<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 7, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PLAINS RESOURCES INC.
(Exact name of registrant as specified in its charter)
SEE TABLE OF ADDITIONAL REGISTRANTS BELOW
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DELAWARE 1311 13-2898764
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(State or other jurisdiction of Primary Industrial Classification Code Number (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
1600 SMITH STREET
HOUSTON, TEXAS 77002
(713) 654-1414
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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MICHAEL R. PATTERSON
VICE PRESIDENT AND GENERAL COUNSEL
PLAINS RESOURCES INC.
1600 SMITH STREET
HOUSTON, TEXAS 77002
(713) 654-1414
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPY TO:
JOHN A. WATSON
FULBRIGHT & JAWORSKI L.L.P.
1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77010-3095
(713) 651-5151
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
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, please check the following box: |_|
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CALCULATION OF REGISTRATION FEE
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==========================================================================================================================
Proposed Proposed Amount of
Maximum Maximum Registration
TITLE OF EACH CLASS OF AMOUNT TO Offering Price Aggregate Fee
SECURITIES TO BE REGISTERED BE REGISTERED Per Note(1) Offering Price(1)
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10 1/4% Senior Subordinated Notes due 2006, Series B.... $150,000,000 101.625% $152,437,500 $52,565
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Subsidiary Guarantees of 10 1/4% Senior Subordinated
Notes due 2006, Series B.............................. -- -- (2)
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Total................................................... $150,000,000 101.625% $152,437,500 $52,565
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(1) Pursuant to Rule 457(f) under the Securities Act of 1933, the registration
fee has been calculated based on the average of the bid and asked prices in
the PORTAL market on May 6, 1996, of the 10 1/4% Senior Subordinated Notes
due 2006 of the Company, for which the securities registered hereby will be
exchanged.
(2) Pursuant to Rule 457(n) under the Securities Act of 1933, no separate fee is
payable for the Guarantees.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
TABLE OF ADDITIONAL REGISTRANTS
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================================================================================================================================
ADDRESS, INCLUDING
ZIP CODE, AND
TELEPHONE NUMBER,
INCLUDING AREA
PRIMARY STANDARD CODE, OF
STATE OR OTHER INDUSTRIAL REGISTRANT'S
JURISDICTION OF CLASSIFICATION CODE IRS EMPLOYER ID PRINCIPAL EXECUTIVE
NAME INCORPORATION NO. NO. OFFICES
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Calumet Florida, Inc. Delaware 1311 35-1880416 *
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Plains Illinois Inc. Delaware 1311 76-0487569 *
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Plains Marketing & Delaware 1311 76-0339476 *
Transportation Inc.
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Plains Resources Delaware 1311 76-0040974 *
International Inc.
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PRI Producing Inc. Delaware 1311 73-1197243 *
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PLX Crude Lines Inc. Delaware 1311 76-0387477 *
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PLX Ingleside Inc. Delaware 1311 76-0493777 *
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Stocker Resources, Inc. California 1311 33-0421175 *
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Plains Terminal & Delaware 1311 76-0376679 *
Transfer Corporation
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Stocker Resources, L.P. California 1311 33-0430755 *
================================================================================================================================
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* 1600 Smith Street, Houston, Texas 77002, telephone (713) 654-1414.
<PAGE> 3
PLAINS RESOURCES INC.
Cross-Reference Sheet
(Pursuant to Rule 404(a) and Item 501(b) of Regulation S-K)
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FORM S-4 ITEM AND CAPTION LOCATION OR PROSPECTUS CAPTION
------------------------- ------------------------------
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1. Forepart of Registration Statement and Outside Outside Front Cover Page
Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Pages of Inside Front Cover Page
Prospectus
3. Risk Factors, Ratio of Earnings to Fixed Charges Prospectus Summary; Risk Factors
and Other Information
4. Terms of the Transaction Prospectus Summary; The Exchange Offer;
Description of the Exchange Notes; Certain
Federal Income Tax Consequences
5. Pro Forma Financial Information Incorporation of Certain Documents
6. Material Contacts with the Company Being Not Applicable
Acquired
7. Additional Information Required for Reoffering by Not Applicable
Persons and Parties Deemed to Be Underwriters
8. Interests of Named Experts and Counsel Legal Matters; Experts
9. Disclosure of Commission Position on Not Applicable
Indemnification for Securities Act Liabilities
10. Information with Respect to S-3 Registrants Prospectus Summary; Risk Factors; The
Company; Description of Certain Indebtedness
11. Incorporation of Certain Information by Reference Incorporation of Certain Documents
12. Information with Respect to S-2 or S-3 Registrants Not Applicable
13. Incorporation of Certain Information by Reference Not Applicable
14. Information with Respect to Registrants Other Not Applicable
Than S-3 or S-2 Registrants
15. Information with Respect to S-3 Companies Not Applicable
16. Information with Respect to S-2 or S-3 Companies Not Applicable
17. Information with Respect to Companies Other Not Applicable
Than S-3 or S-2 Companies
18. Information if Proxies, Consents or Authorizations Not Applicable
are to be Solicited
19. Information if Proxies, Consents or Authorizations Incorporation of Certain Documents
are not to be Solicited or in an Exchange Offer
</TABLE>
<PAGE> 4
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AND OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY STATE.
SUBJECT TO COMPLETION, DATED ___________, 1996
PROSPECTUS
OFFER TO EXCHANGE
ALL OUTSTANDING
10 1/4 SENIOR SUBORDINATED NOTES DUE 2006, SERIES A
($150,000,000 PRINCIPAL AMOUNT OUTSTANDING)
FOR
10 1/4 SENIOR SUBORDINATED NOTES DUE 2006, SERIES B
($150,000,000 PRINCIPAL AMOUNT)
OF
[PLAINS RESOURCES LOGO]
UNCONDITIONALLY GUARANTEED BY:
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CALUMET FLORIDA, INC. PLAINS RESOURCES INTERNATIONAL INC. STOCKER RESOURCES, INC.
PLAINS ILLINOIS INC. PRI PRODUCING INC. PLAINS TERMINAL & TRANSFER
PLAINS MARKETING & TRANSPORTATION PLX CRUDE LINES INC. CORPORATION
INC. PLX INGLESIDE INC. STOCKER RESOURCES, L.P.
</TABLE>
--------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON ________, 1996, UNLESS EXTENDED.
--------------
Plains Resources Inc., a Delaware corporation (the "Company"), hereby
offers (the "Exchange Offer"), upon the terms and subject to the conditions set
forth in this Prospectus and the accompanying Letter of Transmittal (the "Letter
of Transmittal"), to exchange up to an aggregate principal amount of
$150,000,000 of its Senior Subordinated Notes due 2006, Series B (the "Exchange
Notes") for an equal principal amount of its outstanding 10 1/4% Senior
Subordinated Notes due 2006, Series A (the "Outstanding Notes"), in integral
multiples of $1,000. The Exchange Notes will be senior unsecured obligations of
the Company and are substantially identical (including principal amount,
interest rate, maturity and redemption rights) to the Outstanding Notes for
which they may be exchanged pursuant to this offer, except for certain transfer
restrictions and registration rights relating the Outstanding Notes and except
for certain interest provisions relating to such rights. The Outstanding Notes
have been, and the Exchange Notes will be, issued under an Indenture dated as of
March 15, 1996 (the "Indenture"), among the Company, the Subsidiary Guarantors
and Texas Commerce Bank National Association, as trustee (the "Trustee"). See
"Description of Exchange Notes". There will be no proceeds to the Company from
this offering; however, pursuant to a Registration Rights Agreement dated as of
March 19, 1996 (the "Registration Rights Agreement") among the Company, the
Subsidiary Guarantors (as defined) and the Initial Purchasers (as defined) of
the Outstanding Notes, the Company will bear certain offering expenses.
(Cover text continued on next page)
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SEE "RISK FACTORS" ON PAGE 14 FOR A DISCUSSION OF CERTAIN FACTORS TO BE
CONSIDERED BY HOLDERS WHO TENDER OUTSTANDING NOTES IN THE EXCHANGE OFFER.
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
---------------
THE DATE OF THIS OFFERING MEMORANDUM IS MAY , 1996
<PAGE> 5
The Company will accept for exchange any and all validly tendered
Outstanding Notes on or prior to 5:00 p.m., New York City time, on
______________, 1996, [30 business days after effective date] unless extended
(the "Expiration Date"). Tenders of Outstanding Notes may be withdrawn at any
time prior to 5:00 p.m., New York City time, on the Expiration Date; otherwise
such tenders are irrevocable. Texas Commerce Bank National Association is acting
as Exchange Agent in connection with the Exchange Offer. The Exchange Offer is
not conditioned upon any minimum principal amount of Outstanding Notes being
tendered for exchange, but is otherwise subject to certain customary conditions.
The Exchange Notes will bear interest from the date of issuance (or the
most recent Interest Payment Date (as defined) to which interest on such
Exchange Notes has been paid), at a rate equal to 10 1/4% per annum and on the
same terms as the Outstanding Notes. Interest on the Exchange Notes will be
payable semiannually on March 15 and September 15 of each year commencing
September 15, 1996. Accrued interest on the Outstanding Notes that are tendered
in exchange for the Exchange Notes will be payable on or before September 15,
1996. Outstanding Notes that are accepted for exchange will cease to accrue
interest on and after the date on which interest on the Exchange Notes will
begin to accrue.
The Company's obligation to pay the principal of, premium, if any, and
interest on the Exchange Notes will be unconditionally guaranteed, on a joint
and several basis, by the following subsidiaries of the Company: Calumet
Florida, Inc., Plains Illinois Inc., Plains Marketing & Transportation Inc.,
Plains Resources International Inc., PRI Producing Inc., PLX Crude Lines Inc.,
PLX Ingleside Inc., Stocker Resources, Inc., Plains Terminal & Transfer
Corporation, and Stocker Resources, L.P. (the "Subsidiary Guarantors").
The Outstanding Notes were sold by the Company on March 19, 1996 to the
Initial Purchasers in transactions not registered under the Securities Act in
reliance upon the exemption provided in Section 4(2) of the Securities Act. The
Initial Purchasers subsequently placed the Outstanding Notes with qualified
institutional buyers in reliance upon Rule 144A under the Securities Act and to
four institutional "Accredited Investors" (as defined in Rule 501(a)(1),(2),(3)
or (7) under the Securities Act ("Institutional Accredited Investors").
Accordingly, the Outstanding Notes may not be reoffered, resold or otherwise
transferred in the United States unless so registered or unless an applicable
exemption from the registration requirements of the Securities Act is available.
The Exchange Notes are being offered hereunder in order to satisfy the
obligations of the Company under the Registration Rights Agreement. See "The
Exchange Offer".
Based on an interpretation by the staff of the Securities and Exchange
Commission (the "Commission") set forth in no-action letters issued to third
parties, the Company believes that Exchange Notes issued pursuant to this
Exchange Offer may be offered for resale, resold and otherwise transferred by a
holder who is not an affiliate of the Company without compliance with the
registration and prospectus delivery provisions of the Securities Act, provided
that the holder is acquiring the Exchange Notes in its ordinary course of
business and is not participating in and has no arrangement or understanding
with any person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes. Persons wishing to exchange Outstanding
Notes in the Exchange Offer must represent to the Company that such conditions
have been met.
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer (a "Participating Broker-Dealer") must
acknowledge that it will deliver a prospectus in connection with any resale of
Exchange Notes. A broker-dealer that delivers such a prospectus to purchasers in
connection with such resales will be subject to certain of the civil liability
provisions under the Securities Act and will be bound by the provisions of the
Registration Rights Agreement (including certain indemnification rights and
obligations). 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
Notes received in exchange for Outstanding Notes where such Outstanding Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed that, if requested by a
Participating Broker-Dealer, it will use its best efforts to make this
Prospectus available to any Participating Broker-Dealer for use in connection
with any such resale for a period of up to six months or such earlier date as
such Participating Broker-Dealer shall have notified the Company in writing that
such Participating Broker-Dealer has resold all Exchange Notes acquired in the
Exchange Offer. See "Plan of Distribution".
2
<PAGE> 6
The Company does not intend to list the Exchange Notes on any national
securities exchange or to seek the admission thereof to trading in the National
Association of Securities Dealers Automated Quotation System. The Initial
Purchasers have advised the Company that they intend to make a market in the
Exchange Notes; however, they are not obligated to do so and any market-making
may be discontinued at any time without notice. Accordingly, no assurance can be
given that an active public or other market will develop for the Exchange Notes
or as to the liquidity of or the trading market for the Exchange Notes.
Any Outstanding Notes not tendered and accepted in the Exchange Offer
will remain outstanding. To the extent that any Outstanding Notes are tendered
and accepted in the Exchange Offer, a holder's ability to sell untendered
Outstanding Notes could be adversely affected. Following consummation of the
Exchange Offer, the holders of Outstanding Notes will continue to be subject to
the existing restrictions upon transfer thereof.
The Company expects that the Exchange Notes issued pursuant to this
Exchange Offer will be issued in the form of a Global Exchange Notes (as defined
herein), which will be deposited with, or on behalf of, The Depository Trust
Company (the "Depositary") and registered in its name or in the name of Cede &
Co., its nominee. Beneficial interests in the Global Exchange Notes representing
the Exchange Notes will be shown on, and transfers thereof to qualified
institutional buyers will be effected through, records maintained by the
Depositary and its participants. After the initial issuance of the Global
Exchange Notes, Exchange Notes in certificated form will be issued in exchange
for the Global Exchange Notes on the terms set forth in the Indenture. See
"Description of Exchange Notes--Book Entry; Delivery and Form".
---------------------------
No dealer, salesperson or other person has been authorized to give
information or to make any representations not contained in this Prospectus,
and, if given or made, such information or representations must not be relied
upon as having been authorized by the Company. This Prospectus does not
constitute an offer to sell or the solicitation of an offer to buy any security
other than the Exchange Notes offered hereby, nor does it constitute an offer to
sell or the solicitation of an offer to buy any of the Exchange Notes to any
person in any jurisdiction in which it is unlawful to make such an offer or
solicitation to such person. Neither the delivery of this Prospectus nor any
sale made hereunder shall under any circumstances create any implication that
the information contained herein is correct as of any date subsequent to the
date hereof.
UNTIL ________, 1996 (90 DAYS AFTER COMMENCEMENT OF THIS OFFERING), ALL
DEALERS EFFECTING TRANSACTIONS IN THE EXCHANGE NOTES, WHETHER OR NOT
PARTICIPATING IN THE EXCHANGE OFFER, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
TABLE OF CONTENTS
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PAGE PAGE
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Available Information..................................... 3 The Company............................................... 29
Incorporation of Certain Documents........................ 4 Description of Certain Indebtedness....................... 32
Prospectus Summary........................................ 6 Description of the Exchange Notes......................... 34
Risk Factors.............................................. 14 Plan of Distribution...................................... 63
The Exchange Offer........................................ 20 Legal Matters............................................. 64
Certain Federal Income Tax Consequences................... 27 Experts................................................... 64
Use of Proceeds........................................... 27
</TABLE>
AVAILABLE INFORMATION
The Company has filed with the Commission in Washington, D.C., a
Registration Statement on Form S-4 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
securities offered by this Prospectus. Certain of the information contained in
the Registration Statement is omitted from this Prospectus, and reference is
hereby made to the Registration Statement and exhibits and schedules relating
thereto for further information with respect to the Company and the securities
offered by this Prospectus. The Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and, in accordance therewith, files reports, proxy statements and other
information with the
3
<PAGE> 7
Commission. Such reports, proxy statements and other information are available
for inspection at, and copies of such materials may be obtained upon payment of
the fees prescribed therefor by the rules and regulations of the Commission from
the Commission at its principal offices located at Judiciary Plaza, 450 Fifth
Street, Room 1024, Washington, D.C. 20549, and at the Regional Offices of the
Commission located at Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511; and at 7 World Trade Center, Suite 1300, New
York, New York 10048. In addition, the Common Stock of the Company ("Common
Stock") is traded on the American Stock Exchange, and such reports, proxy
statements and other information may be inspected at the offices of the American
Stock Exchange, Inc., 86 Trinity Place, New York, New York 10006.
So long as the Company is subject to the periodic reporting
requirements of the Exchange Act, it is required to furnish the information
required to be filed with the Commission to the Trustee and the holders of the
Outstanding Notes and the Exchange Notes. The Company has agreed that, even if
it is entitled under the Exchange Act not to furnish such information to the
Commission, it will nonetheless continue to furnish information that would be
required to be furnished by the Company by Section 13 of the Exchange Act to the
Trustee and the holders of the Outstanding Notes or Exchange Notes as if it were
subject to such periodic reporting requirements.
In addition, the Company has agreed that for so long as any of the
Notes are outstanding and are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act, it will make available to any prospective
purchaser of the Notes or beneficial owner of the Notes in connection with any
sale thereof the information required by Rule 144A(d)(4) under the Securities
Act until such time as the Company has either exchanged the Outstanding Notes
for the Exchange Notes or until such time as the holders thereof have disposed
of such Outstanding Notes pursuant to an effective registration statement filed
by the Company.
INCORPORATION OF CERTAIN DOCUMENTS
The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, the Company's Current Report on Form 8-K filed with the
Commission on January 4, 1996, as amended by Amendment No.1 on Form 8-K/A filed
with the Commission on February 21, 1996, and the Company's Current Report on
Form 8-K filed with the Commission on March 5, 1996, are hereby incorporated
herein by reference.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act, after the date of this Prospectus and prior to the
termination of the Registration Statement of which this Prospectus is a part
with respect to registration of the Exchange Notes, shall be deemed to be
incorporated by reference in this Prospectus and be a part hereof from the date
of filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference in this Prospectus shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained in this Prospectus, or in any other subsequently filed
document that also is or is deemed to be incorporated by reference, modifies or
replaces such statement.
The Company undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has been
delivered, upon written or oral request of any such person, a copy of any or all
of the documents incorporated by reference herein, other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference into
the information that this Prospectus incorporates. Written or oral requests for
such copies should be directed to: Plains Resources Inc., 1600 Smith Street,
Houston, Texas 77002, Attention: Investor Relations Department, telephone (713)
654-1414.
CERTAIN DEFINITIONS
As used in this Prospectus, "Mcf" means thousand cubic feet, "Bbl"
means barrel, "BOE" means barrel of oil equivalent and "MCFE" means Mcf of
natural gas equivalent. Natural gas equivalents and crude oil equivalents are
determined using the ratio of six Mcf of natural gas to one barrel of crude oil,
condensate or natural gas liquids. "Present Value of Proved Reserves" means the
present value (discounted at 10%) of estimated future net cash flows (before
income taxes) of proved oil and natural gas reserves based on product prices in
effect on the
4
<PAGE> 8
date of determination. "EBITDA" means earnings before interest, taxes,
depreciation, depletion and amortization. "Notes" includes the Outstanding
Notes, the Exchange Notes and any Private Exchange Notes (as defined).
5
<PAGE> 9
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements and notes thereto set forth in this
Prospectus. As used herein, the terms "Company" and "Plains" mean Plains
Resources Inc. and its subsidiaries, except as the context may otherwise
require.
THE COMPANY
Plains is an independent energy company engaged in the acquisition,
exploitation, development, exploration and production of oil and natural gas and
the marketing, transportation, terminalling and storage of crude oil. The
Company's upstream oil and natural gas activities are focused in the Los Angeles
Basin of California (the "LA Basin"), the Sunniland Trend of South Florida (the
"Sunniland Trend"), the Illinois Basin and the Gulf Coast area of Louisiana. The
Company's downstream marketing activities are concentrated in Oklahoma, where it
owns a two million barrel, above ground crude oil terminalling and storage
facility, Texas and the Gulf Coast area of Louisiana. Plains' upstream
operations contributed approximately 90% of the Company's pro forma EBITDA for
the fiscal year ending December 31, 1995, while the Company's downstream
activities accounted for the remainder.
The Company has experienced significant growth over the last four
years. The Company's proved reserves, Present Value of Proved Reserves, and the
standardized measure of discounted future net cash flows determined in
accordance with generally accepted accounting principles, have increased from
13.7 million BOE, $71.7 million, and $69.9 million, respectively, at December
31, 1991 to 101.6 million BOE, $366.8 million and $304.8 million, respectively,
at December 31, 1995. Over the same period, the Company's average reserve
replacement ratio was 617%, EBITDA increased over 400% from $9.0 million for
1991 to $45.3 million for 1995, pro forma for the Illinois Basin Acquisition (as
defined below), and cash provided by operating activities increased from $6.1
million in 1991 to $27.5 million in 1995, pro forma for the Illinois Basin
Acquisition. Such additional proved reserves were added at an aggregate average
finding and development cost of $2.38 per BOE ($0.40 per MCFE). During 1995, pro
forma for the Illinois Basin Acquisition, the Company's net production averaged
approximately 16,657 BOE per day and its unit gross profit (gross margin less
upstream general and administrative expense) averaged $6.75 per BOE ($1.13 per
MCFE). On a BOE basis, the Company's proved reserves are approximately 93% crude
oil, condensate and natural gas liquids and 71% of its total proved reserves are
classified as proved developed. The Company's reserve base is long-lived with an
average reserve life, or reserves to production ratio, of 16.7 years (11.9 years
based on proved developed reserves only), pro forma for the Illinois Basin
Acquisition. Net cash flows used in investing activities were $76.5 million,
$40.2 million and $64.4 million for 1993, 1994 and 1995, respectively. Net cash
flows provided by financing activities were $44.7 million, $19.3 million and
$52.3 million for 1993, 1994 and 1995, respectively.
The Company's significant increase in proved reserves, production and
cash flow from oil and natural gas producing activities is attributable to the
acquisition and subsequent exploitation of its LA Basin Properties and Sunniland
Trend Properties and the recent acquisition of the Illinois Basin Properties.
These three core areas are comprised primarily of crude oil properties with
established production histories and together account for approximately 96% of
the Company's year-end 1995 proved reserves. The Company believes these
properties include a significant inventory of lower risk, high return
exploitation and development projects that are expected to contribute to the
Company's future growth in production and reserves. During 1996, the Company
estimates it will spend approximately $40 million on the development and
exploitation of its LA Basin, Sunniland Trend and Illinois Basin Properties. The
Company operates and owns a 100% working interest in its major fields in each of
these areas, which enables the Company to control the exploitation of such
properties.
The Company's marketing effort entails purchasing crude oil from
producers and marketing it to the refining sector. The Company aggregates these
volumes at major crude oil interchanges and trading locations and is therefore
able to obtain higher prices for its own production while realizing profits on
the production purchased from others. The Company owns and operates a two
million barrel, above ground crude oil storage and terminalling facility in
Cushing, Oklahoma (the "Cushing Terminal"), the United States' largest inland
crude oil interchange and trading location. This facility enhances the
competitive marketing ability of the Company by enabling it to take
6
<PAGE> 10
crude oil from different sources and make physical delivery of crude oil in
Cushing, the NYMEX designated delivery location. The Company's downstream
activities have expanded significantly over the last four years, with downstream
gross margin (revenues less direct expenses of purchases, transportation,
storage and terminalling) increasing over 400% from $1.2 million in 1991 to $6.4
million in 1995. Based on additional capacity available at the Cushing Terminal,
the Company believes it can increase its downstream gross profit without
expending substantial additional capital.
The Company's upstream and downstream business activities focus on
crude oil as the primary product. As a result of inefficiencies inherent in the
crude oil markets and the U.S. pipeline and transportation infrastructure,
management believes its competitive abilities are enhanced by the alternatives
afforded it by its proprietary access to the Cushing Terminal. The Company's
crude oil marketing expertise further provides it with a competitive advantage
in obtaining higher prices for the Company's existing production and identifying
potential crude oil price enhancements for properties targeted for acquisition.
BUSINESS STRATEGY
The Company's business strategy is to increase its proved reserves and
cash flow by exploiting and producing oil and natural gas from its existing
properties, acquiring additional underdeveloped oil properties and exploring for
significant new sources of reserves. The Company concentrates its exploitation
efforts on mature but underdeveloped crude oil producing properties in areas
that meet the Company's targeted criteria. Generally, such properties were
previously owned by major integrated oil and gas companies or large independent
oil and gas companies. Management believes that it has developed a proven record
in acquiring and exploiting underdeveloped crude oil properties where it
believes substantial reserve additions and cash flow increases can be made
through improved production practices and recovery techniques and relatively low
risk development drilling. An integral component of the Company's exploitation
efforts is to increase unit operating margins, and therefore cash flow, by
reducing unit production expenses and increasing wellhead price realizations.
The Company also seeks to capitalize on downstream opportunities that complement
its oil producing activities. The Company's marketing of its crude oil
production takes advantage of the marketing expertise and economies of scale
attributable to its downstream activities. As part of its business strategy, the
Company periodically evaluates, and from time to time has elected to sell,
certain of its fully developed producing properties. Such sales enable the
Company to maintain financial flexibility, control overhead and redeploy the
sales proceeds to activities that have potentially higher financial returns.
In order to manage its exposure to commodity price risk, the Company
has routinely hedged a portion of its crude oil production. For 1996, the
Company has committed an average of approximately 11,500 Bbls of oil per day to
fixed price arrangements that expire at various times throughout 1996. Such
arrangements represent approximately 75% of the Company's pro forma average
daily oil production for 1995 and partially mitigate the adverse impact of
potential oil price declines on the Company's operating results.
RECENT ACQUISITION
On December 22, 1995, the Company acquired all of Marathon Oil
Company's upstream oil and gas assets in the Illinois Basin (the "Illinois Basin
Properties"). The acquisition of the Illinois Basin Properties (the "Illinois
Basin Acquisition") was effective as of November 1, 1995. As a result of such
acquisition, the Company added approximately 17.3 million barrels of oil to its
proved reserve base at an aggregate cost of approximately $51.5 million, or an
average of $2.98 per BOE ($0.50 per MCFE). The Company intends to aggressively
exploit these properties to evaluate additional reserve potential identified
during its acquisition analysis. In addition, the Company's exploitation plan
for the Illinois Basin Properties targets improving the unit gross margin by
decreasing unit production expenses and increasing price realizations as well as
increasing production volumes by conducting production enhancement activities
similar to those employed in its LA Basin Properties and Sunniland Trend
Properties.
7
<PAGE> 11
THE EXCHANGE NOTE OFFERING
<TABLE>
<S> <C>
The Outstanding Notes.................... The Outstanding Notes were sold by the Company on March 19, 1996, to
Jefferies & Company, Inc., Bear Stearns Co. Inc, Chemical Securities Inc.
and ING Baring (U.S.) Securities, Inc.) (collectively, the "Initial
Purchasers") pursuant to a Purchase Agreement dated March 14, 1996 (the
"Purchase Agreement"). The Initial Purchasers subsequently resold the
Outstanding Notes to qualified institutional buyers pursuant to Rule 144A
under the Securities Act and to Institutional Accredited Investors.
Registration Requirements................ Pursuant to the Purchase Agreement, the Company and the Initial Purchasers
entered into a Registration Rights Agreement dated March 14, 1996 (the
"Registration Rights Agreement"), which grants the holders of the
Outstanding Notes certain exchange and registration rights. The Exchange
Offer is intended to satisfy such exchange rights, which terminate upon the
consummation of the Exchange Offer. If applicable law or applicable
interpretations of the staff of the Commission do not permit the Company
to effect the Exchange Offer, or in certain other circumstances, the
Company has agreed to file a shelf registration (the "Shelf Registration
Statement") covering resales of Transfer Restricted Securities (as defined).
See "The Exchange Offer--Resale of Exchange Notes".
THE EXCHANGE OFFER
Securities Offered....................... $150,000,000 aggregate principal amount of 10 1/4% Senior Notes due 2006,
Series B.
The Exchange Offer....................... $1,000 principal amount of the Exchange Notes in exchange for each $1,000
principal amount of Outstanding Notes. As of the date hereof,
$150,000,000 aggregate principal amount of Outstanding Notes are
outstanding. The Company will issue the Exchange Notes to holders on
________, 1996 (the "Exchange Date").
Based on an interpretation of the staff of the Commission set forth in
no-action letters issued to third parties, the Company believes that Exchange Notes
issued pursuant to the Exchange Offer in exchange for Outstanding Notes may be offered
for resale, resold and otherwise transferred by any holder thereof (other than any such
holder which is an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act) without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such Exchange Notes are acquired in the
ordinary course of such holder's business and that such holder does not intend to
participate and has no arrangement or understanding with any person to participate in
the distribution of such Exchange Notes.
Each Participating Broker-Dealer must acknowledge that it will deliver a
prospectus in connection with any resale of Exchange Notes. A broker-
dealer that delivers such a prospectus to purchasers in connection with such
resales will be subject to certain of the civil liability provisions under the
Securities Act and will be bound by the provisions of the Registration
Rights Agreement (including certain indemnification rights and obligations).
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
</TABLE>
8
<PAGE> 12
<TABLE>
<S> <C>
Notes received in exchange for Outstanding Notes where such
Outstanding Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has
agreed that, if requested by a Participating Broker-Dealer, it will use
its best efforts to make this Prospectus available to any Participating
Broker-Dealer for use in connection with any such resale for a period
of up to six months or such earlier date as such Participating
Broker-Dealer shall have notified the Company in writing that such
Participating Broker-Dealer has resold all Exchange Notes acquired in
the Exchange Offer. See "Plan of Distribution".
Any holder who tenders in the Exchange Offer with the intention to
participate, or for the purpose of participating, in a distribution of the
Exchange Notes could not rely on the position of the staff of the
Commission enunciated in Exxon Capital Holdings Corporation (available
April 13, 1989) or similar no-action letters and, in the absence of an
exemption therefrom, must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with the resale transaction.
Failure to comply with such requirements in such instance may result in
such holder incurring liability under the Securities Act for which the
holder is not indemnified by the Company.
Expiration Date.......................... 5:00 p.m., New York City time, on ________, 1996.
