EX-4.2



 





Exhibit 4.2




 





McMoRan EXPLORATION CO.




11.875% Senior Notes due 2014




 






First Supplemental Indenture




Dated as of November 14, 2007




 






The Bank of New York,

as Trustee with respect to such series of Securities




 















 





Table of Contents




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I

	 
	 	 	 	 
	The 11.875% Senior Notes Due 2014

	 
	 	 	 	 
	SECTION 1.1. Designation of Notes
	 	 	2	 
	SECTION 1.2. Definitions
	 	 	2	 
	SECTION 1.3. Other Definitions
	 	 	28	 
	SECTION 1.4. Additional Rules of Construction
	 	 	29	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	The Notes

	 
	 	 	 	 
	SECTION 2.1. Form and Dating
	 	 	30	 
	SECTION 2.2. Execution and Authentication
	 	 	31	 
	SECTION 2.3. Registrar and Paying Agent
	 	 	31	 
	SECTION 2.4. Paying Agent to Hold Money in Trust
	 	 	32	 
	SECTION 2.5. Noteholder Lists
	 	 	32	 
	SECTION 2.6. Transfer and Exchange; Certificated Notes
	 	 	32	 
	SECTION 2.7. Mutilated, Destroyed, Lost or Stolen Notes
	 	 	34	 
	SECTION 2.8. Outstanding Notes
	 	 	34	 
	SECTION 2.9. Temporary Notes
	 	 	34	 
	SECTION 2.10. Cancellation
	 	 	34	 
	SECTION 2.11. Payment of Interest; Defaulted Interest
	 	 	34	 
	SECTION
2.12. CUSIP Numbers, ISINs, etc.
	 	 	35	 
	SECTION 2.13. Issuance of Additional Notes
	 	 	35	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	Covenants

	 
	 	 	 	 
	SECTION 3.1. Payment of Notes
	 	 	35	 
	SECTION 3.2. SEC Reports
	 	 	36	 
	SECTION 3.3. Limitation on Indebtedness
	 	 	36	 
	SECTION 3.4. Limitation on Restricted Payments
	 	 	40	 
	SECTION 3.5. Limitation on Liens
	 	 	45	 
	SECTION 3.6. Limitation on Restrictions on Distributions from Restricted Subsidiaries
	 	 	46	 
	SECTION 3.7. Limitation on Sales of Assets and Subsidiary Stock
	 	 	48	 
	SECTION 3.8. Limitation on Affiliate Transactions
	 	 	51	 
	SECTION 3.9. Change of Control
	 	 	52	 
	SECTION 3.10. Limitation on Sale of Capital Stock of Restricted Subsidiaries
	 	 	54	 
	SECTION 3.11. Future Subsidiary Guarantors
	 	 	54	 
	SECTION 3.12. Limitation on Lines of Business
	 	 	54	 
	SECTION 3.13. Maintenance of Office or Agency
	 	 	54	 
	SECTION 3.14. Corporate Existence
	 	 	54	 
	SECTION 3.15. Payment of Taxes and Other Claims
	 	 	55	 
	SECTION 3.16. Payments for Consent
	 	 	55	 
	SECTION 3.17. Compliance Certificate
	 	 	55	 






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	 	 	Page	 
	SECTION 3.18. Further Instruments and Acts
	 	 	55	 
	SECTION 3.19. Statement by Officers as to Default
	 	 	55	 
	SECTION 3.20. Covenant Suspension
	 	 	55	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	Successor Company

	 
	 	 	 	 
	SECTION 4.1. Merger and Consolidation
	 	 	56	 
	ARTICLE V

	 
	 	 	 	 
	Redemption of Notes

	SECTION 5.1. Optional Redemption
	 	 	58	 
	SECTION 5.2. Applicability of Article
	 	 	59	 
	SECTION 5.3. Election to Redeem; Notice to Trustee
	 	 	59	 
	SECTION 5.4. Selection by Trustee of Notes to Be Redeemed
	 	 	59	 
	SECTION 5.5. Notice of Redemption
	 	 	59	 
	SECTION 5.6. Deposit of Redemption Price
	 	 	60	 
	SECTION 5.7. Notes Payable on Redemption Date
	 	 	60	 
	SECTION 5.8. Notes Redeemed in Part
	 	 	60	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	Defaults and Remedies

	 
	 	 	 	 
	SECTION 6.1. Events of Default
	 	 	61	 
	SECTION 6.2. Acceleration
	 	 	63	 
	SECTION 6.3. Other Remedies
	 	 	63	 
	SECTION 6.4. Waiver of Past Defaults
	 	 	64	 
	SECTION 6.5. Control by Majority
	 	 	64	 
	SECTION 6.6. Limitation on Suits
	 	 	64	 
	SECTION 6.7. Rights of Holders to Receive Payment
	 	 	65	 
	SECTION 6.8. Collection Suit by Trustee
	 	 	65	 
	SECTION 6.9. Trustee May File Proofs of Claim
	 	 	65	 
	SECTION 6.10. Priorities
	 	 	65	 
	SECTION 6.11. Undertaking for Costs
	 	 	65	 
	SECTION 6.12. Additional Payments
	 	 	66	 
	SECTION 6.13. Waiver of Stay
	 	 	66	 
	 
	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 
	Appointment of The Bank of New York

	 
	 	 	 	 
	SECTION 7.1. Appointment of The Bank of New York
	 	 	66	 
	SECTION 7.2. Acceptance of Trustee
	 	 	66	 
	SECTION 7.3. Qualification of Trustee
	 	 	66	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE VIII

	 
	 	 	 	 
	Discharge of Indenture; Defeasance

	 
	 	 	 	 
	SECTION 8.1. Discharge of Liability on Notes; Defeasance
	 	 	67	 
	SECTION 8.2. Conditions to Defeasance
	 	 	68	 
	SECTION 8.3. Application of Trust Money
	 	 	69	 
	SECTION 8.4. Repayment to Company
	 	 	69	 
	SECTION 8.5. Indemnity for U.S. Government Obligations
	 	 	69	 
	SECTION 8.6. Reinstatement
	 	 	69	 
	 
	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 
	Amendments

	 
	 	 	 	 
	SECTION 9.1. Without Consent of Holders
	 	 	70	 
	SECTION 9.2. With Consent of Holders
	 	 	71	 
	SECTION 9.3. Compliance with Trust Indenture Act
	 	 	72	 
	SECTION 9.4. Revocation and Effect of Consents and Waivers
	 	 	72	 
	SECTION 9.5. Notation on or Exchange of Notes
	 	 	72	 
	SECTION 9.6. Trustee To Sign Amendments
	 	 	72	 
	 
	 	 	 	 
	ARTICLE X

	 
	 	 	 	 
	Subsidiary Guarantees

	 
	 	 	 	 
	SECTION 10.1. Subsidiary Guarantees
	 	 	72	 
	SECTION 10.2. Limitation on Liability; Termination, Release and Discharge
	 	 	74	 
	SECTION 10.3. Limitation of Subsidiary Guarantors’ Liability
	 	 	74	 
	SECTION 10.4. Contribution
	 	 	74	 
	 
	 	 	 	 
	ARTICLE XI

	 
	 	 	 	 
	Miscellaneous

	 
	 	 	 	 
	SECTION 11.1. Notices
	 	 	75	 
	SECTION 11.2. Indenture
	 	 	75	 
	SECTION 11.3. Governing Law
	 	 	76	 
	SECTION 11.4. Successors and Assigns
	 	 	76	 
	SECTION 11.5. Duplicate Originals
	 	 	76	 
	SECTION 11.6. Severability
	 	 	76	 
	 
	 	 	 	 
	EXHIBIT A Form of Note
	 	 	 	 
	EXHIBIT B Form of Subsidiary Guarantee
	 	 	 	 
	 
	 	 	 	 
	Schedule 3.8 Existing Affiliate Agreements
	 	 	 	 






iii









 





          FIRST SUPPLEMENTAL INDENTURE dated as of November 14, 2007 (this “Supplemental
Indenture”) among MCMORAN EXPLORATION CO., a Delaware corporation (the “Company”), and
THE BANK OF NEW YORK, a New York banking corporation, as trustee under the Indenture with respect
to the Notes (as defined below) (the “Trustee”). The Trustee, and each other trustee
appointed as such with respect to the Securities of any series issued under the Indenture, shall be
the “Trustee” (as defined in the Indenture, as supplemented hereby) for all purposes under the
Indenture with respect to the applicable series of Securities but, for the avoidance of doubt, not
with respect to any series of Securities for which such Trustee has not been appointed trustee
under the terms of the Indenture and/or any supplement thereto.




 



          Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the holders of Notes:




          WHEREAS, the Company and The Bank of New York are parties to that certain Indenture (the
“Base Indenture”) dated as of November 14, 2007, providing for the issuance from time to
time of senior debentures, notes or other debt instruments of the Company (“Securities”) to
be issued in one or more series;




          WHEREAS, the Base Indenture is incorporated herein by reference and the Base Indenture, as
supplemented by this Supplemental Indenture, is herein called the “Indenture”;
 




          WHEREAS, the Company desires and has requested the Trustee to join it and the Subsidiary
Guarantors in the execution and delivery of this Supplemental Indenture in order to establish and
provide for the issuance by the Company of a series of Securities, designated as its 11.875% Senior
Notes due 2014 (the “Notes”), in an initial aggregate principal amount of $300,000,000.




          WHEREAS, the Notes shall be substantially in the form attached hereto as Exhibit A;





          WHEREAS, the conditions set forth in the Base Indenture for the execution and delivery of this
Supplemental Indenture have been complied with;




          WHEREAS, the Company desires to evidence and provide for the acceptance of the appointment
under the Indenture of the Trustee as Trustee with respect to the Notes and to add to or change
certain provisions of the Base Indenture as it shall apply to the Notes; and




          WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the
Company, the Subsidiary Guarantors and the Trustee, in accordance with its terms, and a valid
amendment of, and supplement to, the Base Indenture, have been done.




          NOW, THEREFORE, in consideration of the premises and the purchase and acceptance of the Notes
by the Holders thereof, each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the Holders, that the Base Indenture is supplemented and amended,
to the extent expressed herein, as follows:














 








ARTICLE I




The 11.875% Senior Notes Due 2014




          SECTION 1.1. Designation of Notes. The changes, modifications and supplements to the Base
Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and
govern the terms of, the Notes as defined below or as defined in the preamble to this Supplemental
Indenture, which shall not be limited in aggregate principal amount, and shall not apply to any
other Securities that have been or may be issued under the Base Indenture unless a supplemental
indenture with respect to such other Securities specifically incorporates such changes,
modifications and supplements. Pursuant to Section 2.2 of the Base Indenture, there is hereby
created and designated a series of Securities under the Indenture, entitled “11.875% Senior Notes
due 2014.”  The Notes shall be in the form of Exhibit A hereto. The Notes may bear an
appropriate legend regarding original issue discount for federal income tax purposes. Subject to
the terms in the Indenture the Company may, at its option, without consent from the Holders, issue
Additional Notes from time to time. For all purposes under the Indenture, the term “Notes” shall
include the Initial Notes and any such Additional Notes issued after the date of this Indenture.




          SECTION 1.2. Definitions.




          “Acquired Indebtedness” means Indebtedness (i) of a Person or any of its Subsidiaries
existing at the time such Person becomes a Restricted Subsidiary or (ii) assumed in connection with
the acquisition of assets from such Person, in each case whether or not Incurred by such Person in
connection with, or in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to have been Incurred, with
respect to clause (i) of the preceding sentence, on the date such Person becomes a Restricted
Subsidiary and, with respect to clause (ii) of the preceding sentence, on the date of consummation
of such acquisition of assets.




          “Acquisition Agreement” means the Purchase and Sale Agreement between Newfield and
MOXY, as Buyer, dated June 20, 2007, to be effective July 1, 2007.




          “Acquisition Documents” means (a) the Acquisition Agreement, (b) the P&A Escrow
Agreement, (c) the Transition Services Agreement, (d) the Title Indemnity Agreement and (e) all
bills of sale, assignments, agreements, instruments and documents executed and delivered in
connection therewith, in each case, as amended from time to time.




          “Acquisition Properties” means the oil and gas properties and other properties
acquired by MOXY pursuant to the Acquisition Documents.




          “Additional Assets” means:





     (1) any property, plant or equipment to be used by the Company or a Restricted
Subsidiary in the Oil and Gas Business;




     (2) capital expenditures by the Company or a Restricted Subsidiary in the Oil and Gas
Business;




     (3) the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of
the acquisition of such Capital Stock by the Company or a Restricted Subsidiary; or



2









 






     (4) Capital Stock constituting a minority interest in any Person that at such time is a
Restricted Subsidiary; provided, however, that, in the case of clauses (3) and (4), such
Restricted Subsidiary is primarily engaged in the Oil and Gas Business.



          “Additional Notes” means Notes issued under this Indenture after the Issue Date and in
compliance with Sections 2.13 and 3.3, it being understood that any Note issued in exchange for or
replacement of any Note issued on the Issue Date shall not be an Additional Note.




          “Adjusted Consolidated Net Tangible Assets” means (without duplication), as of the
date of determination, the remainder of:




          (a) the sum of:





     (i) discounted future net revenues from proved oil and gas reserves of the Company and
its Restricted Subsidiaries calculated in accordance with SEC guidelines before any
provincial, territorial, state, federal or foreign income taxes, as estimated by the Company
in a reserve report prepared as of the end of the Company’s most recently completed fiscal
year for which audited financial statements are available, as increased by, as of the date
of determination, the estimated discounted future net revenues from




     (A) estimated proved oil and gas reserves acquired since such year end, which reserves
were not reflected in such year end reserve report, and




     (B) estimated oil and gas reserves attributable to upward revisions of estimates of
proved oil and gas reserves since such year end due to exploration, development or
exploitation activities, in each case calculated in accordance with SEC guidelines
(utilizing the prices for the fiscal quarter ending prior to the date of determination), and
decreased by, as of the date of determination, the estimated discounted future net revenues
from




     (C) estimated proved oil and gas reserves produced or disposed of since such year end,
and




     (D) estimated oil and gas reserves attributable to downward revisions of estimates of
proved oil and gas reserves since such year end due to changes in geological conditions or
other factors which would, in accordance with standard industry practice, cause such
revisions, in each case calculated on a pre-tax basis and substantially in accordance with
SEC guidelines (utilizing the prices for the fiscal quarter ending prior to the date of
determination), in each case as estimated by the Company’s petroleum engineers or any
independent petroleum engineers engaged by the Company for that purpose;




     (ii) the capitalized costs that are attributable to oil and gas properties of the
Company and its Restricted Subsidiaries to which no proved oil and gas reserves are
attributable, based on the Company’s books and records as of a date no earlier than the date
of the Company’s latest available annual or quarterly financial statements;




     (iii) the Net Working Capital on a date no earlier than the date of the Company’s
latest annual or quarterly financial statements; and




     (iv) the greater of



3









 






     (A) the net book value of other tangible assets of the Company and its Restricted
Subsidiaries, as of a date no earlier than the date of the Company’s latest annual or
quarterly financial statement, and




     (B) the appraised value, as estimated by independent appraisers, of other tangible
assets of the Company and its Restricted Subsidiaries, as of a date no earlier than the date
of the Company’s latest audited financial statements; minus



          (b) the sum of:





     (i) Minority Interests;




     (ii) any net gas balancing liabilities of the Company and its Restricted Subsidiaries
reflected in the Company’s latest audited financial statements;




     (iii) to the extent included in (a)(i) above, the discounted future net revenues,
calculated in accordance with SEC guidelines (utilizing the prices utilized in the Company’s
year end reserve report), attributable to reserves which are required to be delivered to
third parties to fully satisfy the obligations of the Company and its Restricted
Subsidiaries with respect to Volumetric Production Payments (determined, if applicable,
using the schedules specified with respect thereto); and




     (iv) the discounted future net revenues, calculated in accordance with SEC guidelines,
attributable to reserves subject to Dollar-Denominated Production Payments which, based on
the estimates of production and price assumptions included in determining the discounted
future net revenues specified in (a)(i) above, would be necessary to fully satisfy the
payment obligations of the Company and its Restricted Subsidiaries with respect to
Dollar-Denominated Production Payments (determined, if applicable, using the schedules
specified with respect thereto).



          If the Company changes its method of accounting from the successful efforts method of
accounting to the full cost or a similar method, ‘‘Adjusted Consolidated Net Tangible Assets’’ will
continue to be calculated as if the Company were still using the successful efforts method of
accounting.




          Until such time as the reserve reports for the fiscal year ended December 31, 2007 are
available, calculations used in this definition that are determined based on the most recent
year-end reserve reports will be deemed to refer to the engineering information provided by the
Company with respect to the oil and gas properties of its Restricted Subsidiaries as of December
31, 2006 and with respect to the Acquisition Properties, the merged report of Ryder Scott Company,
L.P. and Newfield dated as of June 30, 2007, in both cases using SEC pricing as of December 31,
2006.




          For purposes of calculating the amount referred to in clause (1) of the second paragraph of
Section 3.3, the Company will be entitled to rely on the greater of (i) Adjusted Consolidated Net
Tangible Assets as calculated as of the date used for determining the borrowing base from time to
time under the Company’s Senior Secured Credit Agreement or (ii) Adjusted Consolidated Net Tangible
Assets as determined above as of the date of determination.




          “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 Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of



4









 






voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing; provided that exclusively for purposes of
Section 3.8, beneficial ownership of 10% or more of the Voting Stock of a Person shall be deemed to
be control.




