant W. Henderson
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Title: President
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TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee
Attest: By: /s/ John G. Jones
/s/ Kathleen Wagner ---------------------------------------------
- ------------------- Name: John G. Jones
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Title: Vice President
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