Interest on the Notes.................... The Exchange Notes will bear interest from the date of issuance of the
Exchange Notes. Interest on the Outstanding Notes that are tendered in
exchange for the Exchange Notes that has accrued from March 19, 1996,
the date of issuance of the Outstanding Notes, through the Exchange Date
will be payable on or before September 15, 1996.
Procedures for Tendering
Outstanding Notes.................... Each holder of Outstanding Notes wishing to accept the Exchange Offer must
complete, sign and date the accompanying Letter of Transmittal, or a
facsimile thereof, in accordance with the instructions contained herein and
therein, and mail or otherwise deliver such Letter of Transmittal, or such
facsimile, together with the Outstanding Notes and any other required
documentation to the Exchange Agreement at the address set forth herein.
By executing the Letter of Transmittal, each holder will represent to the
Company that, among other things, the holder or the person receiving such
Exchange Notes, whether or not such person is the holder, is acquiring the
Exchange Notes in the ordinary course of business and that neither the
holder nor any such other person has any arrangement or understanding
with any person to participate in the distribution of such Exchange Notes.
In lieu of physical delivery of the certificates representing Outstanding
Notes, tendering holders may transfer notes pursuant to the procedure for
book-entry transfer as set forth under "The Exchange Offer--Procedures for
Tendering".
Special Procedures for Beneficial
Owners.............................. Any beneficial owner whose Outstanding Notes are registered in the name
of a broker-dealer, commercial bank, trust company or other nominee and
who wishes to tender should contact such registered holder promptly and
instruct such registered holder to tender on such beneficial owner's behalf.
</TABLE>
9
<PAGE> 13
<TABLE>
<S> <C>
If such beneficial owner wishes to tender on such owner's own behalf,
such owner must, prior to completing and executing the Letter of
Transmittal and delivering its Outstanding Notes, either make
appropriate arrangements to register ownership of the Outstanding Notes
in such owner's name or obtain a properly completed bond power from
the registered holder. The transfer of registered ownership may take
considerable time.
Guaranteed Delivery Procedures........... Holders of Outstanding Notes who wish to tender their Outstanding Notes
and whose Outstanding Notes are not immediately available or who cannot
deliver their Outstanding Notes, the Letter of Transmittal or any other
documents required by the Letter of Transmittal to the Exchange Agent (or
comply with the procedures for book-entry transfer) prior to the Expiration
Date must tender their Outstanding Notes according to the guaranteed
delivery procedures set forth in "The Exchange Offer--Guaranteed Delivery
Procedures".
Withdrawal Rights........................ Tenders may be withdrawn at any time prior to 5:00 p.m., New York City
time, on the Expiration Date pursuant to the procedures described under
"The Exchange Offer--Withdrawal of Tenders".
Acceptance of Outstanding Notes and
Delivery of Exchange Notes........... Subject to certain conditions, the Company will accept for exchange any and
all Outstanding Notes that are properly tendered in the Exchange Offer prior
to 5:00 p.m., New York City time, on the Expiration Date. The Exchange
Notes issued pursuant to the Exchange Offer will be delivered on the
Exchange Date. See "The Exchange Offer--Terms of the Exchange Offer".
Federal Income Tax
Consequences......................... The exchange pursuant to the Exchange Offer should not be a taxable event
for federal income tax purposes. See "Certain Federal Income Tax
Consequences".
Private Exchange Notes................... The Registration Rights Agreement provides that if, prior to consummation
of the Exchange Offer, any of the Initial Purchasers holds any Outstanding
Notes acquired by it and having, or which are reasonably likely to be
determined to have, the status of an unsold allotment in the initial
distribution, or any other holder of Outstanding Notes is not entitled to
participate in the Exchange Offer, the Company upon the request of such
Initial Purchaser or any such holder shall, simultaneously with the delivery
of the Exchange Notes in the Exchange Offer, issue and deliver to such
Initial Purchasers and any such holder, in exchange (the "Private
Exchange") for such Outstanding Notes held by such Initial Purchaser and
any such holder, a like principal amount of debt securities of the Company
that are identical in all material respects to the Exchange Notes (the "Private
Exchange Notes") (and which were issued pursuant to the same indenture
as the Exchange Notes). The Private Exchange Notes are not covered by
the registration statement of which this Prospectus is a part and are not
being offered hereby. Any Private Exchange Notes will be entitled to all
the rights and subject to all the limitations applicable thereto under the
Indenture, and will be subject to the same restrictions on transfer applicable
to untendered Outstanding Notes. See "The Exchange Offer--Consequences
of Failure to Exchange". However, pursuant to the Registration Rights
Agreement, holders of Private Exchange Notes have certain rights to require
the Company to file and maintain a shelf registration statement that would
</TABLE>
10
<PAGE> 14
<TABLE>
<S> <C>
allow resales of such Private Exchange Notes owned by such holders. See
"The Exchange Offer--Shelf Registration Statement".
Effect on Holders of
Outstanding Notes.................... As a result of the making of this Exchange Offer, the Company will have
fulfilled one of its obligations under the Registration Rights Agreement,
and, with certain exceptions noted below, holders of Outstanding Notes who
do not tender their Outstanding Notes will not have any further registration
rights under the Registration Rights Agreement or otherwise. Such holders
will continue to hold the untendered Outstanding Notes and will be entitled
to all the rights and subject to all the limitations applicable thereto under the
Indenture, except to the extent such rights or limitations, by their terms,
terminate or cease to have further effectiveness as a result of the Exchange
Offer. All untendered Outstanding Notes will continue to be subject to
certain restrictions on transfer. Accordingly, if any Outstanding Notes are
tendered and accepted in the Exchange Offer, the trading market of the
untendered Outstanding Notes could be adversely affected.
Shelf Registration Statement............. If (i) the Company is not permitted to consummate the Exchange Offer
because the Exchange Offer is not permitted by any applicable law or
applicable interpretation of the Commission or the staff of the Commission
or (ii) any holder of an Outstanding Note notifies the Company on or prior
to the Exchange Date that (A) due to a change in law or policy it is not
entitled to participate in the Exchange Offer, (B) due to a change in law or
policy it may not resell the Exchange Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and this prospectus is not
appropriate or available for such resales by such holder or (C) it is a
broker-dealer that owns Outstanding Notes (including an initial purchaser
that holds Outstanding Notes as part of an unsold allotment from the
original offering of the Outstanding Notes) acquired directly from the
Company or an affiliate of the Company or (iii) any holder of Private
Exchange Notes so requests within 120 days after the consummation of the
Exchange Offer, the Company has agreed to file and maintain a shelf
registration statement that would allow resales of transfer restricted
Outstanding Notes, Exchange Notes or Private Exchange Notes owned by
such holders.
Exchange Agent........................... Texas Commerce Bank National Association.
SUMMARY OF TERMS OF THE EXCHANGE NOTES
Securities Offered....................... $150,000,000 principal amount of 10 1/4% Senior Subordinated Notes due
2006, Series B.
Maturity Date............................ March 15, 2006.
Interest Rate and Payment Dates.......... The Exchange Notes will bear interest at a rate of 10 1/4% per annum.
Interest on the Exchange Notes will accrue from the date of issuance thereof
and will be payable semi-annually in cash in arrears on each March 15 and
September 15, commencing September 15, 1996.
Optional Redemption...................... The Exchange Notes will be redeemable at the option of the Company, in
whole or in part, from time to time on or after March 15, 2001, at the
</TABLE>
11
<PAGE> 15
<TABLE>
<S> <C>
redemption prices set forth herein, plus accrued and unpaid interest to
the applicable redemption date. In addition, prior to March 15, 1999,
$45 million in principal amount of the Exchange Notes are redeemable at
the option of the Company, in whole or in part, from time to time, at
110 1/4% of the principal amount thereof, with the Net Proceeds (as
defined) of any Public Equity Offering (as defined) provided that
at least $105 million in aggregate principal amount of Notes remains
outstanding immediately after such redemption. See "Description of the
Exchange Notes--Redemption and Repurchase".
Change of Control........................ In the event of a Change of Control (as defined) and a corresponding Rating
Decline (as defined), the Company will be required to make an offer to
repurchase the Exchange Notes at 101% of the principal amount thereof,
plus accrued and unpaid interest to the date of repurchase. See "Description
of the Exchange Notes--Change of Control".
Certain Covenants........................ The Exchange Notes will be issued under the Indenture, which contains
covenants, including but not limited to covenants with respect to the
following matters: (i) limitations on incurrence of additional indebtedness;
(ii) limitations on certain investments; (iii) limitations on restricted
payments; (iv) limitations on disposition of assets; (v) limitation on
dividends and other payment restrictions affecting subsidiaries;
(vi) limitations on transactions with affiliates; (vii) limitations on liens; and
(viii) restrictions on mergers, consolidations and transfers of assets. See
"Description of the Exchange Notes--Certain Covenants".
Ranking.................................. The Exchange Notes will be unsecured senior subordinated obligations of the
Company and will be subordinated in right of payment to all existing and
future Senior Indebtedness of the Company, including the Company's
obligations under the Revolving Credit Facility (as defined). The Company
may not incur any indebtedness senior to the Exchange Notes which is
expressly subordinated to any other Senior Indebtedness. As of March 31,
1996, (i) the Company had Senior Indebtedness outstanding of $71 million
(which excludes $38.5 million representing Company guarantees of
Guarantor Senior Indebtedness), and (ii) the Subsidiary Guarantors had no
Guarantor Senior Indebtedness outstanding (other than $62.4 million
representing guarantees of parent Senior Indebtedness and $38.5 million
consisting of letters of credit). See "Description of the Exchange
Notes--Subordination".
Guarantees............................... The Exchange Notes will be guaranteed (the "Guarantees") by all of the
Company's principal subsidiaries (the "Subsidiary Guarantors"). The
Guarantees will be unsecured senior subordinated obligations of the
Subsidiary Guarantors, will be subordinated in right of payment to all
Guarantor Senior Indebtedness and may be released under certain
circumstances. See "Description of the Exchange Notes--Senior
Subordinated Guarantees of Exchange Notes".
</TABLE>
RISK FACTORS
An investment in the Notes involves certain risks that a potential
investor should carefully evaluate prior to making an investment in the Notes.
See "Risk Factors".
12
<PAGE> 16
SUMMARY RESERVE AND PRODUCTION DATA
(IN THOUSANDS, EXCEPT PER UNIT INFORMATION AND RATIOS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1992 1993 1994 1995
---- ---- ---- ----
<S> <C> <C> <C> <C>
PROVED RESERVE DATA
ESTIMATED NET PROVED RESERVES (AT PERIOD END)
Crude oil and natural gas liquids (Bbls) ............................ 33,390 38,810(1) 61,459 94,408
Natural gas (Mcf) ................................................... 39,861 49,397 51,009 43,110
Oil equivalent (BOE) .................................................. 40,034 47,043 69,960 101,593
Percentage proved developed ........................................... 69% 75% 77% 71%
West Texas Intermediate crude oil posted price
at December 31 ........................................................ $ 18.00 $ 12.50(1) $ 16.00 $ 18.00
ESTIMATED FUTURE NET CASH FLOWS (BEFORE INCOME TAXES) ................. $271,894 $231,484 $416,998 $713,142
$RESENT VALUE OF PROVED RESERVES ...................................... $155,360 $134,539(1) $229,371 $366,780
Percentage proved developed ......................................... 73% 79% 84% 74%
PROVED RESERVES TO PRODUCTION RATIO (YEARS) ........................... 15.2 11.1 15.8 16.7(2)
PROVED DEVELOPED RESERVES TO PRODUCTION RATIO (YEARS) ................. 10.5 8.3 12.2 11.9(2)
ANNUAL RESERVE ADDITION ACTIVITY
Total upstream capital costs incurred ............................... $ 68,209 $ 61,769 $ 40,849 $ 84,012
Proved reserve additions (BOE) ...................................... 29,027 11,457 27,438 39,328
Percentage of total upstream capital costs attributable to:
Acquisition ........................................................ 56% 40% 48% 71%
Development and exploitation ....................................... 17% 43% 38% 27%
Exploration ........................................................ 27% 17% 14% 2%
Four year average reserve replacement cost (per BOE)(3) ............. $ 3.51 $ 3.79 $ 2.77 $ 2.38
Four year average reserve replacement ratio(4) ...................... 763% 559% 595% 617%(2)
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
PRO FORMA
1992 1993 1994 1995 1995(5)
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
PRODUCTION DATA
ANNUAL PRODUCTION VOLUMES
Crude oil and natural gas liquids (Bbls) ........................ 2,030 3,556 3,835 4,376 5,617
Natural gas (Mcf) ............................................... 3,584 4,176 3,569 2,778 2,778
Oil equivalent (BOE) ............................................ 2,627 4,252 4,430 4,839 6,080
UNIT ECONOMICS
Average sales price per BOE ..................................... $ 14.61 $ 13.52 $ 12.92 $ 13.24 $ 14.17
Production expense per BOE ...................................... 7.36 6.65 6.15 6.25 6.60
--------- --------- --------- --------- ---------
Gross margin per BOE ............................................ 7.25 6.87 6.77 6.99 7.57
Upstream general and administrative expenses per BOE(6) ........ 2.48 1.34 1.04 0.99 0.82
--------- --------- --------- --------- ---------
Gross profit per BOE ............................................ $ 4.77 $ 5.53 $ 5.73 $ 6.00 $ 6.75
========= ========= ========= ========= =========
</TABLE>
(1) A large portion of the Company's reserve base is comprised of long-life oil
properties that are sensitive to low crude oil prices. During the fourth
quarter of 1993, crude oil prices declined significantly, with the posted
price for West Texas Intermediate crude oil ending the year at $12.50 per
Bbl, the lowest year-end oil price in the 13 years since U.S. crude oil
prices were deregulated. Such low prices had an adverse effect on proved
reserves and the Present Value of Proved Reserves at December 31, 1993.
(2) Pro forma for the Illinois Basin Acquisition (see footnote (5) below).
(3) The four-year average reserve replacement cost per BOE is calculated by
dividing (a) total upstream capital expenditures for the trailing four year
period by (b) the sum of reserves added through purchases of reserves in
place, extensions, discoveries and other additions and the effects of
revisions ("Reserve Additions") for such period. Reserve information at each
year-end is based on reports prepared by independent petroleum engineers.
(4) The four year average reserve replacement ratio is calculated by dividing
(a) aggregate Reserve Additions for the trailing four year period by (b)
aggregate production for such period.
(5) Pro forma information assumes the Illinois Basin Acquisition occurred as of
January 1, 1995.
(6) Upstream general and administrative ("G&A") expenses per BOE are calculated
by dividing (a) total G&A expenses for each year, excluding G&A expenses
related to the Company's downstream activities, by (b) each respective
year's production.
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<PAGE> 17
RISK FACTORS
Each investor should carefully examine this entire Prospectus and
should give particular attention to the risk factors set forth below.
LEVERAGE AND DEBT SERVICE
As of December 31, 1995, as adjusted for the issuance of the
Outstanding Notes and the application of the net proceeds therefrom, the
Company's total long-term debt and stockholders' equity would have been $220.9
million and $68.8 million, respectively. In addition, the Company may currently
incur additional indebtedness under its credit facilities. The Company's
Revolving Credit Facility (as defined under "Description of Certain
Indebtedness") currently consists of a $125 million borrowing base, of which
approximately $63.3 million is outstanding as of May 1, 1996. The Company's
level of indebtedness will have several important effects on its future
operations, including (i) a substantial portion of the Company's cash flow from
operations must be dedicated to the payment of interest on its indebtedness and
will not be available for other purposes, (ii) covenants contained in the
Company's debt obligations will require the Company to meet certain financial
tests, and other restrictions will limit its ability to borrow additional funds
or to dispose of assets and may affect the Company's flexibility in planning
for, and reacting to, changes in its business, including possible acquisition
activities and (iii) the Company's ability to obtain additional financing in the
future for working capital, capital expenditures, acquisitions, general
corporate purposes or other purposes may be impaired. The Company's ability to
meet its debt service obligations and to reduce its total indebtedness will be
dependent upon the Company's future performance, which will be subject to
general economic conditions and to financial, business and other factors
affecting the operations of the Company, many of which are beyond its control.
There can be no assurance that the Company's business will continue to generate
cash flow at or above current levels. If the Company is unable to generate
sufficient cash flow from operations in the future to service its debt, it may
be required to refinance all or a portion of its existing debt, including the
Exchange Notes, or to obtain additional financing. There can be no assurance
that any such refinancing would be possible or that any additional financing
could be obtained.
SUBSTANTIAL CAPITAL REQUIREMENTS
The Company makes, and will continue to make, substantial capital
expenditures for the acquisition, exploitation, development, exploration and
production of oil and gas reserves. Historically, the Company has financed these
expenditures primarily with cash generated by operations, bank borrowings, the
offering of senior subordinated notes and the sale of common stock and preferred
stock. The Company intends to make an aggregate of approximately $48 million in
capital expenditures in 1996. The Company believes that it will have sufficient
cash provided by operating activities and borrowings under the Revolving Credit
Facility to fund such planned capital expenditures. If revenues or the Company's
borrowing base decrease as a result of lower oil and gas prices, operating
difficulties or declines in reserves, the Company may have limited ability to
expend the capital necessary to undertake or complete future drilling programs.
There can be no assurance that additional debt or equity financing or cash
generated by operations will be available to meet these requirements.
SUBORDINATION AND CORPORATE STRUCTURE
The payment of principal of, premium, if any, and interest on, the
Exchange Notes will be subordinated in right of payment to the prior payment in
full of all Senior Indebtedness of the Company, whether outstanding at the date
of the Indenture or later incurred. In the event of any default in the payment
of the principal or interest with respect to any Senior Indebtedness, no payment
with respect to the principal of, premium, if any, or interest on, the Exchange
Notes will be made by the Company unless and until such default has been cured
or waived. In addition, upon the occurrence of any other event of default
entitling the holders of Senior Indebtedness to accelerate the maturity thereof
and receipt by the Trustee of written notice of such occurrence, the holders of
Senior Indebtedness will be able to block payment on the Exchange Notes for
specified periods of time. All of the Company's principal subsidiaries will
initially guarantee payments under the Exchange Notes. Such Guarantees will be
subordinated to Guarantor Senior Indebtedness of the Company's subsidiaries and
may be released under certain
14
<PAGE> 18
circumstances, including the designation of such subsidiary as an Unrestricted
Subsidiary (as defined) pursuant to the terms of the Indenture. See "Description
of the Exchange Notes--Guarantees of Exchange Notes".
Upon any payment or distribution of the Company's assets to creditors
upon any dissolution, winding up, liquidation, reorganization, bankruptcy,
insolvency, receivership or other proceedings relating to the Company, whether
voluntary or involuntary, the holders of Senior Indebtedness will be entitled
first to receive payment in full of all amounts due thereon before the holders
of the Exchange Notes will be entitled to receive any payment upon the principal
of, or premium, if any, or interest on, the Exchange Notes. By reason of such
subordination, in the event of the insolvency of the Company, holders of the
Exchange Notes may recover less, ratably, than holders of Senior Indebtedness
and other creditors of the Company or may recover nothing. The terms and
conditions of the subordination provisions pertinent to the Exchange Notes are
described in more detail in "Description of the Exchange Notes--Subordination".
Substantially all of the Company's operating income is generated by its
subsidiaries. As a result, the Company has generally relied, and will continue
to rely, on distributions or advances from its subsidiaries to provide the funds
necessary to meet its debt service obligations, including the payment of
principal and interest on the Exchange Notes. Should the Company fail to satisfy
any payment obligation under the Exchange Notes, the holders would have a direct
claim therefor against the Subsidiary Guarantors pursuant to their Guarantees.
However, the capital stock of, and substantially all of the assets of, the
Subsidiary Guarantors are pledged to secure their obligations under the
Revolving Credit Facility and related guarantees. The Indenture imposes certain
limits on the ability of the Company and its subsidiaries (other than
Unrestricted Subsidiaries) to incur additional indebtedness and to enter into
agreements that would restrict the ability of such subsidiaries to make
distributions, loans or other payments to the Company. However, these
limitations are subject to various qualifications. For additional detail on
these Indenture provisions and the applicable qualifications, see "Description
of the Exchange Notes--Certain Covenants".
REPURCHASE OF EXCHANGE NOTES UPON A CHANGE OF CONTROL OR ASSET SALES
Upon the occurrence of a Change of Control and a corresponding Rating
Decline, the Company must offer to purchase all Exchange Notes then outstanding
at a purchase price equal to 101% of the principal amount thereof, plus accrued
interest to the date of purchase. In the event of certain asset dispositions,
the Company will be required under certain circumstances to use the Excess
Proceeds (as defined) to offer to purchase the Exchange Notes at 100% of the
principal amount thereof, plus accrued interest to the date of purchase (an
"Excess Proceeds Offer"). See "Description of the Exchange Notes--Certain
Covenants".
Prior to commencing such an offer to purchase, the Company may be
required to (i) repay in full all indebtedness of the Company that would
prohibit the repurchase of the Exchange Notes, including that under the
Revolving Credit Facility, or (ii) obtain any requisite consent to permit the
repurchase. If the Company is unable to repay all of such indebtedness or is
unable to obtain the necessary consents, then the Company will be unable to
offer to purchase the Exchange Notes and such failure will constitute an Event
of Default under the Indenture. There can be no assurance that the Company will
have sufficient funds available at the time of any Change of Control or Excess
Proceeds Offer to repurchase the Exchange Notes.
The events that require a Change of Control or Excess Proceeds Offer
under the Indenture may also constitute events of default under the Revolving
Credit Facility or other Senior Indebtedness of the Company. Such events may
permit the lenders under such debt instruments to accelerate the debt and, if
the debt is not paid, to commence litigation which could ultimately result in a
sale of substantially all the assets of the Company to satisfy the debt, thereby
limiting the Company's ability to raise cash to repurchase the Exchange Notes
and reducing the practical benefit of the offer to purchase provisions to the
holders of the Exchange Notes.
MARKET CONDITIONS AND VOLATILITY OF OIL AND NATURAL GAS PRICES
The revenues generated by the Company's operations are highly dependent
upon the prices of, and demand for, oil and natural gas. Historically, the
prices for oil and natural gas have been volatile and are likely to continue to
be volatile in the future. The price received by the Company for its oil and
natural gas production and the level
15
<PAGE> 19
of such production are subject to wide fluctuations and depend on numerous
factors beyond the Company's control, including seasonality, the condition of
the United States economy (particularly the manufacturing sector), foreign
imports, political conditions in other oil-producing and natural gas-producing
countries, the actions of the Organization of Petroleum Exporting Countries and
domestic government regulation, legislation and policies. Decreases in the
prices of oil and natural gas have had, and could have in the future, an adverse
effect on the carrying value of the Company's proved reserves and the Company's
revenues, profitability and cash flow. Although the Company is not currently
experiencing any significant involuntary curtailment of its natural gas
production, market, economic and regulatory factors may in the future materially
affect the Company's ability to sell its natural gas production.
In order to manage its exposure to price risks in the marketing of its
oil and natural gas, the Company from time to time enters into fixed price
delivery contracts, financial swaps and oil and natural gas futures contracts as
hedging devices. To ensure a fixed price for future production, the Company may
sell a futures contract and thereafter either (i) make physical delivery of its
product to comply with such contract or (ii) buy a matching futures contract to
unwind its futures position and sell its production to a customer. These same
techniques are also utilized to manage price risk for certain production
purchased from customers of the Company's marketing subsidiary, Plains Marketing
& Transportation Inc. Such contracts may expose the Company to the risk of
financial loss in certain circumstances, including instances where production is
less than expected, the Company's customers fail to purchase or deliver the
contracted quantities of oil or natural gas, or a sudden, unexpected event
materially impacts oil or natural gas prices. Such contracts may also restrict
the ability of the Company to benefit from unexpected increases in oil and
natural gas prices.
OPERATING HAZARDS AND UNINSURED RISKS
The Company's operations are subject to all of the risks normally
incident to the exploration for and the production of oil and natural gas,
including blowouts, cratering, oil spills and fires, each of which could result
in damage to or destruction of oil and natural gas wells, production facilities
or other property, or injury to persons. The relatively deep drilling conducted
by the Company from time to time involves increased drilling risks of high
pressures and mechanical difficulties, including stuck pipe, collapsed casing
and separated cable. The Company's operations in the LA Basin, including
transportation of crude oil by pipelines within the city of Los Angeles, are
especially susceptible to damage from earthquakes and involve increased risks of
personal injury, property damage and marketing interruptions because of the
population density of the area. Although the Company maintains insurance
coverage considered to be customary in the industry, it is not fully insured
against certain of these risks, including, in certain instances, earthquake risk
in the LA Basin, either because such insurance is not available or because of
high premium costs. The occurrence of a significant event that is not fully
insured against could have a material adverse effect on the Company's financial
position.
BUSINESS RISKS
The Company must continually acquire, explore for, develop or exploit
new oil and natural gas reserves to replace those produced or sold. Without
successful drilling, acquisition or exploitation operations, the Company's oil
and natural gas reserves and revenues will decline. Drilling activities are
subject to numerous risks, including the risk that no commercially viable oil or
natural gas production will be obtained. The decision to purchase, explore,
exploit or develop an interest or property will depend in part on the evaluation
of data obtained through geophysical and geological analyses and engineering
studies, the results of which are often inconclusive or subject to varying
interpretations. The cost of drilling, completing and operating wells is often
uncertain. Drilling may be curtailed, delayed or canceled as a result of many
factors, including title problems, weather conditions, compliance with
government permitting requirements, shortages of or delays in obtaining
equipment, reductions in product prices or limitations in the market for
products. The availability of a ready market for the Company's oil and natural
gas production also depends on a number of factors, including the demand for and
supply of oil and natural gas and the proximity of reserves to pipelines or
trucking and terminal facilities. Natural gas wells may be shut in for lack of a
market or due to inadequacy or unavailability of natural gas pipeline or
gathering system capacity.
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Substantially all of the Company's California crude oil production and
all of the Company's South Florida crude oil production is transported by two
pipelines owned by third parties. The inability of either one of these pipelines
to provide transportation services to the Company in the future could result in
the involuntary curtailment of a significant portion of the Company's crude oil
production.
UNCERTAINTIES IN ESTIMATING RESERVES AND FUTURE NET CASH FLOWS
There are numerous uncertainties inherent in estimating quantities and
values of proved reserves and in projecting future rates of production and
timing of development expenditures, including many factors beyond the control of
the Company. Reserve engineering is a subjective process of estimating the
recovery from underground accumulations of oil and natural gas that cannot be
measured in an exact manner, and the accuracy of any reserve estimate is a
function of the quality of available data and of engineering and geological
interpretation and judgment. Because all reserve estimates are to some degree
speculative, the quantities of oil and natural gas that are ultimately
recovered, production and operating costs, the amount and timing of future
development expenditures and future oil and natural gas sales prices may all
differ from those assumed in these estimates. In addition, different reserve
engineers may make different estimates of reserve quantities and cash flows
based upon the same available data. Therefore, the Present Value of Proved
Reserves set forth in this Prospectus represents estimates only and should not
be construed as the current market value of the estimated oil and natural gas
reserves attributable to the Company's properties. In this regard, the
information set forth in this Prospectus includes revisions of certain reserve
estimates attributable to proved properties included in the preceding year's
estimates. Such revisions reflect additional information from subsequent
activities, production history of the properties involved and any adjustments in
the projected economic life of such properties resulting from changes in product
prices. Any downward revisions could adversely affect the Company's financial
condition, borrowing base under the Revolving Credit Facility, future prospects
and market value of its securities.
LEGAL PROCEEDINGS
The Company and certain of its officers and directors and a former
director and officer were named in two class action lawsuits filed in 1992 and
1993 seeking an aggregate of approximately $90 million in compensatory damages
and punitive damages in an unspecified amount for alleged violations of the
federal securities laws and state common law arising out of certain alleged
misrepresentations and omissions in the Company's disclosure regarding its
onshore natural gas exploration activities. On March 6, 1996, the Company
announced that it had notified the court that a settlement in principle had been
reached in such cases. Under the terms of the settlement, the plaintiffs agree
to dismiss all claims against the Company and its officers and directors in
exchange for a cash payment of approximately $6.25 million, including
approximately $4.1 million that is expected to be paid by the Company's
insurance carrier, leaving approximately $2.1 million to be contributed by the
Company. Taking into account prior costs incurred by the Company to defend these
suits, this settlement would result in a charge to its 1996 first quarter
earnings of approximately $4 million. The settlement is subject to the approval
of the court. If the settlement is not consummated and if the Company ultimately
were required to pay a substantial portion of the $90 million in compensatory
damages sought by the plaintiffs, it would have a material adverse effect on the
Company.
GOVERNMENT REGULATION
The Company's business is regulated by certain federal, state and local
laws and regulations relating to the development, production, marketing,
pricing, transportation and storage of oil and natural gas. The Company's
business is also subject to extensive and changing environmental and safety laws
and regulations governing plugging and abandonment, the discharge of materials
into the environment or otherwise relating to environmental protections. Certain
of the Company's properties are located in environmentally sensitive areas that
require special permits to drill. There can be no assurance that present or
future regulation will not adversely affect the operations of the Company.
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COMPETITION
The oil and natural gas industry is highly competitive. The Company's
competitors for the acquisition, exploration, exploitation and development of
oil and natural gas properties, the purchasing and marketing of oil and the
crude oil storage and terminalling business, and for capital to finance such
activities, include companies that have greater financial and personnel
resources available to them than the Company. The Company's ability to acquire
additional properties and to discover reserves in the future will be dependent
upon its ability to evaluate and select suitable properties and to consummate
transactions in a highly competitive environment.