          “Applicable Premium” means, with respect to a Note at any redemption date, the greater
of (i) 1.0% of the principal amount of such Note and (ii) the excess of (A) the present value at
such time of (1) the redemption price, excluding accrued interest, of such Note at November 15,
2011 (such redemption price being described above) plus (2) all required interest payments,
excluding accrued interest, due on such Note through November 15, 2011, computed using a discount
rate equal to the Treasury Rate plus 50 basis points, over (B) the principal amount of such Note.




          “Asset Disposition” means any direct or indirect sale, lease (other than an operating
lease entered into in the ordinary course of the Oil and Gas Business), transfer, issuance or other
disposition, or a series of related sales, leases, transfers, issuances or dispositions that are
part of a common plan, of shares of Capital Stock of a Subsidiary (other than directors’ qualifying
shares), property or other assets (each referred to for the purposes of this definition as a
“disposition”) by the Company or any of its Restricted Subsidiaries, including any disposition by
means of a merger, consolidation or similar transaction.




          Notwithstanding the preceding, the following items shall not be deemed to be Asset
Dispositions:





     (1) a disposition of assets by a Restricted Subsidiary to the Company or by the Company
or a Restricted Subsidiary to a Restricted Subsidiary; provided that in the case of a sale
by a Restricted Subsidiary to another Restricted Subsidiary, the Company directly or
indirectly owns an equal or greater percentage of the Common Stock of the transferee than of
the transferor;




     (2) the sale of Cash Equivalents in the ordinary course of business;




     (3) dispositions of Hydrocarbons, equipment, inventory, accounts receivable or other
properties or assets in the ordinary course of business, including any abandonment, farm-in,
farm-out, lease or sublease of any oil and gas properties or the forfeiture or other
disposition of such properties pursuant to standard form operating agreements, in each case
in the ordinary course of business in a manner customary in the Oil and Gas Business;




     (4) a disposition of obsolete or worn out equipment or equipment that is no longer
useful in the conduct of the business of the Company and its Restricted Subsidiaries and
that is disposed of in each case in the ordinary course of business;




     (5) transactions permitted under Article IV;




     (6) an issuance of Capital Stock by a Restricted Subsidiary to the Company or to a
Restricted Subsidiary;




     (7) for purposes of Section 3.7 only, the making of a Permitted Investment or a
disposition subject to Section 3.4;




     (8) an Asset Swap effected in compliance with Section 3.7;




     (9) dispositions of assets in a single transaction or series of related transactions
with an aggregate fair market value of less than $2.5 million;



5









 






     (10) the creation of a Permitted Lien or dispositions in connection with Permitted
Liens;




     (11) dispositions of receivables in connection with the compromise, settlement or
collection thereof in the ordinary course of business or in bankruptcy or similar
proceedings and exclusive of factoring or similar arrangements;




     (12) the licensing or sublicensing of intellectual property or other general
intangibles and licenses, leases or subleases of other property;




     (13) foreclosure on assets; and




     (14) any Production Payments and Reserve Sales.



          “Asset Swap” means concurrent purchase and sale or exchange of Additional Assets
between the Company or any of its Restricted Subsidiaries and another Person; provided that any
cash received must be applied in accordance with Section 3.7.




          “Attributable Indebtedness” in respect of a Sale/Leaseback Transaction means, as at
the time of determination, the present value (discounted at the interest rate borne by the Notes,
compounded semi-annually) of the total obligations of the lessee for rental payments during the
remaining term of the lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).




          “Average Life” means, as of the date of determination, with respect to any
Indebtedness or Preferred Stock, the quotient obtained by dividing (1) the sum of the products of
the numbers of years from the date of determination to the dates of each successive scheduled
principal payment of such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (2) the sum of all such payments.




          “Board of Directors” means, as to any Person, the board of directors of such Person or
any duly authorized committee thereof.




          “Bridge Credit Agreement” means the Credit Agreement, dated August 1, 2007, among the
Company, JPMorgan Chase Bank, N.A., as administrative agent and lender, Merrill Lynch Capital
Corporation, as Syndication Agent and lender, and the other lenders party thereto from time to
time, as the same may be amended, restated, modified, renewed, refunded, replaced or refinanced in
whole or in part from time to time (including increasing the amount loaned thereunder provided that
such additional Indebtedness is Incurred in accordance with the covenant described under Section
3.3;




          “Business Day” means each day that is not a Saturday, Sunday or other day on which
banking institutions in New York, New York are authorized or required by law to close.




          “Capital Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
equity of such Person, including any Preferred Stock and limited liability or partnership interests
(whether general or limited), but excluding any debt securities convertible into such equity.




          “Capitalized Lease Obligations” means an obligation that is required to be classified
and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP,
and the amount of Indebtedness represented by such obligation will be the capitalized amount of
such obligation



6









 






at the time any determination thereof is to be made as determined in accordance
with GAAP, and the Stated Maturity thereof will be the date of the last payment of rent or any
other amount due under such lease prior to the first date such lease may be terminated without
penalty.




          “Cash Equivalents” means:





     (1) securities issued or directly and fully guaranteed or insured by the United States
Government or any agency or instrumentality of the United States (provided that the full
faith and credit of the United States is pledged in support thereof), having maturities of
not more than one year from the date of acquisition;




     (2) marketable general obligations issued by any state of the United States of America
or any political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof (provided that the full faith
and credit of the United States is pledged in support thereof) and, at the time of
acquisition, having a credit rating equivalent to “A” or better from either Standard &
Poor’s Ratings Services or Moody’s Investors Service, Inc.;




     (3) certificates of deposit, time deposits, eurodollar time deposits, overnight bank
deposits or bankers’ acceptances having maturities of not more than one year from the date
of acquisition thereof issued by any commercial bank the long term debt of which is rated at
the time of acquisition thereof at least “A” or the equivalent thereof by Standard & Poor’s
Ratings Services or Moody’s Investors Service, Inc., and having combined capital and surplus
in excess of $500 million;




     (4) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (1), (2) and (3) entered into with any bank
meeting the qualifications specified in clause (3) above;




     (5) commercial paper rated at the time of acquisition thereof at least “A-2” or the
equivalent thereof by Standard & Poor’s Ratings Services or “P-2” or the equivalent thereof
by Moody’s Investors Service, Inc., or carrying an equivalent rating by a nationally
recognized rating agency, if both of the two named rating agencies cease publishing ratings
of investments, and in any case maturing within one year after the date of acquisition
thereof; and




     (6) interests in any investment company or money market fund which invests 95% or more
of its assets in instruments of the type specified in clauses (1) through (5) above.



          “Change of Control” means:





     (1) any “person” or “group” of related persons (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the beneficial owner (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that such person or group shall be deemed to
have “beneficial ownership” of all shares that any such person or group has the right to
acquire, whether such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 35% of the total voting power of the Voting Stock of
the Company (or its successor by merger, consolidation or purchase of all or substantially
all of its assets) (for the purposes of this clause, such person or group shall be deemed to
beneficially own any Voting
Stock of the Company held by a parent entity, if such person or group “beneficially
owns” (as defined above), directly or indirectly, more than 35% of the voting power of the
Voting Stock of such parent entity); or



7









 






     (2) the first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors; or




     (3) the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Restricted Subsidiaries taken as a
whole to any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act); or




     (4) the adoption by the stockholders of the Company of a plan or proposal for the
liquidation or dissolution of the Company.



          “Code” means the Internal Revenue Code of 1986, as amended.




          “Commodity Agreements” means, in respect of any Person, any forward contract,
commodity swap agreement, commodity option agreement or other similar agreement or arrangement in
respect of Hydrocarbons used, produced, processed or sold by such Person that are customary in the
Oil and Gas Business and designed to protect such Person against fluctuation in Hydrocarbon prices.




          “Common Stock” means with respect to any Person, any and all shares, interests or
other participations in, and other equivalents (however designated and whether voting or nonvoting)
of such Person’s common stock whether or not outstanding on the Issue Date, and includes, without
limitation, all series and classes of such common stock.




          “Consolidated Coverage Ratio” means as of any date of determination, with respect to
any Person, the ratio of (x) the aggregate amount of Consolidated EBITDAX of such Person for the
period of the most recent four consecutive fiscal quarters ending prior to the date of such
determination for which financial statements are in existence to (y) Consolidated Interest Expense
for such four fiscal quarters, provided, however, that:




          (1) if the Company or any Restricted Subsidiary:





          (a) has Incurred any Indebtedness since the beginning of such period that remains
outstanding on such date of determination or if the transaction giving rise to the need to
calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness, Consolidated
EBITDAX and Consolidated Interest Expense for such period will be calculated after giving
effect on a pro forma basis to such Indebtedness as if such Indebtedness had been Incurred
on the first day of such period (except that in making such computation, the amount of
Indebtedness under any revolving credit facility outstanding on the date of such calculation
will be deemed to be (i) the average daily balance of such Indebtedness during such four
fiscal quarters or such shorter period for which such facility was outstanding or (ii) if
such facility was created after the end of such four fiscal quarters, the average daily
balance of such Indebtedness during the period from the date of creation of such facility to
the date of such calculation) and the discharge of any other Indebtedness repaid,
repurchased, defeased or otherwise discharged with the proceeds of such new Indebtedness as
if such discharge had occurred on the first day of such period; or




          (b) has repaid, repurchased, defeased or otherwise discharged any Indebtedness since
the beginning of the period that is no longer outstanding on such date of
determination or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio involves a discharge of Indebtedness (in each case other than
Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been
permanently repaid and the related commitment terminated), Consolidated EBITDAX and
Consolidated Interest Expense for



8









 







such period will be calculated after giving effect on a
pro forma basis to such discharge of such Indebtedness, including with the proceeds of such
new Indebtedness, as if such discharge had occurred on the first day of such period;




     (2) if since the beginning of such period the Company or any Restricted Subsidiary will
have made any Asset Disposition or disposed of any company, division, operating unit,
segment, business, group of related assets or line of business or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio is such an Asset Disposition:




          (a) the Consolidated EBITDAX for such period will be reduced by an amount equal to the
Consolidated EBITDAX (if positive) directly attributable to the assets which are the subject
of such Asset Disposition for such period or increased by an amount equal to the
Consolidated EBITDAX (if negative) directly attributable thereto for such period; and




          (b) Consolidated Interest Expense for such period will be reduced by an amount equal to
the Consolidated Interest Expense directly attributable to any Indebtedness of the Company
or any Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to the Company and its continuing Restricted Subsidiaries in connection with such
Asset Disposition for such period (or, if the Capital Stock of any Restricted Subsidiary is
sold, the Consolidated Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such Indebtedness after such sale);




     (3) if since the beginning of such period the Company or any Restricted Subsidiary (by
merger or otherwise) will have made an Investment in any Restricted Subsidiary (or any
Person which becomes a Restricted Subsidiary or is merged with or into the Company) or an
acquisition of assets, including any acquisition of assets occurring in connection with a
transaction causing a calculation to be made hereunder, which constitutes all or
substantially all of a company, division, operating unit, segment, business, group of
related assets or line of business, Consolidated EBITDAX and Consolidated Interest Expense
for such period will be calculated after giving pro forma effect thereto (including the
Incurrence of any Indebtedness) as if such Investment or acquisition occurred on the first
day of such period; and




     (4) if since the beginning of such period any Person that subsequently became a
Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary
since the beginning of such period will have Incurred any Indebtedness or discharged any
Indebtedness, made any Asset Disposition or any Investment or acquisition of assets that
would have required an adjustment pursuant to clause (2) or (3) above if made by the Company
or a Restricted Subsidiary during such period, Consolidated EBITDAX and Consolidated
Interest Expense for such period will be calculated after giving pro forma effect thereto as
if such Asset Disposition or Investment or acquisition of assets occurred on the first day
of such period.



          For purposes of this definition, whenever pro forma effect is to be given to any calculation
under this definition, the pro forma calculations will be determined in good faith by a responsible
financial or accounting officer of the Company (including pro forma expense and cost reductions
calculated on a basis consistent with Regulation S X under the Securities Act). If any
Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest
expense on
such Indebtedness will be calculated as if the rate in effect on the date of determination had
been the applicable rate for the entire period (taking into account any Interest Rate Agreement
applicable to such Indebtedness if such Interest Rate Agreement has a remaining term in excess of
12 months). If any



9









 






Indebtedness that is being given pro forma effect bears an interest rate at the
option of the Company, the interest rate shall be calculated by applying such optional rate chosen
by the Company.




          “Consolidated EBITDAX” for any period means the Consolidated Net Income for such
period, plus, without duplication, the following to the extent deducted in calculating such
Consolidated Net Income:





     (1) Consolidated Interest Expense;




     (2) Consolidated Income Taxes;




     (3) consolidated depletion, depreciation and exploration expense;




     (4) consolidated amortization expense or impairment charges recorded in connection with
the application of Financial Accounting Standard No. 142 “Goodwill and Other Intangibles”
and Financial Accounting Standard No. 144 “Accounting for the Impairment or Disposal of Long
Lived Assets”; and




     (5) other non-cash charges reducing Consolidated Net Income (excluding any such
non-cash charge to the extent it represents an accrual of or reserve for cash charges in any
future period or amortization of a prepaid cash expense that was paid in a prior period not
included in the calculation);



          less, to the extent included in calculating such Consolidated Net Income and in excess of any
costs or expenses attributable thereto that were deducted in calculating such Consolidated Net
Income, the sum of (x) the amount of deferred revenues that are amortized during such period and
are attributable to reserves that are subject to Volumetric Production Payments and (y) amounts
recorded in accordance with GAAP as repayments of principal and interest pursuant to
Dollar-Denominated Production Payments.




          Notwithstanding the preceding sentence, clauses (2) through (5) relating to amounts of a
Restricted Subsidiary of a Person will be added to Consolidated Net Income to compute Consolidated
EBITDAX of such Person only to the extent (and in the same proportion) that the net income (loss)
of such Restricted Subsidiary was included in calculating the Consolidated Net Income of such
Person and, to the extent the amounts set forth in clauses (2) through (5) are in excess of those
necessary to offset a net loss of such Restricted Subsidiary or if such Restricted Subsidiary has
net income for such period included in Consolidated Net Income, only if a corresponding amount
would be permitted at the date of determination to be dividended to the Company by such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the terms of its
charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its stockholders.




          “Consolidated Income Taxes” means, with respect to any Person for any period, taxes
imposed upon such Person or other payments required to be made by such Person by any governmental
authority which taxes or other payments are calculated by reference to the income or profits of
such Person or such Person and its Restricted Subsidiaries (to the extent such income or profits
were included in computing Consolidated Net Income for such period), regardless of whether such
taxes or payments are required to be remitted to any governmental authority.




10









 








          “Consolidated Interest Expense” means, for any period, the total consolidated interest
expense of the Company and its Restricted Subsidiaries, whether paid or accrued, plus, to the
extent not included in such interest expense:





     (1) interest expense attributable to Capitalized Lease Obligations and the interest
portion of rent expense associated with Attributable Indebtedness in respect of the relevant
lease giving rise thereto, determined as if such lease were a capitalized lease in
accordance with GAAP and the interest component of any deferred payment obligations;




     (2) amortization of debt discount and debt issuance cost (provided that any
amortization of bond premium will be credited to reduce Consolidated Interest Expense
unless, pursuant to GAAP, such amortization of bond premium has otherwise reduced
Consolidated Interest Expense);




     (3) non-cash interest expense;




     (4) commissions, discounts and other fees and charges owed with respect to letters of
credit and bankers’ acceptance financing;




     (5) the interest expense on Indebtedness of another Person that is Guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person
or one of its Restricted Subsidiaries;




     (6) costs associated with Interest Rate Agreements (including amortization of fees)
provided, however, that if Interest Rate Agreements result in net benefits rather than
costs, such benefits shall be credited to reduce Consolidated Interest Expense unless,
pursuant to GAAP, such net benefits are otherwise reflected in Consolidated Net Income;




     (7) the consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period;




     (8) the product of (a) all dividends paid or payable, in cash, Cash Equivalents or
Indebtedness or accrued during such period on any series of Disqualified Stock of such
Person or on Preferred Stock of its Restricted Subsidiaries that are not Subsidiary
Guarantors payable to a party other than the Company or a Wholly Owned Subsidiary, times (b)
a fraction, the numerator of which is one and the denominator of which is one minus the then
current combined federal, state, provincial and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP;
and




     (9) the cash contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest or fees to any
Person (other than the Company and its Restricted Subsidiaries) in connection with
Indebtedness Incurred by such plan or trust.



          For the purpose of calculating the Consolidated Coverage Ratio in connection with the
Incurrence of any Indebtedness described in the final paragraph of the definition of
“Indebtedness,” the calculation of Consolidated Interest Expense shall include all interest expense
(including any amounts described in clauses (1) through (9) above) relating to any Indebtedness of
the Company or any Restricted Subsidiary described in the final paragraph of the definition of
“Indebtedness.”



11









 







          For purposes of the foregoing, total interest expense will be determined (i) after giving
effect to any net payments made or received by the Company and its Subsidiaries with respect to
Interest Rate Agreements and (ii) exclusive of amounts classified as other comprehensive income in
the balance sheet of the Company. Notwithstanding anything to the contrary contained herein,
commissions, discounts, yield and other fees and charges Incurred in connection with any
transaction pursuant to which the Company or its Restricted Subsidiaries may sell, convey or
otherwise transfer or grant a security interest in any accounts receivable or related assets shall
be included in Consolidated Interest Expense.