FRAUDULENT CONVEYANCE
Various fraudulent conveyance laws enacted for the protection of
creditors may apply to the Subsidiary Guarantors' issuance of the Guarantees. To
the extent that a court were to find that (x) a Guarantee was incurred by a
Subsidiary Guarantor with intent to hinder, delay or defraud any present or
future creditor or the Subsidiary Guarantor contemplated insolvency with a
design to prefer one or more creditors to the exclusion in whole or in part of
others or (y) a Subsidiary Guarantor did not receive fair consideration or
reasonably equivalent value for issuing its Guarantee and such Subsidiary
Guarantor (i) was insolvent, (ii) was rendered insolvent by reason of the
issuance of such Guarantee, (iii) was engaged or about to engage in a business
or transaction for which the remaining assets of such Subsidiary Guarantor
constituted unreasonably small capital to carry on its business or (iv) intended
to incur, or believed that it would incur, debts beyond its ability to pay such
debts as they matured, the court could avoid or subordinate such Guarantee in
favor of the Subsidiary Guarantor's creditors. Among other things, a legal
challenge of a Guarantee on fraudulent conveyance grounds may focus on the
benefits, if any realized by the Subsidiary Guarantor as a result of the
issuance by the Company of the Exchange Notes. The Indenture contains a savings
clause, which generally limits the obligations of each Subsidiary Guarantor
under its Guarantee to the maximum amount as will, after giving effect to all of
the liabilities of such Subsidiary Guarantor, result in such obligations not
constituting a fraudulent conveyance. To the extent a Guarantee of any
Subsidiary Guarantor was avoided as a fraudulent conveyance or held
unenforceable for any other reason, holders of the Exchange Notes would cease to
have any claim against such Subsidiary Guarantor and would be creditors solely
of the Company and any Subsidiary Guarantor whose Guarantee was not avoided or
held unenforceable. In such event, the claims of the holders of the Exchange
Notes against the issuer of an invalid Guarantee would be subject to the prior
payment of all liabilities of such Subsidiary Guarantor. There can be no
assurance that, after providing for all prior claims, there would be sufficient
assets to satisfy the claims of the holders of the Exchange Notes relating to
any avoided portions of any of the Guarantees.
The measure of insolvency for purposes of the foregoing considerations
will vary depending upon the law applied in any such proceeding. Generally,
however, a Subsidiary Guarantor may be considered insolvent if the sum of its
debts, including contingent liabilities, was greater than the fair marketable
value of all of its assets at a fair valuation or if the present fair marketable
value of its assets was less than the amount that would be required to pay its
probable liability on its existing debts, including contingent liabilities, as
they become absolute and mature.
Based upon financial and other information, the Company and the
Subsidiary Guarantors believe that the Guarantees are being incurred for proper
purposes and in good faith and that the Company and each Subsidiary Guarantor is
solvent and will continue to be solvent after issuing its Guarantee, will have
sufficient capital for carrying on its business after such issuance and will be
able to pay its debts as they mature. There can be no assurance, however, that a
court passing on such standards would agree with the Company. See "Description
of the Exchange Notes--Senior Subordinated Guarantees of Exchange Notes".
ABSENCE OF PUBLIC MARKET FOR THE EXCHANGE NOTES
The Outstanding Notes are currently owned by a relatively small number
of beneficial owners. The Outstanding Notes have not been registered under the
Securities Act and will be subject to significant restrictions on resale. The
Exchange Notes will constitute a new issue of securities with no established
trading market. The Company does not intend to list the Outstanding Notes or the
Exchange Notes on any national securities exchange or to seek the admission
thereof to trading in the National Association of Securities Dealers Automated
Quotation System. The Company has been advised by the Initial Purchasers that,
following completion of the Exchange Offer,
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<PAGE> 22
they presently intend to make a market in the Exchange Notes. However, the
Initial Purchasers are not obligated to do so, and any market making activity
with respect to the Exchange Notes may be discontinued at any time without
notice. In addition, such market making activity will be subject to the limits
imposed in the Exchange Act, and may be limited during the Exchange Offer or the
pendency of the Shelf Registration Statement. Accordingly no assurance can be
given that an active public or other market will develop for the Exchange Notes
or as to the liquidity of or the trading market for the Exchange Notes.
EXCHANGE OFFER PROCEDURES
Issuance of the Exchange Notes in exchange for Outstanding Notes
pursuant to the Exchange Offer will be made only after a timely receipt by the
Company of such Outstanding Notes, a properly completed and duly executed Letter
of Transmittal and all other required documents. Therefore, holders of the
Outstanding Notes desiring to tender such Outstanding Notes in exchange for
Exchange Notes should allow sufficient time to ensure timely delivery. The
Company is under no duty to give notification of defects or irregularities with
respect to the tenders of Outstanding Notes for exchange. Outstanding Notes that
are not tendered or are tendered but not accepted will, following the
consummation of the Exchange Offer, continue to be subject to the existing
restrictions upon transfer thereof. Upon consummation of the Exchange Offer, the
registration rights under the Registration Rights Agreement will terminate
except that if any holder of an Outstanding Note notifies the Company on or
prior to the Exchange Date that (i) due to a change in law or policy it is not
entitled to participate in the Exchange Offer, (ii) due to a change in law or
policy it may not resell the Exchange Notes acquired by it in the Exchange Offer
to the public without delivering a prospectus and this prospectus is not
appropriate or available for such resales by such holder or (iii) it is a
broker-dealer that owns Outstanding Notes (including an Initial Purchaser that
holds Outstanding Notes as part of an unsold allotment from the original
offering of the Outstanding Notes) acquired directly from the Company or an
affiliate of the Company, then the Company has agreed to file and maintain for a
period of three years the Shelf Registration Statement. In addition, any holder
of Outstanding Notes who tenders in the Exchange Offer for the purpose of
participating in a distribution of the Exchange Notes may be deemed to have
received restricted securities and, if so, will be required to comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction. Each broker-dealer that receives
Exchange Notes for its own account in exchange for Outstanding Notes, where such
Outstanding Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must knowledge that it
will deliver a prospectus in connection with any resale of such Exchange Notes.
See "Plan of Distribution". To the extent that Outstanding Notes are tendered
and accepted in the Exchange Offer, the trading market for untendered and
tendered but unaccepted Outstanding Notes could be adversely affected. See "The
Exchange Offer".
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THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
The Outstanding Notes were sold by the Company on March 19, 1996, to
the Initial Purchasers pursuant to the Purchase Agreement. The Initial
Purchasers subsequently placed the Outstanding Notes with qualified
institutional buyers in reliance on Rule 144A under the Securities Act and with
four Institutional Accredited Investors. As a condition of the purchase of the
Outstanding Notes by the Initial Purchasers, the Company and the Subsidiary
Guarantors entered into the Registration Rights Agreement with the Initial
Purchasers, which requires, among other things, that the Company file with the
Commission a registration statement under the Securities Act with respect to an
offer by the Company to the holders of the Outstanding Notes to issue and
deliver to such holders, in exchange for Outstanding Notes, a like principal
amount of Exchange Notes. The Company is required to use its best efforts to
cause the Registration Statement relating to the Exchange Offer to be declared
effective by the Commission under the Securities Act and commence the Exchange
Offer and use best efforts to issue, on or prior to the Exchange Date, the
Exchange Notes. The Exchange Notes are to be issued without a restrictive legend
and may be reoffered and resold by the holder without restrictions or
limitations under the Securities Act (other than any such holder that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act). A copy of the Registration Rights Agreement has been filed as an exhibit
to the Registration Statement of which this Prospectus is a part. The term
"Holder" with respect to the Exchange Offer means any person in whose name the
Outstanding Notes are registered on the books of the Company or any other person
who has obtained a properly completed bond power from the registered holder.
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this
Prospectus and in the Letter of Transmittal, the Company will accept any and all
Outstanding Notes validly tendered and not withdrawn prior to 5:00 p.m., New
York City time, on the Expiration Date. On the Exchange Date, the Company will
issue $1,000 principal amount of Exchange Notes in exchange for $1,000 principal
amount of Outstanding Notes accepted in the Exchange Offer. Holders may tender
some or all of their Outstanding Notes pursuant to the Exchange Offer. However,
Outstanding Notes may be tendered only in integral multiples of $1,000.
The form and terms of the Exchange Notes are the same as the form and
terms of the Outstanding Notes except that (i) the Exchange Notes have been
registered under the Securities Act and hence will not bear legends restricting
the transfer thereof and (ii) the holders of the Exchange Notes will not be
entitled to certain rights under the Registration Rights Agreement. The Exchange
Notes will evidence the same debt as the Outstanding Notes and will be entitled
to the benefits of the Indenture.
As of the date of this Prospectus, $149,000,000 aggregate principal
amount of the Outstanding Notes was outstanding and registered in the name of
Cede & Co., as nominee for the Depository Trust Company, and $1,000,000
aggregate principal amount of the Outstanding Notes was outstanding and
registered in the name of four other holders. The Company has fixed the close of
business of _____________, 1996, as the record date for the Exchange Offer for
purposes of determining the person to whom this Prospectus and the Letter of
Transmittal will be mailed initially.
Holders of Outstanding Notes do not have any appraisal or dissenters'
rights under the General Corporation Law of Delaware or the Indenture in
connection with the Exchange Offer. The Company intends to conduct the Exchange
Offer in accordance with the applicable requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, including Rule 14e-1
thereunder.
The Company shall be deemed to have accepted validly tendered
Outstanding Notes when, as and if the Company has given oral or written notice
thereof to the Exchange Agent. The Exchange Agent will act as agent for the
tendering Holders for the purpose of receiving the Exchange Notes from the
Company.
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If any tendered Outstanding Notes are not accepted for exchange because
of an invalid tender, the occurrence of certain other events set forth herein or
otherwise, the certificates for any such unaccepted Outstanding Notes will be
returned, without expense, to the tendering Holder thereof as promptly as
practicable after the Expiration Date.
Holders who tender Outstanding Notes in the Exchange Offer will not be
required to pay brokerage commissions or fees or, subject to the instructions in
the Letter of Transmittal, transfer taxes with respect to the exchange of
Outstanding Notes pursuant to the Exchange Offer. The Company will pay all
charges and expenses, other than transfer taxes in certain circumstances, in
connection with the Exchange Offer. See "--Fees and Expenses".
INTEREST ON THE EXCHANGE NOTES
The Exchange Notes will bear interest from the date of issuance of the
Exchange Notes. Interest on the Outstanding Notes that are tendered in exchange
for the Exchange Notes that has accrued from March 19, 1996, the date of
issuance of the Outstanding Notes, through the Exchange Date will be payable on
or before September 15, 1996. Interest on the Exchange Notes will be payable
semi-annually on each March 15 and September 15, commencing September 15, 1996.
PROCEDURES FOR TENDERING
Only a Holder of Outstanding Notes may tender such Outstanding Notes in
the Exchange Offer. To tender in the Exchange Offer, a Holder must complete,
sign and date the Letter of Transmittal, or a facsimile thereof, have the
signatures thereon guaranteed if required by the Letter of Transmittal and mail
or otherwise deliver such Letter of Transmittal or such facsimile, together with
the Outstanding Notes and any other required documents, to the Exchange Agent
prior to 5:00 p.m., New York City time, on the Expiration Date. To be tendered
effectively, the Outstanding Notes, Letter of Transmittal and other required
documents must be received by the Exchange Agent at the address set forth below
under "Exchange Agent" prior to 5:00 p.m., New York City time, on the Expiration
Date. Delivery of the Outstanding Notes may be made by book-entry transfer in
accordance with the procedures described below. Confirmation of such book-entry
transfer must be received by the Exchange Agent prior to the Expiration Date.
By executing the Letter of Transmittal, each Holder will make to the
Company the representation set forth below in the second paragraph under the
heading "Resale of Exchange Notes".
The tender by a Holder and the acceptance thereof by the Company will
constitute agreement between such Holder and the Company in accordance with the
terms and subject to the conditions set forth herein and in the Letter of
Transmittal.
THE METHOD OF DELIVERY OF OUTSTANDING NOTES AND THE LETTER OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE
ELECTION AND RISK OF THE HOLDER. INSTEAD OF DELIVERY BY MAIL, IT IS RECOMMENDED
THAT HOLDERS USE AN OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, SUFFICIENT
TIME SHOULD BE ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT BEFORE THE
EXPIRATION DATE. NO LETTER OF TRANSMITTAL OR OUTSTANDING NOTES SHOULD BE SENT TO
THE COMPANY. HOLDERS MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL
BANKS, TRUST COMPANIES OR NOMINEES TO EFFECT THE ABOVE TRANSACTIONS FOR SUCH
HOLDERS.
Any beneficial owner whose Outstanding 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 such beneficial owner's behalf.
Signatures on the Letter of Transmittal or a notice of withdrawal, as
the case may be, must be guaranteed by an Eligible Institution (as defined
below) unless the Outstanding Notes tendered pursuant thereto are tendered (i)
by a registered Holder who has not completed the box entitled "Special
Registration Instructions" or "Special
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Delivery Instructions" on the Letter of Transmittal or (ii) for the account of
an Eligible Institution. In the event that signatures on a Letter of Transmittal
or a notice of withdrawal, as the case may be, 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" within the meaning of Rule 17Ad-15
under the Exchange Act (an "Eligible Institution").
If the Letter of Transmittal is signed by a person other than the
registered Holder of any Outstanding Notes listed therein, such Outstanding
Notes must be endorsed or accompanied by a properly completed bond power, signed
by such registered Holder as such registered Holder's name appears on such
Outstanding Notes with the signature thereon guaranteed by an Eligible
Institution.
If the Letter of Transmittal or any Outstanding Notes 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 unless waived by the
Company, evidence satisfactory to the Company of their authority to so act must
be submitted with the Letter of Transmittal.
The Company understands that the Exchange Agent will make a request
promptly after the date of this Prospectus to establish accounts with respect to
the Exchange Notes at the DTC (the "Book-Entry Transfer Facility") for the
purpose of facilitating the Exchange Offer, and subject to the establishment
thereof, any financial institution that is a participant in the Book-Entry
Transfer Facility's system may make book-entry delivery of the Outstanding Notes
by causing such Book-Entry Transfer Facility to transfer such Outstanding Notes
into the Exchange Agent's account with respect to the Outstanding Notes in
accordance with the Book-Entry Transfer Facility's procedures for such transfer.
Although delivery of the Outstanding Notes may be effected through book-entry
transfer into the Exchange Agent's account at the Book-Entry Transfer Facility,
an appropriate Letter of Transmittal properly completed and duly executed with
any required signature guarantee and all other required documents must in each
case be transmitted to and received or confirmed by the Exchange Agent at its
address set forth below on or prior to the Expiration Date, or, if the
guaranteed delivery procedures described below are complied with, within the
time period provided under such procedures. Delivery of documents to the
Book-Entry Transfer Facility does not constitute delivery to the Exchange Agent.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of tendered Outstanding Notes will be
determined by the Company in its sole discretion, which determination will be
final and binding. The Company reserves the absolute right to reject any and all
Outstanding Notes not properly tendered or any Outstanding Notes the Company's
acceptance of which would, in the opinion of counsel for the Company, be
unlawful. The Company also reserves the right to waive any defects,
irregularities or conditions of tender as to particular Outstanding Notes. The
Company's 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 Outstanding Notes must be cured within such time as
the Company shall determine. Although the Company intends to notify Holders of
defects or irregularities with respect to tenders of Outstanding Notes, neither
the Company, the Exchange Agent nor any other person shall incur any liability
for failure to give such notification. Tenders of Outstanding Notes will not be
deemed to have been made until such defects or irregularities have been cured or
waived. Any Outstanding 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 other provided in the Letter of Transmittal, as soon as practicable
following the Expiration Date,
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Outstanding Notes and (i) whose
Outstanding Notes are not immediately available, (ii) who cannot deliver their
Outstanding Notes, the Letter of Transmittal or any other required documents to
the Exchange Agent or (iii) who cannot complete the procedures for book-entry
transfer, prior to the Expiration Date, may effect a tender if:
(a) the tender is made through an Eligible Institution;
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(b) prior to the Expiration Date, the Exchange Agent receives
from such Eligible Institution a properly completed and duly executed
Notice of Guaranteed Delivery (by facsimile transmission, mail or hand
delivery) setting forth the name and address of the Holder, the
certificate number(s) of such Outstanding Notes and the principal
amount of Outstanding Notes tendered, stating that the tender is being
made thereby and guaranteeing that, within five New York Stock Exchange
trading days after the Expiration Date, the Letter of Transmittal (or
facsimile thereof), together with the certificate(s) representing the
Outstanding Notes (or a confirmation of book-entry transfer of such
Outstanding Notes into the Exchange Agent's account at the Book-Entry
Transfer Facility) and any other documents required by the Letter of
Transmittal, will be deposited by the Eligible Institution with the
Exchange Agent; and
(c) such properly completed and executed Letter of Transmittal
(or facsimile thereof), as well as the certificate(s) representing all
tendered Outstanding Notes in proper form for transfer (or a
confirmation of book-entry transfer of such Outstanding Notes into the
Exchange Agent's account at the Book-Entry Transfer Facility) and all
other documents required by the Letter of Transmittal, are received by
the Exchange Agent within five New York Stock Exchange trading days
after the Expiration Date.
Upon request to the Exchange Agent, a Notice of Guaranteed Delivery
will be sent to Holders who wish to tender their Outstanding Notes according to
the guaranteed delivery procedures set forth above.
WITHDRAWALS OF TENDERS
Except as otherwise provided herein, tenders of Outstanding 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 Outstanding Notes in the Exchange Offer, a
written or 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 (i) specify the
name of the person having deposited the Outstanding Notes to be withdrawn (the
"Depositor"), (ii) identify the Outstanding Notes to be withdrawn (including the
certificate number(s) and principal amount of such Outstanding Notes, or, in the
case of Outstanding Notes transferred by book-entry transfer, the name and
number of the account at the Book-Entry Transfer Facility to be credited), (iii)
be signed by the Holder in the same manner as the original signature on the
Letter of Transmittal by which such Outstanding Notes were tendered (including
any required signature guarantees) or be accompanied by documents of transfer
sufficient to have the Trustee with respect to the Outstanding Notes register
the transfer of such Outstanding Notes into the name of the person withdrawing
the tender, (iv) specify the name in which any such Outstanding Notes are to be
registered, if different from that of the Depositor and (v) if applicable
because the Outstanding Notes have been tendered pursuant to book-entry
procedures, specify the name and number of the participant's account at DTC to
be credited, if different from that of the Depositor. All questions as to the
validity, form and eligibility (including time of receipt) of such notices will
be determined by the Company, whose determination shall be final and binding on
all parties. Any Outstanding Notes so withdrawn will be deemed not to have been
validly tendered for purposes of the Exchange Offer and no Exchange Notes will
be issued with respect thereto unless the Outstanding Notes so withdrawn are
validly retendered. Any Outstanding Notes which have been tendered but which are
not accepted for exchange, will be returned to the Holder thereof without cost
to such Holder as soon as practicable after withdrawal, rejection of tender or
termination of the Exchange Offer. Properly withdrawn Outstanding Notes may be
retendered by following one of the procedures described above under
"--Procedures for Tendering" at any time prior to the Expiration Date.
CONDITIONS
Notwithstanding any other term of the Exchange Offer, the Company shall
not be required to accept for exchange, or to issue Exchange Notes for, any
Outstanding Notes, and may terminate or amend the Exchange Offer as provided
herein before the acceptance of such Outstanding Notes, if:
(a) any action or proceeding is instituted or threatened in
any court or by or before any governmental agency with respect to the
Exchange Offer which, in the sole judgment of the Company, might
materially impair the ability of the Company to proceed with the
Exchange Offer or any material
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adverse development has occurred in any existing action or proceeding
with respect to the Company or any of its subsidiaries; or
(b) any change, or any development involving a prospective
change, in the business or financial affairs of the Company or any of
its subsidiaries has occurred which, in the sole judgment of the
Company, might materially impair the ability of the Company to proceed
with the Exchange Offer; or
(c) any law, statute, rule, regulation or interpretation by
the staff of the Commission is proposed, adopted or enacted, which, in
the sole judgment of the Company, might materially impair the ability
of the Company to proceed with the Exchange Offer or materially impair
the contemplated benefits of the Exchange Offer to the Company; or
(d) any governmental approval has not been obtained, which
approval the Company shall, in its sole discretion, deem necessary for
the consummation of the Exchange Offer as contemplated hereby.
If the Company determines in its sole discretion that any of the
conditions are not satisfied, the Company may (i) refuse to accept any
Outstanding Notes and return all tendered Outstanding Notes to the tendering
Holders, (ii) extend the Exchange Offer and retain all Outstanding Notes
tendered prior to the expiration of the Exchange Offer, subject, however, to the
rights of Holders to withdraw such Outstanding Notes (see"--Withdrawal of
Tenders") or (iii) waive such unsatisfied conditions with respect to the
Exchange Offer and accept all properly tendered Outstanding Notes which have not
been withdrawn. If such waiver constitutes a material change to the Exchange
Offer, the Company will promptly disclose such waiver by means of a prospectus
supplement that will be distributed to the registered Holders, and, depending
upon the significance of the waiver and the manner of disclosure to the
registered Holders, the Company will extend the Exchange Offer for a period of
five to 10 business days if the Exchange Offer would otherwise expire during
such five to 10 day period.
EXCHANGE AGENT
Texas Commerce Bank National Association has been appointed as Exchange
Agent for the Exchange Offer. Questions and requests for assistance, requests
for additional copies of his Prospectus or of the Letter of Transmittal and
requests for Notice of Guaranteed Delivery should be directed to the Exchange
Agent addressed as follows:
<TABLE>
<CAPTION>
By Registered or Certified Mail: By Overnight Mail or Hand: By Facsimile:
<S> <C> <C>
Texas Commerce Bank National Texas Commerce Bank National Texas Commerce Bank National
Association Association Association
Registered Bond Events 1210 Travis Street, 18th Floor (214) 672-5873
P. O. Box 2320 Attention: Registered Bond Events Confirm: (800) 275-2048
Houston, Texas 75021-2320 Houston, Texas 77002
</TABLE>
FEES AND EXPENSES
The expenses of soliciting tenders pursuant to the Exchange Offer will
be borne by the Company. The principal solicitation is being made by mail;
however, additional solicitation may be made by telegraph, telephone or in
person by officers and regular employees of the Company and its affiliates.
The Company has not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers or other soliciting
acceptances of the Exchange Offer. The Company, however, will pay the Exchange
Agent reasonable and customary fees for its services and registration expenses,
including fees and expenses of the Trustee, filing fees, blue sky fees and
printing and distribution expenses.
The Company will pay all transfer taxes, if any, applicable to the
exchange of the Outstanding Notes pursuant to the Exchange Offer. If, however,
certificates representing the Exchange Notes or the Outstanding Notes for the
principal amounts not tendered or accepted for exchange are to be delivered to,
or are to be issued in the
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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 the
Outstanding Notes pursuant to the Exchange Offer, then the amount of any such
transfer taxes (whether imposed on the registered Holder or any other person)
will be payable by the tendering Holder.
ACCOUNTING TREATMENT
The Exchange Notes will be recorded at the same carrying value as the
Outstanding Notes, which is face value as adjusted for original issue discount,
as reflected in the Company's accounting records on the date of exchange.
Accordingly, no gain or loss for accounting purposes will be recognized. The
expenses of the Exchange Offer will be amortized over the term of the Exchange
Notes.
RESALE OF EXCHANGE NOTES
Based on an interpretation by the staff of the Commission set forth in
no-action letters issued to third parties, the Company believes that Exchange
Notes issued pursuant to the Exchange Offer in exchange for Outstanding Notes
may be offered for resale, resold and otherwise transferred by any holder of
such Exchange Notes (other than any such holder which is an "affiliate" of the
Company within the meaning of Rule 405 under the Securities Act) without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such Exchange Notes are acquired in the ordinary
course of such holder's business and such holder does not intend to participate
and has no arrangement or understanding with any person to participate in the
distribution of such Exchange Notes. Any holder who tenders in the Exchange
Offer with the intention to participate, or for the purpose of participating, in
a distribution of the Exchange Notes may not rely on the position of the staff
of the Commission enunciated in Exxon Capital Holdings Corporation (available
April 13, 1989) and Morgan Stanley & Co., Incorporated (June 5, 1991), or
similar no-action letters, but rather must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
resale transaction. In addition, any such resale transaction should be covered
by an effective registration statement containing the selling security holders
information required by Item 507 of Regulation S-K of the Securities Act. Each
broker-dealer that receives Exchange Notes for its own account in exchange for
Outstanding Notes, where such Outstanding 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 Exchange Notes. See "Plan of Distribution".
By tendering in the Exchange Offer, each Holder will represent to the
Company that, among other things, (i) the Exchange Notes acquired pursuant to
the Exchange Offer are being obtained in the ordinary course of business of the
person receiving such Exchange Notes, whether or not such person is a Holder,
(ii) neither the Holder nor any such other person has an arrangement or
understanding with any person to participate in the distribution of such
Exchange Notes and (iii) the Holder and such other person acknowledge that if
they participate in the Exchange Offer for the purpose of distributing the
Exchange Notes (a) they must, in the absence of an exemption therefrom, comply
with the registration and prospectus delivery requirements of the Securities Act
in connection with any resale of the Exchange Notes and cannot rely on the
no-action letters referenced above and (b) failure to comply with such
requirements in such instance could result in such Holder incurring liability
under the Securities Act for which such Holder is not indemnified by the
Company. Further, by tendering in the Exchange Offer, each Holder that may be
deemed an "affiliate" (as defined under Rule 405 of the Securities Act) of the
Company will represent to the Company that such Holder understands and
acknowledges that the Exchange Notes may not be offered for resale, resold or
otherwise transferred by that Holder without registration under the Securities
Act or an exemption therefrom.
As set forth above, affiliates of the Company are not entitled to rely
on the foregoing interpretations of the staff of the Commission with respect to
resales of the Exchange Notes without compliance with the registration and
prospectus delivery requirements of the Securities Act.
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PRIVATE EXCHANGE NOTES
The Registration Rights Agreement provides that if, prior to
consummation of the Exchange Offer, any of the Initial Purchasers holds any
Outstanding Notes acquired by it and having, or which are reasonably likely to
be determined to have, the status of an unsold allotment in the initial
distribution, or any other holder of Outstanding Notes is not entitled to
participate in the Exchange Offer, the Company upon the request of such Initial
Purchaser or any such holder shall, simultaneously with the delivery of the
Exchange Notes in the Exchange Offer, issue and deliver to such Initial
Purchasers and any such holder, in exchange (the "Private Exchange") for such
Outstanding Notes held by such Initial Purchaser and any such holder, Private
Exchange Notes. Any Private Exchange Notes will be issued pursuant to the same
indenture as the Exchange Notes. The Private Exchange Notes are not covered by
the registration statement of which this Prospectus is a part and are not being
offered hereby. Any Private Exchange Notes will be entitled to all the rights
and subject to all the limitations applicable thereto under the Indenture, and
will be subject to the same restrictions on transfer applicable to untendered
Outstanding Notes. See "--Consequences of Failure to Exchange". However,
pursuant to the Registration Rights Agreement, holders of Private Exchange Notes
have certain rights to require the Company to file and maintain a shelf
registration statement that would allow resales of such Private Exchange Notes
owned by such holders. See "--Shelf Registration Statement".
CONSEQUENCES OF FAILURE TO EXCHANGE
As a result of the making of this Exchange Offer, the Company will have
fulfilled one of its obligations under the Registration Rights Agreement, and,
except as described under "--Shelf Registration Statement", Holders of
Outstanding Notes who do not tender their Outstanding Notes will not have any
further registration rights under the Registration Rights Agreement or
otherwise. Accordingly, any Holder of Outstanding Notes that does not exchange
that Holder's Outstanding Notes for Exchange Notes will continue to hold the
untendered Outstanding Notes and will be entitled to all the rights and
limitations applicable thereto under the Indenture, except to the extent such
rights or limitations that, by their terms, terminate or cease to have further
effectiveness as a result of the Exchange Offer.
The Outstanding Notes that are not exchanged for Exchange Notes
pursuant to the Exchange Offer will remain restricted securities. Accordingly,
such Outstanding Notes may be resold only (i) to the Company (upon redemption
thereof or otherwise), (ii) pursuant to an effective registration statement
under the Securities Act, (iii) so long as the Outstanding Notes are eligible
for resale pursuant to Rule 144A, to a qualified institutional buyer within the
meaning of Rule 144A under the Securities Act in a transaction meeting the
requirements of Rule 144A, (iv) outside the United States to a foreign person
pursuant to the exemption from the registration requirements of the Securities
Act provided by Regulation S thereunder, (v) to an institutional accredited
investor that, prior to such transfer, furnishes to Texas Commerce Bank National
Association, as trustee, a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Outstanding Notes
evidenced thereby (the form of which letter can be obtained from such trustee)
or (vi) pursuant to another available exemption from the registration
requirements of the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States.
Accordingly, to the extent that Outstanding Notes are tendered and
accepted in the Exchange Offer, the trading market for the untendered
Outstanding Notes could be adversely affected.
SHELF REGISTRATION STATEMENT
If (i) the Company is not permitted to consummate the Exchange Offer
because the Exchange Offer is not permitted by any applicable law or applicable
interpretation of the Commission or the staff of the Commission or (ii) any
holder of an Outstanding Note notifies the Company on or prior to the Exchange
Date that (A) due to a change in law or policy it is not entitled to participate
in the Exchange Offer, (B) due to a change in law or policy it may not resell
the Exchange Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and this prospectus is not appropriate or available for
such resales by such holder or (C) it is a broker-dealer that owns Outstanding
Notes (including an initial purchaser that holds Outstanding Notes as part of an
unsold allotment from the original offering of the Outstanding Notes) acquired
directly from the Company or an affiliate
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of the Company or (iii) any holder of Private Exchange Notes so requests within
120 days after the consummation of the Exchange Offer, the Company has agreed to
file and maintain a registration statement that would allow resales of transfer
restricted Outstanding Notes, Exchange Notes or Private Exchange Notes owned by
such holders.
OTHER
Participation in the Exchange Offer is voluntary and holders should
carefully consider whether to accept. Holders of the Outstanding Notes are urged
to consult their financial and tax advisors in making their own decision on what
action to take.