          “Consolidated Net Income” means, for any period, the consolidated net income (loss) of
the Company and its Restricted Subsidiaries determined in accordance with GAAP; provided, however,
that there will not be included in such Consolidated Net Income:





     (1) any net income (loss) of any Person if such Person is not a Restricted Subsidiary,
except that:




     (a) subject to the limitations contained in clauses (3), (4) and (5) below, the
Company’s equity in the net income of any such Person for such period will be included in
such Consolidated Net Income up to the aggregate amount of cash actually distributed by such
Person during such period to the Company or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution to a Restricted
Subsidiary, to the limitations contained in clause (2) below); and




     (b) the Company’s equity in a net loss of any such Person (other than an Unrestricted
Subsidiary) for such period will be included in determining such Consolidated Net Income to
the extent such loss has been funded with cash from the Company or a Restricted Subsidiary;




     (2) any net income (but not loss) of any Restricted Subsidiary if such Subsidiary is
subject to restrictions, directly or indirectly, on the payment of dividends or the making
of distributions by such Restricted Subsidiary, directly or indirectly, to the Company,
except that:




     (a) subject to the limitations contained in clauses (3), (4) and (5) below, the
Company’s equity in the net income of any such Restricted Subsidiary for such period will be
included in such Consolidated Net Income up to the aggregate amount of cash that could have
been distributed by such Restricted Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend (subject, in the case of a dividend to another
Restricted Subsidiary, to the limitation contained in this clause); and




     (b) the Company’s equity in a net loss of any such Restricted Subsidiary for such
period will be included in determining such Consolidated Net Income;




     (3) any gain (loss) realized upon the sale or other disposition of any property, plant
or equipment of the Company or its consolidated Restricted Subsidiaries (including pursuant
to any Sale/Leaseback Transaction) which is not sold or otherwise disposed of in the
ordinary course of business and any gain (loss) realized upon the sale or other disposition
of any Capital Stock of any Person;




     (4) any after-tax extraordinary, unusual or non-recurring gain or loss;




     (5) the after-tax cumulative effect of a change in accounting principles;



12









 






     (6) any asset impairment writedowns on oil and gas properties under GAAP or SEC
guidelines;




     (7) any unrealized non-cash gains or losses or charges in respect of Hedging
Obligations (including those resulting from the application of SFAS 133);




     (8) non-cash charges relating to employee stock-based compensation;




     (9) any net after-tax income or loss from discontinued operations and any net after-tax
gain or loss on disposal of discontinued operations;




     (10) any non-cash or non recurring charges associated with any premium or penalty paid,
write-off of deferred financing costs or other financial recapitalization charges in
connection with redeeming or retiring any Indebtedness prior to its Stated Maturity; and




     (11) any fees, premiums and expenses incurred in connection with the issuance of the
Notes, the Senior Secured Credit Agreement, the Bridge Credit Agreement and the transactions
contemplated by the Acquisition Agreement up to an amount not to exceed $25 million.



          “Continuing Directors” means, as of any date of determination, any member of the Board
of Directors of the Company who: (1) was a member of such Board of Directors on the date of this
Indenture; or (2) was nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such Board at the time of
such nomination or election.




          “Credit Facility” means, as to clause (1) and (2), (1) one or more debt facilities
(including, without limitation, the Senior Secured Credit Agreement) or commercial paper facilities
with banks or other institutional lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such lenders or to special
purpose entities formed to borrow from such lenders against such receivables) or letters of credit
(and whether or not with the original administrative agent and lenders or another administrative
agent or agents or other lenders and whether provided under the original Senior Secured Credit
Agreement or any other credit or other agreement or indenture), (2) any notes, bonds or other
instruments issued and sold in a public offering, Rule 144A or other private transactions (together
with any related indentures, note purchase agreements or similar agreements) in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from
time to time.




          “Currency Agreement” means in respect of a Person any foreign exchange contract,
currency swap agreement, currency futures contract, currency option contract or other similar
agreement as to which such Person is a party or a beneficiary.




          “Default” means any event which is, or after notice or passage of time or both would
be, an Event of Default.




          “Depository” means The Depository Trust Company, its nominees and their respective
successors.




          “Disqualified Stock” means, with respect to any Person, any Capital Stock of such
Person which by its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable) or upon the happening of any event:




13









 









     (1) matures or is mandatorily redeemable pursuant to a sinking fund obligation or
otherwise;




     (2) is convertible or exchangeable for Indebtedness or Disqualified Stock (excluding
Capital Stock which is convertible or exchangeable solely at the option of the Company or a
Restricted Subsidiary); or




     (3) is redeemable at the option of the Holder of the Capital Stock in whole or in part,



          in each case on or prior to the date that is 91 days after the earlier of the date (a) of the
Stated Maturity of the Notes or (b) on which there are no Notes outstanding, provided that only the
portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or
exchangeable or is so redeemable at the option of the Holder thereof prior to such date will be
deemed to be Disqualified Stock; provided, further that any Capital Stock that would constitute
Disqualified Stock solely because the Holders thereof have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a change of control or asset sale (each
defined in a substantially identical manner to the corresponding definitions in this Indenture)
shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities
into which it is convertible or for which it is ratable or exchangeable) provide that the Company
may not repurchase or redeem any such Capital Stock (and all such securities into which it is
convertible or for which it is ratable or exchangeable) pursuant to such provision prior to
compliance by the Company with the provisions of this Indenture described under Section 3.9 and
Section 3.7 and such repurchase or redemption complies with Section 3.4.




          “Dollar-Denominated Production Payments” means production payment obligations recorded
as liabilities in accordance with GAAP, together with all undertakings and obligations in
connection therewith.




          “Equity Offering” means (i) a public offering for cash by the Company of its Capital
Stock (other than Disqualified Stock), other than public offerings registered on Form S-4 or Form
S-8 or (ii) a private offering to one or more institutional investors for cash by the Company of
its Capital Stock (other than Disqualified Stock).




          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder.




          “Foreign Subsidiary” means any Restricted Subsidiary that is not organized under the
laws of the United States of America or any state thereof or the District of Columbia.




          “GAAP” means generally accepted accounting principles in the United States of America
as in effect as of the date of this Indenture, including those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment of the accounting
profession. All ratios and computations based on GAAP contained in this Indenture will be computed
in conformity with GAAP.




          “Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or
indirect, contingent or otherwise, of such Person:





     (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or



14









 







by agreement to keep well, to purchase assets, goods, securities or services, to take
or pay, or to maintain financial statement conditions or otherwise); or




     (2) entered into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, however, that the term “Guarantee” will not include
endorsements for collection or deposit in the ordinary course of business. The term
“Guarantee” used as a verb has a corresponding meaning.



          “Guarantor Subordinated Obligation” means, with respect to a Subsidiary Guarantor, any
Indebtedness of such Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter
Incurred) which is expressly subordinated in right of payment to the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantees pursuant to a written agreement.




          “Hedging Obligations” of any Person means the obligations of such Person pursuant to
any Interest Rate Agreement, Currency Agreement or Commodity Agreement.




          “Holder” means a Person in whose name a Note is registered on the Registrar’s books.




          “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.




          “Incur” means issue, create, assume, Guarantee, incur or otherwise become liable for;
provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such
person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise)
will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted
Subsidiary; and the terms “Incurred” and




          “Incurrence” have meanings correlative to the foregoing.




          “Indebtedness” means, with respect to any Person on any date of determination (without
duplication):





     (1) the principal of and premium (if any) in respect of indebtedness of such Person for
borrowed money;




     (2) the principal of and premium (if any) in respect of obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments;




     (3) the principal component of all obligations of such Person in respect of letters of
credit, bankers’ acceptances or other similar instruments (including reimbursement
obligations with respect thereto except to the extent such reimbursement obligation relates
to a trade payable and such obligation is satisfied within 30 days of Incurrence);




     (4) the principal component of all obligations of such Person to pay the deferred and
unpaid purchase price of property (except trade payables), which purchase price is due more
than six months after the date of placing such property in service or taking delivery and
title thereto;




     (5) Capitalized Lease Obligations and all Attributable Indebtedness of such Person;



15









 






     (6) the principal component or liquidation preference of all obligations of such Person
with respect to the redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary that is not a Subsidiary Guarantor, any Preferred Stock (but
excluding, in each case, any accrued dividends);




     (7) the principal component of all Indebtedness of other Persons secured by a Lien on
any asset of such Person, whether or not such Indebtedness is assumed by such Person;
provided, however, that the amount of such Indebtedness will be the lesser of (a) the fair
market value of such asset at such date of determination and (b) the amount of such
Indebtedness of such other Persons;




     (8) the principal component of Indebtedness of other Persons to the extent Guaranteed
by such Person; and




     (9) to the extent not otherwise included in this definition, net obligations of such
Person under Commodity Agreements, Currency Agreements and Interest Rate Agreements (the
amount of any such obligations to be equal at any time to the termination value of such
agreement or arrangement giving rise to such obligation that would be payable by such Person
at such time).



          Notwithstanding the preceding, Indebtedness shall not include Volumetric Production Payments.
The amount of Indebtedness of any Person at any date will be the outstanding balance at such date
of all unconditional obligations as described above and the maximum liability, upon the occurrence
of the contingency giving rise to the obligation, of any contingent obligations at such date.




          In addition, “Indebtedness” of any Person shall include Indebtedness described in the
preceding paragraph that would not appear as a liability on the balance sheet of such Person if:





     (1) such Indebtedness is the obligation of a partnership or joint venture that is not a
Restricted Subsidiary (a “Joint Venture”);




     (2) such Person or a Restricted Subsidiary of such Person is a general partner of the
Joint Venture (a “General Partner”); and




     (3) there is recourse, by contract or operation of law, with respect to the payment of
such Indebtedness to property or assets of such Person or a Restricted Subsidiary of such
Person; and then such Indebtedness shall be included in an amount not to exceed:




     (a) the lesser of (i) the net assets of the General Partner and (ii) the amount of such
obligations to the extent that there is recourse, by contract or operation of law, to the
property or assets of such Person or a Restricted Subsidiary of such Person; or




     (b) if less than the amount determined pursuant to clause (a) immediately above, the
actual amount of such Indebtedness that is recourse to such Person or a Restricted
Subsidiary of such Person, if the Indebtedness is evidenced by a writing and is for a
determinable amount.



          “Initial Notes” means the $300,000,000 aggregate principal amount of Notes issued
under this Indenture on the date hereof.




          “Interest Rate Agreement” means with respect to any Person any interest rate
protection agreement, interest rate future agreement, interest rate option agreement, interest rate
swap agreement,


16









 







interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement as to which such Person is party or a beneficiary.




          “Investment” means, with respect to any Person, all investments by such Person in
other Persons (including Affiliates) in the form of any direct or indirect advance, loan (other
than advances or extensions of credit to customers in the ordinary course of business) or other
extensions of credit (including by way of Guarantee or similar arrangement, but excluding any debt
or extension of credit represented by a bank deposit other than a time deposit) or capital
contribution to (by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or acquisition of Capital
Stock, Indebtedness or other similar instruments issued by, such Person and all other items that
are or would be classified as investments on a balance sheet prepared in accordance with GAAP;
provided that none of the following will be deemed to be an Investment:





     (1) Hedging Obligations required pursuant to the terms of a Credit Facility or entered
into in the ordinary course of business and in compliance with this Indenture;




     (2) endorsements of negotiable instruments and documents in the ordinary course of
business; and




     (3) an acquisition of assets, Capital Stock or other securities by the Company or a
Subsidiary for consideration to the extent such consideration consists of Capital Stock of
the Company (other than Disqualified Stock).



          For purposes of Section 3.4





     (1) “Investment” will include the portion (proportionate to the Company’s equity
interest in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the
fair market value of the net assets of such Restricted Subsidiary at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary (as conclusively determined
by the Board of Directors of the Company in good faith); provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Company will be deemed to
continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if
positive) equal to (a) the Company’s “Investment” in such Subsidiary at the time of such
redesignation less (b) the portion (proportionate to the Company’s equity interest in such
Subsidiary) of the fair market value of the net assets (as conclusively determined by the
Board of Directors of the Company in good faith) of such Subsidiary at the time that such
Subsidiary is so re-designated a Restricted Subsidiary; and




     (2) any property transferred to or from an Unrestricted Subsidiary will be valued at
its fair market value at the time of such transfer, in each case as determined in good faith
by the Board of Directors of the Company.



          “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the
equivalent) by Moody’s Investors Service, Inc. and BBB- (or the equivalent) by Standard & Poor’s
Ratings Group, Inc., in each case, with a stable or better outlook.




          “Issue Date” means the date on which the Notes are originally issued.




          “Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of
any kind (including any conditional sale or other title retention agreement or lease in the nature
thereof).




17









 








          “Minority Interest” means the percentage interest represented by any shares of any
class of Capital Stock of a Restricted Subsidiary that are not owned by the Company or a Restricted
Subsidiary.




          “MOXY” means McMoRan Oil & Gas LLC, a Restricted Subsidiary of the Company.




          “MPEH” means Freeport-McMoRan Energy, LLC, a Delaware limited liability company, an
Unrestricted Subsidiary of the Company.




          “Net Available Cash” from an Asset Disposition means cash payments received (including
any cash payments received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise and net proceeds from the sale or other disposition of any
securities received as consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring person of Indebtedness or other
obligations relating to the properties or assets that are the subject of such Asset Disposition or
received in any other non-cash form) therefrom, in each case net of:





     (1) all legal, accounting, investment banking, title and recording tax expenses,
commissions and other fees and expenses Incurred, and all Federal, state, provincial,
foreign and local taxes required to be paid or accrued as a liability under GAAP (after
taking into account any available tax credits or deductions and any tax sharing agreements),
as a consequence of such Asset Disposition;




     (2) all payments made on any Indebtedness which is secured by any assets subject to
such Asset Disposition, in accordance with the terms of any Lien upon 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;




     (3) all distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Disposition; and




     (4) the deduction of appropriate amounts to be provided by the seller as a reserve, in
accordance with GAAP, against any liabilities associated with the assets disposed of in such
Asset Disposition and retained by the Company or any Restricted Subsidiary after such Asset
Disposition.



          “Net Cash Proceeds,” with respect to any issuance or sale of Capital Stock, means the
cash proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or
placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other
fees and charges actually Incurred in connection with such issuance or sale and net of taxes paid
or payable as a result of such issuance or sale (after taking into account any available tax credit
or deductions and any tax sharing arrangements).




          “Net Working Capital” means (a) all current assets of the Company and its Restricted
Subsidiaries except current assets from commodity price risk management activities arising in the
ordinary course of the Oil and Gas Business, less (b) all current liabilities of the Company and
its Restricted Subsidiaries, except current liabilities included in Indebtedness and any current
liabilities from commodity price risk management activities arising in the ordinary course of the
Oil and Gas Business, in each case as set forth in the consolidated financial statements of the
Company prepared in accordance with GAAP.




          “Newfield” means Newfield Exploration Company, a Delaware Corporation.




18









 








          “Non-Recourse Debt” means Indebtedness of a Person:





     (1) as to which neither the Company nor any Restricted Subsidiary (a) provides any
Guarantee or credit support of any kind (including any undertaking, guarantee, indemnity,
agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly
liable (as a guarantor or otherwise);




     (2) no default with respect to which (including any rights that the Holders thereof may
have to take enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any Holder of any other Indebtedness of the Company or any
Restricted Subsidiary to declare a default under such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity; and




     (3) the explicit terms of which provide there is no recourse against any of the assets
of the Company or its Restricted Subsidiaries.



          “Notes Custodian” means the custodian with respect to a Global Note (as appointed by
the Depository), or any successor Person thereto and shall initially be the Trustee.




          “Officer” means the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Operating Officer, the Chief Financial Officer, any Vice President, the Treasurer or the
Secretary of the Company. Officer of any Subsidiary Guarantor has a correlative meaning.




          “Officers’ Certificate” means a certificate signed by two Officers or by an Officer
and either an Assistant Treasurer or an Assistant Secretary of the Company.




          “Oil and Gas Business” means (a) the business of acquiring, exploring, exploiting,
developing, producing, operating and disposing of interests in oil, gas, liquid natural gas and
other hydrocarbon properties, (b) the business of gathering, marketing, treating, processing,
storage, refining, selling and transporting of any production from such interests or properties and
products produced in association therewith or providing drilling and related services and supplies
and equipment and (c) any business or activity relating to, arising from, or necessary, appropriate
or incidental to the activities described in the foregoing clauses (a) and (b) of this definition.




          “Opinion of Counsel” means a written opinion from legal counsel. The counsel may be an
employee of or counsel to the Company or the Trustee.




          “P&A Escrow Agreement” means that certain P&A Escrow Agreement dated as of August 1,
2007 among the Company and Newfield.




          “Pari Passu Indebtedness” means Indebtedness that ranks equally in right of payment to
the Notes.




          “Permitted Business Investment” means any Investment made in the ordinary course of
the Oil and Gas Business including investments or expenditures for actively exploiting, exploring
for, acquiring, developing, producing, operating, processing, gathering, refining, storing,
marketing, selling or transporting oil, gas and other Hydrocarbons through agreements,
transactions, interests or arrangements which permit one to share risks or costs, comply with
regulatory requirements regarding local ownership or satisfy other objectives customarily achieved
through the conduct of the Oil and Gas Business jointly with third parties, including:




19









 









     (1) ownership interests in oil and gas properties, liquid natural gas facilities,
processing facilities, gathering systems, pipelines or ancillary real property interests;




     (2) Investments in the form of or pursuant to operating agreements, processing
agreements, farm-in agreements, farm-out agreements, development agreements, area of mutual
interest agreements, unitization agreements, pooling agreements, joint bidding agreements,
service contracts, joint venture agreements, partnership agreements (whether general or
limited), subscription agreements, stock purchase agreements and other similar agreements
(including for limited liability companies) with third parties; and




     (3) direct or indirect ownership interests in drilling rigs and related equipment,
including, without limitation, transportation equipment;



          provided, however, that a “Permitted Business Investment” shall not include Investments in
entities that are not classified as pass-through entities for U.S. federal, state and local and
foreign income tax purposes.