The Company may in the future seek to acquire untendered Outstanding
Notes in open market or privately negotiated transactions, through subsequent
exchange offers or otherwise. The Company has no present plans to acquire any
Outstanding Notes that are not tendered in the Exchange Offer or to file a
registration statement to permit resales of any untendered Outstanding Notes,
except for the filing, if required, of the Shelf Registration Statement.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following discussion is based upon current provisions of the
Internal Revenue Code of 1986, as amended, applicable Treasury regulations,
judicial authority and administrative rulings and practice. There can be no
assurance that the Internal Revenue Service (the "Service") will not take a
contrary view, and no ruling from the Service has been or will be sought.
Legislative, judicial or administrative changes or interpretations may be
forthcoming that could alter or modify the statements and conclusions set forth
herein. Any such changes or interpretations may or may not be retroactive and
could affect the tax consequences to Holders. Certain Holders of the Outstanding
Notes (including insurance companies, tax exempt organizations, financial
institutions, broker-dealers, foreign corporations and persons who are not
citizens or residents of the United States) may be subject to special rules not
discussed below. Each Holder of an Outstanding Note should consult his, her or
its own tax advisor as to the particular tax consequences of exchanging such
Holder's Outstanding Notes for Exchange Notes, including the applicability and
effect of any state, local or foreign tax laws.
The issuance of the Exchange Notes to Holders of the Outstanding Notes
pursuant to the terms set forth in this prospectus should not constitute a
recognition event for Federal income tax purposes. Consequently, no gain or loss
should be recognized by Holders of the Outstanding Notes upon receipt of the
Exchange Notes. For purposes of determining gain or loss upon the subsequent
sale or exchange of the Exchange Notes, a Holder's basis in the Exchange Notes
should be the same as such Holder's basis in the Outstanding Notes exchanged
therefor. Holders should be considered to have held the Exchange Notes from the
time of their original acquisition of the Outstanding Notes.
Treasury regulations relating to the tax treatment of debt instruments
with original discount contain provisions for determining the yield and maturity
of debt instruments having one or more contingencies that could result in the
acceleration or deferral of amounts due under the debt (including optional
redemption). The Company will follow the general rule of these provisions, which
is to ignore contingencies, as it is more likely than not that payments will be
made under the Exchange Notes under the stated payment schedule, and thus plans
to accrue and report interest on the Exchange Notes under the stated payment
schedule.
USE OF PROCEEDS
This Exchange Offer is intended to satisfy certain of the Company's
obligations under the Purchase Agreement and the Registration Rights Agreement.
The Company will not receive any cash proceeds from the issuance of the Exchange
Notes offered hereby. In consideration for issuing the Exchange Notes
contemplated in this Prospectus, the Company will receive Outstanding Notes in
like principal amount, the form and terms of which are the same as the form and
terms of the Exchange Notes (which they replace), except as otherwise described
herein. The Outstanding Notes surrendered in exchange for Exchange Notes will be
retired and canceled and cannot
27
<PAGE> 31
be reissued. Accordingly, issuance of the Exchange Notes will not result in any
increase or decrease in the indebtedness of the Company.
The net proceeds to the Company from the sale of the Outstanding Notes
were approximately $144.9 million. Approximately $111.6 million was used to
redeem all of the 12% Notes at 106% of the $100 million principal amount
outstanding and to pay accrued interest thereon. The remaining net proceeds were
approximately $33.3 million and, together with an additional $8.3 million
borrowed under the Company's Revolving Credit Facility, were used to retire the
indebtedness incurred in December 1995 to fund a substantial portion of the cash
purchase price of the Illinois Basin Properties (the "Illinois Basin Acquisition
Indebtedness"). For additional information regarding the terms and the interest
rate of the Illinois Basin Acquisition Indebtedness, see "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
"Description of Certain Indebtedness".
The Company has a $125 million Revolving Credit Facility with five
banks. At May 1, 1996, the Company had approximately $63.3 million outstanding
under the Revolving Credit Facility. The Revolving Credit Facility bears
interest, at the option of the Company, of either LIBOR plus 1.75% or Base Rate
(as defined therein) plus 3/8ths of a percentage point. The average interest
rate as of May 1, 1996, of all outstanding indebtedness under the Revolving
Credit Facility was approximately 7.34%.
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THE COMPANY
GENERAL
Plains is an independent energy company engaged in the acquisition,
exploitation, development, exploration and production of oil and natural gas and
the marketing, transportation, terminalling and storage of crude oil. The
Company's upstream oil and natural gas activities are focused in the LA Basin of
California, the Sunniland Trend of South Florida, the Illinois Basin and the
Gulf Coast area of Louisiana. The Company's downstream marketing activities are
concentrated in Oklahoma, where it owns a two million barrel, above ground crude
oil terminalling and storage facility, Texas and the Gulf Coast area of
Louisiana. Plains' upstream operations contributed approximately 90% of the
Company's pro forma EBITDA for the fiscal year ending December 31, 1995, while
the Company's downstream activities accounted for the remainder.
The Company has experienced significant growth over the last four
years. The Company's proved reserves and Present Value of Proved Reserves have
increased from 13.7 million BOE and $71.7 million at December 31, 1991 to 101.6
million BOE and $366.8 million, respectively, at December 31, 1995. Over the
same period, the Company's average reserve replacement ratio was 617%, and
EBITDA increased over 400% from $9.0 million for 1991 to $45.3 million for 1995,
pro forma for the Illinois Basin Acquisition. Such additional proved reserves
were added at an aggregate average finding and development cost of $2.38 per BOE
($0.40 per MCFE). During 1995, pro forma for the Illinois Basin Acquisition, the
Company's net production averaged approximately 16,657 BOE per day and its unit
gross profit averaged $6.75 per BOE ($1.13 per MCFE). On a BOE basis, the
Company's proved reserves are approximately 93% crude oil, condensate and
natural gas liquids and 71% of its total proved reserves are classified as
proved developed. The Company's reserve base is long-lived with an average
reserve life, or reserves to production ratio, of 16.7 years (11.9 years based
on proved developed reserves only), pro forma for the Illinois Basin
Acquisition.
The Company's significant increase in proved reserves, production and
cash flow from oil and natural gas producing activities is attributable to the
acquisition and subsequent exploitation of its LA Basin Properties and Sunniland
Trend Properties and the recent acquisition of the Illinois Basin Properties.
These three core areas are comprised primarily of crude oil properties with
established production histories and together account for approximately 96% of
the Company's year-end 1995 proved reserves. The Company believes these
properties include a significant inventory of lower risk, high return
exploitation and development projects that are expected to contribute to the
Company's future growth in production and reserves. During 1996, the Company
estimates it will spend approximately $40 million on the development and
exploitation of its LA Basin, Sunniland Trend and Illinois Basin Properties. The
Company operates and owns a 100% working interest in its major fields in each of
these areas, which enables the Company to control the exploitation of such
properties.
The Company's marketing effort entails purchasing crude oil from
producers and marketing it to the refining sector. The Company aggregates these
volumes at major crude oil interchanges and trading locations and is therefore
able to obtain higher prices for its own production while realizing profits on
the production purchased from others. The Cushing Terminal enhances the
competitive marketing ability of the Company by enabling it to take crude oil
from different sources and make physical delivery of crude oil in Cushing, the
NYMEX designated delivery location. The Company's downstream activities have
expanded significantly over the last four years, with downstream gross margin
increasing over 400% from $1.2 million in 1991 to $6.4 million in 1995. Based on
additional capacity available at the Cushing Terminal, the Company believes it
can increase its downstream gross profit without expending substantial
additional capital.
The Company's upstream and downstream business activities focus on
crude oil as the primary product. As a result of inefficiencies inherent in the
crude oil markets and the U.S. pipeline and transportation infrastructure,
management believes its competitive abilities are enhanced by the alternatives
afforded it by its proprietary access to the Cushing Terminal. The Company's
crude oil marketing expertise further provides it with a competitive advantage
in obtaining higher prices for the Company's existing production and identifying
potential crude oil price enhancements for properties targeted for acquisition.
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BUSINESS STRATEGY
The Company's business strategy is to increase its proved reserves and
cash flow by exploiting and producing oil and natural gas from its existing
properties, acquiring additional underdeveloped oil properties and exploring for
significant new sources of reserves. The Company concentrates its exploitation
efforts on mature but underdeveloped crude oil producing properties in areas
that meet the Company's targeted criteria. Generally, such properties were
previously owned by major integrated oil and gas companies or large independent
oil and gas companies. Management believes that it has developed a proven record
in acquiring and exploiting underdeveloped crude oil properties where it
believes substantial reserve additions and cash flow increases can be made
through improved production practices and recovery techniques and relatively low
risk development drilling. An integral component of the Company's exploitation
efforts is to increase unit operating margins, and therefore cash flow, by
reducing unit production expenses and increasing wellhead price realizations.
The Company also seeks to capitalize on downstream opportunities that complement
its oil producing activities. The Company's marketing of its crude oil
production takes advantage of the marketing expertise and economies of scale
attributable to its downstream activities. As part of its business strategy, the
Company periodically evaluates, and from time to time has elected to sell,
certain of its fully developed producing properties. Such sales enable the
Company to maintain financial flexibility, control overhead and redeploy the
sales proceeds to activities that have potentially higher financial returns.
In order to manage its exposure to commodity price risk, the Company
has routinely hedged a portion of its crude oil production. For 1996, the
Company has committed an average of approximately 11,500 Bbls of oil per day to
fixed price arrangements that expire at various times throughout 1996. Such
arrangements represent approximately 75% of the Company's pro forma average
daily oil production for 1995 and partially mitigate the adverse impact of
potential oil price declines on the Company's operating results.
ACQUISITION ACTIVITY
During 1992, the Company acquired California-based Stocker Resources
Inc. ("Stocker"), a closely held independent oil and natural gas production
company formed in 1990 to acquire a substantial portion of Chevron U.S.A.'s
("Chevron") properties located in the LA Basin. The acquisition of Stocker
significantly increased the Company's production, cash flow and proved reserves
and enabled the Company to expand its operations into the West Coast. During the
second half of 1992 and 1993, the Company expanded its holdings in the LA Basin
by acquiring additional producing properties. Also in 1993, the Company acquired
a 50% interest in the Sunniland Trend Properties from Exxon Corporation
("Exxon"). During 1994, the Company increased its interest in the Sunniland
Trend Properties to approximately 100%. In 1995, the Company acquired all of
Marathon Oil Company's ("Marathon") producing and nonproducing upstream oil and
gas assets in the Illinois Basin. The Company intends to aggressively exploit
these properties to evaluate additional reserve potential identified during its
acquisition analyses and subsequent studies.
OTHER ACTIVITY
In January 1996, the Company and 3DX Technologies, Inc. ("3DX") formed
a joint venture to pursue Plains' existing exploration projects and a five-year
strategic alliance to jointly pursue new exploration and exploitation
opportunities that are candidates for the application of 3-D seismic technology.
The joint venture covers exploration activities in the Sunniland Trend, the
Illinois Basin and the LA Basin as well as Plains' current 3-D seismic project
in the Four Isle Dome Field in Terrebonne Parish, Louisiana. 3DX will be
responsible for the geological and geophysical oversight and project technical
management of such projects. In connection with the joint venture, 3DX acquired
15% to 20% of Plains' working interests in certain exploration projects,
excluding designated productive areas within each field. 3DX will have the right
to participate for up to 20% of the Company's new exploration and exploitation
projects.
In December 1993, the Company completed construction of the Cushing
Terminal. Design and planning for this project commenced in 1990. Total cost of
the facility, including land acquisition, engineering and environmental studies,
construction-phase interest, pipeline interconnects and an oversized manifold
and pumping system that was designed and constructed to accommodate ten million
barrels of storage, was approximately
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$30.9 million. The Cushing Terminal consists of two million barrels of shell
storage capacity and can operate at a daily throughput rate of approximately
800,000 barrels.
The Company was incorporated under the laws of the State of Delaware in
1976. The Company's executive offices are located at 1600 Smith Street, Suite
1500, Houston, Texas 77002, and its telephone number is (713) 654-1414.
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DESCRIPTION OF CERTAIN INDEBTEDNESS
The Company and certain of its subsidiaries have established credit
facilities with different banks to fund working capital requirements, the
acquisition of the Illinois Basin Properties and to issue letters of credit and
fund other obligations to support its crude oil marketing activities. Set forth
below are summaries of such credit facilities.
REVOLVING CREDIT FACILITY
The Company has a Revolving Credit Facility with INCC, The First
National Bank of Boston, Den norske Bank AS, First Interstate Bank of Texas,
N.A., and Texas Commerce Bank National Association (collectively the "Lenders"),
and INCC, as agent for the Lenders. In April 1996, the total credit commitment
and borrowing base under the Revolving Credit Facility was increased to $125
million from $75 million. The Revolving Credit Facility is guaranteed by all of
the Company's principal subsidiaries and secured by the oil and gas properties
of the Company and its subsidiaries and the stock and personal property of all
guaranteeing subsidiaries. The Revolving Credit Facility is subject to borrowing
base availability as determined from time to time by the Lenders in good faith,
in the exercise of the Lenders' sole discretion, and in accordance with
customary practices and standards in effect from time to time for oil and
natural gas loans to borrowers similar to the Company. Such borrowing base may
be affected from time to time by the performance of the Company's oil and
natural gas properties and changes in oil and natural gas prices. The Company
incurs a commitment fee of 1/2% per annum on the unused portion of the borrowing
base.
The Revolving Credit Facility, as amended, consists of a $125 million
revolving credit loan which matures on April 1, 1998, at which time the credit
commitment reduces by an amount equal to one-third of the then outstanding
principal amount of the revolving credit loan. The remaining outstanding balance
converts to a term loan which is repayable in equal quarterly installments
commencing April 1, 1998. The Revolving Credit Facility bears interest, at the
option of the Company, of either LIBOR plus 1.75% or Base Rate (as defined
therein) plus 3/8ths of a percentage point. Final maturity of the Revolving
Credit Facility occurs on May 1, 2003. At May 1, 1996, outstanding borrowings
under the Revolving Credit Facility were $63.3 million. An additional $1 million
was reserved against the issuance of a standby letter of credit.
The Revolving Credit Facility contains covenants which, among other
things, restrict the payment of cash dividends, limit the amount of consolidated
debt, limit the Company's ability to make certain loans and investments, and
provide that the Company must maintain a specified relationship between current
assets and current liabilities.
ILLINOIS BASIN ACQUISITION INDEBTEDNESS
Plains Illinois established the Illinois Basin Acquisition Indebtedness
to fund the Illinois Basin Acquisition. The indebtedness consisted of a $42
million four-year term loan from three banks, and had a final maturity on
December 22, 1999. The Illinois Basin Acquisition Indebtedness was secured by
the Illinois Basin Properties. The Illinois Basin Acquisition Indebtedness was
fully retired on March 19, 1996, with a portion of the proceeds of the Offering
and an additional $8.3 million that was borrowed under the Revolving Credit
Facility.
MARKETING FACILITY
During 1995, the Company's marketing subsidiary established the $80
million Transactional Facility. The purpose of the Transactional Facility is to
provide standby letters of credit to support the purchase of crude oil for
resale and borrowings to finance crude oil inventory which has been hedged
against future price risk. The Transactional Facility is secured by all of the
assets of the marketing subsidiary and is guaranteed by the Company. The
Company's guarantee is secured by a $1.0 million standby letter of credit issued
on behalf of the Company. At December 31, 1995, approximately $49.1 million in
letters of credit were outstanding under the Transactional Facility.
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PMCT has established the $20 million Sublimit within the Transactional
Facility for standby letters of credit and borrowings to finance crude oil
purchased in connection with operations at the Company's crude oil terminal and
storage facility in Cushing, Oklahoma. Under the terms of the Sublimit, all
purchases of crude oil inventory financed are required to be hedged against
future price risk on terms acceptable to the lenders. Standby letters of credit
and borrowings under the Sublimit are secured by all of the assets of PMCT. At
December 31, 1995, no letters of credit or borrowings were outstanding under the
Sublimit.
Letters of credit under the Transactional Facility are generally issued
for seventy day periods and bear fees of 1.5% per annum. Borrowings incur
interest at the option of the borrower at (i) the Base Rate plus 5/8% or (ii)
LIBOR plus 2%. All financings under the Transactional Facility, which expires in
August 1996, are at the discretion of the lenders. Aggregate cash borrowings by
both subsidiaries are limited to $20 million.
OTHER
The Company has aggregate remaining indebtedness of approximately $8.5
million at December 31, 1995, of which approximately $7.1 million is classified
as other long-term debt on the Consolidated Balance Sheet as of such date.
Included in the $8.5 million is a $4.6 million note issued to Chevron in
connection with the December 1995 purchase of a production payment owned by
Chevron on the LA Basin Properties. The note bears interest at 8% payable
annually and requires equal annual principal payments of approximately $511,000.
Additionally, as of December 31, 1995, the Company owed Aetna Life Insurance
Company and Aetna Casualty and Surety Company (collectively, "Aetna") an
aggregate of approximately $3.9 million, which amount was repaid in 1996 with
proceeds from the Revolving Credit Facility. The outstanding amount bears
interest at 10% per annum. The Aetna indebtedness was incurred as the result of
a purchase price adjustment in connection with the Company's acquisition of
Aetna's limited partnership interest in a limited partnership in which the
Company is the general partner. The Chevron and Aetna indebtedness are
unsecured.
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DESCRIPTION OF THE EXCHANGE NOTES
GENERAL
The Exchange Notes will be issued as a separate series of notes under
an indenture (the "Indenture") dated as of March 15, 1996 (the "Issue Date"),
among the Company, the Subsidiary Guarantors, and Texas Commerce Bank National
Association, as trustee (the "Trustee"). The Exchange Notes will be senior
unsecured obligations of the Company and are substantially identical (including
principal amount, interest rate, maturity and redemption rights) to the
Outstanding Notes for which they may be exchanged pursuant to this offer, except
for certain transfer restrictions and registration rights relating the
Outstanding Notes and except for certain interest provisions relating to such
rights. Under the terms of the Indenture, the covenants and events of default
will apply equally to the Exchange Notes and the Outstanding Notes, and the
Exchange Notes and the Outstanding Notes will be treated as one class for all
actions to be taken by the holders thereof and for determining their respective
rights under the Indenture. References to the Notes include the Exchange Notes,
the Outstanding Notes and the Private Placement Notes unless the context
otherwise requires. The Outstanding Notes were issued under the Indenture on
March 19, 1996 in an aggregate principal amount of $150,000,000. The Indenture
is subject to and governed by the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). The following summaries of certain provisions of the
Indenture and the Registration Rights Agreement do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all of
the provisions of the Indenture and the Registration Rights Agreement, including
the definition of certain terms contained therein and those terms that are made
a part of the Indenture by reference to the Trust Indenture Act. Copies of the
form of Indenture and Registration Rights Agreement have been filed as an
exhibit to the Registration Statement of which this Prospectus is a part.
Capitalized terms not otherwise defined below or elsewhere in this Prospectus
have the meanings given to them in the Indenture. The definitions of certain
capitalized terms used in the summary are set forth below under "--Certain
Definitions".
PRINCIPAL, MATURITY AND INTEREST
The Exchange Notes will be unsecured senior subordinated general
obligations of the Company, will mature on March 15, 2006 (the "Maturity Date"),
and will be limited in aggregate principal amount to $150,000,000. The Exchange
Notes will be issued in denominations of $1,000 and integral multiples thereof
in fully registered form.
The Exchange Notes will accrue interest at the rate of 10 1/4 per annum
from the date of issuance, or from the most recent interest payment date to
which interest has been paid or duly provided for, and accrued and unpaid
interest will be payable semi-annually on March 15 and September 15 of each
year, commencing September 15, 1996. Interest on the Outstanding Notes that are
tendered in exchange for the Exchange Notes that has accrued from March 19,
1996, the date of issuance of the Outstanding Notes, through the Exchange Date
will be payable on or before September 15, 1996. Outstanding Notes that are
accepted for exchange will be cease to accrue interest on and after the date on
which interest on the Exchange Notes will begin to accrue. Interest will be paid
to the person in whose name the Exchange Note is registered at the close of
business on March 1 or September 1 next preceding such interest payment date.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Exchange Notes will be payable both as to principal and interest at
the office or agency of the Company maintained for such purpose within the City
and State of New York. In addition, in the event the Exchange Notes do not
remain in book-entry form, interest may be paid, at the option of the Company,
by check mailed to the holders of the Exchange Notes ("Holders") at their
respective addresses set forth in the register of Holders. Until otherwise
designated by the Company, the Company's office or agency in New York will be
the office of the Trustee maintained for such purpose. Any Outstanding Notes
that remain outstanding after the completion of the Exchange Offer, together
with the Exchange Notes issued in connection with the Exchange Offer and any
Private Exchange Notes, will be treated as a single class of securities under
the Indenture.
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<PAGE> 38
REDEMPTION AND REPURCHASE
Optional Redemption. The Exchange Notes will be redeemable at the
option of the Company in whole at any time or in part from time to time, on and
after March 15, 2001 at the following redemption prices (expressed as
percentages of the principal amount) if redeemed during the twelve-month period
commencing on March 15 of the year set forth below, plus, in each case, accrued
interest thereon to the date of redemption:
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
---- ----------
<S> <C>
2001.................................... 105.1250%
2002.................................... 103.4167%
2003.................................... 101.7083%
2004 and thereafter..................... 100.0000%
</TABLE>
In the event of a redemption of less than all of the Notes, the Notes
will be selected for redemption by the Trustee pro rata, by lot or by any other
method that the Trustee considers fair and appropriate and, if the Exchange
Notes are listed on any securities exchange, by a method that complies with the
requirements of such exchange. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder of
Exchange Notes to be redeemed at such Holder's registered address. On and after
the redemption date, interest will cease to accrue on Exchange Notes or portions
thereof called for redemption (unless the Company shall default in the payment
of the redemption price or accrued interest).
In addition, at any time or from time to time prior to March 15, 1999,
the Company may redeem up to $45 million of the Notes at 110 1/4% of the
principal amount thereof, together with accrued and unpaid interest, if any, to
the date of redemption with the Net Proceeds of a Public Equity Offering;
provided that, immediately after giving effect to such redemption, at least $105
million aggregate principal amount of the Notes remains outstanding and that
such redemption occurs within 60 days following the closing of such Public
Equity Offering.
Offers to Purchase. As described below, (a) upon the occurrence of a
Change of Control and a corresponding Rating Decline, the Company will be
obligated to make an offer to purchase all outstanding Notes at a purchase price
equal to 101% of the principal amount thereof, together with accrued and unpaid
interest, if any, to the date of purchase and (b) upon certain sales or other
dispositions of assets, the Company may be obligated to make offers to purchase
Notes with a portion of the Net Proceeds of such sales or other dispositions at
a purchase price equal to 100% of the principal amount thereof, together with
accrued and unpaid interest, if any, to the date of purchase. See "--Change of
Control" and "--Certain Covenants--Limitation on Disposition of Assets".
CHANGE OF CONTROL
Upon the occurrence of a Change of Control and a corresponding Rating
Decline, the Company shall be obligated to make an offer to purchase all of the
then outstanding Notes (a "Change of Control Offer"), and shall purchase, on a
Business Day (the "Change of Control Purchase Date") not more than 60 nor less
than 30 days following the occurrence of a Rating Decline following a Change of
Control (or, in the event the Rating Decline occurs prior to the corresponding
Change of Control not more than 60 nor less than 30 days following the
occurrence of the Change of Control), all of the then outstanding Notes validly
tendered pursuant to such Change of Control Offer, at a purchase price (the
"Change of Control Purchase Price") equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the Change of Control
Purchase Date. The Change of Control Offer is required to remain open for at
least 20 Business Days and until the close of business on the fifth Business Day
prior to the Change of Control Purchase Date.
In order to effect such Change of Control Offer, the Company shall, not
later than the 30th day after the occurrence of the Rating Decline corresponding
to such Change of Control (or, in the event the Rating Decline occurs prior to
the corresponding Change of Control, not later than the 30th day following the
occurrence of the Change of Control), mail to the Trustee and to each Holder of
the Notes notice of the Change of Control Offer, which notice shall govern the
terms of the Change of Control Offer and shall state, among other things, the
procedures that Holders of the Notes must follow to accept the Change of Control
Offer.
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<PAGE> 39
The Company, to the extent applicable and if required by law, will
comply with Sections 13 and 14 of the Exchange Act and the provisions of
Regulation 14E and any other tender offer rules under the Exchange Act and any
other federal and state securities laws, rules and regulations which may then be
applicable to any offer by the Company to purchase the Notes pursuant to the
Change of Control covenant.
Should a Change of Control and corresponding Rating Decline occur and a
substantial amount of the Notes be presented for purchase, there can be no
assurance that the Company would have sufficient financial resources to enable
it to purchase such Notes. In the event the Company is required to purchase
Notes pursuant to a Change of Control Offer, the Company expects that it would
seek third party financing to the extent it does not have available funds to
meet its purchase obligations. However, there can be no assurance that the
Company would be able to obtain such financing. A Change of Control would
constitute an Event of Default under the Bank Credit Agreement and permit INCC,
as agent thereunder (in such capacity, the "Credit Facility Agent") to terminate
the commitment of the lenders under the Bank Credit Agreement and declare all
amounts outstanding thereunder to be due and payable, and the rights of the
Holders to receive the Change of Control Purchase Price or any other amounts due
on the Notes would be subordinated to the rights of the holders of Senior
Indebtedness. If the Bank Credit Agreement were not accelerated, the Company
would nevertheless be required to obtain a consent from the Credit Facility
Agent and the lenders under the present terms of the Bank Credit Agreement to
incur any indebtedness (other than indebtedness under such Bank Credit
Agreement) to repurchase Notes pursuant to a Change of Control Offer. See
"--Events of Default".
The Indenture provides that a default in the payment of the Change of
Control Purchase Price would constitute an Event of Default under the Indenture
as a remedy for which Holders would be entitled to receive the Change of Control
Purchase Price. If such an Event of Default resulted in a default under Senior
Indebtedness, the right of the Holders of Notes to receive the Change of Control
Purchase Price (whether at a Change of Control Purchase Date or upon
acceleration) or any other amounts due on acceleration of the Notes would be
subordinated to the rights of the holders of Senior Indebtedness.
The Change of Control provisions of the Indenture as well as the
restrictions in the Indenture on the ability of the Company and its Subsidiaries
to incur additional Indebtedness, to grant Liens on its property, to make
Restricted Payments and to make Asset Dispositions may make more difficult or
discourage a takeover of the Company, whether favored or opposed by current
management of the Company. Consummation of any such transaction in certain
circumstances may require redemption or repurchase of the Notes, and there can
be no assurance that the Company or the acquiring party will have sufficient
financial resources to effect such redemption or repurchase. Such restrictions
and the restrictions on transactions with Related Persons may, in certain
circumstances, make more difficult or discourage any leveraged buyout of the
Company or any of its Subsidiaries by the management of the Company.
SUBORDINATION
The payment of the principal of, premium, if any, and interest on the
Notes is subordinated in right of payment as set forth in the Indenture to the
prior payment in full of all Senior Indebtedness, whether outstanding on the
date of the Indenture or thereafter created, incurred, assumed or guaranteed.
Such subordination will not prevent the occurrence of an Event of Default, and
no payment on any Guarantee shall constitute payment "on behalf of" the Company
within the meaning of the following paragraphs; provided that a payment by a
Subsidiary Guarantor on a Guarantee shall constitute a payment "on behalf of"
the Company within the meaning of the following paragraphs in the event that any
guarantee by such Subsidiary of Indebtedness under the Bank Credit Agreement
shall have been determined by a court of competent jurisdiction to be invalid or
unenforceable, in whole or in part.
No payment may be made by the Company or on behalf of the Company on
account of principal of or interest on the Notes or to acquire or repurchase any
of the Notes or on account of the redemption provisions of the Notes (i) upon
the maturity of any Senior Indebtedness by lapse of time, acceleration or
otherwise, unless and until all such Senior Indebtedness is first paid in full
or (ii) upon the happening of any default in payment of any
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<PAGE> 40
principal of or interest on any Senior Indebtedness when the same becomes due
and payable (a "Payment Default"), unless and until such Payment Default shall
have been cured or waived or shall have ceased to exist.
Upon the happening of a default (other than a Payment Default) with
respect to any Senior Indebtedness, as such default or event of default is
defined therein or in the instrument or agreement under which it is outstanding,
and upon written notice thereof given to the Company and the Trustee by any
holders of such Senior Indebtedness or their representative (a "Payment
Notice"), then, unless and until such default or event of default shall have
been cured or waived or shall have ceased to exist or the representative gives
its written approval, no payment shall be made by or on behalf of the Company on
account of principal of or interest on the Notes or to acquire or repurchase any
of the Notes or on account of the redemption provisions of the Notes; provided,
however, that these provisions will not prevent the making of any payment for
more than 179 days after the due date of the first principal or interest payment
on the Notes after a Payment Notice shall have been given. Notwithstanding the
foregoing, (i) not more than one Payment Notice shall be given within a period
of 360 consecutive days, and (ii) a Payment Notice may only be given (A) if more
than $5 million of Senior Indebtedness is outstanding under the Bank Credit
Agreement at the time of such notice, by the representative or (B) if $5 million
or less of Senior Indebtedness is outstanding under the Bank Credit Agreement at
the time of such notice, by a holder or holders (or the representative of
holders) of at least $5 million principal amount of Senior Indebtedness.
Upon any distribution of the assets of the Company or payment on the
Notes on behalf of the Company in the event of any Insolvency or Liquidation
Proceeding with respect to the Company, the holders of Senior Indebtedness will
be entitled to receive payment in full of such Senior Indebtedness before the
Holders are entitled to receive any payment on account of the principal or
interest due with respect to the Notes.
Because of these subordination provisions, creditors of the Company who
are holders of Senior Indebtedness may recover more, ratably, than the Holders
of the Notes.
The subordination provisions described above will cease to be
applicable to the Notes upon any legal defeasance or covenant defeasance of the
Notes as described under "--Legal Defeasance or Covenant Defeasance of
Indenture".
As of December 31, 1995, as adjusted to give effect to the sale of the
Outstanding Notes and application of the net proceeds therefrom, the Company had
outstanding Senior Indebtedness of $74.3 million. In addition, as described
below under "--Senior Subordinated Guarantees of Notes", at December 31, 1995,
the Subsidiary Guarantors had no outstanding Guarantor Senior Indebtedness, on
an as adjusted basis, other than $49.1 million reserved pursuant to existing
letters of credit. The Company is a holding company, and the Notes will be
structurally subordinated to, and the Guarantees will be subordinated to,
Guarantor Senior Indebtedness. The foregoing amounts include only liabilities
included on the Company's consolidated balance sheet under GAAP; the Company and
its subsidiaries have other liabilities, including contingent liabilities, which
may be significant. Although the Indenture will contain limitations on the
amount of additional Indebtedness that the Company and its Subsidiaries may
incur, the amounts of such Indebtedness could be substantial and, in any case,
such Indebtedness may be Senior Indebtedness, Guarantor Senior Indebtedness or
Indebtedness of Unrestricted Subsidiaries (to which the Notes will be
structurally subordinated). See "Certain Covenants--Limitations on Incurrence of
Additional Indebtedness".
SENIOR SUBORDINATED GUARANTEES OF NOTES
The Subsidiary Guarantors, which consist of all of the Company's
subsidiaries other than PMCT, one of the Subsidiaries through which the Company
conducts its Contango Market Transaction activities, and Plains Gulf Coast
Limited Partnership will unconditionally guarantee, jointly and severally, to
each Holder and the Trustee, the full and prompt performance of the Company's
obligations under the Indenture and the Notes, including the payment of
principal of and interest on the Notes. In addition to the initial Subsidiary
Guarantors, the Company will cause each Person (other than an Unrestricted
Subsidiary) that shall become a Material Subsidiary after the Issue Date (other
than Plains Gulf Coast Limited Partnership) to execute and deliver a supplement
to the Indenture pursuant to which such Person will guarantee the payment of the
Notes on the same terms and conditions as the Guarantees
37
<PAGE> 41
by the Subsidiary Guarantors. As described below under "Certain
Covenants--Limitation on Incurrence of Additional Indebtedness", no Subsidiary
that is not already a Subsidiary Guarantor shall incur any Indebtedness with
respect to Indebtedness of the Company or another Subsidiary unless such
Subsidiary becomes a guarantor of the Notes.
The obligations of each Subsidiary Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities (including, but not limited to, Guarantor Senior Indebtedness of
such Subsidiary Guarantor) of such Subsidiary Guarantor and after giving effect
to any collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Guarantee or pursuant to its contribution obligations under the Indenture,
result in the obligations of such Subsidiary Guarantor under the Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. Each Subsidiary Guarantor that makes a payment or distribution under
a Guarantee shall be entitled to a contribution from each other Subsidiary
Guarantor in a pro rata amount based on the Adjusted Net Assets of each
Subsidiary Guarantor.
Each Subsidiary Guarantor may consolidate with or merge into or sell or
otherwise dispose of all or substantially all of its properties and assets to
the Company or another Subsidiary Guarantor without limitation, except to the
extent any such transaction is subject to the "Merger, Consolidation and Sale of
Assets" covenant of the Indenture. Each Subsidiary Guarantor may consolidate
with or merge into or sell all or substantially all of its properties and assets
to a Person other than the Company or another Subsidiary Guarantor (whether or
not affiliated with the Subsidiary Guarantor), provided that (a) if the
surviving Person is not the Subsidiary Guarantor, the surviving Person agrees to
assume such Subsidiary Guarantor's Guarantee and all its obligations pursuant to
the Indenture (except to the extent the following paragraph would result in the
release of such Subsidiary Guarantee) and (b) such transaction does not (i)
violate any of the covenants described below under "--Certain Covenants" or (ii)
result in a Default or Event of Default immediately thereafter that is
continuing.
Upon the sale or other disposition (by merger or otherwise) of a
Subsidiary Guarantor (or all or substantially all of its properties and assets)
pursuant to a transaction that is otherwise in compliance with the Indenture
(including as described in the foregoing paragraph), such Subsidiary Guarantor
shall be deemed released from its Subsidiary Guarantee and the related
obligations set forth in the Indenture; provided, however, that any such
termination shall occur only to the extent that all obligations of such
Subsidiary Guarantor under all of its guarantees of, and under all of its
pledges of assets or other security interests which secure, other Indebtedness
of the Company or any Subsidiary shall also terminate or be released upon such
sale or other disposition. Each Subsidiary Guarantor that is designated as an
Unrestricted Subsidiary in accordance with the Indenture shall be released from
its Subsidiary Guarantee and related obligations set forth in the Indenture for
so long as it remains an Unrestricted Subsidiary.
The Guarantees of each Subsidiary Guarantor are subordinated to the
prior payment in full of all Guarantor Senior Indebtedness of such Subsidiary
Guarantor to substantially the same extent as the Notes are subordinated to
Senior Indebtedness. As of December 31, 1995, as adjusted to give effect to the
completion of this offering and the application of the net proceeds therefrom,
the Subsidiary Guarantors had no outstanding Guarantor Senior Indebtedness,
other than $49.1 million reserved pursuant to existing letters of credit.
Separate financial statements of the Subsidiary Guarantors are not
included herein because such Subsidiary Guarantors are jointly and severally
liable with respect to the Company's obligations pursuant to the Notes, and the
aggregate net assets, earnings and equity of the Subsidiary Guarantors are
substantially equivalent to the net assets, earnings and equity of the Company
on a consolidated basis.
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<PAGE> 42
CERTAIN COVENANTS
The Indenture contains, among others, the following covenants:
Limitation on Incurrence of Additional Indebtedness
The Company will not, and will not permit any of the Subsidiaries
directly or indirectly, to issue, incur, assume, guarantee, become liable,
contingently or otherwise, with respect to or otherwise become responsible for
the payment of (collectively, "incur") any Indebtedness (other than Permitted
Indebtedness); provided, however, that if no Default or Event of Default with
respect to the Notes shall have occurred and be continuing at the time or as a
consequence at the incurrence of such Indebtedness, the Company and the
Subsidiaries or any of them may incur Indebtedness if on the date of the
incurrence, (i) both (A) the Company's Consolidated EBITDA Coverage Ratio would
have been greater than 2.25 to 1.0 for the period from the Issue Date to March
31, 1997 and 2.5 to 1.0 from April 1, 1997 and thereafter, respectively, and (B)
the Company's Adjusted Consolidated Net Tangible Assets are equal to or greater
than 150% of Indebtedness of the Company and the Subsidiaries, or (ii) the
Company's Adjusted Consolidated Net Tangible Assets are equal to or greater than
200% of Indebtedness of the Company and the Subsidiaries.
For purposes of determining any particular amount of Indebtedness under
this covenant, guarantees of Indebtedness otherwise included in the
determination of such amount shall not also be included.
Notwithstanding anything to the contrary in this covenant, no
Subsidiary that is not already a Subsidiary Guarantor shall incur any
Indebtedness with respect to any Indebtedness of the Company or any other
Subsidiary unless such Subsidiary, the Company and the Trustee execute and
deliver a supplemental indenture evidencing such Subsidiary's Guarantee of the
Notes, such Guarantee to be a senior subordinated unsecured obligation of such
Subsidiary.
For purposes of determining any particular amount of Indebtedness
incurred under this covenant, any Indebtedness incurred by the Company or any
Subsidiary incurred for, or related to, a Person other than another Subsidiary
or the Company, as applicable, shall be deemed to be in an amount equal to the
greater of (i) the lesser of (A) the full amount of the Indebtedness of such
other Person or (B) the fair market value of the assets and properties of the
Company or such Subsidiary, as to which the holder or holders of such
Indebtedness are expressly limiting the obligations of the Company or such
Subsidiary, the value of which assets and properties of the Company or any
Subsidiary, will be as determined in good faith by the Board of Directors of the
Company or such Subsidiary, as applicable (which determinations shall be
evidenced by a Board Resolution of the applicable Person), and (ii) the amount
of the Indebtedness of such other Person as has been expressly contractually
assumed or guaranteed by the Company or such Subsidiary.
Limitation on Senior Subordinated Indebtedness
The Company will not, directly or indirectly, issue, assume, guarantee,
incur or otherwise become liable for any Indebtedness which is both subordinate
or junior in right of payment to any Senior Indebtedness and senior or superior
in right of payment to the Notes. The Subsidiary Guarantors will not, directly
or indirectly, issue, assume, guarantee, incur or otherwise become liable for
any Indebtedness which is both subordinate or junior in right of payment to any
Guarantor Senior Indebtedness and senior or superior in right of payment to the
Guarantees.
Limitation on Restricted Payments
The Company will not, and will not permit any of the Subsidiaries to,
directly or indirectly, make any Restricted Payment, if at the time of such
Restricted Payment, or on a pro forma basis after giving effect thereto:
(x) a Default or an Event of Default under the Indenture has
occurred and is continuing;
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<PAGE> 43
(y) the aggregate amount expended for all Restricted Payments
subsequent to the Issue Date exceeds the sum of (without duplication):
(1) 50% of aggregate Consolidated Net Income (net of losses
resulting from full costs ceiling write downs attributable to any
oil and gas properties of the Company or any Subsidiary) of the
Company (or if such Consolidated Net Income is a loss, minus 100% of
such loss) earned on a cumulative basis during the period beginning
on the Issue Date and ending on the last date of the Company's
fiscal quarter immediately preceding such Restricted Payment; plus
(2) 100% of the aggregate Net Proceeds received by the Company
from any Person other than a Subsidiary from the issuance and sale
subsequent to the Issue Date of Qualified Capital Stock (excluding
(A) any Qualified Capital Stock paid as a dividend on any Capital
Stock or as interest on any Indebtedness, (B) the issuance of
Qualified Capital Stock upon the conversion of, or in exchange for,
any Qualified Capital Stock and (C) any Qualified Capital Stock with
regard to issuances and sales financed directly or indirectly using
funds borrowed from the Company or any Subsidiary, until and to the
extent such borrowing is repaid); plus
(3) to the extent not otherwise included in Consolidated Net
Income, dividends, repayments of loans or advances, or other
transfers of assets, in each case to the Company or a Subsidiary
after the date of the Indenture from any Unrestricted Subsidiary or
from the redesignation of an Unrestricted Subsidiary as a Subsidiary
(valued in each case as provided in the definition of Investment)
other than amounts constituting Permitted Unrestricted Subsidiary
Investments; and
(4) $15 million; or
(z) the Company would not be able to incur $1.00 of additional
Indebtedness (excluding Permitted Indebtedness) as provided in the first
paragraph of "--Limitation on Incurrence of Additional Indebtedness".
The foregoing provisions of this covenant will not prevent the payment of
any dividend within 60 days after the date of its declaration if the dividend
would have been permitted on the date of declaration; provided, however,
payments made in accordance with this paragraph shall be counted for purposes of
computing amounts expended pursuant to subclause (y) in the immediately
preceding paragraph.
Limitation on Disposition of Assets
The Company will not, and will not permit any Subsidiary to, make any
Asset Disposition unless:
(i) in the case of any Asset Disposition or series of related Asset
Dispositions having a fair market value of more than $10 million, the
Company or such Subsidiary receives consideration at the time of such
Asset Disposition at least equal to the fair market value, the
determination of which, including the value of all non-cash consideration,
must be approved in good faith by the Board of Directors of the Company
and such Subsidiary, if any,
(ii) the proceeds from any Asset Disposition (other than any Asset
Disposition or series of related Asset Dispositions that have a value of
less than $1 million) consist of cash and cash equivalents or Permitted
Industry Investments or any combination of the foregoing; provided that
the Company or such Subsidiary may accept proceeds from such Asset
Disposition in other than cash and cash equivalents or Permitted Industry
Investments or any combination of the foregoing if the aggregate amount of
all proceeds from all Asset Dispositions after the Issue Date, that are
other than cash and cash equivalents or Permitted Industry Investments
after such Asset Disposition, does not exceed 15% of Adjusted Consolidated
Net Tangible Assets at the date of such Asset Disposition, and
(iii) within 365 days following the receipt of the Net Available
Proceeds from such Asset Disposition, 100% of the Net Available Proceeds
from such Asset Disposition are applied by the Company or such Subsidiary:
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<PAGE> 44
(a) to the payment of Indebtedness under the Bank Credit
Agreement and the payment of any other Senior Indebtedness;
(b) at the Company's option to the extent that such Net
Available Proceeds are not applied to Senior Indebtedness, to
Permitted Industry Investments made by the Company or a Subsidiary
(or, to the extent not so applied during such 365 day period, to
Permitted Industry Investments specifically identified during such
365 day period reasonably anticipated in good faith by the Board of
Directors of the Company to be expended within 180 days after being
specifically identified (such 180-day period, the "Project
Period")); and
(c) to the extent that any Net Available Proceeds are not
applied to Senior Indebtedness or applied or to be applied to
Permitted Industry Investments, to make an offer to purchase (the
"Net Proceeds Offer") (on a business day (the "Net Proceeds Payment
Date") not later than the later of (1) 365 days following the
receipt of such Net Available Proceeds or (2) in the case of
application of proceeds intended to be applied under clause (b), 35
business days following any Project Period) the Notes at a price
equal to 100% of the principal amount of the Notes plus accrued
interest to the Net Proceeds Payment Date.
Notwithstanding the foregoing, the Company and its Subsidiaries will not
be required to apply any Net Available Proceeds in accordance with such
provisions except to the extent that the Net Available Proceeds from all Asset
Dispositions which are not applied in accordance with such provisions exceed $5
million.
Notice of a Net Proceeds Offer to purchase the Notes will be made on
behalf of the Company not less than 25 business days nor more than 60 business
days before the Net Proceeds Payment Date. Notes tendered to the Company
pursuant to a Net Proceeds Offer will cease to accrue interest after the Net
Proceeds Payment Date. The Company will not be entitled to any credit against
the above obligations for the principal amount of Notes previously acquired by
the Company. For purposes of this covenant, the term "Net Proceeds Offer Amount"
means the principal of outstanding Notes in an aggregate principal amount equal
to any remaining Net Available Proceeds.
On the Net Proceeds Payment Date, the Company will (i) accept for payment
Notes or portions thereof tendered pursuant to the Net Proceeds Offer in an
aggregate principal amount equal to the Net Proceeds Offer Amount or such lesser
amount of Notes as has been tendered, (ii) deposit with the paying agent money
sufficient to pay the purchase price of all Notes or portions thereof so
tendered in an aggregate principal amount equal to the Net Proceeds Offer Amount
or such lesser amount, and (iii) deliver or cause to be delivered to the
Trustee, Notes so accepted together with an officers' certificate stating the
Notes or portions thereof tendered to the Company. If the aggregate principal
amount of Notes tendered exceeds the Net Proceeds Offer Amount, the Trustee will
select the Notes to be purchased on a pro rata basis based on the principal
amount of Notes so tendered. The paying agent will promptly mail or deliver to
Holders of the Notes so accepted payment in an amount equal to the purchase
price, and the Company will execute, and the Trustee will promptly authenticate
and mail or make available for delivery to such Holders, a new Note equal in
principal amount to any unpurchased portion of the Note surrendered. Any Notes
not so accepted will be promptly mailed or delivered to the Holder thereof. The
Company will publicly announce the results of the Net Proceeds Offer on or as
soon as practicable after the Net Proceeds Payment Date. For purposes of this
covenant, the Trustee or its agent will act as the paying agent. The Company may
make Asset Dispositions in accordance with this covenant and receive
consideration in the form of equity, partnership or other ownership interests
where it might not control such resulting entity.
The Company's ability to repurchase Notes in a Net Proceeds Offer is
restricted by the terms of the Bank Credit Agreement and may be prohibited or
otherwise limited by the terms of any then existing borrowing arrangements and
by its financial resources.
Limitation on Liens Securing Indebtedness
The Company will not, and will not permit any of the Subsidiaries to,
create, incur, assume or suffer to exist any Liens (other than Permitted Liens)
upon any of their respective Properties securing (i) any Indebtedness of the
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<PAGE> 45
Company, unless the Notes are equally and ratably secured or (ii) any
Indebtedness of any Subsidiary Guarantor, unless the Notes or the Guarantees are
equally and ratably secured; provided that if such Indebtedness is expressly
subordinated to the Notes or the Guarantees, the Lien securing such Indebtedness
will be subordinated and junior to the Lien securing the Notes or the
Guarantees, with the same relative priority as such Subordinated Indebtedness
will have with respect to the Notes or the Guarantees, as the case may be.
Limitation on Payment Restrictions Affecting Subsidiaries
The Company will not, and will not permit any Subsidiary to, directly or
indirectly, create or suffer to exist or allow to become effective any
consensual encumbrance or restriction of any kind (i) on the ability of any of
the Subsidiaries (a) to pay dividends or make other distributions on its Capital
Stock or make payments on any Indebtedness owed to the Company or any other
Subsidiary, (b) to make loans or advances to the Company or any other
Subsidiary, or (c) to transfer any of its Property to the Company or any other
Subsidiary; or (ii) on the ability of such Person or any other subsidiary of
such Person to receive or retain any such (a) dividends, distributions or
payments, (b) loans or advances, or (c) transfers of Property (any such
restriction being referred to herein as a "Payment Restriction"), except for
such encumbrances or restrictions existing under or by reason of (A) the Bank
Credit Agreement as in effect on the date of the Indenture, (B) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of the Company or any Subsidiary, (C) any instrument
governing Indebtedness of a Person acquired by the Company or a Subsidiary at
the time of such acquisition, which encumbrance or restriction is not applicable
to any Person, other than the Person, or the Property of the Person, so
acquired, provided that such Indebtedness was not incurred in anticipation of
such acquisition, (D) with respect to clauses (i)(c) and (ii)(c) above, Purchase
Money Obligations for Property acquired in the ordinary course of business, (E)
Indebtedness existing pursuant to a written agreement in effect on the date of
the Indenture, (F) Indebtedness under the Indenture, or (G) Indebtedness
incurred to refinance, refund, extend or renew Indebtedness referred to in
clauses A, C, D, E or F above, provided that the Payment Restrictions contained
therein are not materially more restrictive than those provided for in the
Indebtedness being refinanced, refunded, extended or renewed.
Limitation on Transactions with Related Persons
Neither the Company nor any of the Subsidiaries will (i) sell, lease,
transfer or otherwise dispose of any of its Property to, (ii) purchase any
property from, (iii) make any Investment (other than Permitted Unrestricted
Subsidiary Investments and other Investments that do not breach the covenant
described under the caption "--Limitation on Restricted Payments") in, or (iv)
enter into any contract or agreement with or for the benefit of, a Related
Person of the Company or any Subsidiary (other than the Company or any such
Subsidiary in which no Related Person (other than the Company or another Wholly
Owned Subsidiary) owns, directly or indirectly, an equity interest) (a "Related
Person Transaction"), other than Related Person Transactions which are on terms
(which terms are in writing) no less favorable to the Company or a Subsidiary,
as applicable, than could be obtained in a comparable arm's length transaction
from an unaffiliated party; provided that, if the Company or any Subsidiary
enters into a Related Person Transaction or series of Related Person
Transactions involving or having an aggregate value of more than $5 million,
such Related Person Transaction will have been approved by a majority of the
independent directors of the Company. Notwithstanding anything to the contrary
in the foregoing, the foregoing restrictions shall not apply to (i) Related
Person Transactions that are approved by the Board of Directors of the Company
and such Subsidiary, if applicable, as in the best interests of the Company or
such Subsidiary, which transactions together with all other Related Person
Transactions in a related series involve or have an aggregate value not
exceeding $1 million in each fiscal year; (ii) fees and compensation paid to or
agreements with officers, directors, employees or consultants of the Company or
any Subsidiary in each case that are reasonable, as determined by the Board of
Directors or senior management thereof in good faith; and (iii) Restricted
Payments that are not prohibited by the "Limitation on Restricted Payments"
covenant.
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Limitation on Conduct of Business
The Company and the Subsidiaries will be operated in a manner such that
their business activities will be the oil and gas business, including the
exploration for and the development, acquisition, production, processing,
marketing, storage and transportation of, Hydrocarbons and other related energy
and natural resources businesses, and such other businesses as are reasonably
necessary or desirable to facilitate the conduct and operations of the foregoing
businesses.
Reports
The Company will file on a timely basis with the Commission, to the extent
such filings are accepted by the Commission and whether or not the Company has a
class of securities registered under the Exchange Act, the annual reports,
quarterly reports and other documents that the Company would be required to file
if it were subject to Section 13 or 15 of the Exchange Act. The Company will
also be required (a) to file with the Trustee (with exhibits), and provide to
each Holder of Notes (without exhibits), without cost to such Holder, copies of
such reports and documents within 15 days after the date on which the Company
files such reports and documents with the Commission or the date on which the
Company would be required to file such reports and documents if the Company were
so required and (b) if filing such reports and documents with the Commission is
not accepted by the Commission or is prohibited under the Exchange Act, to
supply at its cost copies of such reports and documents (including any exhibits
thereto) to any Holder of Notes promptly upon written request.
Future Designation of Restricted and Unrestricted Subsidiaries
The foregoing covenants (including calculation of financial ratios and the
determination of limitations on the incurrence of Indebtedness and Liens) may be
affected by the designation by the Company of any existing or future Subsidiary
of the Company as an Unrestricted Subsidiary. The definition of "Unrestricted
Subsidiary" set forth under the caption "--Certain Definitions" describes the
circumstances under which a Subsidiary of the Company may be designated as an
Unrestricted Subsidiary by the Board of Directors of the Company.
MERGER, CONSOLIDATION OR SALE OF SUBSTANTIALLY ALL ASSETS
The Company will not consolidate with or merge with any other Person or
convey, transfer or lease all or substantially all of its Property to any
Person, unless: (i) the Company survives such merger or the Person formed by
such consolidation or into which the Company is merged or that acquires by
conveyance or transfer, or which leases, all or substantially all of the
Property of the Company is a corporation organized and existing under the laws
of the United States of America or any State thereof or the District of Columbia
and expressly assumes, by supplemental indenture, the due and punctual payment
of the principal of (and premium, if any) and interest on all the Notes and the
performance of every other covenant and obligation of the Company under the
Indenture; (ii) immediately before and after giving effect to such transaction,
no Default or Event of Default exists; (iii) immediately after giving effect to
such transaction on a pro forma basis, the Consolidated Net Worth of the Company
(or the surviving entity if the Company is not continuing) is equal to or
greater than the Consolidated Net Worth of the Company immediately before such
transaction and (iv) immediately after giving effect to such transaction on a
pro forma basis, the Company (or the surviving entity if the Company is not
continuing) would be able to incur $1.00 of additional Indebtedness (excluding
Permitted Indebtedness) under the tests described in the first paragraph of
"Limitation on Incurrence of Additional Indebtedness". Upon any such
consolidation, merger, conveyance, lease or transfer in accordance with the
foregoing, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, lease or transfer is made will
succeed to, and be substituted for, and may exercise every right and power of,
the Company under the Indenture with the same effect as if such successor had
been named as the Company therein, and thereafter (except in the case of a
lease) the predecessor corporation will be relieved of all further obligations
and covenants under the Indenture and the Notes.
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EVENTS OF DEFAULT
The following will constitute Events of Default under the Indenture:
(i) default in the payment of principal of, or premium, if any, on,
the Notes when due at maturity, upon repurchase, upon acceleration or
otherwise, including failure of the Company to repurchase the Notes
required to be repurchased upon a Change of Control and corresponding
Rating Decline or a Net Proceeds Offer and failure to make any optional
redemption payment;
(ii) default in the payment of any installment of interest on the
Notes when due (including any interest payable in connection with optional
redemption payment) and continuance of such default for 30 days;
(iii) default on any other Indebtedness of the Company, any
Subsidiary Guarantor or any other Subsidiary if either (a) such default
results from the failure to pay principal of, premium, if any, or interest
on any such Indebtedness when due in excess of $5 million and continuance
of such default beyond any applicable cure, forbearance or notice period,
or (b) as a result of such default, the maturity of such Indebtedness has
been accelerated prior to its scheduled maturity, without such default and
acceleration having been rescinded or annulled within a period of 10 days,
and the principal amount of such Indebtedness, together with the principal
amount of any other such indebtedness in default, or the maturity of which
has been so accelerated, aggregates $5 million or more;
(iv) default in the performance, or breach, of any other covenant of
the Company or any Subsidiary Guarantor in the Indenture and failure to
remedy such default within a period of 60 days after written notice
thereof from the Trustee or Holders of 25% in principal amount of the
outstanding Notes;
(v) the entry by a court of one or more judgments or orders against
the Company, any Subsidiary Guarantor or any other Subsidiary in an
aggregate amount in excess of $10 million and which are not covered by
insurance written by third parties that has not been vacated, discharged,
satisfied or stayed pending appeal within 60 days from the entry thereof;
(vi) certain events of bankruptcy, insolvency or reorganization in
respect of the Company or any Material Subsidiary; or
(vii) a Guarantee by a Subsidiary Guarantor that is a Material
Subsidiary shall cease to be in full force and effect (other than a
release of a Guarantee by designation of a Subsidiary Guarantor as an
Unrestricted Subsidiary) or any Subsidiary Guarantor shall deny or
disaffirm its obligations with respect thereto.
If any Event of Default (other than an Event of Default specified in
clause (vi) above) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the Notes
then outstanding may declare the unpaid principal of, and accrued and unpaid
interest on, all the Notes, then outstanding to be due and payable, by a notice
in writing to the Company (and to the Trustee, if given by Holders) and upon any
such declaration such principal amount, premium, if any, and accrued and unpaid
interest shall become immediately due and payable, notwithstanding anything
contained in the Indenture or the Notes to the contrary. If an Event of Default
specified in clause (vi) above occurs, all unpaid principal of, premium, if any,
and accrued interest on, the Notes then outstanding will become due and payable,
without any declaration or other act on the part of the Trustee or any Holder.
The Holders of a majority in principal amount of the outstanding Notes, by
written notice to the Company, the Subsidiary Guarantors and the Trustee, may
rescind and annul a declaration of acceleration and its consequences if (1) the
Company or any Subsidiary Guarantor has paid or deposited with such Trustee a
sum sufficient to pay (A) all overdue installments of interest on all the Notes,
(B) the principal of, and premium, if any, on, any Notes that have become due
otherwise than by such declaration of acceleration and interest thereon at the
rate or rates prescribed therefor in the Notes, (C) to the extent that payment
of such interest is lawful, interest on the defaulted interest at the rate or
rates prescribed therefor in the Notes, and (D) all money paid or advanced by
the Trustee thereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and
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counsel; (2) all Events of Default, other than the non-payment of the principal
of any Notes that have become due solely by such declaration of acceleration,
have been cured or waived as provided in the Indenture; and (3) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction. No such rescission will affect any subsequent Event of Default or
impair any right consequent thereon.
No Holder of any of the Notes will have any right to institute any
proceeding, judicial or otherwise, or for the appointment of a receiver or
trustee or pursue any remedy under the Indenture, unless (1) such Holder has
previously given notice to the Trustee of a continuing Event of Default, (2) the
Holders of not less than 25% in principal amount of the outstanding Notes have
made written request to such Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee under the Indenture, (3) such Holder
or Holders have offered to such Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request, (4)
such Trustee for 30 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding, and (5) no direction
inconsistent with such written request has been given to such Trustee during
such 30-day period by the Holders of a majority in principal amount of the
outstanding Notes.
The Holder of any Note will have the right, which is absolute and
unconditional, to receive payment of the principal of, premium, if any, and
interest on such Note on the stated maturity therefor and to institute suit for
the enforcement of any such payment, and such right may not be impaired without
the consent of such Holder.
The Holders of a majority in principal amount of the Notes will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
such Trustee, provided that (1) such direction is not in conflict with any rule
of law or with the Indenture and (2) the Trustee may take any other action
deemed proper by such Trustee that is not inconsistent with such direction.
MODIFICATIONS AND WAIVERS
The Indenture may be amended or rights thereunder may be waived with the
consent of the Company, the Subsidiary Guarantors, and the Holders of at least a
majority of the principal amount of Notes then outstanding, provided that,
without the consent of each Holder of Notes affected thereby, no such
modification or waiver will be made with regard to: (i) a default in the payment
of principal, premium (if any) or interest on the Notes; (ii) a reduction of the
interest rate on or principal amount of the Notes, an extension of the maturity
schedule of the Notes, or a modification of the redemption or repurchase
provisions of the Notes; (iii) a change that adversely affects subordination
rights; (iv) a change in the currency in which the Notes are payable; or (v) a
change in the percentage required by this provision.
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
The Company may at any time terminate its Obligations under the Notes and
the Indenture, and the Subsidiary Guarantors may, at such times, terminate their
corresponding obligations under the Subsidiary Guarantees and the Indenture,
with certain exceptions specified in the Indenture, by irrevocably depositing in
trust cash or obligations of the United States government and its agencies for
payment of principal of, and interest on, the Notes to redemption or maturity,
subject to the satisfaction of certain conditions.