          “Permitted Investment” means an Investment by the Company or any Restricted
Subsidiary in:





     (1) the Company or a Restricted Subsidiary or a Person which will, upon the making of
such Investment, become a Restricted Subsidiary; provided, however, that the primary
business of such Restricted Subsidiary is the Oil and Gas Business;




     (2) another Person if as a result of such Investment such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all its assets to,
the Company or a Restricted Subsidiary; provided, however, that such Person’s primary
business is the Oil and Gas Business;




     (3) cash and Cash Equivalents;




     (4) receivables owing to the Company or any Restricted Subsidiary created or acquired
in the ordinary course of business and payable or dischargeable in accordance with customary
trade terms; provided, however, that such trade terms may include such concessionary trade
terms as the Company or any such Restricted Subsidiary deems reasonable under the
circumstances;




     (5) payroll, travel and similar advances to cover matters that are expected at the time
of such advances ultimately to be treated as expenses for accounting purposes and that are
made in the ordinary course of business;




     (6) loans or advances to employees of the Company or any Restricted Subsidiary made in
the ordinary course of business consistent with past practices of the Company or such
Restricted Subsidiary; provided, however, that the Company and its Subsidiaries will comply
in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002
and the rules and regulations promulgated in connection therewith in connection with such
loans or advances as if the Company had filed a registration statement with the SEC;




     (7) Capital Stock, obligations or securities received in settlement of debts created in
the ordinary course of business and owing to the Company or any Restricted Subsidiary or in



20









 







satisfaction of judgments or pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of a debtor;




     (8) Investments made as a result of the receipt of non cash consideration from an Asset
Disposition that was made pursuant to and in compliance with Section 3.7;




     (9) Investments in existence on the Issue Date and any amendment, renewal or
replacement thereof that does not exceed the amount of the original Investment;




     (10) Commodity Agreements, Currency Agreements, Interest Rate Agreements and related
Hedging Obligations, which transactions or obligations are Incurred in compliance with
Section 3.3;




     (11) Guarantees issued in accordance with Section 3.3;




     (12) any Asset Swap made in accordance with Section 3.7;




     (13) Permitted Business Investments; and




     (14) Investments by the Company or any of its Restricted Subsidiaries, together with
all other Investments pursuant to this clause (14), in an amount not to exceed $10 million
per year (with the fair market value of such Investment being measured at the time made and
without giving effect to subsequent changes in value).



          “Permitted Liens” means, with respect to any Person:





     (1) Liens securing Indebtedness and other obligations under, and related Hedging
Obligations and Liens on assets of Restricted Subsidiaries securing Guarantees of
Indebtedness and other obligations of the Company under any Credit Facility permitted to be
Incurred under this Indenture under the provisions described in clause (1) of the second
paragraph under Section 3.3;




     (2) pledges or deposits by such Person under workmen’s compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness) or leases to which such
Person is a party, or deposits to secure public or statutory obligations of such Person or
deposits of cash or United States government bonds to secure surety or appeal bonds to which
such Person is a party, or deposits as security for contested taxes or import or customs
duties or for the payment of rent, in each case Incurred in the ordinary course of business;




     (3) Liens imposed by law, including carriers’, warehousemen’s and mechanics’
materialmen’s and repairmen’s Liens, in each case for sums not yet due or being contested in
good faith by appropriate proceedings if a reserve or other appropriate provisions, if any,
as shall be required by GAAP shall have been made in respect thereof;




     (4) Liens for taxes, assessments or other governmental charges not yet subject to
penalties for non-payment or which are being contested in good faith by appropriate
proceedings provided that appropriate reserves required pursuant to GAAP have been made in
respect thereof;




     (5) Liens in favor of issuers of surety or performance bonds or letters of credit or
bankers’ acceptances issued pursuant to the request of and for the account of such Person in
the



21









 







ordinary course of its business; provided, however, that such letters of credit do not
secure Indebtedness;




     (6) encumbrances, ground leases, easements or reservations of, or rights of others for,
licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning, building codes or other restrictions (including, without
limitation, minor defects or irregularities in title and similar encumbrances) as to the use
of real properties or liens incidental to the conduct of the business of such Person or to
the ownership of its properties which do not in the aggregate materially adversely affect
the value of said properties or materially impair their use in the operation of the business
of such Person;




     (7) Liens securing Hedging Obligations;




     (8) leases, licenses, subleases and sublicenses of assets (including, without
limitation, real property and intellectual property rights) which do not materially
interfere with the ordinary conduct of the business of the Company or any of its Restricted
Subsidiaries;




     (9) judgment Liens not giving rise to an Event of Default so long as such Lien is
adequately bonded and any appropriate legal proceedings which may have been duly initiated
for the review of such judgment have not been finally terminated or the period within which
such proceedings may be initiated has not expired;




     (10) Liens for the purpose of securing the payment of all or a part of the purchase
price of, or Capitalized Lease Obligations, purchase money obligations or other payments
Incurred to finance the acquisition, lease, improvement or construction of, assets or
property acquired or constructed in the ordinary course of business; provided that:




     (a) the aggregate principal amount of Indebtedness secured by such Liens is otherwise
permitted to be Incurred under this Indenture and does not exceed the cost of the assets or
property so acquired or constructed; and




     (b) such Liens are created within 180 days of construction or acquisition of such
assets or property and do not encumber any other assets or property of the Company or any
Restricted Subsidiary other than such assets or property and assets affixed or appurtenant
thereto;




     (11) Liens arising solely by virtue of any statutory or common law provisions relating
to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts
or other funds maintained with a depositary institution; provided that:




     (a) such deposit account is not a dedicated cash collateral account and is not subject
to restrictions against access by the Company in excess of those set forth by regulations
promulgated by the Federal Reserve Board; and




     (b) such deposit account is not intended by the Company or any Restricted Subsidiary to
provide collateral to the depository institution;




     (12) Liens arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary
course of business;




     (13) Liens existing on the Issue Date;



22









 






     (14) Liens on property or shares of stock of a Person at the time such Person becomes a
Restricted Subsidiary; provided, however, that such Liens are not created, Incurred or
assumed in connection with, or in contemplation of, such other Person becoming a Restricted
Subsidiary; provided further, however, that any such Lien may not extend to any other
property owned by the Company or any Restricted Subsidiary;




     (15) Liens on property at the time the Company or a Restricted Subsidiary acquired the
property, including any acquisition by means of a merger or consolidation with or into the
Company or any Restricted Subsidiary; provided, however, that such Liens are not created,
Incurred or assumed in connection with, or in contemplation of, such acquisition; provided
further, however, that such Liens may not extend to any other property owned by the Company
or any Restricted Subsidiary;




     (16) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing
to the Company or a Wholly Owned Subsidiary;




     (17) Liens securing the Notes, Subsidiary Guarantees and other obligations under this
Indenture;




     (18) Liens securing obligations under Refinancing Indebtedness Incurred to refinance,
refund, replace, amend, extend or modify Indebtedness that was previously so secured (other
than Liens permitted pursuant to clause (1) above), provided that any such Lien is limited
to all or part of the same property or assets (plus improvements, accessions, proceeds or
dividends or distributions in respect thereof) that secured (or, under the written
arrangements under which the original Lien arose, could secure) the Indebtedness being
refinanced or is in respect of property that is the security for a Permitted Lien hereunder;




     (19) any interest or title of a lessor under any Capitalized Lease Obligation or
operating lease;




     (20) Liens in respect of Production Payments and Reserve Sales, which Liens shall be
limited to the property that is the subject of such Production Payments and Reserve Sales;




     (21) Liens arising under farm-out agreements, farm-in agreements, division orders,
contracts for the sale, purchase, exchange, transportation, gathering or processing of
Hydrocarbons, unitizations and pooling designations, declarations, orders and agreements,
development agreements, operating agreements, production sales contracts, area of mutual
interest agreements, gas balancing or deferred production agreements, injection,
repressuring and recycling agreements, salt water or other disposal agreements, seismic or
geophysical permits or agreements, and other agreements which are customary in the Oil and
Gas Business; provided, however, in all instances that such Liens are limited to the assets
that are the subject of the relevant agreement, program, order or contract;




     (22) Liens on pipelines or pipeline facilities that arise by operation of law;




     (23) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any
joint venture owned by the Company or any Restricted Subsidiary to the extent securing
Non-Recourse Debt of such Unrestricted Subsidiary or joint venture;




     (24) Liens on amounts not to exceed the sum of up to three years of regularly scheduled
interest payments in respect of any convertible Indebtedness issued by the Company



23









 







permitted hereby, which amounts shall have been placed in interest reserve accounts in
connection with the issuance of such convertible Indebtedness to secure the obligations
under, such convertible Indebtedness; and




     (25) Liens securing obligations under Indebtedness (other than Subordinated Obligations
and Guarantor Subordinated Obligations) in an aggregate principal amount outstanding at any
one time not to exceed the greater of $25 million or 1.5% Adjusted Consolidated Net Tangible
Assets.



          “Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company, government or
any agency or political subdivision hereof or any other entity.




          “Preferred Stock,” as applied to the Capital Stock of any corporation, means Capital
Stock of any class or classes (however designated) which is preferred as to the payment of
dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such corporation, over shares of Capital Stock of any other class of such
corporation.




          “Production Payments and Reserve Sales” means the grant or transfer by the Company or
a Restricted Subsidiary to any Person of a royalty, overriding royalty, net profits interest,
production payment (whether volumetric or dollar denominated), partnership or other interest in oil
and gas properties, reserves or the right to receive all or a portion of the production or the
proceeds from the sale of production attributable to such properties where the Holder of such
interest has recourse solely to such production or proceeds of production, subject to the
obligation of the grantor or transferor to operate and maintain, or cause the subject interests to
be operated and maintained, in a reasonably prudent manner or other customary standard or subject
to the obligation of the grantor or transferor to indemnify for environmental, title or other
matters customary in the Oil and Gas Business, including any such grants or transfers pursuant to
incentive compensation programs on terms that are reasonably customary in the Oil and Gas Business
for geologists, geophysicists or other providers of technical services to the Company or a
Restricted Subsidiary.




          “Rating Agencies” means Standard & Poor’s Ratings Group, Inc. and Moody’s Investors
Service, Inc. or if Standard & Poor’s Ratings Group, Inc. or Moody’s Investors Service, Inc. or
both shall not make a rating on the Notes publicly available, a nationally recognized statistical
rating agency or agencies, as the case may be, selected by the Company (as certified by a
resolution of the Board of Directors) which shall be substituted for Standard & Poor’s Ratings
Group, Inc. or Moody’s Investors Service, Inc. or both, as the case may be.




          “Refinancing Indebtedness” means Indebtedness that is Incurred to refund, refinance,
replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge
mechanism) (collectively, “refinance,” “refinances” and “refinanced” shall have a correlative
meaning) any Indebtedness existing on the date of this Indenture or Incurred in compliance with
this Indenture (including Indebtedness of the Company that refinances Indebtedness of any
Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of
another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness,
provided, however, that:





     (1) (a) if the Stated Maturity of the Indebtedness being refinanced is earlier than the
Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being refinanced or (b) if the Stated Maturity
of the Indebtedness being refinanced is later than the Stated Maturity of the Notes, the
Refinancing Indebtedness has a Stated Maturity at least 91 days later than the Stated
Maturity of the Notes;



24









 






     (2) the Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life of the
Indebtedness being refinanced;




     (3) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if
issued with original issue discount, an aggregate issue price) that is equal to or less than
the sum of the aggregate principal amount (or if issued with original issue discount, the
aggregate accreted value) then outstanding of the Indebtedness being refinanced (plus,
without duplication, any additional Indebtedness Incurred to pay interest or premiums
required by the instruments governing such existing Indebtedness and fees and expenses
Incurred in connection therewith); and




     (4) if the Indebtedness being refinanced is subordinated in right of payment to the
Notes or the Subsidiary Guarantees, such Refinancing Indebtedness is subordinated in right
of payment to the Notes or the Subsidiary Guarantees on terms at least as favorable to the
Holders as those contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.



          “Restricted Investment” means any Investment other than a Permitted Investment.




          “Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted
Subsidiary.




          “Sale/Leaseback Transaction” means an arrangement relating to property now owned or
hereafter acquired whereby the Company or a Restricted Subsidiary transfers such property to a
Person and the Company or a Restricted Subsidiary leases it from such Person.




          “SEC” means the United States Securities and Exchange Commission.




          “Securities Act” means the Securities Act of 1933, as amended.




          “Senior Secured Credit Agreement” means the Amended and Restated Credit Agreement,
dated as of August 1, 2007, among the Company, JPMorgan Chase Bank, N.A., as administrative agent
and issuing lender, and the other lenders party thereto from time to time, as the same may be
amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from
time to time (including increasing the amount loaned thereunder provided that such additional
Indebtedness is Incurred in accordance with the covenant described under Section 3.3.




          “Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant
Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the
SEC.




          “Stated Maturity” means, with respect to any security, the date specified in such
security as the fixed date on which the payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision, but shall not include any contingent
obligations to repay, redeem or repurchase any such principal prior to the date originally
scheduled for the payment thereof.




          “Subordinated Obligation” means any Indebtedness of the Company (whether outstanding
on the Issue Date or thereafter Incurred) which is subordinate or junior in right of payment to the
Notes pursuant to a written agreement.




25









 








          “Subsidiary” of any Person means (a) any corporation, association or other business
entity (other than a partnership, joint venture, limited liability company or similar entity) of
which more than 50% of the total ordinary voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof (or persons performing similar functions) or (b) any partnership, joint venture
limited liability company or similar entity of which more than 50% of the capital accounts,
distribution rights, total equity and voting interests or general or limited partnership interests,
as applicable, is, in the case of clauses (a) and (b), at the time owned or controlled, directly or
indirectly, by (1) such Person, (2) such Person and one or more Subsidiaries of such Person or (3)
one or more Subsidiaries of such Person. Unless otherwise specified herein, each reference to a
Subsidiary will refer to a Subsidiary of the Company.




          “Subsidiary Guarantee” means, individually, any Guarantee of payment of the Notes by a
Subsidiary Guarantor pursuant to the terms of this Indenture and any supplemental indenture
thereto, and, collectively, all such Guarantees. Each such Subsidiary Guarantee will be in the
form prescribed by this Indenture.




          “Subsidiary Guarantors” means the Restricted Subsidiaries of the Company who are party
to this Indenture on the Issue Date and any other Restricted Subsidiary of the Company that later
becomes a Subsidiary Guarantor in accordance with this Indenture.




          “Title Indemnity Agreement” means that certain Title Indemnity Agreement dated as of
August 1, 2007 between MOXY and Newfield.




          “Total Assets” means, with respect to any Person, the total consolidated assets of
such Person and its Restricted Subsidiaries, as shown on the most recent balance sheet of such
Person.




          “Transition Services Agreement” means that certain Transition Services Agreement dated
as of August 1, 2007 between MOXY and Newfield.




          “Treasury Rate” means the yield to maturity at the time of computation of United
States Treasury securities with a constant maturity (as compiled and published in the most recent
Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two
business days prior to the redemption date (or, if such Statistical Release is no longer published,
any publicly available source or similar market data)) most nearly equal to the period from the
redemption date to November 15, 2011; provided, however, that if the period from the redemption
date to November 15, 2011 is not equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of
United States Treasury securities for which such yields are given, except that if the period from
the redemption date to November 15, 2011 is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant maturity of one year shall
be used.




          “Unrestricted Subsidiary” means:





     (1) MPEH;




     (2) any Subsidiary of the Company that at the time of determination shall be designated
an Unrestricted Subsidiary by the Board of Directors of the Company in the manner provided
below; and




     (3) any Subsidiary of an Unrestricted Subsidiary.



26









 





          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:





     (1) such Subsidiary or any of its Subsidiaries does not own any Capital Stock or
Indebtedness of or have any Investment in, 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;




     (2) all the Indebtedness of such Subsidiary and its Subsidiaries shall, at the date of
designation, and will at all times thereafter, consist of Non-Recourse Debt;




     (3) on the date of such designation, such designation and the Investment of the Company
in such Subsidiary complies with Section 3.4;




     (4) 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 its Subsidiaries;




     (5) such Subsidiary is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation:




	 	(a)	 	to subscribe for additional Capital Stock of such Person; or
	 
	 	(b)	 	to maintain or preserve such Person’s financial condition or to cause such Person
to achieve any specified levels of operating results; and





          (6) on the date such Subsidiary is designated an Unrestricted Subsidiary, such
Subsidiary is not a party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary with terms substantially less favorable to the Company
than those that might have been obtained from Persons who are not Affiliates of the Company.




          Any such designation by the Board of Directors of the Company shall be evidenced to the
Trustee by filing with the Trustee a resolution of the Board of Directors of the Company giving
effect to such designation and an Officers’ Certificate certifying that such designation complies
with the foregoing conditions. If, at any time, any 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 this 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
Restricted Subsidiary; provided that immediately after giving effect to such designation, no
Default or Event of Default shall have occurred and be continuing or would occur as a consequence
thereof and the Company could Incur at least $1.00 of additional Indebtedness under the first
paragraph of Section 3.3 on a pro forma basis taking into account such designation.




          “U.S. Government Obligations” means securities that are (a) direct obligations of the
United States of America for the timely payment of which its full faith and credit is pledged or
(b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation of the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also include a depositary
receipt issued by a bank (as defined in



27









 






Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government
Obligations or a specific payment of principal of or interest on any such U.S. Government
Obligations held by such custodian for the account of the Holder of such depositary receipt;
provided that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the Holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligations or the specific payment of principal of or
interest on the U.S. Government Obligations evidenced by such depositary receipt.




          “Volumetric Production Payments” means production payment obligations recorded as
deferred revenue in accordance with GAAP, together with all undertakings and obligations in
connection therewith.




          “Voting Stock” of a corporation means all classes of Capital Stock of such corporation
then outstanding and normally entitled to vote in the election of directors.




          “Wholly Owned Subsidiary” means a Restricted Subsidiary, all of the Capital Stock of
which (other than directors’ qualifying shares) is owned by the Company or another Wholly Owned
Subsidiary.




          SECTION 1.3. Other Definitions.




	 	 	 
	 	 	Defined in
	Term	 	Section
	 

	“Affiliate Transaction”
	 	3.8
	 
	 	 
	“Agent Members”
	 	2.1(b)
	 
	 	 
	“Asset Disposition Offer”
	 	3.7(3)(c)
	 
	 	 
	“Asset Disposition Offer Amount”
	 	3.7(3)(d)(1)
	 
	 	 
	“Asset Disposition Offer Period”
	 	3.7(3)(d)(1)
	 
	 	 
	“Asset Disposition Purchase Date”
	 	3.7(3)(d)(1)
	 
	 	 
	“authenticating agent”
	 	2.2
	 
	 	 
	“Change of Control Offer”
	 	3.9(b)
	 
	 	 
	“Change of Control Payment”
	 	3.9(b)(1)
	 
	 	 
	“Change of Control Payment Date”
	 	3.9(b)(2)
	 
	 	 
	“Company Order”
	 	2.2
	 
	 	 
	“Corporate Trust Office”
	 	3.13
	 
	 	 
	“covenant defeasance option”
	 	8.1(b)






28









 






	 	 	 
	 	 	Defined in
	Term	 	Section
	 

	“cross acceleration provision”
	 	6.1(6)(b)
	 
	 	 
	“Defaulted Interest”
	 	2.11
	 
	 	 
	“Event of Default”
	 	6.1
	 
	 	 
	“Excess Proceeds”
	 	3.7(3)(c)
	 
	 	 
	“General Partner”
	 	1.2 (definition of “Indebtedness”)
	 
	 	 
	“Global Note”
	 	2.1(a)
	 
	 	 
	“Joint Venture”
	 	1.2 (definition of “Indebtedness”)
	 
	 	 
	“judgment default provision”
	 	6.1(8)
	 
	 	 
	“legal defeasance option”
	 	8.1(b)
	 
	 	 
	“Note Register”
	 	2.3
	 
	 	 
	“Obligations”
	 	10.1
	 
	 	 
	“Pari Passu Notes”
	 	3.7(3)(c)
	 
	 	 
	“Paying Agent”
	 	2.3
	 
	 	 
	“payment default”
	 	6.1(6)(a)
	 
	 	 
	“protected purchaser”
	 	2.8
	 
	 	 
	“Redemption Date”
	 	5.1
	 
	 	 
	“Registrar”
	 	2.3
	 
	 	 
	“Reinstatement Date”
	 	3.20
	 
	 	 
	“Restricted Payment”
	 	3.4(4)
	 
	 	 
	“Successor Company”
	 	4.1(1)
	 
	 	 
	“Suspended Covenants”
	 	3.20
	 
	 	 
	“Suspension Period”
	 	3.20






          SECTION 1.4. Additional Rules of Construction. Unless the context otherwise requires,
in this Supplemental Indenture:




29









 









	 	(1)	 	“including” means including without limitation;
	 
	 	(2)	 	unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
	 
	 	(3)	 	the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP;
	 
	 	(4)	 	the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory
redemption or mandatory repurchase price with respect to such Preferred Stock,
whichever is greater;
	 
	 	(5)	 	references to sections of or rules under the Securities Act
will be deemed to include substitute, replacement or successor sections or
rules adopted by the SEC from time to time; and
	 
	 	(6)	 	references to any article, section or paragraph will be deemed
to be references to such article, section or paragraph in this Supplemental
Indenture.





ARTICLE II




The Notes




          SECTION 2.1. Form and Dating. (a) The Notes and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule, agreements to which the
Company is subject, if any, or usage. Each Note shall be dated the date of its authentication.
The terms of the Notes set forth in Exhibit A are part of the terms of this Supplemental
Indenture.




          The Notes shall be issued initially in the form of one or more permanent global Notes in
definitive, fully registered form (a “Global Note”) with the global securities legend set
forth in Exhibit A hereto, which shall be deposited on behalf of the purchasers of the
Notes represented thereby with the Notes Custodian and registered in the name of the Depository or
a nominee of the Depository, duly executed by the Company and authenticated by the Trustee as
provided in this Supplemental Indenture. The aggregate principal amount of the Global Notes may
from time to time be increased or decreased by adjustments made on the records of the Trustee and
the Depository or its nominee as hereinafter provided.




          (b) Book Entry Provisions. This Section 2.1(b) shall apply only to a Global Note
deposited with or on behalf of the Depository.




          The Company shall execute and the Trustee shall, in accordance with this Section 2.1(b),
authenticate and deliver initially one or more Global Notes that (a) shall be registered in the
name of the Depository for such Global Note or Global Notes or the nominee of such Depository and
(b) shall be
delivered by the Trustee to such Depository or pursuant to such Depository’s instructions or held
by the Trustee as custodian for the Depository.




          Members of, or participants in, the Depository (“Agent Members”) shall have no rights
under this Indenture with respect to any Global Note held on their behalf by the Depository or by
the Trustee as the custodian of the Depository or under such Global Note, and the Company, the
Trustee and



30









 






any agent of the Company or the Trustee shall be entitled to treat the Depository as
the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its Agent Members, the operation of customary
practices of such Depository governing the exercise of the rights of a holder of a beneficial
interest in any Global Note.




          (c) Certificated Notes. Except as provided in this Section 2.1 or Section 2.6, owners
of beneficial interests in Global Notes shall not be entitled to receive physical delivery of
certificated Notes.




          SECTION 2.2. Execution and Authentication. Two Officers shall sign the Notes for the
Company by manual or facsimile signature.




          If an Officer whose signature is on a Note no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nonetheless.




          A Note shall not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Note. The signature shall be conclusive evidence that the
Note has been duly and validly authenticated and issued under this Indenture.




          At any time and from time to time after the execution and delivery of this Supplemental
Indenture, the Trustee shall authenticate and deliver: (1) on the Issue Date, an aggregate
principal amount of $300,000,000 11.875% Senior Notes Due 2014 and (2) any Additional Notes, in
each case, upon a written order of the Company signed by two officers or by an officer and either
an Assistant Treasurer or an Assistant Secretary of the Company (the “Company Order”). A
Company Order shall specify the amount of the Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated. In the case of any issuance of Additional Notes
pursuant to Section 2.13 of the Supplemental Indenture, the Company Order shall certify that such
issuance is in compliance with Section 3.3 of the Supplemental Indenture.




          The Trustee may appoint an agent reasonably acceptable to the Company to authenticate the
Notes. Unless limited by the terms of such appointment, any such authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as any Registrar, Paying Agent or agent for service of notices and demands.




          SECTION 2.3. Registrar and Paying Agent. The Company shall maintain an office or
agency where Notes may be presented for registration of transfer or for exchange (the
“Registrar”) and an office or agency where Notes may be presented for payment (the
“Paying Agent”). The Registrar shall keep a register of the Notes and of their transfer
and exchange (the “Note Register”). The Company may have one or more co-registrars and one
or more additional paying agents. The term “Paying Agent” includes any additional paying agent.




          The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent
or co-registrar not a party to this Indenture, which shall incorporate the terms of the TIA. The
agreement shall implement the provisions of this Indenture that relate to such agent. The Company
shall notify the Trustee of the name and address of each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.7 of the Base Indenture. The
Company or any Wholly Owned Subsidiary incorporated or organized within The United States of
America may act as Paying Agent, Registrar, co-registrar or transfer agent.




31









 








          The Company initially appoints the Trustee as Registrar and Paying Agent in connection with
Notes.




          SECTION 2.4. Paying Agent to Hold Money in Trust. Prior to each due date of the
principal of and interest on any Note, the Company shall deposit with the Paying Agent a sum
sufficient to pay such principal and interest when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust
for the benefit of Holders of Notes or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Notes and shall notify the Trustee of any default by the
Company in making any such payment. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee and to account for
any funds disbursed by the Paying Agent. Upon complying with this Section, the Paying Agent shall
have no further liability for the money delivered to the Trustee.




          SECTION 2.5. Noteholder Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of
Noteholders. If the Trustee is not the Registrar, or to the extent otherwise required under the
TIA, the Company shall furnish to the Trustee, in writing at least five Business Days before each
interest payment date and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and addresses of
Noteholders.




          SECTION 2.6. Transfer and Exchange; Certificated Notes. (a) The transfer and exchange
of Global Notes or beneficial interests therein shall be effected through the Depository, in
accordance with this Indenture (including applicable restrictions on transfer set forth herein, if
any) and the procedures of the Depository therefor. A transferor of a beneficial interest in a
Global Note shall deliver to the Registrar a written order given in accordance with the
Depository’s procedures containing information regarding the participant account of the Depository
to be credited with a beneficial interest in the Global Note. The Registrar shall, in accordance
with such instructions, instruct the Depository to credit to the account of the Person specified in
such instructions a beneficial interest in the Global Note and to debit the account of the Person
making the transfer the beneficial interest in the Global Note being transferred. If the proposed
transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in
another Global Note, the Registrar shall reflect on its books and records the date and an increase
in the principal amount of the Global Note to which such interest is being transferred in an amount
equal to the principal amount of the interest to be so transferred, and the Registrar shall reflect
on its books and records the date and a corresponding decrease in the principal amount of the
Global Note from which such interest is being transferred. Except as otherwise set forth in this
Section 2.6, a Global Note may not be transferred as a whole except by the
Depository to a nominee of the Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository.




          (b) At such time as all beneficial interests in a Global Note have either been exchanged for
certificated Notes, redeemed, purchased or canceled, such Global Note shall be returned to the
Depository for cancellation or retained and canceled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for certificated Notes,
redeemed, purchased or canceled, the principal amount of Notes represented by such Global Note
shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is
then the Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or
the Notes Custodian, to reflect such reduction.




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          (c) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global
Notes, a member of, or a participant in the Depository or other Person with respect to the accuracy
of the records of the Depository or its nominee or of any participant or member thereof, with
respect to any ownership interest in the Notes or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depository) of any notice (including any
notice of redemption) or the payment of any amount, under or with respect to such Notes. All
notices and communications to be given to the Holders and all payments to be made to Holders under
the Notes shall be given or made only to or upon the order of the registered Holders (which shall
be the Depository or its nominee in the case of a Global Notes). The rights of beneficial owners in
any Global Notes shall be exercised only through the Depository subject to the applicable rules and
procedures of the Depository. The Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its members, participants and any
beneficial owners. The Trustee shall have no obligation or duty to monitor, determine or inquire
as to compliance with any restrictions on transfer imposed under this Indenture or under applicable
law with respect to any transfer of any interest in any Notes (including any transfers between or
among Depository participants, members or beneficial owners in any Global Notes) other than to
require delivery of such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the express requirements hereof.




          (d) The Notes shall be issued in registered form and shall be transferable only upon the
surrender of a Note for registration of transfer. When a Note is presented to the Registrar or a
co-registrar with a request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of this Indenture and Section 8-401(1) of the Uniform Commercial Code
are met.




          (e) A Global Note deposited with the Depository or with the Trustee as Notes Custodian for the
Depository pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in the
form of certificated Notes in an aggregate principal amount equal to the principal amount of such
Global Note, in exchange for such Global Notes, only if such transfer complies with Section 2.6
hereof and (i) the Depository notifies the Company that it is unwilling or unable to continue as
Depository for such Global Note and the Depository fails to appoint a successor depository or if at
any time such Depository ceases to be a “clearing agency” registered under the Exchange Act, in
either case, and a successor depository is not appointed by the Company within 90 days of such
notice, or (ii) an Event of Default has occurred and is continuing or (iii) the Company, in its
sole discretion, notifies the Trustee in writing that it elects to cause the issuance of
certificated Notes under this Indenture.




          (f) Any Global Note that is transferable to the beneficial owners thereof pursuant to this
Section 2.6 shall be surrendered by the Depository to the Trustee located at its principal
Corporate Trust Office in the Borough of Manhattan, The City of New York, to be so transferred, in
whole or from time to
time in part, without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Note, an equal aggregate principal amount of certificated
Notes of authorized denominations. Any portion of a Global Note transferred pursuant to this
Section 2.6 shall be executed, authenticated and delivered only in denominations of $2,000
principal amount and any integral multiple of $1,000 in excess thereof and registered in such names
as the Depository shall direct.




          (g) Subject to the provisions of Section 2.6(f) hereof, the registered Holder of a Global Note
shall be entitled to grant proxies and otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.




33









 








          (h) In the event of the occurrence of one of the events specified in Section 2.6(e) hereof,
the Company shall promptly make available to the Trustee a reasonable supply of certificated Notes
in definitive, fully registered form without interest coupons.




          SECTION 2.7. Mutilated, Destroyed, Lost or Stolen Notes. If a mutilated Note is
surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Note if the requirements of Section 8-405 of the Uniform Commercial Code are met and
the Holder satisfies any other reasonable requirements of the Trustee. If required by the Trustee
or the Company, such Holder shall furnish an indemnity bond sufficient in the judgment of the
Company and the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and
any co-registrar from any loss which any of them may suffer if a Note is replaced. The Company and
the Trustee may charge the Holder for their expenses in replacing a Note.




          SECTION 2.8. Outstanding Notes. Notes outstanding at any time are all Notes
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this section as not outstanding. A Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.




          If a Note is replaced pursuant to Section 2.7, it ceases to be outstanding unless the Trustee
and the Company receive proof satisfactory to them that the replaced Note is held by a protected
purchaser (as defined in Section 8-303 of the Uniform Commercial Code).




          If the Paying Agent segregates and holds in trust, in accordance with this Supplemental
Indenture, on a redemption date or maturity date money sufficient to pay all principal and interest
payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as
the case may be, then on and after that date such Notes (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.




          SECTION 2.9. Temporary Notes. Until definitive Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes and deliver them in exchange for temporary Notes.




          SECTION 2.10. Cancellation. The Company at any time may deliver Notes to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else
shall cancel and dispose of (subject to the record retention requirements of the Exchange Act) all
Notes surrendered for registration of transfer, exchange, payment or cancellation and deliver a
certificate of such disposal to the Company upon its request therefor unless the Company directs
the Trustee to deliver canceled Notes to the Company. The Company may not issue new Notes to
replace Notes it has redeemed, paid or delivered to the Trustee for cancellation.




          SECTION 2.11. Payment of Interest; Defaulted Interest. If the Company defaults in a
payment of interest on the Notes, the Company shall pay defaulted interest (plus interest on such
defaulted interest to the extent lawful) on such series in any lawful manner. The Company may pay
the defaulted interest to the persons who are Holders of Notes on a subsequent special record rate.
The Company shall fix or cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail to each Holder of Notes a notice
that states the special record date, the payment date and the amount of defaulted interest to be
paid.





34











 





          SECTION 2.12. CUSIP Numbers, ISINs, etc. The Company in issuing the Notes may use
“CUSIP” numbers, ISINs and “Common Code” numbers (in each case if then generally in use) and, if
so, the Trustee shall use “CUSIP” numbers, ISINs and “Common Code” numbers in notices of redemption
as a convenience to Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company shall advise the Trustee in writing of any
change in any “CUSIP” numbers, ISINs or “Common Code” numbers applicable to the Notes.




          SECTION 2.13. Issuance of Additional Notes. After the Issue Date, the Company shall be
entitled, subject to its compliance with Section 3.3, to issue Additional Notes under this
Indenture, which Additional Notes shall have identical terms as the Notes issued on the Issue Date,
other than with respect to the date of issuance and issue price. All Notes issued under this
Indenture shall be treated as a single class for all purposes of this Indenture, including waivers,
amendments, redemptions and offers to purchase.




     With respect to any Additional Notes, the Company shall set forth in a resolution of the Board
of Directors and an Officers’ Certificate, a copy of each which shall be delivered to the Trustee,
the following information:



     (1) the aggregate principal amount of such Additional Notes to be authenticated and delivered
pursuant to this Indenture and the provision of Section 3.3 that the Company is relying on to issue
such Additional Notes; and



     (2) the issue price, the issue date and the CUSIP number and ISIN, if any, of such Additional
Notes; provided, however, that no Additional Notes may be issued at a price that would cause such
Additional Notes to have “original issue discount” within the meaning of Section 1273 of the Code.



ARTICLE III




Covenants




          Subject to Section 1.1 hereof, the provisions set forth in this Article III supersede and
replace in their entirety the provisions set forth in Article 4 of the Base Indenture, and such
provisions in the Base Indenture shall not at any time apply to the Notes.




          SECTION 3.1. Payment of Notes. The Company shall promptly pay the principal of and
interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture.
Principal and interest shall be considered paid on the date due if on such date the Trustee or the
Paying Agent holds in accordance with this Indenture immediately available funds sufficient to pay
all principal and interest then due.




          The Company shall pay interest on overdue principal at the rate specified therefor in the
Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent
lawful.




          Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the
extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by
the United States of America from principal or interest payments hereunder.




35









 








          SECTION 3.2. SEC Reports. Whether or not the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company will make available to the
Trustee and the Holders of the Notes the business and financial information required in the annual,
quarterly and current reports specified in Sections 13 and 15(d) of the Exchange Act which the
Company would be required to file if the Company were subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act. The Company will make such information available to the
Trustee and the Holders of the Notes no later than the date on which the Company would have been
required to file such reports with the SEC if the Company were subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act.




          If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the
quarterly and annual financial information required by the preceding paragraph shall include a
reasonably detailed presentation, either on the face of the financial statements or in the
footnotes to the financial statements and in Management’s Discussion and Analysis of Results of
Operations and Financial Condition, of the financial condition and results of operations of the
Company and its Restricted Subsidiaries.