Subject to the conditions described below, at the Company's option, either
(a) the Company and the Subsidiary Guarantors will be deemed to have been
discharged from their obligations with respect to the Notes and Subsidiary
Guarantees and the provisions of the Indenture on the 91st day after the
applicable conditions set forth below have been satisfied or (b) the Company and
the Subsidiary Guarantors will cease to be under any obligation to comply with
certain restrictive covenants, including those described under "--Certain
Covenants", at any time after the applicable conditions set forth below have
been satisfied: (1) the Company or any Subsidiary Guarantor has deposited or
caused to be deposited irrevocably with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders (i) money or (ii) United States government obligations, which
through the payment of interest and principal in respect thereof in accordance
with their terms
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will provide (without any reinvestment of such interest or principal), not later
than one day before the due date of any payment, money or (iii) a combination of
(i) and (ii), in an amount sufficient, in the opinion (with respect to (ii) and
(iii)) of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee at or
prior to the time of such deposit, to pay and discharge each installment of
principal of, premium, if any, and interest on, the outstanding Notes on the
dates such installments are due; (2) no Default or Event of Default has occurred
or is continuing on the date of such deposit or will occur as a result of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or a
Subsidiary Guarantor or any Subsidiary is a party or by which any of them is
bound, as evidenced to the Trustee in an officers' certificate delivered to the
Trustee concurrently with such deposit; (3) the Company has delivered to the
Trustee an opinion of counsel (which counsel may be an employee of the Company)
to the effect that Holders will not recognize income, gain or loss for federal
income tax purposes as a result of the Company's exercise of its option
described above and will be subject to federal income tax on the same amount and
in the same manner and at the same time as would have been the case if such
option had not been exercised, and, in the case of the Notes being discharged
pursuant to clause (a) above, accompanied by a ruling to the effect received
from or published by the Internal Revenue Service (it being understood that (A)
such opinion will also state, if applicable, that such ruling is consistent with
the conclusions reached in such opinion and (B) the Trustee will be under no
obligation to investigate the basis of correctness of such ruling); (4) the
Company has delivered to the Trustee an opinion of counsel (which counsel may be
an employee of the Company) to the effect that the Company's exercise of its
option described above will not result in any of the Company, the Trustee or the
trust created by the Company's deposit of funds hereunder becoming or being
deemed to be an "investment company" under the Investment Company Act of 1940,
as amended; (5) the Company or any Subsidiary Guarantor has paid or duly
provided for payment of all amounts then due to the Trustee pursuant to the
terms of the Indenture; and (6) the Company has delivered to the Trustee an
officers' certificate and an opinion of counsel (which counsel may be an
employee of the Company), each stating that all conditions precedent provided
for in the Indenture relating to the satisfaction and discharge of the Indenture
have been complied with.
The Company or any Subsidiary Guarantor may make an irrevocable deposit
pursuant to this provision only if at such time it is not prohibited from doing
so under the subordination provisions of the Indenture and the Company has
delivered to the Trustee and any relevant paying agent an officer's certificate
to that effect.
REGISTRATION RIGHTS AGREEMENT; PENALTY INTEREST
If (i) the Company is not permitted to consummate the Exchange Offer
because the Exchange Offer is not permitted by any applicable law or applicable
interpretation of the Commission or the staff of the Commission or (ii) any
holder of a Note notifies the Company on or prior to the Exchange Date that (A)
due to a change in law or policy it is not entitled to participate in the
Exchange Offer, (B) due to a change in law or policy it may not resell the
Exchange Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and the Prospectus contained in the Exchange
Registration Statement is not appropriate or available for such resales by such
holder or (C) it is a broker-dealer that owns Notes (including the Initial
Purchaser that holds Notes as part of an unsold allotment from the original
offering of the Notes) acquired directly from an Issuer or an Affiliate of an
Issuer or (iii) any holder of Private Exchange Notes so requests within 120 days
after the consummation of the Private Exchange (each such event referred to in
clauses (i) through (iii), a "Shelf Filing Event"), the Company shall cause to
be filed with the Commission pursuant to Rule 415 a shelf registration statement
(the "Shelf Registration Statement") on or prior to the later of (x) May 18,
1996 and (y) 30 days after the occurrence of such Shelf Filing Event, relating
to all Transfer Restricted Securities (the "Shelf Registration") the holders of
which have provided the information required by the Registration Rights
Agreement, and shall use their best efforts to have the Shelf Registration
Statement declared effective by the Commission on or prior to 90 days after the
occurrence of such Shelf Filing Event, provided that if the Company has not
consummated the Exchange Offer by September 15, 1996, then the Company shall
cause the Shelf Registration Statement to be filed with the Commission on or
prior to September 16, 1996 and shall use its best efforts to have the Shelf
Registration Statement declared effective by the Commission within 60 days of
the date of filing thereof. In such circumstances, the Company shall use its
best efforts to keep the Shelf Registration Statement continuously effective
under the Securities Act, until (A) March 19, 1999 (subject to extension under
certain circumstances) or (B) if sooner, the date immediately following the date
that all Transfer Restricted Securities covered by the Shelf Registration
Statement have been sold pursuant thereto
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(the "Effectiveness Period"); provided, however, that the Effectiveness Period
shall be extended to the extent required to permit dealers to comply with the
applicable prospectus delivery requirements of Rule 174 under the Securities Act
in the Registration Rights Agreement.
No holder of Transfer Restricted Securities may include any of its
Transfer Restricted Securities in any Shelf Registration Statement pursuant to
this Agreement unless and until such holder furnishes to the Company in writing,
within 30 days after receipt of a request therefor, such information as the
Company may reasonably request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary prospectus included therein. No holder of
Transfer Restricted Securities shall be entitled to Additional Interest (as
defined) unless and until such holder shall have provided all such reasonably
requested information. Each holder of Transfer Restricted Securities as to which
any Shelf Registration Statement is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such holder not materially
misleading.
In the event that (i) the applicable Registration Statement is not filed
with the Commission on or prior to the date specified for such filing, (ii) the
applicable Registration Statement has not been declared effective by the
Commission on or prior to the date specified for such effectiveness after such
obligation arises, (iii) if the Exchange Offer is required to be consummated
under the Registration Rights Agreement, the Company has not exchanged Exchange
Notes for all Notes validly tendered and not validly withdrawn in accordance
with the terms of the Exchange Offer by the Consummation Date or (iv) the
applicable Registration Statement is filed and declared effective but shall
thereafter cease to be effective without being succeeded immediately by any
additional Registration Statement covering the Notes, the Exchange Notes or the
Private Exchange Notes, as the case may be, which has been filed and declared
effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), then the interest rate on Transfer Restricted
Securities will increase ("Additional Interest"), with respect to the first
90-day period immediately following the occurrence of such Registration Default,
by 0.50% per annum and will 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 amount of 2% per annum with respect to all
Registration Defaults. Following the cure of a Registration Default, the accrual
of Additional Interest with respect to such Registration Default will cease and
upon the cure of all Registration Defaults the interest rate will revert to the
original rate.
The Company shall notify the Trustee and paying agent under the Indenture
immediately upon the happening of each and every Registration Default. The
Company shall pay the Additional interest due on the Transfer Restricted
Securities by depositing with the paying agent (which shall not be the Company
for these purposes) for the Transfer Restricted Securities, in trust, for the
benefit of the holders thereof, prior to 11:00 A.M. on the next interest payment
date specified by the Indenture (or such other indenture), sums sufficient to
pay the Additional Interest then due. The Additional Interest due shall be
payable on each interest payment date specified by the Indenture (or such other
indenture) to the record holder entitled to receive the interest payment to be
made on such date. Each obligation to pay Additional Interest shall be deemed to
accrue from and including the date of the applicable Registration Default.
GOVERNING LAW
The Indenture provides that it is 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 law of
another jurisdiction would be required thereby.
THE TRUSTEE
The Indenture provides that, except during the continuance of an Event of
Default, the Trustee need perform only those duties that are specifically set
forth (or incorporated by reference) in the Indenture and no others. During the
existence of an Event of Default, the Trustee will exercise such rights and
powers vested in it by the Indenture, and use the same degree of care and skill
in such exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
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The Indenture contains certain limitations on the rights of the Trustee,
should it become a creditor of the Company, to obtain payments of claims in
certain cases or to realize on certain property received in respect of any such
claims as security or otherwise.
BOOK ENTRY; DELIVERY AND FORM
Except as described in the next paragraph, the Exchange Notes initially
will be represented by a single, permanent global certificate in definitive,
fully registered form (the "Global Exchange Note"). The Global Exchange Note
will be deposited on the Exchange Date with, or on behalf of, DTC and registered
in the name of a nominee of DTC.
The Global Exchange Note
The Company expects that pursuant to procedures established by DTC (i)
upon the issuance of the Global Exchange Note, DTC or its custodian will credit,
on its internal system, the principal amount of Exchange Notes of the individual
beneficial interests represented by such Global Exchange Note to the respective
accounts of exchanging Holders who have accounts with DTC and (ii) ownership of
beneficial interests in the Global Exchange Note will be shown on, and the
transfer of such ownership will be effected only through, records maintained by
DTC or its nominee (with respect to interests of participants) and the records
of participants (with respect to interests of persons other than participants).
Ownership of beneficial interests in the Global Exchange Note will be limited to
persons who have accounts with DTC ("participants") or persons who invest
through participants. Qualified Institutional Buyers will hold their interests
in the Global Exchange Note directly through DTC, if they are participants in
such system, or indirectly through organizations which are participants in such
system.
So long as DTC or its nominee is the registered owner or holder of the
Exchange Notes, DTC or such nominee, as the case may be, will be considered the
sole owner or holder of the Exchange Notes represented by such Global Exchange
Note for all purposes under the Indenture. No beneficial owners of an interest
in any Global Exchange Note will be able to transfer that interest except in
accordance with DTC's procedures in addition to those provided for under the
Indenture.
Payments of the principal of, premium, if any, and interest on, the Global
Exchange Note will be made to DTC or its nominee, as the case may be, as the
registered owner thereof. None of the Company, the Trustee or any paying agent
of the Company will 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 Exchange Note or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company expects that DTC or its nominee, upon receipt of any payment
of principal, premium, if any, or interest in respect of the Global Exchange
Note, will credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of the Global
Exchange Note as shown on the records of DTC or its nominee. The Company also
expects that payments by participants to owners of beneficial interests in the
Global Exchange Note held through such participants will be governed by standing
instructions and customary practice, as is now the case with securities held for
the accounts of customers registered in the names of nominees for such
customers. Such payments will be the responsibility of such participants.
Transfers between participants in DTC will be effected in the ordinary way
in accordance with DTC rules and will be settled in [same day] funds. If a
holder requires physical delivery of Exchange Notes in registered certificated
form ("Certificated Securities") for any reason, including to sell Exchange
Notes to persons in states which require physical delivery of the Certificated
Securities, or to pledge such Certificated Securities, such holder must transfer
its interest in the Global Exchange Note in accordance with the normal
procedures of DTC and with the procedures set forth in the Indenture.
DTC has advised the Company that it will take any action permitted to be
taken by a holder of Outstanding Notes (including the presentation of
Outstanding Notes for exchange pursuant to the Exchange Offer) only at the
direction of one or more participants to whose account the interests in the
Outstanding Global Note are credited and
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only in respect of such portion of the aggregate principal amount of Outstanding
Notes as to which such participant or participants have given such direction.
However, if there is an Event of Default under the Indenture, DTC will exchange
the Global Exchange Note for Certificated Securities, which it will distribute
to its participants.
DTC has advised the Company as follows: DTC is a limited purpose trust
company organized under laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act. DTC was created to hold securities for its
participants and facilitate the clearance and settlement of securities
transactions between participants through electronic book-entry changes in
accounts of its participants, thereby eliminating the need for physical movement
of certificates. Participants include securities brokers and dealers, banks,
trust companies and clearing corporations and certain other organizations.
Indirect access to the DTC system is available to others such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global Exchange Note among participants of DTC, it
is under no obligation to perform such procedures, and such procedures may be
discontinued at any time. None of the Company, the Initial Purchasers or the
Trustee will have any responsibility for the performance by DTC or its
participants or indirect participants of their respective obligations under the
rules and procedures governing their operations.
Certificated Securities
If DTC is at any time unwilling or unable to continue as a depositary for
the Global Exchange Note and a successor depositary is not appointed by the
Company within 90 days, or at the Company's election at any time, Certificated
Securities will be issued in exchange for the Global Exchange Note.
CERTAIN DEFINITIONS
"Adjusted Consolidated Net Tangible Assets" means (without duplication),
as of the date of determination, (A) the sum of (i) discounted future net cash
flows from proved oil and gas reserves of the Company and its consolidated
Subsidiaries, calculated in accordance with Commission guidelines (before any
state or federal income tax), as estimated by independent petroleum engineers as
of a date no earlier than the date of the Company's latest annual consolidated
financial statements (or, in the case that the date of determination is after
the end of the first fiscal quarter of the fiscal year of the Company, as
estimated by Company engineers as of a date no earlier than the end of the most
recent fiscal quarter, which estimates shall be confirmed in writing by a report
by independent petroleum engineers in accordance with Commission guidelines in
the event of a Material Change if the amount of Adjusted Consolidated Net
Tangible Assets is required to be computed under the Indenture), (ii) the Net
Working Capital on a date no earlier than the date of the Company's latest
consolidated annual or quarterly financial statements, and (iii) with respect to
each other tangible asset of the Company or its consolidated Subsidiaries, the
greater of (a) the net book value of such other tangible asset on a date no
earlier than the date of the Company's latest consolidated annual or quarterly
financial statements, and (b) the appraised value, as estimated by a qualified
independent appraiser, of such other tangible asset, as of a date no earlier
than the date that is three years prior to the date of determination (or such
later date on which the Company shall have a reasonable basis to believe that
there has occurred a material decrease in value since the determination of such
appraised value), minus (B) minority interests and, to the extent not otherwise
taken into account in determining Adjusted Consolidated Net Tangible Assets, any
gas balancing liabilities of the Company and its consolidated Subsidiaries. In
addition to, but without duplication of, the foregoing, for purposes of this
definition, "Adjusted Consolidated Net Tangible Assets" shall be calculated
after giving effect, on a pro forma basis, to (1) any Investment not prohibited
by the Indenture, to and including the date of the transaction giving rise to
the need to calculate Adjusted Consolidated Net Tangible Assets (the "Assets
Transaction Date"), in any other Person that, as a result of such Investment,
becomes a Subsidiary of the Company, (2) the acquisition, to and including the
Assets Transaction Date (by merger, consolidation or purchase of stock or
assets), of any business or assets, including, without limitation, Permitted
Industry Investments, and (3) any sales or other dispositions of assets
permitted by the Indenture (other than sales of Hydrocarbons or other mineral
products in the ordinary course of business) occurring on or prior to the Assets
Transaction Date.
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For purposes of calculating the ratio of the Company's Adjusted Consolidated Net
Tangible Assets to Indebtedness of the Company and its Subsidiaries,
Indebtedness of a Subsidiary that is not a Wholly Owned Subsidiary (which
Indebtedness is non-recourse to the Company or any other Subsidiary or any of
their assets) shall be included only to the extent of the Company's pro rata
ownership interest in such Subsidiary.
"Adjusted Net Assets" of a Subsidiary Guarantor at any date shall mean the
lesser of the amount by which (x) the fair value of the property of such
Subsidiary Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under the Guarantee, of such Subsidiary Guarantor at such date and
(y) the present fair saleable value of the assets of such Subsidiary Guarantor
at such date exceeds the amount that will be required to pay the probable
liability of such Subsidiary Guarantor on its debts (after giving effect to all
other fixed and contingent liabilities incurred or assumed on such date and
after giving effect to any collection from any Subsidiary of such Subsidiary
Guarantor in respect of the obligations of such Subsidiary under the Guarantee),
excluding debt in respect of the Guarantee, as they become absolute and matured.
"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 specified Person means the power to
direct the management and policies of such Person directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Asset" means each of the assets that are owned by the Company or a
Subsidiary on the date of the Indenture or that are acquired by the Company or a
Subsidiary after the date of the Indenture.
"Asset Disposition" means any sale, lease, transfer, exchange or other
disposition (or series of related sales, leases, transfers, exchanges or
dispositions) of shares of Capital Stock of a Subsidiary (other than directors'
qualifying shares), or of property or assets (including any interests therein)
(each referred to for purposes of this definition as a "disposition") by the
Company or any of its Subsidiaries, including any disposition by means of a
merger, consolidation or similar transaction (other than (A) by the Company to a
Subsidiary or by a Subsidiary to the Company or a Subsidiary (in the case of a
transfer to a Subsidiary that is not a wholly owned Subsidiary, dispositions
shall be excluded pursuant to clause (A) only to the extent of the Company's
interest in such Subsidiary after giving effect to such transfer), (B) any
Investment in an Unrestricted Subsidiary not prohibited under the provisions
described in the "Limitation on Restricted Payments" covenant, (C) a disposition
of Hydrocarbons or other mineral products in the ordinary course of business,
and (D) the disposition of all or substantially all of the assets of the Company
in compliance with the "Merger, Consolidation or Sale of Substantially All
Assets" covenant).
"Average Life" means, as of the date of determination, with respect to any
Indebtedness, the quotient obtained by dividing (i) the sum of the products of
(x) the number of years from such date to the date of each successive scheduled
principal payment of such Indebtedness multiplied by (y) the amount of such
principal payment by (ii) the sum of all such principal payments.
"Bank Credit Agreement" means the Second Amended and Restated Credit
Agreement, dated February 11, 1994, among the Company, Internationale
Nederlanden (U.S.) Capital Corporation, The First National Bank of Boston, Den
norske Bank AS, First Interstate Bank of Texas, N.A., Texas Commerce Bank
National Association, and International Nederlanden (U.S.) Capital Corporation,
as agent, as amended, modified (without limitation as to amount), supplemented,
extended, restated, replaced, renewed or refinanced from time to time in whole
or in part in one or more credit agreements, loan agreements, instruments or
similar agreements, as such may be further amended, modified (without limitation
as to amount), supplemented, extended, restated, replaced, renewed or refinanced
from time to time.
"Board of Directors" means, with respect to any Person, the board of
directors of such Person or any committee of the board of directors of such
Person duly authorized to act on behalf of the board of directors of such
Person.
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"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock and any and all warrants, options and rights with respect thereto,
including each class of common stock and preferred stock of such Person.
"Capitalized Lease Obligation" means the discounted present value of the
rental obligations of any Person under any lease of Property, which in
accordance with GAAP, is required to be capitalized on the balance sheet of such
Person.
"Change of Control" means (i) an event or series of events by which any
Person or other entity or group of Persons or other entities acting in concert
as a partnership or other group (a "Group of Persons") shall, as a result of a
tender or exchange offer, open market purchases, privately negotiated purchases,
merger, consolidation or otherwise, have become the beneficial owner (within the
meaning of Rule 13d-3 under the Exchange Act) of 40% or more of the combined
voting power of the then outstanding Voting Stock of the Company, (ii) during
any period of two consecutive years, Continuing Directors cease for any reason
to constitute a majority of the Board of Directors then in office, or (iii) the
direct or indirect sale, lease, exchange or other transfer of all or
substantially all of the Assets to any Person or Group of Persons.
"Company Properties" means all Properties, and equity, partnership or
other ownership interests therein, that are related or incidental to, or used or
useful in connection with, the conduct or operation of any business activities
of the Company or the Subsidiaries, which business activities are not prohibited
by the terms of the Indenture.
"Consolidated EBITDA" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period increased (to the
extent deducted in determining Consolidated Net Income) by the sum of: (i) all
income taxes of such Person and its subsidiaries paid or accrued according to
GAAP for such period (other than income taxes attributable to extraordinary,
unusual or non-recurring gains or losses), (ii) all interest expense of such
Person and its subsidiaries paid or accrued in accordance with GAAP for such
period (including amortization of original issue discount and the interest
portion of deferred payment obligations), (iii) depreciation and depletion of
such Person and its subsidiaries, (iv) amortization of such Person and its
subsidiaries including, without limitation, amortization of capitalized debt
issuance costs and (v) any other non-cash charges to the extent deducted from
Consolidated Net Income.
"Consolidated EBITDA Coverage Ratio" means, with respect to any Person,
the ratio of (1) Consolidated EBITDA of such Person for the period (the "Pro
Forma Period") consisting of the most recent four full fiscal quarters for which
financial information in respect thereof is available immediately prior to the
date of the transaction giving rise to the need to calculate the Consolidated
EBITDA Coverage Ratio (the "Transaction Date") to (2) the aggregate Fixed
Charges which such Person will accrue during the fiscal quarter in which the
Transaction Date occurs and the three fiscal quarters immediately subsequent to
such fiscal quarter (the "Forward Period") on the aggregate amount of
Indebtedness outstanding on the Transaction Date, including any Indebtedness
proposed to be incurred on such date and excluding any Indebtedness repaid with
the proceeds of such Indebtedness (as though all such Indebtedness was incurred
or repaid on the first day of the quarter in which the Transaction Date
occurred). In addition to, but without duplication of, the foregoing, for
purposes of this definition, "Consolidated EBITDA" shall be calculated after
giving effect (without duplication), on a pro forma basis for the Pro Forma
Period (but no longer), to (a) any Investment, during the period commencing on
the first day of the Pro Forma Period to and including the Transaction Date (the
"Reference Period"), in any other Person that, as a result of such Investment,
becomes a subsidiary of such Person, (b) the acquisition, during the Reference
Period (by merger, consolidation or purchase of stock or assets) of any business
or assets, which acquisition is not prohibited by the Indenture, including but
not limited to Permitted Industry Investments, as if such acquisition had
occurred on the first day of the Reference Period (c) any sales or other
dispositions of assets (other than sales of Hydrocarbons and other mineral
products in the ordinary course of business) occurring during the Reference
Period, in each case as if such incurrence, Investment, repayment, acquisition
or asset sale had occurred on the first day of the Reference Period and (d)
interest income reasonably anticipated by the Company to be received during the
Pro Forma Period from Investments in Permitted Obligations, which Investments
exist on the Transaction Date or will exist as a result of the transaction
giving rise to the need to calculate the Consolidated EBITDA Coverage Ratio. For
purposes of this definition, "Fixed Charges" shall be calculated after giving
effect (without duplication), on a pro forma basis for the Forward Period, to
any Indebtedness incurred or repaid on or after the first day of the Forward
Period and prior
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to the Transaction Date. For purposes of calculating the Company's Consolidated
EBITDA Coverage Ratio, Indebtedness of a Subsidiary that is not a Wholly Owned
Subsidiary (which Indebtedness is non-recourse to the Company or any other
Subsidiary or any of their assets) shall be included only to the extent of the
Company's pro rata ownership interest in such Subsidiary.
"Consolidated Net Income" of any Person means, for any period, the
aggregate net income (or loss) of such Person and its subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP, provided
that (a) the net income of (i) any Unrestricted Subsidiary and (ii) any other
Person in which such Person or any subsidiary thereof has an interest (which
interest, in the case of those Persons referred to in clause (ii), does not
cause the net income of such other Person to be consolidated with the net income
of such Person in accordance with GAAP) will be included only to the extent of
the amount of dividends or distributions actually paid to such Person or its
subsidiaries by such other Person in such period; (b) the net income of any
subsidiary of such Person that is subject to any Payment Restriction will be
excluded to the extent of such Payment Restriction; and (c) (i) the net income
(or loss) of any other Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition, (ii) any net gain (but not
loss) on the sale or other disposition by such Person or any of its subsidiaries
of assets and of the Capital Stock of any subsidiary of such Person, and (iii)
items which are extraordinary, will each be excluded; provided, in no event
shall the computation of Consolidated Net Income of the Company include or take
into effect the premium or write-off of debt issuance costs, if any, paid by the
Company optionally to redeem or otherwise prepay the 12% Notes issued pursuant
to the Prior Indenture or the Notes issued under the Indenture.
"Consolidated Net Worth" as of any date means with respect to any Person
the amount by which the assets of such Person and its subsidiaries on a
consolidated basis exceed (i) the total liabilities of such Person and its
subsidiaries on a consolidated basis, plus (ii) Disqualified Capital Stock of
such Person or Disqualified Capital Stock of any subsidiary of such Person
issued to any Person other than such Person or another wholly owned Subsidiary
of such Person, in each case determined in accordance with GAAP.
"Contango Market Transaction" means a transaction in which the Company or
any Subsidiary either (i) establishes a position using New York Mercantile
Exchange Crude Oil Futures contracts to purchase Hydrocarbons for future
delivery to it, or (ii) purchases or commits to purchase Hydrocarbons for future
delivery to it, and contemporaneous with such purchase transaction either (y)
establishes one or more positions using New York Mercantile Exchange Crude Oil
Futures contracts to resell at a date subsequent to such delivery date, or (z)
enters into a contract with that Person or another Person to resell at a date
subsequent to such delivery date, a similar aggregate quantity and quality of
Hydrocarbons as so purchased by the Company or such Subsidiary, as applicable,
and at an aggregate price greater than the Indebtedness incurred for the
Hydrocarbons so purchased by the Company or such Subsidiary.
"Continuing Directors" means any member of the Board of Directors of the
Company on the Issue Date, any director elected since the date thereof in any
annual meeting of the stockholders upon the recommendation of the Board of
Directors of the Company and any other member of the Board of Directors of the
Company who will be recommended or elected to succeed a Continuing Director by a
majority of Continuing Directors who are then members of the Board of Directors
of the Company.
"Currency Agreement" means the obligations of any Person pursuant to any
foreign exchange contract, currency swap agreement or other similar agreement or
arrangement designed to protect such Person or any of its subsidiaries against
fluctuations in currency values.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Disqualified Capital Stock" means, with respect to any Person, any
Capital Stock of such Person or its subsidiaries that, by its terms, by the
terms of any agreement related thereto or by the terms of any security into
which, mandatorily or at the option of the holder, it is convertible or
exchangeable, is, or upon the happening of an event or the passage of time would
be, required to be redeemed or repurchased by such Person or its subsidiaries,
including at the option of the holder, in whole or in part, or has, upon the
happening of an event or
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the passage of time would have, a redemption or similar payment due, in each
such case on or prior to the Maturity Date.
"Fixed Charges" means, with respect to any Person, for any period, the
aggregate amount of (i) interest, whether expensed or capitalized, paid, accrued
or scheduled to be paid or accrued during such period (except to the extent
accrued in a prior period) in respect of all Indebtedness of such Person and its
consolidated subsidiaries (including (a) original issue discount on any
Indebtedness and (b) the interest portion of all deferred payment obligations,
calculated in accordance with the effective interest method, in each case to the
extent attributable to such period) and (ii) dividend requirements on
Disqualified Capital Stock of such Person and its consolidated subsidiaries
(whether in cash or otherwise (except dividends payable in shares of Qualified
Capital Stock) (non-cash dividends being valued as determined in good faith by
the Board of Directors of such Person, as evidenced by a Board Resolution))
paid, accrued or scheduled to be paid or accrued during such period (except to
the extent accrued in a prior period) and excluding items eliminated in
consolidation.
For purposes of the definition of Fixed Charges, (a) interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by the Board of Directors of such Person (as evidenced by
a Board Resolution) to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP; (b) interest on Indebtedness that is
determined on a fluctuating basis shall be deemed to have accrued at a fixed
rate per annum equal to the rate of interest of such Indebtedness in effect on
the date Fixed Charges are being calculated, subject to the proviso in clause
(c); (c) interest on Indebtedness that may optionally be determined at an
interest rate based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rate, shall be deemed to have been based upon
the rate actually chosen, or, if none, then based upon such optional rate chosen
as the Company may designate, (provided that, for the period following the date
on which the rate actually chosen ceases to be in effect, the Company may
designate an optional rate other than that actually chosen, which optional rate
shall be deemed to accrue at a fixed per annum equal to the rate of interest on
such optional rate in effect on the date Fixed Charges are being calculated);
and (d) Fixed Charges shall be increased or reduced by the net cost (including
amortization of discount) or benefit associated with obligations under Interest
Rate Agreements attributable to such period.
"GAAP" means generally accepted accounting principles as in effect in the
United States of America as of any date of determination.
"Guarantor Senior Indebtedness" means all Indebtedness of a Subsidiary
Guarantor (present and future) created, incurred, assumed or guaranteed by the
Subsidiary Guarantor (and all renewals, extensions, increases or refundings
thereof) (including the principal of, interest on and fees, premiums, expenses
(including costs of collection), indemnities and other amounts payable in
connection with such Indebtedness, and including any Post- Commencement
Amounts), unless the instrument governing such Indebtedness expressly provides
that such Indebtedness is not senior or superior in right of payment to the
Guarantee. Notwithstanding the foregoing, Guarantor Senior Indebtedness does not
include (i) any Indebtedness of the Subsidiary Guarantor to the Company or any
Subsidiary or any Unrestricted Subsidiary, and (ii) any amounts payable or other
liabilities to trade creditors.
"Hydrocarbons" means oil, gas, casinghead gas, drip gasoline, natural
gasoline, condensate, distillate, liquid hydrocarbons, gaseous hydrocarbons and
all constituents, elements or compounds thereof and products refined or
processed therefrom.
"Indebtedness" means, with respect to any Person, without duplication, any
liability, contingent or otherwise, of such Person (i) for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof), (ii) evidenced by bonds, notes, debentures
or similar instruments, (iii) representing the deferred and unpaid balance of
the purchase price of any property or interest therein (other than (A) any such
balance that represents an account payable or any other monetary obligation to a
trade creditor created, incurred, assumed or guaranteed by such Person in the
ordinary course of business of such Person in connection with obtaining goods,
materials or services and due within twelve months (or such longer period for
payment as is customarily extended by such trade creditor) of the incurrence
thereof, which account is not overdue by more than 150 days, according to the
original terms of sale, unless such account payable is being contested in good
faith
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or has been extended, and (B) the Indebtedness with respect to the Restructure
Agreement dated as of February 25, 1991 by and among the Company, The Aetna
Casualty and Surety Company and Aetna Life Insurance Company), (iv) for the
payment of a Capitalized Lease Obligation of such Person, (v) with respect to
the reimbursement of any letter of credit, banker's acceptance or similar credit
transaction, (vi) with respect to Indebtedness (as otherwise defined in this
definition) of another Person secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person (provided that if the
obligations so secured have not been assumed in full by such Person or are not
otherwise such Person's legal liability in full, then such obligations shall be
deemed to be in an amount equal to the greater of (A) the lesser of (1) the full
amount of such obligations, and (2) the fair market value of such assets, as
determined in good faith by the Board of Directors of such Person, which
determination shall be evidenced by a Board Resolution, and (B) the amount of
obligations as have been assumed by such Person or which are otherwise such
Person's legal liability), (vii) with respect to production payments in
connection with oil and gas properties of such Person, other than any Permitted
Production Payment Obligations, (viii) to the extent not otherwise included,
under Currency Agreements and Interest Rate Agreements entered into other than
in the ordinary course of such Person's business, (ix) in the case of such
Person, the liquidation preference and any mandatory redemption payment
obligations in respect of Disqualified Capital Stock, and, in the case of a
subsidiary of such Person, the liquidation preference and any mandatory
redemption payment obligations in respect of preferred stock of such subsidiary,
and (x) in respect of all Indebtedness of others which such Person has
guaranteed, endorsed with recourse (otherwise than for collection, deposit or
other similar transactions in the ordinary course of business), agreed to
purchase or repurchase or in respect of which such Person has agreed
contingently to supply or advance funds or for which such Person has otherwise
become liable; provided, however, Indebtedness arising pursuant to clause
(iii)(A) of this definition as a result of such account payable becoming overdue
by more than 150 days shall only be deemed to be incurred at a time when
Indebtedness, other than such Indebtedness, is incurred.
"Insolvency or Liquidation Proceeding" means, with respect to any Person,
(a) an insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization proceeding or other similar case or proceeding,
relative to such Person or to its creditors, as such, or its assets, or (b) any
liquidation, dissolution, or reorganization proceeding of such Person, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any assignment for the benefit of creditors or any other marshalling of
assets and liabilities of such Person.
"Interest Rate Agreement" means the obligations of any Person pursuant to
any interest swap agreement, interest rate collar agreement or other similar
agreement or arrangement designed to protect such Person or any of its
subsidiaries against fluctuations in interest rates.
"Investment" means, in respect of any Person, any investment in another
Person, whether by means of a share purchase, capital contribution, loan,
advance (other than advances to employees for moving and travel expenses,
drawing accounts and similar expenditures in the ordinary course of business) or
similar credit extension constituting Indebtedness of such other Person and any
guaranty of Indebtedness of any other Person. For purposes of the "Limitation on
Restricted Payments" covenant and the definition of Permitted Unrestricted
Subsidiary Investments, (i) an "Investment" in an Unrestricted Subsidiary shall
be deemed to include and be valued at the fair market value of the net assets of
any Subsidiary at the time that such Subsidiary is designated an Unrestricted
Subsidiary, and (ii) any Investment in an Unrestricted Subsidiary shall be
valued at fair market value at the time of such Investment (except however, when
such Investment consists of a loan or advance by a Person to another Person that
is of an intercompany or similar nature between such Persons and arises pursuant
to an agreement or understanding in the ordinary course of business relating to
tax sharing, administrative or other similar arrangements, then such Investment
shall be valued at fair market value at the time that the investing Person shall
have paid monies or transferred other consideration to another Person for the
benefit of the Person in whom the agreement to make such loan or advance was
made), in each case as determined by the Board of Directors of the Company and
such Subsidiary, as applicable, in good faith.
"Lien" means, with respect to any Person, any mortgage, pledge, lien,
encumbrance, easement, restriction, covenant, right-of-way, charge or adverse
claim affecting title or resulting in an encumbrance against real or personal
property of such Person, or a security interest of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option, right of first refusal or other similar agreement to
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sell, in each case securing obligations of such Person and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statute or statutes) of any jurisdiction).
"Material Change" means an increase or decrease of more than 10% during a
fiscal quarter in the discounted future net cash flows (excluding changes that
result solely from changes in prices) from proved oil and gas reserves of the
Company and consolidated Subsidiaries (before any state or federal income tax);
provided, however, that the following will be excluded from the Material Change
calculation: (i) any acquisitions during the quarter of oil and gas reserves
that have been estimated by independent petroleum engineers and on which a
report or reports exist, (ii) any reserves added during the quarter attributable
to the drilling or recompletion of wells not included in previous reserve
estimates, but which will be included in future quarters, and (iii) any
disposition of properties existing at the beginning of such quarter that have
been disposed of as provided in "Limitation on Disposition of Assets".
"Material Subsidiary" means any Subsidiary of the Company which, as of the
relevant date of determination, would be a "significant subsidiary" as defined
in Reg. Section 230.405 promulgated pursuant to the Securities Act as in effect
on the Issue Date, assuming the Company is the "registrant" referred to in such
definition, except that the 10% amounts referred to in such definition shall be
deemed to be 5%.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Available Proceeds" means, with respect to any Asset Disposition of
any Person, cash proceeds received (including any cash proceeds received by way
of deferred payment of principal pursuant to a note or installment receivable or
otherwise, but only as and when received, and excluding any other consideration
until such time as such consideration is converted into cash) therefrom, in each
case net of all legal, title and recording tax expenses, commissions and other
fees and expenses incurred, and all federal, state or local taxes required to be
accrued as a liability as a consequence of such Asset Disposition, and in each
case net of all Indebtedness which is secured by such Assets, in accordance with
the terms of any Lien upon or 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 and
which is actually so repaid.
"Net Proceeds" means (a) in the case of any sale by the Company of
Qualified Capital Stock, the aggregate net cash proceeds received by the
Company, after payment of expenses, commissions and the like incurred in
connection therewith, and (b) in the case of any exchange, exercise, conversion
or surrender of any outstanding securities or Indebtedness of the Company for or
into shares of Qualified Capital Stock of the Company, the net book value of
such outstanding securities or Indebtedness as adjusted on the books of the
Company on the date of such exchange, exercise, conversion or surrender (plus
any additional amount required to be paid by the holder of such Indebtedness or
securities to the Company upon such exchange, exercise, conversion or surrender
and less any and all payments made to the holders of such Indebtedness or
securities, and all other expenses incurred by the Company in connection
therewith).
"Net Working Capital" means (i) all current assets of the Company and its
consolidated Subsidiaries, minus (ii) all current liabilities of the Company and
its consolidated Subsidiaries, except current liabilities included in
Indebtedness.
"Non-Recourse Indebtedness" means Indebtedness that, under the terms
thereof or pursuant to applicable law, neither the Company nor any Subsidiary of
the Company (other than a Subsidiary being designated as an Unrestricted
Subsidiary) is directly or indirectly liable for and there is no recourse
against any of the assets or properties of the Company or such Subsidiary.
"Obligations" mean the due and punctual payment of principal of and
interest on the Securities when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Company under
the Indenture and the Notes and the due and punctual performance of all other
obligations of the Company under the Indenture and the Notes.
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"Oil and Gas Properties" means all Properties, including equity or other
ownership interests therein, owned by such Person which have been assigned
"proved oil and gas reserves" as defined in Rule 4-10 of Regulation S-X of the
Securities Act as in effect on the Issue Date.
"Permitted Acquisition Indebtedness" means Indebtedness of the Company or
any Subsidiary to the extent such Indebtedness is incurred to finance the
acquisition of Oil and Gas Properties (and development costs related thereto)
and does not exceed the principal amount of $50 million with respect to any such
acquisition transaction or series of related acquisition transactions, if on the
date of the incurrence (i) (A) the Adjusted Consolidated Net Tangible Assets
acquired are equal to or greater than 200% of the Indebtedness incurred, and (B)
the Adjusted Consolidated Net Tangible Assets of the Company (after giving
effect to such acquisition) are equal to or greater than 125% of the
consolidated Indebtedness of the Company and its Subsidiaries, or (ii) (A) the
Property Net Revenue Coverage Ratio would have been equal to or greater than 2.5
to 1.0, (B) the Adjusted Consolidated Net Tangible Assets acquired are equal to
or greater than 150% of the Indebtedness incurred, and (C) the Adjusted
Consolidated Net Tangible Assets of the Company (after giving effect to such
acquisition) are equal to or greater than 125% of the consolidated Indebtedness
of the Company and its Subsidiaries.
"Permitted Contango Market Transaction Obligations" means Indebtedness of
the Company or any 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 Subsidiary by the Company or any other Subsidiary, as applicable, related to
a Contango Market Transaction, provided that, (1) if the Company or such
Subsidiary has entered into such a contract to resell at a subsequent date, as
distinguished from establishing a position using New York Mercantile Exchange
Crude Oil Future contracts to resell at a subsequent date, (A) the Person with
which the Company or such Subsidiary has such contract to sell has an investment
grade credit rating by S&P or Moody's, or in lieu thereof, a Person guaranteeing
the payment of such obligated Person has an investment grade credit rating by
S&P or Moody's, or (B) such Person posts a letter of credit in favor of the
Company or such Subsidiary with respect to such contract and (2) for the period
commencing on the date the Company or such Subsidiary is obligated to take
delivery of such Hydrocarbons so purchased by it and until and including the
date on which delivery to the purchaser is fulfilled, the Company or such
Subsidiary has the right and ability to store such quantity and quality of
Hydrocarbons in storage facilities owned, leased, operated or otherwise
controlled by the Company or any Subsidiary.
"Permitted Indebtedness" means (i) Indebtedness under the Outstanding
Notes and any Exchange Note issued in exchange for Outstanding Notes of equal
principal amount; (ii) Indebtedness outstanding in an aggregate principal amount
at any one time outstanding not to exceed $100 million under the Bank Credit
Agreement, plus all interest and fees under such agreements and any guarantee of
any such Indebtedness; (iii) the Guarantees of the Notes (and any assumption of
the obligations guaranteed thereby); (iv) Permitted Refinancing Indebtedness;
(v) Indebtedness of the Company to any Wholly Owned Subsidiary, and any
Indebtedness of any Wholly Owned Subsidiary to the Company or to any Wholly
Owned Subsidiary of the Company; provided, that in each case, such Indebtedness
has not been incurred in contemplation of any subsequent issuance or transfer of
any Capital Stock or any other event which would result in any such Wholly Owned
Subsidiary ceasing to be a Wholly Owned Subsidiary or any other subsequent
transfer of any such Indebtedness (except to the Company or a Wholly Owned
Subsidiary), and if incurred in contemplation of any of the foregoing events,
then such Indebtedness shall be deemed to be incurred and shall be treated as an
incurrence of Indebtedness for purposes of the "Limitation on Indebtedness"
covenant at the time the Wholly Owned Subsidiary in question ceased to be a
Wholly Owned Subsidiary; (vi) Permitted Marketing Obligations and Permitted
Contango Market Transaction Obligations; (vii) Permitted Acquisition
Indebtedness; (viii) Permitted Operating Obligations; (ix) other Indebtedness
outstanding at any time in an aggregate principal amount not to exceed the
greater of $15 million or 2.5% of Adjusted Consolidated Net Tangible Assets of
the Company; and (x) Indebtedness outstanding on the Issue Date. Permitted
Refinancing Indebtedness that constitutes a refinancing of amounts referred to
in clauses (ii) and (ix) shall be deemed to be incurred pursuant to and subject
to the limitations in clauses (ii) and (ix), respectively. The Company may elect
at any time that amounts of Indebtedness incurred under clauses (ii) or (ix) be
deemed to be incurred pursuant to the first paragraph of the "Limitation on
Incurrence of Additional Indebtedness" covenant (if then permitted to be so
incurred), in which event such amounts so incurred shall be deemed not to be
incurred under clause (ii) or (ix); provided, however, any such
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Indebtedness deemed not to be incurred under clause (ii) shall still be treated
as Indebtedness under and governed by the Bank Credit Agreement for purposes of
all other provisions of the Indenture.
"Permitted Industry Investments" means (i) capital expenditures,
including, without limitation, acquisitions of Company Properties and interests
therein; (ii)(a) entry into operating agreements, joint ventures, working
interests, royalty interests, mineral leases, unitization agreements, pooling
arrangements or other similar or customary agreements, transactions, properties,
interests or arrangements, and Investments and expenditures in connection
therewith or pursuant thereto, in each case made or entered into in the ordinary
course of the oil and gas business, or (b) exchanges of Company Properties for
other Company Properties of at least equivalent value as determined in good
faith by the Board of Directors of the Company; (iii) Investments by the Company
or any Subsidiary in any Subsidiary (or in any Person that becomes a Subsidiary
as a result of such Investment) that are not subject to any Payment Restriction;
(iv) Investments in the Company or another Subsidiary that are not subject to
any Payment Restriction by any Subsidiary; and (v) Investments of operating
funds on behalf of co-owners of Oil and Gas Properties of the Company or the
Subsidiaries pursuant to joint operating agreements.
"Permitted Investments" means Permitted Obligations and Permitted Industry
Investments (in each case, other than Investments in Unrestricted Subsidiaries).
"Permitted Liens" means (i) Liens for taxes, assessments and governmental
charges not yet delinquent or being contested in good faith and for such
adequate reserves have been established to the extent required by GAAP, (ii)
landlord's, carriers, warehouseman's, storage, mechanics', workmen's,
materialmen's, operator's or similar Liens arising in the ordinary course of
business, (iii) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the use
of Company Properties or minor imperfections in title thereto which, in the
aggregate, are not material in amount, and which do not in any case materially
detract from the Company Properties subject thereto or interfere with the
ordinary conduct of the business of the Company or the Subsidiaries, (iv) Liens
on, or related to, Properties to secure all or part of the costs incurred in the
ordinary course of business of exploration, drilling, development, production,
processing, transportation, marketing or storage, or operation thereof, (v)
Liens on pipeline or pipeline facilities, Hydrocarbons or Company Properties
which arise out of operation of law, (vi) judgment and attachment Liens not
giving rise to an Event of Default or Liens created by or existing from any
litigation or legal proceeding that are currently being contested in good faith
by appropriate proceedings and for which adequate reserves have been made, (vii)
(a) Liens upon any Property of any Person existing at the time of acquisition
thereof by the Company, (b) Liens upon any Property of a Person existing at the
time such Person is merged or consolidated with the Company or any Subsidiary or
existing at the time of the sale or transfer of any such Property of such Person
to the Company or any Subsidiary, or (c) Liens upon any Property of a Person
existing at the time such Person becomes a Subsidiary; provided that in each
case such Lien has not been created in contemplation of such sale, merger,
consolidation, transfer or acquisition, and provided further that in each such
case no such Lien shall extend to or cover any Property of the Company or any
Subsidiary other than the Property being acquired and improvements thereon,
(viii) Liens existing on the Issue Date, (ix) Liens on deposits made in the
ordinary course of business, including, without limitation, pledges or deposits
under worker's compensation, unemployment insurance and other social security
legislation and deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a similar nature
incurred in the ordinary course of business, (x) Liens in favor of collecting or
payor banks having a right of setoff, revocation, refund or chargeback with
respect to money or instruments of the Company or any Subsidiary on deposit with
or in possession of such bank, (xi) royalties, overriding royalties, revenue
interests, net revenue interests, net profit interests, reversionary interests,
production payments, production sales contracts, operating agreements and other
similar interests, properties, arrangements and agreements, all as ordinarily
exist with respect to Company Properties, (xii) Liens upon any Property which
were created solely for the purpose of securing Indebtedness representing, or
incurred to finance, refinance or refund, the cost (including the cost of
construction) of such Property; provided that no such Lien shall extend to or
cover any Property of the Company or any Subsidiary other than the Property so
acquired and improvements thereon, (xiii) Liens securing Senior Indebtedness or
Guarantor Senior Indebtedness, whether in whole or part thereof, (xiv) with
respect to any Company Properties, Liens arising under, or in connection with,
or related to, farm-out, farm-in, joint operating, area of mutual interest
agreements and/or other similar or customary
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arrangements, agreements or interests that the Company or any Subsidiary
determines in good faith to be necessary for the economic development of such
Property, and (xv) Liens upon any Property securing obligations under hedging
agreements, swap agreements or other similar agreements entered into for the
purpose of protecting against fluctuations in oil or natural gas prices.
"Permitted Marketing Obligations" means, other than Permitted Operating
Obligations or Indebtedness relating to Contango Market Transactions,
Indebtedness of the Company or any 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 Subsidiary by any other Subsidiary or the Company, as applicable,
related to the purchase by the Company or any Subsidiary of Hydrocarbons for
which the Company or such Subsidiary has contracts to sell; provided, that in
the event that such Indebtedness or obligations are guaranteed by the Company or
any Subsidiary, then either (i) the Person with which the Company or such
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 and such Subsidiary with respect to all of such Person's obligations to
the Company or such Subsidiary under such contracts.
"Permitted Obligations" means (a) the following kinds of instruments if,
in the case of instruments referred to in clauses (i)-(iv) below, on the date of
purchase or other acquisition of any such instrument by the Company or any
Subsidiary, the remaining term to maturity is not more than one year: (i)
readily marketable obligations issued or unconditionally guaranteed as to
principal and interest by the United States of America or by any agency or
authority controlled or supervised by and acting as an instrumentality of the
United States of America; (ii) repurchase obligations for instruments of the
type described in clause (i) for which delivery of the instrument is made
against payment; (iii) obligations (including, but not limited to, demand or
time deposits, bankers' acceptances and certificates of deposit) issued by a
depository institution or trust company incorporated or doing business under the
laws of the United States of America, any state thereof or the District of
Columbia or a branch or subsidiary of any such depository institution or trust
company operating outside the United States, provided that such depository
institution or trust company has, at the time of the Company's or such
Subsidiary's investment therein or contractual commitment providing for such
investment, capital, surplus or undivided profits (as of the date of such
institution's most recently published financial statements), in excess of
$100,000,000; and (iv) commercial paper issued by any Person, if such commercial
paper has, at the time of the Company's or any Subsidiary's investment therein
or contractual commitment providing for such investment, credit ratings of A-1
by S&P and P-1 by Moody's; and (b) money market mutual or similar funds having
assets in excess of $100,000,000.
"Permitted Operating Obligations" means Indebtedness of the Company or any
Subsidiary in respect of one or more standby letters of credit, bid, performance
or surety bonds, or other reimbursement obligations, issued for the account of,
or entered into by, the Company or any Subsidiary in the ordinary course of
business (excluding obligations related to the purchase by the Company or any
Subsidiary of Hydrocarbons for which the Company or such Subsidiary has
contracts to sell), or in lieu of any thereof or in addition to any thereto,
guarantees and letters of credit supporting any such obligations and
Indebtedness (in each case, other than for an obligation for borrowed money,
other than borrowed money represented by any such letter of credit, bid,
performance or surety bond, or reimbursement obligation itself, or any guarantee
and letter of credit related thereto).
"Permitted Production Payment Obligations" means obligations with respect
to production payments entered into in the ordinary course of the Company's or
any Subsidiary's business, which obligations are non-recourse to the Company and
its Subsidiaries other than to Hydrocarbon production from the properties
subject to such obligations.
"Permitted Refinancing Indebtedness" means (a) Senior Indebtedness of the
Company or any Subsidiary, the net proceeds of which are used solely to renew,
extend, refinance, refund or repurchase outstanding Notes, including the amount
of reasonable fees and expenses and premium, if any, incurred by the Company or
such Subsidiary in connection therewith; or (b) Indebtedness of the Company or
any Subsidiary, the net proceeds of which are used to renew, extend, refinance,
refund or repurchase (including, without limitation, pursuant to a Change of
Control Offer as required by the terms of the Notes) outstanding Indebtedness of
the Company or any Subsidiary, provided
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that (i) if the Indebtedness (including the Notes) being renewed, extended,
refinanced, refunded or repurchased is pari passu with or subordinated in right
of payment to either the Notes or the Subsidiary Guarantees, then such
Indebtedness is pari passu with or subordinated in right of payment to, as the
case may be, the Notes or the Subsidiary Guarantees at least to the same extent
as the Indebtedness being renewed, extended, refinanced, refunded or
repurchased, (ii) such Indebtedness is scheduled to mature no earlier than the
Indebtedness being renewed, extended, refinanced, refunded or repurchased, and
(iii) such Indebtedness has an Average Life at the time such Indebtedness is
incurred that is greater than the Average Life of the Indebtedness being
renewed, extended, refinanced, refunded or repurchased; provided, further, that
such Indebtedness (to the extent that such Indebtedness constitutes Permitted
Refinancing Indebtedness) is in an aggregate principal amount (or, if such
Indebtedness is issued at a price less than the principal amount thereof, the
aggregate amount of gross proceeds therefrom is) not in excess of the aggregate
principal amount then outstanding of the Indebtedness being renewed, extended,
refinanced, refunded or repurchased (or if the Indebtedness being renewed,
extended, refinanced, refunded or repurchased was issued at a price less than
the principal amount thereof, then not in excess of the amount of liability in
respect thereof determined in accordance with GAAP) plus the amount of
reasonable fees and expenses and premium, if any, incurred by the Company or
such Subsidiary in connection therewith.
"Permitted Unrestricted Subsidiary Investments" means Investments in
Unrestricted Subsidiaries in a cumulative aggregate amount (in cash or the fair
market value of property other than cash, as determined in good faith by the
Board of Directors of the Company) not to exceed the sum of (i) $25 million and
(ii) cash or cash equivalent distributions made from any Unrestricted Subsidiary
and received, after the Issue Date, as such by the Company, provided that any
amount included in this clause (ii) shall be deducted from any amounts referred
to in clause (y)(3) of the "Limitation on Restricted Payments" covenant.
Notwithstanding the foregoing, Permitted Unrestricted Subsidiary Investments
shall also include any Investments in Unrestricted Subsidiaries to the extent
such Investment consists of (A) Qualified Capital Stock of the Company or (B)
amounts referred to in clause (y)(2) of the "Limitation on Restricted Payments"
covenant, which Investments shall be excluded from the sum in the previous
sentence, provided that the amount of any Investments pursuant to clause (B)
shall be deducted from amounts referred to in clause (y)(2) of the "Limitation
on Restricted Payments" covenant.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.
"Post-Commencement Amounts" means all interest and fees accrued or
accruing after the commencement of any Insolvency or Liquidation Proceeding in
accordance with and at the contract rate (including, without limitation, any
non-usurious rate applicable upon default) and all premiums, expenses (including
costs of collection), indemnities and other amounts that would have accrued or
been incurred after the commencement of any Insolvency or Liquidation Proceeding
in any case as specified in any agreement or instrument creating, evidencing, or
governing any Senior Indebtedness or any Guarantor Senior Indebtedness, as the
case may be, whether or not, pursuant to applicable law or otherwise, the claim
for such interest, fees, premiums, expenses, indemnities or other amounts is
allowed and non-avoidable as a claim in such Insolvency or Liquidation
Proceeding.
"Prior Indenture" means the Indenture dated as of October 1, 1992, among
the Company, the "Subsidiary Guarantors" (as therein defined) and Texas Commerce
Bank National Association, successor to Ameritrust Texas National Association,
as trustee, and providing for the issue of the Company's 12% Senior Subordinated
Notes due 1999 in the aggregate principal amount of $100 million.
"pro forma" means, with respect to any calculation made or required to be
made pursuant to the terms of the Indenture, a calculation in accordance with
Article 11 of Regulation S-X under the Securities Act, as amended.
"Property" means, with respect to any Person, any interest of such Person
in any kind of property or asset, whether real, personal or mixed, or tangible
or intangible, including, without limitation, Capital Stock, partnership
interests and other equity or ownership interests in any other Person.
"Property Net Revenue Coverage Ratio" means, with respect to Property to
be acquired by the Company or any Subsidiary, the ratio of (i) the amount equal
to (A) the revenues attributable to the sale of Hydrocarbons from such Property
for the most recent four full fiscal quarters for which financial information is
available immediately
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prior to the acquisition date, (the "Pro Forma Period") minus (B) the production
and general and administrative expenses attributable to such Property during the
Pro Forma Period (the "Property Net Revenue") to (ii) the aggregate Fixed
Charges the Company or any Subsidiary will accrue during the fiscal quarter in
which the acquisition date occurs and the three fiscal quarters immediately
subsequent to such fiscal quarter as a result of Indebtedness incurred for the
purpose of making such acquisition (as though all such Indebtedness was incurred
or repaid on the first day of the quarter in which the acquisition date occurs).
For purposes of this definition, Property Net Revenue shall be calculated, after
giving effect on a pro forma basis for the Pro Forma Period, to (a) any
adjustments in revenues from the sale of Hydrocarbons as a result of fixed price
or other contract arrangements entered into as of the acquisition date and (b)
any adjustments in production and general and administrative expenses which are
fixed or determinable as of the acquisition date.
"Public Equity Offering" means an underwritten public offer and sale of
common stock (that is Qualified Capital Stock) of the Company pursuant to a
registration statement that has been declared effective by the Commission
pursuant to the Securities Act (other than a registration statement on Form S-8
or otherwise relating to equity securities issuable under any employee benefit
plan of the Company).
"Qualified Capital Stock" means any Capital Stock that is not Disqualified
Capital Stock.
"Rating Agency" means S&P and Moody's or, if S&P or Moody's shall have
ceased to be a "nationally recognized statistical rating organization" (as
defined in Rule 436 under the Act) or shall have ceased to make publicly
available a rating on any outstanding securities of any company engaged
primarily in the oil and gas business, such other organization or organizations,
as the case may be, then making publicly available a rating on the Notes as is
selected by the Company.
"Rating Date" means, in respect of each Change of Control, the date that
is immediately prior to the date of the first public announcement of an event or
series of events that results in a Change of Control.
"Rating Decline" means the occurrence on any date following the Rating
Date and prior to a date that is 90 days after the occurrence of a corresponding
Change of Control (which period shall be deemed to be extended so long as prior
to the end of such 90-day period and continuing thereafter the rating of the
Notes is under publicly announced consideration for possible downgrade by either
Rating Agency) of either of the following: (i) the rating of the Notes by either
Rating Agency within such period shall be at least one gradation below the
rating of the Notes by such Rating Agency on the Rating Date, or (ii) either
Rating Agency shall withdraw its ratings of the Notes. A gradation shall include
changes within rating categories (e.g., with respect to S&P a decline in a
rating from BB+ to BB, or from B to B-, will constitute a decrease of one
gradation).
"Related Person" means (i) any Affiliate of the Company, (ii) any
individual or other Person who directly or indirectly holds 10% or more of the
combined voting power of the then outstanding Voting Stock of the Company, (iii)
any relative of any individual referred to in clauses (i), (ii) and (iv) hereof
by blood, marriage or adoption not more remote than first cousin and (iv) any
officer or director of the Company.
"Restricted Debt Prepayment" means any purchase, redemption, defeasance
(including, but not limited to, in substance or legal defeasance) or other
acquisition or retirement for value, directly or indirectly, by the Company or a
Subsidiary, prior to the scheduled maturity or prior to any scheduled repayment
of principal or sinking fund payment, as the case may be, in respect of
Indebtedness of the Company or any Subsidiary that is subordinate in right to
the Notes or the Guarantees, provided, however, that any such acquisition shall
be deemed not to be a Restricted Debt Prepayment to the extent it is made (x) in
exchange for or with the proceeds from the substantially concurrent issuance of
Qualified Capital Stock or (y) in exchange for or with the proceeds from the
substantially concurrent issuance of Indebtedness, in a principal amount (or, if
such Indebtedness provides for an amount less than the principal amount thereof
to be due and payable upon the acceleration thereof, with an original issue
price) not to exceed the lesser of (i) the principal amount of Indebtedness
being acquired in exchange therefor (or with the proceeds therefrom) and (ii) if
such Indebtedness being acquired was issued at an original issue discount, the
original issue price thereof plus amortization of the original issue discount at
the time of the incurrence of the Indebtedness being issued in exchange therefor
(or the proceeds of which will finance such acquisition), and
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provided further that any such Indebtedness shall have an Average Life not less
than the Average Life of the Indebtedness being acquired, and shall contain
subordination and default provisions no less favorable, in any material respect,
to holders of the Securities than those contained in such Indebtedness being
acquired.
"Restricted Payment" means any (i) Stock Payment, (ii) Investment (other
than Permitted Investments and other than Permitted Unrestricted Subsidiary
Investments) or (iii) Restricted Debt Prepayment.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Senior Indebtedness" means all Indebtedness of the Company (present and
future) created, incurred, assumed or guaranteed by the Company (and all
renewals, extensions or refundings thereof) (including the principal of,
interest on and fees, premiums, expenses (including costs of collection),
indemnities and other amounts payable in connection with such Indebtedness, and
including any Post-Commencement Amounts), unless the instrument governing such
Indebtedness expressly provides that such Indebtedness is not senior or superior
in right of payment to the Securities. Notwithstanding the foregoing, Senior
Indebtedness of the Company does not include (i) any Indebtedness of the Company
to any Subsidiary or any Unrestricted Subsidiary, and (ii) any amounts payable
or other liabilities to trade creditors.
"Stock Payment" means, with respect to any Person, (a) the declaration or
payment by such Person, either in cash or in property, of any dividend on
(except, in the case of the Company, dividends payable solely in Qualified
Capital Stock of the Company), or the making by such Person or any of its
subsidiaries of any other distribution in respect of, such Person's Capital
Stock or any warrants, rights or options to purchase or acquire shares of any
class of such Capital Stock (except for the issuance of Qualified Capital Stock
pursuant to the exercise thereof), or (b) the redemption, repurchase, retirement
or other acquisition for value by such Person or any of its subsidiaries,
directly or indirectly, of such Person's or any of its subsidiaries' Capital
Stock or any warrants, rights or options to purchase or acquire shares of any
class of such Capital Stock other than, in the case of the Company, through the
issuance in exchange therefor solely of Qualified Capital Stock of the Company;
provided, however, that in the case of a Subsidiary, the term "Stock Payment"
shall not include (i) any such payment with respect to its Capital Stock or
warrants, rights or options to purchase or acquire shares of any class of its
Capital Stock payable to the Company or a Wholly Owned Subsidiary, or (ii) the
payment of pro rata dividends to holders of minority interests in Capital Stock
of a Subsidiary.