          For purposes of this Section 3.2, the Company and the Subsidiary Guarantors will be
deemed to have furnished the reports to the Trustee and the Holders of the Notes as required by
this Section 3.2 if they have filed such reports with the SEC via the EDGAR filing system
and such reports are publicly available.




          SECTION 3.3. Limitation on Indebtedness. The Company will not, and will not permit
any of its Restricted Subsidiaries to, Incur any Indebtedness (including Acquired Indebtedness);
provided, however, that the Company and the Subsidiary Guarantors may Incur Indebtedness if on the
date thereof:





	 	(1)	 	the Consolidated Coverage Ratio for the Company and its
Restricted Subsidiaries is at least 2.50 to 1.00; and
	 
	 	(2)	 	no Default or Event of Default will have occurred and be
continuing or would occur as a consequence of Incurring the Indebtedness or
transactions relating to such Incurrence.





          The first paragraph of this Section 3.3 will not prohibit the Incurrence of the
following Indebtedness:





	 	(1)	 	Indebtedness of the Company or a Subsidiary Guarantor Incurred
pursuant to a Credit Facility in an aggregate principal amount at any time
outstanding not to exceed the greater of (a) $700,000,000, which amount shall
be reduced by $300,000,000 in five (5) consecutive and equal quarterly
installments of $60,000,000, the initial reduction of which shall occur on
December 31, 2007 and the last such reduction shall occur on December 31, 2008
and (b) 30% of Adjusted Consolidated Net Tangible Assets;
	 
	 	(2)	 	Guarantees by the Company or Subsidiary Guarantors of
Indebtedness Incurred in accordance with the provisions of this Indenture;
provided that in the event such Indebtedness that is being Guaranteed is a
Subordinated Obligation or a Guarantor Subordinated Obligation, then the
related Guarantee shall be subordinated in right of payment to the Notes or the
Subsidiary Guarantees, as the case may be;




36









 












	 	(3)	 	Indebtedness of the Company owing to and held by any Restricted
Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the
Company or any Restricted Subsidiary, provided, however;






	 	(a)	 	if the Company is the obligor on such
Indebtedness, such Indebtedness is expressly subordinated to the prior
payment in full in cash of all obligations with respect to the Notes;
	 
	 	(b)	 	if a Subsidiary Guarantor is the obligor on
such Indebtedness and the Company or a Subsidiary Guarantor is not the
obligee, such Indebtedness is subordinated in right of payment to the
Subsidiary Guarantees of such Subsidiary Guarantor; and






	 	(c)	 	(i)	 	any subsequent issuance or transfer
of Capital Stock or any other event which results in any such
Indebtedness being beneficially held by a Person other than the Company
or a Restricted Subsidiary of the Company; and






	 
	 	(ii)	 	any sale or other transfer of any
such Indebtedness to a Person other than the Company or a
Restricted Subsidiary of the Company,









shall be deemed, in each case, to constitute an Incurrence of such
Indebtedness by the Company or such Subsidiary, as the case may be;




	 	(4)	 	Indebtedness represented by (a) the Notes issued on the Issue
Date and the Subsidiary Guarantees (b) any Indebtedness (other than the
Indebtedness described in clauses (1), (2), (3), (6), (8), (9) and (10))
outstanding on the Issue Date and (c) any Refinancing Indebtedness Incurred in
respect of any Indebtedness described in this clause (4), clause (5), clause
(7), or clause (11) or Incurred pursuant to the first paragraph of this
Section 3.3;
	 
	 	(5)	 	Indebtedness of a Restricted Subsidiary Incurred and
outstanding on the date on which such Restricted Subsidiary was acquired by, or
merged into, the Company or any Restricted Subsidiary (other than Indebtedness
Incurred (a) to provide all or any portion of the funds utilized to consummate
the transaction or series of related transactions pursuant to which such
Subsidiary Guarantor became a Restricted Subsidiary or was otherwise acquired
by the Company or (b) otherwise in connection with, or in contemplation of,
such acquisition); provided, however, that at the time such Restricted
Subsidiary is acquired by the Company, the Company would have been able to
Incur $1.00 of additional Indebtedness pursuant to the first paragraph of this
Section 3.3 giving effect to the Incurrence of such Indebtedness
pursuant to this clause (5);
	 
	 	(6)	 	Indebtedness under Hedging Obligations that are Incurred in the
ordinary course of business (and not for speculative purposes) or as otherwise
required to be incurred under a Credit Facility (a) for the purpose of fixing
or hedging interest rate risk with respect to any Indebtedness Incurred without
violation of this Indenture; (b) for the purpose of fixing or hedging currency
exchange rate risk with respect to any currency exchanges; or (c) for the
purpose of fixing or hedging commodity price risk with respect to any
commodities;




37









 












	 	(7)	 	Indebtedness represented by Capitalized Lease Obligations,
mortgage financings or purchase money obligations or other Indebtedness, in
each case Incurred for the purpose of financing all or any part of the purchase
price or cost of construction or improvements of property used in the business
of the Company or such Subsidiary Guarantor, and Attributable Indebtedness, in
an aggregate principal amount not to exceed at any time outstanding the greater
of $25 million and 1.5% of Adjusted Consolidated Net Tangible Assets;
	 
	 	(8)	 	Indebtedness Incurred in respect of workers’ compensation
claims, self-insurance obligations, bid, performance, surety and similar bonds
and completion guarantees issued for the account of or provided by the Company
or a Restricted Subsidiary in the ordinary course of business, including
guarantees and obligations of the Company and any Restricted Subsidiary with
respect to letters of credit supporting such obligations (in each case other
than an obligation for money borrowed);
	 
	 	(9)	 	Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, Incurred or assumed in connection
with the disposition of any business or assets of the Company or any business,
assets or Capital Stock of a Restricted Subsidiary, provided that the maximum
aggregate liability in respect of all such Indebtedness shall at no time exceed
the gross proceeds actually received by the Company and its Restricted
Subsidiaries in connection with such disposition;
	 
	 	(10)	 	Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument (except in the
case of daylight overdrafts) drawn against insufficient funds in the ordinary
course of business, provided, however, that such Indebtedness is extinguished
within five business days of Incurrence; and
	 
	 	(11)	 	Indebtedness Incurred in respect of obligations relating to net
gas balancing positions arising in the ordinary course of business;
	 
	 	(12)	 	Endorsements of negotiable instruments for collection in the
ordinary course of business;
	 
	 	(13)	 	Indebtedness (other than for borrowed money) incurred in the
ordinary course of business in connection with Hydrocarbon transportation,
Hydrocarbon purchasing or other similar arrangements, provided that such
arrangements are disclosed to the Trustee;
	 
	 	(14)	 	Indebtedness incurred in connection with vendor financing
provided by Midland Pipe Corporation and its affiliates not to exceed
$15,000,000 in the aggregate at any one time outstanding;
	 
	 	(15)	 	Indebtedness incurred to finance insurance premiums;
	 
	 	(16)	 	Indebtedness in connection with trade payables owed to FM
Services, Inc. arising in the ordinary course of business; and




38









 






	 	(17)	 	In addition to the items referred to in clauses (1) through
(16) above, Indebtedness of the Company and its Subsidiary Guarantors in an
aggregate outstanding principal amount which, when taken together with the
principal amount of all other Indebtedness Incurred pursuant to this clause
(17) (including any Refinancing Indebtedness incurred under clause (4) above
with respect to such indebtedness) and then outstanding, will not exceed the
greater of (a) $30 million and (b) 2.0% of Adjusted Consolidated Net Tangible
Assets.





          The Company will not Incur any Indebtedness pursuant to clause (11) above if the proceeds
thereof are used, directly or indirectly, to refinance any Subordinated Obligations of the Company
unless such Indebtedness will be subordinated to the Notes to at least the same extent as such
Subordinated Obligations.




          No Subsidiary Guarantor will Incur any indebtedness if the proceeds thereof are used, directly
or indirectly, to refinance any Guarantor Subordinated Obligations of such Subsidiary Guarantor
unless such Indebtedness will be subordinated to the obligations of such Subsidiary Guarantor under
its Subsidiary Guarantees to at least the same extent as such Guarantor Subordinated Obligations.
No Restricted Subsidiary (other than a Subsidiary Guarantor) may Incur any Indebtedness if the
proceeds are used to refinance Indebtedness of the Company.




          For purposes of determining compliance with, and the outstanding principal amount of any
particular Indebtedness Incurred pursuant to and in compliance with, this Section 3.3:





	 	(1)	 	in the event that Indebtedness meets the criteria of more than
one of the types of Indebtedness described in the first and second paragraphs
of this Section 3.3, the Company, in its sole discretion, will classify
such item of Indebtedness on the date of Incurrence and, subject to clause (2)
below, may later classify such item of Indebtedness in any manner that complies
with this Section 3.3 and only be required to include the amount and
type of such Indebtedness in one of such clauses; provided that all
Indebtedness outstanding on the date of this Indenture under the Senior Secured
Credit Agreement shall be deemed initially Incurred on the Issue Date under
clause (1) of the second paragraph of this Section 3.3 and not the
first paragraph or clause (4) of the second paragraph of this Section
3.3 and may not be reclassified;
	 
	 	(2)	 	Guarantees of, or obligations in respect of letters of credit
relating to, Indebtedness which is otherwise included in the determination of a
particular amount of Indebtedness shall not be included;
	 
	 	(3)	 	if obligations in respect of letters of credit are Incurred
pursuant to a Credit Facility and are being treated as Incurred pursuant to
clause (1) of the second paragraph above and the letters of credit relate to
other Indebtedness, then such other Indebtedness shall not be included;
	 
	 	(4)	 	the principal amount of any Disqualified Stock of the Company
or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary that
is not a Subsidiary Guarantor, will be equal to the greater of the maximum
mandatory redemption or repurchase price (not including, in either case, any
redemption or repurchase premium) or the liquidation preference thereof;




39









 












	 	(5)	 	Indebtedness permitted by this Section 3.3 need not be
permitted solely by reference to one provision permitting such Indebtedness but
may be permitted in part by one such provision and in part by one or more other
provisions of this Section 3.3 permitting such Indebtedness; and
	 
	 	(6)	 	the amount of Indebtedness issued at a price that is less than
the principal amount thereof will be equal to the amount of the liability in
respect thereof determined in accordance with GAAP.





          Accrual of interest, accrual of dividends, the accretion of accreted value, the payment of
interest in the form of additional Indebtedness and the payment of dividends in the form of
additional shares of Preferred Stock or Disqualified Stock will not be deemed to be an Incurrence
of Indebtedness for purposes of this Section 3.3.




          If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of
such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as of such date (and, if
such Indebtedness is not permitted to be Incurred as of such date under this Section 3.3, the
Company shall be in Default of this Section 3.3).




          For purposes of determining compliance with any U.S. dollar-denominated restriction on the
Incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated
in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in
the case of revolving credit Indebtedness; provided that if such Indebtedness is Incurred to
refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause
the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated
restriction shall be deemed not to have been exceeded so long as the principal amount of such
refinancing Indebtedness does not exceed the principal amount of such Indebtedness being
refinanced. Notwithstanding any other provision of this Section 3.3, the maximum amount of
Indebtedness that the Company may Incur pursuant to this Section 3.3 shall not be deemed to
be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal
amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different
currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange
rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in
effect on the date of such refinancing.




          SECTION 3.4. Limitation on Restricted Payments. The Company will not, and will not
permit any of its Restricted Subsidiaries, directly or indirectly, to:





	 	(1)	 	declare or pay any dividend or make any distribution (whether
made in cash, securities or other property) on or in respect of its Capital
Stock (including any payment in connection with any merger or consolidation
involving the Company or any of its Restricted Subsidiaries) except:






	 	(a)	 	dividends or distributions payable in Capital
Stock of the Company (other than Disqualified Stock) or in options,
warrants or other rights to purchase such Capital Stock of the Company;
and
	 
	 	(b)	 	dividends or distributions payable to the
Company or a Restricted Subsidiary (and if such Restricted Subsidiary
is not a Wholly Owned Subsidiary, to its other Holders of Capital Stock
on a pro rata basis);




40









 












	 	(2)	 	purchase, redeem, retire or otherwise acquire for value any
Capital Stock of the Company or any direct or indirect parent of the Company
held by Persons other than the Company or a Restricted Subsidiary (other than
in exchange for Capital Stock of the Company (other than Disqualified Stock));
	 
	 	(3)	 	purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, prior to scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any Subordinated Obligations or Guarantor Subordinated
Obligations (other than (x) Indebtedness of the Company owing to and held by
any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to
and held by the Company or any other Restricted Subsidiary permitted under
clause (3) of the second paragraph of Section 3.3 or (y) the purchase,
repurchase, redemption, defeasance or other acquisition or retirement of
Subordinated Obligations or Guarantor Subordinated Obligations purchased in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of purchase,
repurchase, redemption, defeasance or other acquisition or retirement); or
	 
	 	(4)	 	make any Restricted Investment in any Person;






(any such dividend, distribution, purchase, redemption, repurchase, defeasance, other
acquisition, retirement or Restricted Investment referred to in clauses (1) through (4)
shall be referred to herein as a “Restricted Payment”), if at the time the Company
or such Restricted Subsidiary makes such Restricted Payment:




	 	(a)	 	a Default shall have occurred and be continuing
(or would result therefrom); or
	 
	 	(b)	 	the Company is not able to Incur an additional
$1.00 of Indebtedness pursuant to the first paragraph of Section
3.3 after giving effect, on a pro forma basis, to such Restricted
Payment; or
	 
	 	(c)	 	the aggregate amount of such Restricted Payment
and all other Restricted Payments declared or made subsequent to the
Issue Date would exceed the sum of:






	 	(i)	 	50% of Consolidated Net Income
for the period (treated as one accounting period) from the
beginning of the fiscal quarter in which the Issue Date occurs
to the end of the most recent fiscal quarter ending prior to the
date of such Restricted Payment for which financial statements
are in existence (or, in case such Consolidated Net Income is a
deficit, minus 100% of such deficit);
	 
	 	(ii)	 	100% of the aggregate Net Cash
Proceeds and 100% of the fair market value of the securities or
other property other than cash received that is used or useful
in the Oil and Gas Business that are received by the Company
from the issue or sale of its Capital Stock (other than
Disqualified Stock) or other capital contributions subsequent to
the Issue Date (other than Net Cash Proceeds received from an
issuance or sale of such Capital Stock




41









 







	 	 	 	to a Subsidiary of the Company or an employee stock ownership
plan, option plan or similar trust to the extent such sale to
an employee stock ownership plan or similar trust is financed
by loans from or Guaranteed by the Company or any Restricted
Subsidiary unless such loans have been repaid with cash on or
prior to the date of determination) or the merger or
consolidation of an Unrestricted Subsidiary with and into the
Company or any of its Restricted Subsidiaries;






	 	(iii)	 	the amount by which Indebtedness
of the Company or its Restricted Subsidiaries is reduced on the
Company’s balance sheet upon the conversion or exchange (other
than by a Subsidiary of the Company) subsequent to the Issue
Date of any Indebtedness of the Company or its Restricted
Subsidiaries convertible or exchangeable for Capital Stock
(other than Disqualified Stock) of the Company (less the amount
of any cash, or the fair market value of any other property,
distributed by the Company upon such conversion or exchange);
and
	 
	 	(iv)	 	the amount equal to the net
reduction in Restricted Investments made by the Company or any
of its Restricted Subsidiaries in any Person resulting from:






	 	(A)	 	repurchases or
redemptions of such Restricted Investments by such
Person, proceeds realized upon the sale of such
Restricted Investment to an unaffiliated purchaser,
repayments of loans or advances or other transfers of
assets (including by way of dividend or distribution) by
such Person to the Company or any Restricted Subsidiary
(other than for reimbursement of tax payments); or
	 
	 	(B)	 	the redesignation
of Unrestricted Subsidiaries as Restricted Subsidiaries
or the merger or consolidation of an Unrestricted
Subsidiary with and into the Company or any of its
Restricted Subsidiaries (valued in each case as provided
in the definition of “Investment”) not to exceed, in the
case of any Unrestricted Subsidiary, the amount of
Investments previously made by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary,






	 	 	 	which amount in each case under this clause (iv) was included
in the calculation of the amount of Restricted Payments;
provided, however, that no amount will be included under this
clause (iv) to the extent it is already included in
Consolidated Net Income.