A "subsidiary" of any Person means (i) a corporation a majority of whose
Voting Stock is at the time, directly or indirectly, owned by such Person, by
one or more wholly-owned subsidiaries of such Person or by such Person and one
or more wholly-owned subsidiaries of such Person, (ii) a partnership in which
such Person or a wholly-owned subsidiary of such Person is, at the date of
determination, a general or limited partner of such partnership, but only if
such Person or its wholly-owned subsidiary is entitled to receive more than
fifty percent of the assets of such partnership upon its dissolution, or (iii)
any other Person (other than a corporation or partnership) in which such Person,
a wholly-owned subsidiary of such Person or such Person and one or more
wholly-owned subsidiaries of such Person, directly or indirectly, at the date of
determination thereof, has (x) at least a majority ownership interest or (y) the
power to elect or direct the election of a majority of the directors or other
governing body of such Person.
"Subsidiary" means any subsidiary of the Company; provided, that an
Unrestricted Subsidiary shall not be deemed a subsidiary of the Company for
purposes of the Indenture.
"Subsidiary Guarantor" means (i) Calumet Florida, Inc., a Delaware
corporation, Plains Illinois Inc., a Delaware corporation, Plains Marketing &
Transportation Inc., a Delaware corporation, Plains Resources International
Inc., a Delaware corporation, PRI Producing Inc., a Delaware corporation, PLX
Crude Lines Inc., a Delaware corporation, PLX Ingleside Inc., a Delaware
corporation, Stocker Resources, Inc., a California corporation, Stocker
Resources, L.P., a California limited partnership, and Plains Terminal &
Transfer Corporation, a Delaware corporation, (ii) each of the Company's
Subsidiaries that becomes a guarantor of the Notes in compliance with the
provisions of the Indenture and (iii) each of the Company's Subsidiaries
executing a supplemental indenture in which such Subsidiary agrees to be bound
by the terms of the Indenture.
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"Unrestricted Subsidiary" means (1) any subsidiary of the Company which at
the time of determination shall be an Unrestricted Subsidiary (as designated by
the Board of Directors of the Company, as provided below) and (2) any subsidiary
of an Unrestricted Subsidiary. The Board of Directors of the Company may
designate any subsidiary of the Company (including any newly acquired or newly
formed subsidiary or a Person becoming a subsidiary through merger or
consolidation or Investment therein) to be an Unrestricted Subsidiary only if:
(A) such subsidiary does not own any Capital Stock of, or own or hold any Lien
on any property of, any other subsidiary of the Company which is not a
subsidiary of the subsidiary to be so designated or otherwise an Unrestricted
Subsidiary; (B) all the Indebtedness of such subsidiary shall at the date of
designation, and will at all times thereafter consist of, Non-Recourse
Indebtedness; (C) the Company certifies that such designation complies with the
"Limitation on Restricted Payments" covenant; and (D) such subsidiary, either
alone or in the aggregate with all other Unrestricted Subsidiaries, does not
operate, directly or indirectly, all or substantially all of the business of the
Company and the Subsidiaries. Any such designation by the Board of Directors of
the Company shall be evidenced to the Trustee by filing with the Trustee a Board
Resolution of the Board of Directors of the Company giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions. If, at any time, such Unrestricted
Subsidiary would fail to meet the foregoing requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of the Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred as of such date. The Board of Directors of the Company may
designate any Unrestricted Subsidiary to be a Subsidiary; provided that
immediately after giving effect to such designation, the Company could incur at
least $1.00 of additional Indebtedness (excluding Permitted Indebtedness)
pursuant to the first paragraph of the "Limitation on Incurrence of Additional
Indebtedness" covenant on a pro forma basis taking into account such
designation.
"Voting Stock" means, with respect to any Person, securities of any class
or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
board of directors or other governing body of such Person.
"Wholly Owned Subsidiary" means a Subsidiary all the Capital Stock (other
than directors' qualifying shares, if applicable) of which is owned by the
Company or another Wholly Owned Subsidiary.
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PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange 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 Exchange Notes. The 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 Notes received in exchange
for Outstanding Notes where such Outstanding Notes were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that for a period of 90 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 ________, 1996, all
dealers effecting transactions in the Exchange Notes may be required to deliver
a prospectus.
The Company will not receive any proceeds from any sales of the Exchange
Notes by broker-dealers. Exchange 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 Exchange 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 negotiated prices. Any such resale
may be made directly to purchase or to or through brokers or dealer who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Notes. Any
broker-dealer that resells the Exchange 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 Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act, and any profit on any
such resale of Exchange Notes and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. A broker-dealer that delivers such a prospectus to purchasers in connection
with such resales will be subject to certain of the civil liability provisions
under the Securities Act and will be bound by the provisions of the Registration
Rights Agreement (including certain indemnification rights and obligations).
For a period of 90 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 certain expenses
incident to the Exchange Offer, other than commissions or concession 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.
By acceptance of this Exchange Offer, each broker-dealer that receives
Exchange Notes for its own account pursuant to the Exchange Offer agrees that,
upon receipt of notice from the Company of the happening of any event which
makes any statement in the Prospectus untrue in any material respect or which
request the making of any changes in the Prospectus in order to make the
statements therein not misleading (which notice the Company agrees to deliver
promptly to such broker-dealer), such broker-dealer will suspend use of the
Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission and has furnished copies of the amended or
supplemental Prospectus to such broker-dealer. If the Company shall give any
such notice to suspend the use of the Prospectus, it shall extend the 90-day
period referred to above by the number of days during the period from and
including the date of the giving of such notice to and including when
broker-dealers shall have received copies of the supplemented or amended
Prospectus necessary to permit resales of the Exchange Notes.
63
<PAGE> 67
LEGAL MATTERS
The validity of the Exchange Notes will be passed upon for the Company by
Michael R. Patterson, Esq., its general counsel. Mr. Patterson beneficially owns
114,437 shares of the Company's Common Stock.
EXPERTS
The Consolidated Financial Statements of the Company as of December 31,
1995, and for the year then ended, and the Statement of Revenues and Direct
Operating Expenses of the Illinois Basin Properties, incorporated by reference
into this Prospectus, have been so incorporated by reference herein in
reliance on the report of Price Waterhouse LLP, independent accountants, given
on authority of said firm as experts in auditing and accounting
Information relating to the estimated proved reserves of oil and natural
gas and the related estimates of future net revenues and present values thereof
for certain periods, incorporated by reference into this Prospectus, has been
prepared by Netherland, Sewell & Associates, Inc., H. J. Gruy and Company and
Ryder Scott Company, independent petroleum engineers, and is incorporated by
reference herein in reliance upon the authority of such firms as experts in
petroleum engineering.
64
<PAGE> 68
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Tenth of the Company's Second Restated Certificate of
Incorporation provides that the Company shall indemnify to the full extent
authorized or permitted by law any person made, or threatened to be made, a
party to any action, suit or proceeding (whether civil, criminal or otherwise)
by reason of fact that he, his testator or intestate, is or was a director or
officer of the Company or by reason of the fact that such director or officer,
at the request of the Company, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, in
any capacity. The rights to indemnification set forth above are not exclusive of
any other rights to which such person may be entitled under any statute,
provision of the Company's Restated Certificate of Incorporation or bylaws,
agreements, vote of stockholders or disinterested directors or otherwise.
Additionally, Article VIII of the Company's Bylaws provides for
mandatory indemnification to at least the extent specifically allowed by Section
145 of the General Corporation Law of the State of Delaware (the "GCL"). The
Bylaws generally follow the language of Section 145 of the GCL, but in addition
specify that any director, officer, employee or agent may apply to any court of
competent jurisdiction in the State of Delaware for indemnification to the
extent otherwise permissible under the Bylaws, notwithstanding any contrary
determination denying indemnification made by the Board, by independent legal
counsel, or by the stockholders, and notwithstanding the absence of any
determination with respect to indemnification. The Bylaws also specify certain
circumstances in which a finding is required that the person seeking
indemnification acted in good faith, for purposes of determining whether
indemnification is available. Under the Bylaws, a person shall be deemed to have
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, or, with respect to any criminal
action or proceeding, to have had no reasonable cause to believe his conduct was
unlawful, if his action is based on the records or books of account of the
Company or another enterprise, or on information supplied to him by the officers
of the Company or another enterprise in the course of their duties, or on the
advice of legal counsel for the Company or another enterprise or on information
or records given or reports made to the Company or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Company or another enterprise.
Pursuant to Section 145 of the GCL, the Company generally has the power
to indemnify its current and former directors, officers, employees and agents
against expenses and liabilities incurred by them in connection with any suit to
which they are, or are threatened to be made, a party by reason of their serving
in such positions so long as they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
Company, and with respect to any criminal action, they had no reasonable cause
to believe their conduct was unlawful. With respect to suits by or in the right
of the Company, however, indemnification is generally limited to attorneys' fees
and other expenses and is not available if such person is adjudged to be liable
to the Company unless the court determines that indemnification is appropriate.
The statute expressly provides that the power to indemnify authorized thereby is
not exclusive of any rights granted under any bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise. The Company also has the
power to purchase and maintain insurance for such persons.
The above discussion of the Company's Restated Certificate of
Incorporation and Bylaws and Section 145 of the GCL is not intended to be
exhaustive and is qualified in its entirety by each of such documents and such
statute.
The Company has entered into an employment agreement containing
indemnification provisions with Mr. Armstrong, its President and Chief Executive
Officer. Pursuant to such agreement, the Company has agreed to indemnify and
hold him harmless to the fullest extent permitted by law, from any loss, damage
or liability incurred in the course of his employment. The amount paid by the
Company is reducible by the amount of insurance paid
II-1
<PAGE> 69
to or on behalf of such officer with respect to any event giving rise to
indemnification. Such officer's right to indemnification is to survive his death
or termination of employment and the termination of his employment agreement.
The Board recently authorized an employment agreement with Mr. Egg, Senior Vice
President of the Company, which, as authorized, will have indemnification
provisions substantially the same as those of Mr. Armstrong's agreement
described above.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
4 -- Indenture dated as of March 15, 1996, among Plains
Resources Inc., the Subsidiary Guarantors named
therein and Texas Commerce Bank National
Association, as Trustee (incorporated by reference
to Exhibit 4(b) to Registration No. 333-1851).
5+ -- Opinion of Michael R. Patterson, Esq.
12+ -- Computation of Ratio of Earnings to Fixed Charges.
23(a)+ -- Consent of Michael R. Patterson, Esq. (contained
in Exhibit 5).
23(b)+ -- Consent of Price Waterhouse LLP.
23(c)+ -- Consent of Netherland, Sewell & Associates, Inc.
23(d)+ -- Consent of H. J. Gruy and Company.
23(e)+ -- Consent of Ryder Scott Company.
24+ -- Powers of Attorney (contained on pages through
of this Registration Statement).
25+ -- Statement of Eligibility of Trustee.
- --------------
+ Filed herewith.
ITEM 22. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement 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.
(b) The undersigned registrant hereby undertakes 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 includes information contained in
documents filed subsequent to the effective date of the registration statement
through the date of responding to the request.
(c) The undersigned registrant hereby undertakes 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.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the 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
II-2
<PAGE> 70
jurisdiction the question whether such indemnification by it is against policy
as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 71
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Phillip D. Kramer and Michael R.
Patterson, and each of them, either one of whom may act without joinder of the
other, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all pre- and post-effective amendments to
this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
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 attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any or all of them, may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on the ___ day of _________, 1996.
PLAINS RESOURCES INC.
By:..........................................
Name: Greg L. Armstrong
Title: President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the ___ day of ________, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
..................................... President, Chief Executive Officer and Director
Greg L. Armstrong (Principal Executive Officer)
.....................................
Cynthia A. Feeback Controller and Principal Accounting Officer
..................................... Vice President, Chief Financial Officer and
Phillip D. Kramer Treasurer (Principal Financial Officer)
..................................... Director
Robert A. Bezuch
..................................... Director
Tom H. Delimitros
</TABLE>
II-4
<PAGE> 72
<TABLE>
<S> <C>
............................................ Director
William M. Hitchcock
............................................
Dan M. Krausse Chairman of the Board and Director
............................................ Director
John H. Lollar
............................................ Director
D. Irving Obrow
............................................ Director
Robert V. Sinnott
............................................ Director
J. Taft Symonds
</TABLE>
II-5
<PAGE> 73
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Phillip D. Kramer and Michael R.
Patterson, and each of them, either one of whom may act without joinder of the
other, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all pre- and post-effective amendments to
this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
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 attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any or all of them, may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on the ___ day of _________, 1996.
CALUMET FLORIDA, INC.
By:...................................
Name: Phillip D. Kramer
Title: Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the ___ day of ________, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
............................... President and Director (Principal Executive Officer)
Greg L. Armstrong
............................... Vice President and Director (Principal Financial
Phillip D. Kramer Officer)
............................... Vice President, Secretary an Director
Michael R. Patterson
............................... Treasurer (Principal Accounting Officer)
Cynthia A. Feeback
</TABLE>
II-6
<PAGE> 74
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Phillip D. Kramer and Michael R.
Patterson, and each of them, either one of whom may act without joinder of the
other, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all pre- and post-effective amendments to
this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
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 attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any or all of them, may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on the ___ day of _________, 1996.
PLAINS ILLINOIS INC.
By:...................................
Name: Phillip D. Kramer
Title: Vice President (Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the ___ day of ________, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
............................. President and Director (Principal Executive Officer)
Greg L. Armstrong
............................. Director
William C. Egg, Jr.
............................. Vice President, Secretary and Director
Michael R. Patterson
............................. Treasurer (Principal Accounting Officer)
Cynthia A. Feeback
</TABLE>
II-7
<PAGE> 75
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Phillip D. Kramer and Michael R.
Patterson, and each of them, either one of whom may act without joinder of the
other, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all pre- and post-effective amendments to
this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
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 attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any or all of them, may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on the ___ day of _________, 1996.
PLAINS MARKETING & TRANSPORTATION INC.
By:..............................................
Name: Phillip D. Kramer
Title: Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the ___ day of ________, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
............................... Director
Greg L. Armstrong
............................... President and Director (Principal Executive Officer)
Harry N. Pefanis
............................... Vice President, Secretary and Director
Michael R. Patterson
............................... Treasurer (Principal Accounting Officer)
Cynthia A. Feeback
</TABLE>
II-8
<PAGE> 76
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Phillip D. Kramer and Michael R.
Patterson, and each of them, either one of whom may act without joinder of the
other, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all pre- and post-effective amendments to
this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
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 attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any or all of them, may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on the ___ day of _________, 1996.
PLAINS RESOURCES INTERNATIONAL INC.
By:...............................................
Name: Phillip D. Kramer
Title: Vice President (Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the ___ day of ________, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
........................... President and Chief Executive Officer
William M. Hitchcock
........................... Director
Greg L. Armstrong
........................... Vice President and Director
Phillip D. Kramer
........................... Vice President and Director
G. M. McCarroll
........................... Treasurer (Principal Accounting Officer)
Cynthia A. Feeback
</TABLE>
II-9
<PAGE> 77
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Phillip D. Kramer and Michael R.
Patterson, and each of them, either one of whom may act without joinder of the
other, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all pre- and post-effective amendments to
this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
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 attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any or all of them, may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on the ___ day of _________, 1996.
PRI PRODUCING INC.
By:..............................................
Name: Phillip D. Kramer
Title: Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the ___ day of ________, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
.............................. President, Chief Executive Officer and Director
Greg L. Armstrong
.............................. Vice President, Chief Financial Officer and Director
Phillip D. Kramer
.............................. Vice President, Secretary and Director
Michael R. Patterson
.............................. Treasurer (Principal Accounting Officer)
Cynthia A. Feeback
</TABLE>
II-10
<PAGE> 78
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Phillip D. Kramer and Michael R.
Patterson, and each of them, either one of whom may act without joinder of the
other, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all pre- and post-effective amendments to
this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
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 attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any or all of them, may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on the ___ day of _________, 1996.
PLX CRUDE LINES INC.
By:..................................................
Name: Phillip D. Kramer
Title: Vice President (Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the ___ day of ________, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
............................. Director
Greg L. Armstrong
............................. Vice President and Director
Phillip D. Kramer
............................. President and Director (Principal Executive Officer)
Harry N. Pefanis
............................. Treasurer (Principal Accounting Officer)
Cynthia A. Feeback
</TABLE>
II-11
<PAGE> 79
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Phillip D. Kramer and Michael R.
Patterson, and each of them, either one of whom may act without joinder of the
other, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all pre- and post-effective amendments to
this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
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 attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any or all of them, may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on the ___ day of _________, 1996.
PLX INGLESIDE INC.
By:..............................................
Name: Phillip D. Kramer
Title: Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the ___ day of ________, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
............................. Director
Greg L. Armstrong
............................. Vice President, Secretary and Director
Michael R. Patterson
............................. President and Director (Principal Executive Officer)
Harry N. Pefanis
............................. Treasurer (Principal Accounting Officer)
Cynthia A. Feeback
</TABLE>
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<PAGE> 80
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Phillip D. Kramer and Michael R.
Patterson, and each of them, either one of whom may act without joinder of the
other, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all pre- and post-effective amendments to
this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
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 attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any or all of them, may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on the ___ day of _________, 1996.
STOCKER RESOURCES, INC.
By:.............................................
Name: Phillip D. Kramer
Title: Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the ___ day of ________, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
.............................. President and Chief Executive Officer
Larry T. Morton
.............................. Director
Greg L. Armstrong
.............................. Director
William C. Egg, Jr.
.............................. Vice President, Secretary and Director
Michael R. Patterson
.............................. Treasurer (Principal Accounting Officer)
Cynthia A. Feeback
</TABLE>
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<PAGE> 81
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Phillip D. Kramer and Michael R.
Patterson, and each of them, either one of whom may act without joinder of the
other, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all pre- and post-effective amendments to
this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
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 attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any or all of them, may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on the ___ day of _________, 1996.
PLAINS TERMINAL & TRANSFER CORPORATION
By:..................................................
Name: Phillip D. Kramer
Title: Vice President (Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the ___ day of ________, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
............................ Director
Greg L. Armstrong
............................ Director
Harry N. Pefanis
............................ President and Director (Principal Executive Officer)
Mark F. Shires
............................ Treasurer (Principal Accounting Officer)
Cynthia A. Feeback
</TABLE>
II-14
<PAGE> 82
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Phillip D. Kramer and Michael R.
Patterson, and each of them, either one of whom may act without joinder of the
other, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all pre- and post-effective amendments to
this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
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 attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any or all of them, may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on the ___ day of _________, 1996.
STOCKER RESOURCES, L.P., BY STOCKER RESOURCES,
INC., ITS GENERAL PARTNER
By:..............................................
Name: Phillip D. Kramer
Title: Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the ___ day of ________, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
............................. President and Chief Executive Officer
Larry T. Morton
............................. Director
Greg L. Armstrong
............................. Director
William C. Egg, Jr.
............................. Vice President, Secretary and Director
Michael R. Patterson
............................. Treasurer (Principal Accounting Officer)
Cynthia A. Feeback
</TABLE>
II-15
<PAGE> 83
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL NUMBERED
EXHIBIT PAGE
NUMBER
<S> <C> <C> <C>
4 -- Indenture dated as of March 15, 1996, among Plains Resources Inc., the
Subsidiary Guarantors named therein and Texas Commerce Bank National
Association, as Trustee (incorporated by reference to Exhibit 4(b) to Registration
No. 333-1851).
5+ -- Opinion of Michael R. Patterson, Esq.
12+ -- Computation of Ratio of Earnings to Fixed Charges.
23(a)+ -- Consent of Michael R. Patterson, Esq. (contained in Exhibit 5).
23(b)+ -- Consent of Price Waterhouse LLP.
23(c)+ -- Consent of Netherland, Sewell & Associates, Inc.
23(d)+ -- Consent of H. J. Gruy and Company.
23(e)+ -- Consent of Ryder Scott Company.
24+ -- Powers of Attorney (contained on pages through of this Registration
Statement).
25+ -- Statement of Eligibility of Trustee.
</TABLE>
___________
+ Filed herewith.
<PAGE> 1
EXHIBIT 5
[PLAINS RESOURCES LOGO]
May 3, 1996
Plains Resources Inc.
Calumet Florida, Inc.
Plains Illinois Inc.
Plains Marketing & Transportation Inc.
Plains Resources International Inc.
Plains Terminal & Transfer Corporation
PRI Producing Inc.
PLX Crude Lines Inc.
PLX Ingleside Inc.
Stocker Resources, Inc.
Stocker Resources L.P.
1600 Smith Street
Houston, Texas 77002
Dear Sirs:
I have acted as counsel for Plains Resources Inc., a Delaware
corporation (the "Company"), and the Guarantors (defined below) in connection
with the proposed offer by the Company to exchange (the "Exchange Offer") for
all outstanding 10 1/4% Senior Subordinated Notes Due 2006, Series A ($150
million principal amount outstanding) (the "Outstanding Notes") 10 1/4% Senior
Subordinated Notes Due 2006, Series B ($150 million principal amount) (the
"Exchange Notes"). The Outstanding Notes have been, and the Exchange Notes will
be, issued pursuant to an Indenture dated as of March 15, 1996, (the
"Indenture"), among the Company, the Guarantors and Texas Commerce Bank National
Association, as trustee (the "Trustee"). Calumet Florida, Inc., Plains Illinois
Inc., Plains Marketing & Transportation Inc., Plains Resources International
Inc., Plains Terminal & Transfer Corporation, PRI Producing Inc., PLX Crude
Lines Inc., PLX Ingleside Inc., Stocker Resources Inc., and Stocker Resources
L.P. are collectively referred to as the "Guarantors", and the guarantees by the
Guarantors with respect to the Exchange Notes are collectively referred to as
the "Guarantees".
In connection with such matters I have examined the Indenture, the
Registration Statement on Form S-4, filed by the Company with the Securities and
Exchange Commission, for the registration of the Exchange Notes and the
Guarantees thereof (collectively referred to as the "Securities") under the
Securities Act of 1933 (the Registration Statement as amended at the time it
becomes effective being referred to as the "Registration Statement") and such
corporate records of the Company and the Guarantors, certificates of public
officials and such other documents as I have deemed necessary or appropriate for
the purpose of this opinion.
Based upon the foregoing, subject to the qualifications hereinafter
set forth, and having regard for such legal considerations as I deem relevant, I
am of the opinion that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws
of the State of Delaware;
<PAGE> 2
(ii) Each of the Guarantors has been duly incorporated or
organized and is validly existing as a corporation or
partnership in good standing under the laws of the
jurisdiction in which it is incorporated or organized; and
(iii) The Securities proposed to be issued pursuant to the
Exchange Offer have been duly authorized for issuance and,
subject to the Registration Statement becoming effective
under the Securities Act of 1933, and to compliance with any
applicable state securities laws, when issued, delivered and
sold in accordance with the Exchange Offer and the
Indenture, will be valid and legally binding obligations of
the Company and the Guarantors, enforceable against the
Company and the Guarantors in accordance with their
respective terms.
The opinions expressed herein are subject to the following:
a. The enforceability of the Securities may be limited or
affected by (i) bankruptcy, insolvency, reorganization,
moratorium, liquidation, rearrangement, fraudulent transfer,
fraudulent conveyance and other similar laws (including
court decisions) now or hereafter in effect and affecting
the rights and remedies of creditors generally or providing
for the relief of debtors, (ii) the refusal of a particular
court to grant equitable remedies, including without
limitation specific performance and injunctive relief, and
(iii) general principles of equity (regardless of whether
such remedies are sought in a proceeding in equity or at
law).
b. I express no opinion as to the enforceability of any
provisions of the Securities that would require the
performance thereof in the presence of fraud or illegality
on the part of the holders of the Securities or the Trustee.
The opinions expressed herein are limited exclusively to the laws of
the State of Texas and the General Corporation Law of the State of Delaware.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to me under "Legal Matters" in the
Prospectus forming a part of the Registration Statement.
Sincerely,
/s/ Michael R. Patterson
Michael R. Patterson
Vice President & General Counsel
2
<PAGE> 1
EXHIBIT 12
PLAINS RESOURCES INC.
COMPUTATION OF RATIOS
<TABLE>
<CAPTION>
Pro Forma
Pro Forma As Adjusted
1992 1993 1994 1995 1995 1995
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to combined
fixed charges:
Net Income(loss) before income taxes (3,308) (20,198) 571 2,652 9,589 9,504
------- -------- -------- -------- -------- --------
Fixed charges:
Interest expense 3,776 8,847 12,585 13,606 15,059 15,301
Capitalized interest 1,498 4,303 2,728 3,093 4,593 4,593
Interest portion of rentals 108 118 110 109 111 111
Amortization of debt issue costs 549 922 993 1,128 1,128 971
------- -------- -------- -------- -------- --------
Total fixed charges 5,931 14,190 16,416 17,936 20,891 20,976
Less capitalized interest (1,498) (4,303) (2,728) (3,093) (4,593) (4,593)
------- -------- -------- -------- -------- --------
Earnings before income taxes,
and fixed charges $ 1,125 $(10,311) $ 14,259 $ 17,495 $ 25,887 $ 25,887
======= ======== ======== ======== ======== ========
Ratio of earnings to fixed charges 0.2 -0.7 0.9 1.0 1.2 1.2
======= ======== ======== ======== ======== ========
Earnings deficiency $(4,806) $(24,501) $ (2,157) $ (441) -- --
======= ======== ======== ======== ======== ========
</TABLE>
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of our report
dated February 22, 1996, which appears on page F-2 of Plains Resources Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1995. We also
consent to the incorporation by reference of our report dated February 20,
1996, which appears on page F-1 of Amendment No. 1 on Form 8-K/A dated
February 21, 1996. We also consent to the reference to us under the heading
"Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
Price Waterhouse LLP
Houston, Texas
May 1, 1996
<PAGE> 1
EXHIBIT 23(c)
[NETHERLAND, SEWELL & ASSOCIATES, INC. LETTERHEAD]
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS AND GEOLOGISTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-4 of our reserve report to the interest of
Plains Resources Inc. and Subsidiary (collectively, the Company) dated March 7,
1996, relating to the estimated quantities of certain of the Company's proved
reserves of oil and gas and the related estimates of future net revenue and
present values thereof for certain periods, included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1995, as well as in the
Notes to the Consolidated Financial Statements of the Company in such annual
report. We also consent to the reference to us under the heading of "Experts"
in such Registration Statement.
NETHERLAND, SEWELL & ASSOCIATES, INC.
/s/ FREDERIC D. SEWELL
--------------------------------------
Frederic D. Sewell
President
Dallas, Texas
May 2, 1996
<PAGE> 1
EXHIBIT 23(d)
[H.J. GRUY AND ASSOCIATES, INC. LETTERHEAD]
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
H.J. Gruy and Associates, Inc. hereby consents to the incorporation by
reference in this Registration Statement on Form S-4 of our reserve report
dated March 4, 1996, relating to the estimated quantities of certain of the
Company's proved reserves of oil and gas and the related estimates of future
net revenue and present values thereof for certain periods, included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1995, as
well as in the Notes to the Consolidated Financial Statements of the Company in
such annual report. We also consent to the reference to us under the heading of
"Experts" in such Registration Statement.
H.J. GRUY AND ASSOCIATES, INC.
/s/ H.J. GRUY AND ASSOCIATES, INC.
Houston, Texas
May 2, 1996
<PAGE> 1
EXHIBIT 23(e)
[RYDER SCOTT COMPANY LETTERHEAD]
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-4 of our reserve report dated February 29,
1996, relating to the estimated quantities of certain of the Company's proved
reserves of oil and gas and the related estimates of future net revenue and
present values thereof for certain periods, included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1995, as well as in the
Notes to the Consolidated Financial Statements of the Company in such annual
report. We also consent to the reference to us under the heading of "Experts"
in such Registration Statement.
/s/ RYDER SCOTT COMPANY
PETROLEUM ENGINEERS
RYDER SCOTT COMPANY
PETROLEUM ENGINEERS
Houston, Texas
May 2, 1996
<PAGE> 1
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)____
-------------
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
74-0800980
(I.R.S. Employer
Identification No.)
712 Main Street
Houston, Texas 77002
(Address of principal executive offices) (Zip Code)
-------------
PLAINS RESOURCES INC.
(Exact name of obligor as specified in its charter)
Delaware 13-2898764
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1600 Smith Street
Houston, Texas 77002
(Address of principal executive offices) (Zip Code)
10 1/4% Senior Subordinated Notes Due 2006, Series B
(Title of the indenture securities)
================================================================================
<PAGE> 2
EXHIBIT 25
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.
Comptroller of the Currency, Washington, D.C.
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.
Yes.
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 5.)
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.
(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-I General Instruction B and
response to Item 13.
<PAGE> 3
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS 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
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
- ------------- -------------- ------------ -----------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
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
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN 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 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
WHETHER THE AMOUNT OWNED
SECURITIES BENEFICIALLY OR HELD PERCENT OF CLASS
ARE VOTING AS COLLATERAL SECURITY REPRESENTED BY
OR NONVOTING FOR OBLIGATIONS AMOUNT GIVEN
TITLE OF CLASS SECURITIES IN DEFAULT IN COL. C
- -------------- ------------ ---------------------- ---------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE> 4
ITEM 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 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 HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN 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 PERCENT 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 HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN 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 PERCENT 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 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
- ------------------ ----------- ---------------------- ----------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE> 5
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 5.)
(b) 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, 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 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.
<PAGE> 6
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY.
- -1 -- A copy of the articles of association of the trustee as now in effect.
#2 -- A copy of the certificate of authority of the trustee to commence
business.
*3 -- A copy of the authorization of the trustee to exercise corporate trust
powers.
+4 -- A copy of the existing by-laws of the trustee.
5 -- Not applicable.
*6 -- The consent of the trustee 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.
- --------
- - Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits
to the Form S-3 File No. 33-56195.
# Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as an
exhibit to the Form S-3 File No. 33-42814.
* Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits
to the Form S-11 File No. 33-25132.
+ Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits
to the Form S-3 File No. 33-65055.
-----------
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.
<PAGE> 7
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939 THE
TRUSTEE, TEXAS COMMERCE BANK NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF
AMERICA, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF HOUSTON
AND STATE OF TEXAS, ON THE 1ST DAY OF MAY, 1996.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ WAYNE MENTZ
------------------------
Wayne Mentz
Assistant Vice President