          The provisions of the preceding paragraph will not prohibit:





	 	(1)	 	any purchase, repurchase, redemption, defeasance or other
acquisition or retirement of Capital Stock, Disqualified Stock or Subordinated
Obligations of




42









 






	 	 	 	the Company or Guarantor Subordinated Obligations of any Subsidiary
Guarantor made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Capital Stock of the Company (other than Disqualified
Stock and other than Capital Stock issued or sold to a Subsidiary or an
employee stock ownership plan or similar trust to the extent such sale to an
employee stock ownership plan or similar trust is financed by loans from or
Guaranteed by the Company or any Restricted Subsidiary unless such loans
have been repaid with cash on or prior to the date of determination);
provided, however, that (a) such purchase, repurchase, redemption,
defeasance, acquisition or retirement will be excluded from subsequent
calculations of the amount of Restricted Payments and (b) the Net Cash
Proceeds from such sale of Capital Stock will be excluded from clause
(c)(ii) of the preceding paragraph;






	 	(2)	 	any purchase, repurchase, redemption, defeasance or other
acquisition or retirement of Subordinated Obligations of the Company or
Guarantor Subordinated Obligations of any Subsidiary Guarantor made by exchange
for, or out of the proceeds of the substantially concurrent sale of,
Subordinated Obligations of the Company or any purchase, repurchase,
redemption, defeasance or other acquisition or retirement of Guarantor
Subordinated Obligations made by exchange for or out of the proceeds of the
substantially concurrent sale of Guarantor Subordinated Obligations that, in
each case, is permitted to be Incurred pursuant to Section 3.3 and that
in each case constitutes Refinancing Indebtedness; provided, however, that such
purchase, repurchase, redemption, defeasance, acquisition or retirement will be
excluded from subsequent calculations of the amount of Restricted Payments;
	 
	 	(3)	 	any purchase, repurchase, redemption, defeasance or other
acquisition or retirement of Disqualified Stock of the Company or a Restricted
Subsidiary made by exchange for or out of the proceeds of the substantially
concurrent sale of Disqualified Stock of the Company or such Restricted
Subsidiary, as the case may be, that, in each case, is permitted to be Incurred
pursuant to Section 3.3 and that in each case constitutes Refinancing
Indebtedness; provided, however, that such purchase, repurchase, redemption,
defeasance, acquisition or retirement will be excluded from subsequent
calculations of the amount of Restricted Payments;
	 
	 	(4)	 	so long as no Default or Event of Default has occurred and is
continuing, any purchase or redemption of Subordinated Obligations or Guarantor
Subordinated Obligations of a Subsidiary Guarantor from Net Available Cash to
the extent permitted under Section 3.7; provided, however, that such
purchase or redemption will be excluded from subsequent calculations of the
amount of Restricted Payments;
	 
	 	(5)	 	dividends paid within 60 days after the date of declaration or
the consummation of any irrevocable redemption within 60 days after the date of
giving the redemption notice if at such date of declaration or notice of
redemption such dividend or redemption payment would have complied with this
provision; provided, however, that such dividends or redemption payments will
be included from subsequent calculations of the amount of Restricted Payments;
	 
	 	(6)	 	so long as no Default or Event of Default has occurred and is
continuing,




43









 












	 	(a)	 	the purchase, redemption or other acquisition,
cancellation or retirement for value of Capital Stock, or options,
warrants, equity appreciation rights or other rights to purchase or
acquire Capital Stock of the Company or any parent of the Company held
by any existing or former employees or directors of the Company or any
Subsidiary of the Company or their assigns, estates or heirs, in each
case in connection with the repurchase provisions under employee stock
option or stock purchase agreements or other agreements to compensate
employees or directors; provided that such purchase,
redemption, acquisition, cancellation or retirement pursuant to this
clause will not exceed $5.0 million in the aggregate during any
calendar year; provided, however, that the amount of any such purchase,
redemption, acquisition, cancellation or retirement will be excluded
from subsequent calculations of the amount of Restricted Payments; and
	 
	 	(b)	 	loans or advances to employees or directors of
the Company or any Subsidiary of the Company the proceeds of which are
used to purchase Capital Stock of the Company, in an aggregate amount
not in excess of $5.5 million at any one time outstanding; provided,
however, that the Company and its Subsidiaries shall comply in all
material respects with all applicable provisions of the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection
therewith in connection with such loans or advances as if the Company
had filed a registration statement with the SEC; provided, further,
that the amount of such loans and advances will be included in
subsequent calculations of the amount of Restricted Payments;






	 	(7)	 	so long as no Default or Event of Default has occurred and is
continuing, the declaration and payment of dividends to Holders of any class or
series of Disqualified Stock of the Company, or Preferred Stock of a Restricted
Subsidiary that is not a Subsidiary Guarantor, issued in accordance with the
terms of this Indenture to the extent such dividends are included in the
definition of “Consolidated Interest Expense”; provided that the payment of
such dividends will be excluded from subsequent calculations of the amount of
Restricted Payments;
	 
	 	(8)	 	repurchases of Capital Stock deemed to occur upon the exercise
of stock options, warrants or other convertible securities if such Capital
Stock represents a portion of the exercise price thereof; provided, however,
that such repurchases will be excluded from subsequent calculations of the
amount of Restricted Payments;
	 
	 	(9)	 	the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of any Subordinated Obligation (i) at a
purchase price not greater than 101% of the principal amount of such
Subordinated Obligation in the event of a Change of Control in accordance with
provisions similar to those of Section 3.9 or (ii) at a purchase price
not greater than 100% of the principal amount thereof in accordance with
provisions similar to those of Section 3.7; provided, that, prior to or
simultaneously with such purchase, repurchase, redemption, defeasance or other
acquisition or retirement, the Company has made the Change of Control Offer or
Asset Disposition Offer, as applicable, as provided in Section 3.9 with
respect to the Notes and has completed the




44









 






	 	 	 	repurchase or redemption of all Notes validly tendered for payment in
connection with such Change of Control Offer or Asset Disposition Offer; and
provided, further, that any such purchase, repurchase, redemption,
defeasance or other acquisition will be excluded from subsequent
calculations of the amount of Restricted Payments;






	 	(10)	 	so long as no Default or Event of Default has occurred and is
continuing, the declaration and payment of dividends to holders of any class or
series of Preferred Stock of the Company, provided, however, to the extent the
cash proceeds of such equity issuance were used to make an Investment in an
Unrestricted Subsidiary, such dividends may be paid only to the extent of cash
actually received by the Company as dividends, interest or a return of capital
in respect of such Investment; provided, however, that such dividends will be
included in subsequent calculations of the amount of Restricted Payments;
	 
	 	(11)	 	Restricted Payments to Unrestricted Subsidiaries, provided that
the aggregate amount of all such Restricted Payments shall not exceed
$20,000,000 in any fiscal year; provided, further, that such Restricted
Payments to Unrestricted Subsidiaries will be included in subsequent
calculations of Restricted Payments; and
	 
	 	(12)	 	Restricted Payments in an amount not to exceed $50.0 million;
provided that the amount of such Restricted Payments will be included in
subsequent calculations of the amount of Restricted Payments.





          The amount of all Restricted Payments (other than cash) shall be the fair market value on the
date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or
issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such
Restricted Payment. The fair market value of any cash Restricted Payment shall be its face amount
and any non-cash Restricted Payment shall be determined conclusively by the Board of Directors of
the Company acting in good faith whose resolution with respect thereto shall be delivered to the
Trustee, such determination to be based upon an opinion or appraisal issued by an accounting,
appraisal or investment banking firm of recognized standing (as determined in good faith by the
Board of Directors of the Company) if such fair market value is estimated in good faith by the
Board of Directors of the Company to exceed $25.0 million. Not later than the date of making any
Restricted Payment pursuant to the first paragraph of this Section 3.4 or clause (10)
above, the Company shall deliver to the Trustee an Officers’ Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the calculations required by
this Section 3.4 were computed, together with a copy of any fairness opinion or appraisal
required by this Indenture.




          SECTION 3.5. Limitation on Liens. The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly, create, Incur or suffer to exist any Lien
(other than Permitted Liens) upon any of its property or assets (including Capital Stock of
Restricted Subsidiaries), whether owned on the date of this Indenture or acquired after that date,
which Lien is securing any Indebtedness, unless contemporaneously with the Incurrence of such Liens
effective provision is made to secure the Indebtedness due under this Indenture and the Notes or,
in respect of Liens on any Restricted Subsidiary’s property or assets, any Subsidiary Guarantee of
such Restricted Subsidiary, equally and ratably with (or senior in priority to in the case of Liens
with respect to Subordinated Obligations or Guarantor Subordinated Obligations, as the case may be)
the Indebtedness secured by such Lien for so long as such Indebtedness is so secured.




45









 








          SECTION 3.6. Limitation on Restrictions on Distributions from Restricted Subsidiaries.
The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause
or permit to exist or become effective any consensual encumbrance or consensual restriction on the
ability of any Restricted Subsidiary to:





	 	(1)	 	pay dividends or make any other distributions on its Capital
Stock or pay any Indebtedness or other obligations owed to the Company or any
Restricted Subsidiary (it being understood that the priority of any Preferred
Stock in receiving dividends or liquidating distributions prior to dividends or
liquidating distributions being paid on Common Stock shall not be deemed a
restriction on the ability to make distributions on Capital Stock);
	 
	 	(2)	 	make any loans or advances to the Company or any Restricted
Subsidiary (it being understood that the subordination of loans or advances
made to the Company or any Restricted Subsidiary to other Indebtedness Incurred
by the Company or any Restricted Subsidiary shall not be deemed a restriction
on the ability to make loans or advances); or
	 
	 	(3)	 	transfer any of its property or assets to the Company or any
Restricted Subsidiary.





          The preceding provisions will not prohibit:





	 	(i)	 	     any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the date of this Indenture, including, without
limitation, this Indenture, the Notes, the Subsidiary Guarantees, the Senior
Secured Credit Agreement (and related documentation) and the Bridge Credit
Agreement in effect on such date;
	 
	 	(ii)	 	     any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Capital Stock or
Indebtedness Incurred by a Restricted Subsidiary on or before the date on which
such Restricted Subsidiary was acquired by the Company or a Restricted
Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration
in, or to provide all or any portion of the funds utilized to consummate, the
transaction or series of related transactions pursuant to which such Restricted
Subsidiary became a Restricted Subsidiary or was acquired by the Company or in
contemplation of the transaction) and outstanding on such date provided, that
any such encumbrance or restriction shall not extend to any assets or property
of the Company or any other Restricted Subsidiary other than the assets and
property so acquired;
	 
	 	(iii)	 	     any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement effecting a refunding, replacement or
refinancing of Indebtedness Incurred pursuant to an agreement referred to in
clause (i) or (ii) of this paragraph or this clause (iii) or contained in any
amendment, restatement, modification, renewal, supplement, refunding,
replacement or refinancing of an agreement referred to in clause (i) or (ii) of
this paragraph or this clause (iii); provided, however, that the encumbrances
and restrictions with respect to such Restricted Subsidiary contained in any
such agreement are no less favorable in any material respect, taken as a whole,
to the Holders of the Notes, in the reasonable judgment of the Company’s Board
of Directors or senior




46









 






	 	 	 	management, than the encumbrances and restrictions contained in such
agreements referred to in clauses (i) or (ii) of this paragraph on the Issue
Date or the date such Restricted Subsidiary became a Restricted Subsidiary
or was merged into a Restricted Subsidiary, whichever is applicable;






	 	(iv)	 	     in the case of clause (3) of the first paragraph of this
Section 3.6, any encumbrance or restriction:






	 	(a)	 	that restricts in a customary manner the
subletting, assignment or transfer of any property or asset that is
subject to a lease, license or similar contract, or the assignment or
transfer of any such lease, license or other contract;
	 
	 	(b)	 	contained in mortgages, pledges or other
security agreements permitted under this Indenture securing
Indebtedness of the Company or a Restricted Subsidiary to the extent
such encumbrances or restrictions restrict the transfer of the property
subject to such mortgages, pledges or other security agreements; or
	 
	 	(c)	 	pursuant to customary provisions restricting
dispositions of real property interests set forth in any reciprocal
easement agreements of the Company or any Restricted Subsidiary;






	 	(v)	 	     (a) purchase money obligations for property acquired in the
ordinary course of business and (b) Capitalized Lease Obligations permitted
under this Indenture, in each case, that impose encumbrances or restrictions of
the nature described in clause (3) of the first paragraph of this Section
3.6 on the property so acquired;
	 
	 	(vi)	 	     any restriction with respect to a Restricted Subsidiary (or any
of its property or assets) imposed pursuant to an agreement entered into for
the direct or indirect sale or disposition of all or substantially all the
Capital Stock or assets of such Restricted Subsidiary (or the property or
assets that are subject to such restriction) pending the closing of such sale
or disposition;
	 
	 	(vii)	 	     customary encumbrances or restrictions imposed pursuant to any
agreement referred to in the definition of “Permitted Business Investment”;
	 
	 	(viii)	 	     net worth provisions in leases and other agreements entered into by the
Company or any Restricted Subsidiary in the ordinary course of business;
	 
	 	(ix)	 	     encumbrances or restrictions arising or existing by reason of
applicable law or any applicable rule, regulation or order; and
	 
	 	(x)	 	     encumbrances or restrictions contained in indentures or debt
instruments or other debt arrangements Incurred by Subsidiary Guarantors in
accordance with Section 3.3 that are not more restrictive, taken as a
whole, than those applicable to the Company in either this Indenture or the
Senior Secured Credit Agreement on the Issue Date (which results in
encumbrances or restrictions comparable to those applicable to the Company at a
Restricted Subsidiary level).




47









 











          SECTION 3.7. Limitation on Sales of Assets and Subsidiary Stock. The Company shall
not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:





	 	(1)	 	the Company or such Restricted Subsidiary, as the case may be,
receives consideration at least equal to the fair market value (any such fair
market value to be determined on the date of contractually agreeing to such
Asset Disposition), as determined (i) for consideration with a fair market
value less than $10 million in good faith by an executive officer of the
Company (including as to the value of all non cash consideration), of the
shares and assets subject to such Asset Disposition or (ii) for consideration
with a fair market value for $10 million or more in good faith by the Board of
Directors (including as to the value of all non-cash consideration), of the
shares and assets subject to such Asset Disposition;
	 
	 	(2)	 	at least 75% of the consideration from such Asset Disposition
received by the Company or such Restricted Subsidiary, as the case may be, is
in the form of cash or Cash Equivalents; and
	 
	 	(3)	 	except as provided in the next paragraph, an amount equal to
100% of the Net Available Cash from such Asset Disposition is applied by the
Company or such Restricted Subsidiary, as the case may be:






	 	(a)	 	first, to the extent the Company or any
Restricted Subsidiary, as the case may be, elects (or is required by
the terms of any Indebtedness), to prepay, repay or purchase
Indebtedness of the Company (other than any Disqualified Stock or
Subordinated Obligations) or Indebtedness of a Restricted Subsidiary
(other than any Disqualified Stock or a Guarantor Subordinated
Obligation of a Subsidiary Guarantor) (in each case other than
Indebtedness owed to the Company or a Restricted Subsidiary) within 360
days from the later of the date of such Asset Disposition or the
receipt of such Net Available Cash; provided, however, that, in
connection with any prepayment, repayment or purchase of Indebtedness
pursuant to this clause (a), the Company or such Restricted Subsidiary
will retire such Indebtedness and will cause the related commitment (if
any) to be permanently reduced in an amount equal to the principal
amount so prepaid, repaid or purchased; and
	 
	 	(b)	 	second, to the extent of the balance of such
Net Available Cash after application in accordance with clause (a), to
the extent the Company or such Restricted Subsidiary elects, to invest
in Additional Assets within 360 days from the later of the date of such
Asset Disposition or the receipt of such Net Available Cash;






	 	 	 	provided that pending the final application of any such Net Available Cash
in accordance with clause (a) or clause (b) above, the Company and its
Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise
invest such Net Available Cash in any manner not prohibited by this
Indenture.





          Any Net Available Cash from Asset Dispositions that are not applied or invested as provided in
the preceding paragraph will be deemed to constitute “Excess Proceeds.” Not later than the
361st day after the later of the date of an Asset Disposition or the receipt of such Net Available
Cash, if the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will be
required to make



48









 






an offer (“Asset Disposition Offer”) to all Holders of other Pari Passu Indebtedness,
to all Holders of Notes and to the extent required by the terms of other Pari Passu Indebtedness,
to all Holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the
Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset
Disposition (“Pari Passu Notes”), to purchase the maximum principal amount of Notes and any
such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the
Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of
the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase (subject to
the right of Holders of record on the relevant record date to receive interest due on the relevant
interest payment date), in accordance with the procedures set forth in this Indenture or the
agreements governing the Pari Passu Notes, as applicable, in each case in denominations of $2,000
and larger integral multiples of $1,000. To the extent that the aggregate amount of Notes and Pari
Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer
is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate
principal amount of Notes surrendered by Holders thereof and other Pari Passu Notes surrendered by
Holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes and Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate
principal amount of tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition
Offer, the amount of Excess Proceeds shall be reset at zero.




          The Asset Disposition Offer will remain open for a period of 20 Business Days following its
commencement, except to the extent that a longer period is required by applicable law (the
“Asset Disposition Offer Period”). No later than five Business Days after the termination
of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company
will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant
to this Section 3.7 (the “Asset Disposition Offer Amount”) or, if less than the
Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly
tendered in response to the Asset Disposition Offer.




          If the Asset Disposition Purchase Date is on or after an interest record date and on or before
the related interest payment date, any accrued and unpaid interest will be paid to the Person in
whose name a Note is registered at the close of business on such record date, and no additional
interest will be payable to Holders of the Notes who tender Notes pursuant to the Asset Disposition
Offer.




          On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount
of Notes and Pari Passu Notes or portions of Notes and Pari Passu Notes so validly tendered and not
properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition
Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes
so validly tendered and not properly withdrawn, in each case in denominations of $2,000 and larger
integral multiples of $1,000. The Company will deliver to the Trustee an Officers’ Certificate
stating that such Notes or portions thereof were accepted for payment by the Company in accordance
with the terms of this Section 3.7 and, in addition, the Company will deliver all
certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The
Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five
Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to each
tendering holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount
equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly
withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase,
and the Company will promptly issue a new Notes, and the Trustee, upon delivery of an Officers’
Certificate from the Company, will authenticate and mail or deliver such new Notes to such Holder,
in a principal amount equal to any unpurchased portion of the Note surrendered; provided



49









 






that each such new Note will be in a principal amount of $2,000 or larger integral multiples
of $1,000. In addition, the Company will take any and all other actions required by the agreements
governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivered by
the Company to the Holder thereof. The Company will publicly announce the results of the Asset
Disposition Offer on the Asset Disposition Purchase Date.




          For the purposes of clause (2) of the first paragraph of this Section 3.7, the
following will be deemed to be cash:





	 	(1)	 	the assumption by the transferee of Indebtedness or other
liabilities (other than Subordinated Obligations or Disqualified Stock) of the
Company or Indebtedness or other liabilities of a Restricted Subsidiary (other
than Guarantor Subordinated Obligations or Disqualified Stock of any Wholly
Owned Subsidiary that is a Subsidiary Guarantor) and the release of the Company
or such Restricted Subsidiary from all liability on such Indebtedness in
connection with such Asset Disposition (in which case the Company will, without
further action, be deemed to have applied such deemed cash to Indebtedness in
accordance with clause (3)(a) above); and
	 
	 	(2)	 	securities, notes or other obligations received by the Company
or any Restricted Subsidiary from the transferee that are promptly converted by
the Company or such Restricted Subsidiary into cash.





          The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any Asset
Swaps, unless:





	 	(1)	 	at the time of entering into such Asset Swap and immediately
after giving effect to such Asset Swap, no Default or Event of Default shall
have occurred and be continuing or would occur as a consequence thereof;
	 
	 	(2)	 	in the event such Asset Swap involves the transfer by the
Company or any Restricted Subsidiary of assets having an aggregate fair market
value, as determined by the Board of Directors of the Company in good faith, in
excess of $10.0 million, the terms of such Asset Swap have been approved by a
majority of the members of the Board of Directors of the Company; and
	 
	 	(3)	 	in the event such Asset Swap involves the transfer by the
Company or any Restricted Subsidiary of assets having an aggregate fair market
value, as determined by the Board of Directors of the Company in good faith, in
excess of $25.0 million, the Company has received a written opinion from an
independent investment banking firm of recognized standing (as determined in
good faith by the Board of Directors of the Company) that such Asset Swap is
fair to the Company or such Restricted Subsidiary, as the case may be, from a
financial point of view.





          To the extent any Excess Proceeds remain following the consummation of the Asset Disposition
Offer to Holders of the Notes, the Company shall be permitted to use such remaining Excess Proceeds
to redeem any other debt instruments that are pari passu with the Notes.




          The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws or regulations in connection with the repurchase of



50









 






Notes pursuant to this Indenture. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 3.7, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have breached its obligations
under this Indenture by virtue of any conflict.




          SECTION 3.8. Limitation on Affiliate Transactions. The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or conduct any
transaction (including the purchase, sale, lease or exchange of any property or the rendering of
any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless:





	 	(1)	 	the terms of such Affiliate Transaction are no less favorable
to the Company or such Restricted Subsidiary, as the case may be, than those
that could be obtained in a comparable transaction at the time of such
transaction in arm’s-length dealings with a Person who is not such an
Affiliate;
	 
	 	(2)	 	in the event such Affiliate Transaction involves an aggregate
consideration in excess of $10.0 million, the terms of such transaction have
been approved by a majority of the members of the Board of Directors of the
Company and by a majority of the members of such Board having no personal stake
in such transaction, if any (and such majority or majorities, as the case may
be, determines that such Affiliate Transaction satisfies the criteria in clause
(1) above); and
	 
	 	(3)	 	in the event such Affiliate Transaction involves an aggregate
consideration in excess of $20.0 million, the Company has received a written
opinion from an independent investment banking, accounting or appraisal firm of
recognized standing (as determined in good faith by the Board of Directors of
the Company) that such Affiliate Transaction is not materially less favorable
than those that might reasonably have been obtained in a comparable transaction
at such time on an arm’s-length basis from a Person that is not an Affiliate.





          The preceding paragraph will not apply to:





	 	(1)	 	any Restricted Payment permitted to be made pursuant to
Section 3.4;
	 
	 	(2)	 	any issuance of securities, or other payments, awards or grants
in cash, securities or otherwise pursuant to, or the funding of, employment
agreements and other compensation arrangements, options to purchase Capital
Stock of the Company, restricted stock plans, long-term incentive plans, stock
appreciation rights plans, participation plans or similar employee benefits
plans and/or indemnity provided on behalf of officers and employees and
approved by the Board of Directors of the Company;
	 
	 	(3)	 	loans or advances to employees, officers or directors in the
ordinary course of business of the Company or any of its Restricted
Subsidiaries but in any event not to exceed $5.0 million in the aggregate
outstanding at any one time with respect to all loans or advances made since
the Issue Date, provided, however, that the Company and its Subsidiaries will
comply in all material respects with all applicable provisions of the
Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith that would be applicable to an




51









 






	 	 	 	issuer with debt securities registered under the Securities Act relating to
such loans and advances;






	 	(4)	 	any transaction between the Company and a Restricted Subsidiary
or between Restricted Subsidiaries and Guarantees issued by the Company or a
Restricted Subsidiary for the benefit of the Company or a Restricted
Subsidiary, as the case may be, in accordance with Section 3.3;
	 
	 	(5)	 	the payment of reasonable and customary fees paid to, and
indemnity provided on behalf of, directors of the Company or any Restricted
Subsidiary;
	 
	 	(6)	 	the existence of, and the performance of obligations of the
Company or any of its Restricted Subsidiaries under the terms of any agreement
to which the Company or any of its Restricted Subsidiaries is a party as of or
on the Issue Date and identified on Schedule 3.8 to this Indenture on
the Issue Date, as these agreements may be amended, modified, supplemented,
extended or renewed from time to time; provided, however, that any future
amendment, modification, supplement, extension or renewal entered into after
the Issue Date will be permitted to the extent that its terms are not more
disadvantageous to the Holders of the Notes than the terms of the agreements in
effect on the Issue Date; and
	 
	 	(7)	 	transactions in the ordinary course of the business of the
Company and its Restricted Subsidiaries; provided that such transactions are on
terms that are no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
by the Company or such Restricted Subsidiary with an unrelated Person; and
	 
	 	(8)	 	any issuance or sale of Capital Stock (other than Disqualified
Stock) for fair consideration, in the reasonable judgment of the Board of
Directors of the Company, to Affiliates of the Company and the granting of
registration and other customary rights in connection therewith.





          SECTION 3.9. Change of Control. (a) If a Change of Control occurs, unless the
Company has exercised its right to redeem all of the Notes as described under Section 5.1,
each Holder of Notes will have the right to require the Company to repurchase all or any part
(equal to $2,000 or larger integral multiples of $1,000) of such Holder’s Notes at a purchase price
in cash equal to 101% of the principal amount of the Notes plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record on the relevant record date
to receive interest due on the relevant interest payment date).




          (b) Within 30 days following any Change of Control, unless the Company has exercised its right
to redeem all of the Notes as described under Section 5.1, the Company will mail a notice
(the “Change of Control Offer”) to each Holder, with a copy to the Trustee, stating:





	 	(1)	 	that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase such Holder’s Notes at a purchase
price in cash equal to 101% of the principal amount of such Notes plus accrued
and unpaid interest, if any, to the date of purchase (subject to the right of
Holders of record on a record date to receive interest on the relevant interest
payment date) (the “Change of Control Payment”);




52









 












	 	(2)	 	the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed) (the “Change of
Control Payment Date”); and
	 
	 	(3)	 	the procedures determined by the Company, consistent with this
Indenture, that a Holder must follow in order to have its Notes repurchased.
	 
	 	(c)	 	On the Change of Control Payment Date, the Company will, to the extent lawful:
	 
	 	(1)	 	accept for payment all Notes or portions of Notes (of $2,000
and larger multiples of $1,000) properly tendered pursuant to the Change of
Control Offer;
	 
	 	(2)	 	deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions of Notes so tendered; and
	 
	 	(3)	 	deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers’ Certificate stating the aggregate principal
amount of Notes or portions of Notes being purchased by the Company.





          (d) The Paying Agent will promptly mail to each Holder of Notes so tendered the Change of
Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that each such new Note will be in a principal
amount of $2,000 or larger integral multiples of $1,000.




          (e) If the Change of Control Payment Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest, if any, will be paid on
the relevant interest payment date to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest will be payable to Holders who tender
pursuant to the Change of Control Offer.




          (f) Prior to making a Change of Control Payment, and as a condition to such payment (i) the
requisite holders of each issue of Indebtedness issued under an indenture or other agreement that
may be violated by such payment shall have consented to such Change of Control Payment being made
and waived the Event of Default, if any, caused by the Change of Control or (ii) the Company will
repay all outstanding Indebtedness issued under an indenture or other agreement that may be
violated by a payment to the Holders of Notes under a Change of Control Payment or (iii) the
Company must offer to repay all such Indebtedness, and make payments to the Holders of such
Indebtedness that accept such offer, and obtain waivers of any Event of Default from the remaining
Holders of such Indebtedness. The Company covenants to effect such repayment or obtain such
consent prior to making a Change of Control Payment.




          (g) The Company will not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of
Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under
such Change of Control Offer.




          (h) The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 of
the Exchange Act and any other securities laws or regulations in connection with the repurchase of
Notes pursuant to this Section 3.9. To the extent that the provisions of any securities
laws



53









 






or regulations conflict with provisions of this Indenture, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have breached its obligations
described in this Indenture by virtue of the conflict.




          SECTION 3.10. Limitation on Sale of Capital Stock of Restricted Subsidiaries. The
Company will not, and will not permit any Restricted Subsidiary to, transfer, convey, sell, lease
or otherwise dispose of any Voting Stock of any Restricted Subsidiary or to issue any of the Voting
Stock of a Restricted Subsidiary (other than, if necessary, shares of its Voting Stock constituting
directors’ qualifying shares) to any Person except:





	 	(1)	 	to the Company or a Wholly Owned Restricted Subsidiary; or
	 
	 	(2)	 	in compliance with Section 3.7 and immediately after
giving effect to such issuance or sale, such Restricted Subsidiary would
continue to be a Restricted Subsidiary.





          Notwithstanding the preceding paragraph, the Company or any Restricted Subsidiary may sell all
the Voting Stock of a Restricted Subsidiary as long as the Company complies with the terms of
Section 3.7.




          SECTION 3.11. Future Subsidiary Guarantors. The Company will cause each Restricted
Subsidiary (other than a Foreign Subsidiary) created or acquired by the Company or one or more of
its Restricted Subsidiaries after the Issue Date that Guarantees, on the Issue Date or any time
thereafter, Indebtedness of the Company under the Senior Secured Credit Agreement to execute and
deliver to the Trustee a Subsidiary Guarantee, substantially in the form of Exhibit E, pursuant to
which such Subsidiary Guarantor will unconditionally Guarantee, on a joint and several basis, the
full and prompt payment of the principal of, premium, if any and interest on the Notes on a senior
basis.




          Subsidiary Guarantees shall be released in accordance with the provisions of this Indenture
described under Section 10.2.




          SECTION 3.12. Limitation on Lines of Business. The Company shall not, and shall not
permit any Restricted Subsidiary to, engage in any business other than the Oil and Gas Business.




          SECTION 3.13. Maintenance of Office or Agency. The Company will maintain an office or
agency where the Notes may be presented or surrendered for payment, where, if applicable, the Notes
may be surrendered for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The Company will give
prompt written notice to the Trustee of any change in the location of any such office or agency.
If at any time the Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the trustee’s principal corporate trust office (the “Corporate
Trust Office”), and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.




          The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind any such designation. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such other office or agency.




          SECTION 3.14. Corporate Existence. Subject to Article IV and Section
10.2, the Company and the Subsidiary Guarantors will do or cause to be done all things
necessary to preserve and



54









 






keep in full force and effect its corporate existence and that of each Restricted Subsidiary
and the corporate rights (charter and statutory) licenses and franchises of the Company and each
Restricted Subsidiary; provided, however, that the Company shall not be required to preserve any
such existence (except the Company), right, license or franchise if the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in the conduct of the
business of the Company and each of its Restricted Subsidiaries, taken as a whole, and that the
loss thereof would not have a material adverse effect on the ability of the Company to perform its
obligations under the Notes or this Indenture, provided, further, the Company may engage in
transactions in accordance with Sections 4.1 and 10.2.




          SECTION 3.15. Payment of Taxes and Other Claims. The Company shall pay or discharge
or cause to be paid or discharged, before the same shall become delinquent, all material taxes,
assessments and governmental charges levied or imposed upon the Company or any Subsidiary or upon
the income, profits or property of the Company or any Subsidiary, provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings and for which appropriate reserves, if necessary (in the good
faith judgment of management of the Company), are being maintained in accordance with GAAP or where
the failure to effect such payment will not be disadvantageous to the Holders.




          SECTION 3.16. Payments for Consent. Neither the Company nor any of its Restricted
Subsidiaries shall, directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fees or otherwise, to any Holder of any Notes for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to be paid or is paid to all Holders of the Notes that
consent, waive or agree to amend in the time frame set forth in the solicitation documents relating
to such consent, waiver or amendment.




          SECTION 3.17. Compliance Certificate. The Company shall deliver to the Trustee within
120 days after the end of each fiscal year of the Company an Officers’ Certificate stating that in
the course of the performance by the signers of their duties as Officers of the Company, they would
normally have knowledge of any Default or Event of Default and whether or not the signers know of
any Default or Event of Default that occurred during such period. If they do, the certificate
shall describe the Default or Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company and the Subsidiary Guarantors also shall comply
with TIA § 314(a)(4).




          SECTION 3.18. Further Instruments and Acts. Upon the request of the Trustee, the
Company will execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of this Indenture.




          SECTION 3.19. Statement by Officers as to Default. The Company shall deliver to the
Trustee, as soon as possible and in any event within 30 days after the Company becomes aware of the
occurrence of any Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers’ Certificate setting forth the details of such
Event of Default or Default and the action which the Company is taking or proposing to take with
respect thereto.




          SECTION 3.20. Covenant Suspension. Following the first day: (a) the Notes have an
Investment Grade Rating from both of the Ratings Agencies; and (b) no Default has occurred and is
continuing under the Indenture; the Company and its Restricted Subsidiaries will not be subject to
the provisions of Sections 3.3, 3.4, 3.6, 3.7, 3.8, 3.10 and clause (3) of Section 4.1
(collectively, the “Suspended Covenants”). If at any time the Notes’ credit rating is
downgraded from an Investment Grade Rating by any Rating Agency or if a Default or Event of Default
occurs and is continuing, then the



55









 






Suspended Covenants will thereafter be reinstated as if such covenants had never been
suspended (the “Reinstatement Date”) and be applicable pursuant to the terms of this
Indenture (including in connection with performing any calculation or assessment to determine
compliance with the terms of this Indenture), unless and until the Notes subsequently attain an
Investment Grade Rating (in which event the Suspended Covenants shall no longer be in effect for
such time that the Notes maintain an Investment Grade Rating); provided, however, that no Default,
Event of Default or breach of any kind shall be deemed to exist under this Indenture, the Notes or
the Subsidiary Guarantees with respect to the Suspended Covenants based on, and none of the Company
or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring
after the Notes attain an Investment Grade Rating and before any reinstatement of such Suspended
Covenants as provided above, or any actions taken at any time pursuant to any contractual
obligation arising prior to such reinstatement, regardless of whether such actions or events would
have been permitted if the applicable Suspended Covenants remained in effect during such period.
The period of time between the date of suspension of the Suspended Covenants and the Reinstatement
Date is referred to as the “Suspension Period.” On the Reinstatement Date, all
Indebtedness Incurred during the Suspension Period will be classified to have been Incurred
pursuant to the first paragraph of Section 3.3 or one of the clauses set forth in the second
paragraph of Section 3.3 (to the extent such Indebtedness would be permitted to be Incurred
thereunder as of the Reinstatement Date and after giving effect to Indebtedness Incurred prior to
the Suspension Period and outstanding on the Reinstatement Date). To the extent such Indebtedness
would not be so permitted to be Incurred pursuant to the first or second paragraph of Section 3.3,
such Indebtedness will be deemed to have been outstanding on the Issue Date, so that it is
classified as permitted under clause (4)(b) of the second paragraph of Section 3.3. Calculations
made after the Reinstatement Date of the amount available to be made as Restricted Payments under
Section 3.4 will be made as though the covenants described under Section 3.4 had been in effect
since the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made
during the Suspension Period will reduce the amount available to be made as Restricted Payments
under the first paragraph of Section 3.4. During any period when the Suspended Covenants are
suspended, the Board of Directors of the Company may not designate any of the Company’s
Subsidiaries as Unrestricted Subsidiaries pursuant to this Indenture.




ARTICLE IV




Successor Company




          Subject to Section 1.1 hereof, the provisions set forth in this Article IV supersede and
replace in their entirety the provisions set forth in Article 5 of the Base Indenture, and such
provisions in the Base Indenture shall not at any time apply to the Notes.




          SECTION 4.1. Merger and Consolidation. The Company will not consolidate with or merge
with or into, or convey, transfer or lease all or substantially all its assets to, any Person,
unless:





	 	(1)	 	the resulting, surviving or transferee Person (the
“Successor Company”) will be a corporation organized and existing under
the laws of the United States of America, any State of the United States or the
District of Columbia and the Successor Company (if not the Company) will
expressly assume, by supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of the
Company under the Notes and this Indenture;
	 
	 	(2)	 	immediately after giving effect to such transaction (and
treating any Indebtedness that becomes an obligation of the Successor Company
or any Subsidiary of the Successor Company as a result of such transaction as
having been Incurred by




56









 












	 	 	 	the Successor Company or such Subsidiary at the time of such transaction),
no Default or Event of Default shall have occurred and be continuing;
	 
	 	(3)	 	immediately after giving effect to such transaction, the
Successor Company would be able to Incur at least an additional $1.00 of
Indebtedness pursuant to the first paragraph of Section 3.3;
	 
	 	(4)	 	each Subsidiary Guarantor (unless it is the other party to the
transactions above, in which case clause (1) shall apply) shall have by
supplemental indenture confirmed that its Subsidiary Guarantees shall apply to
such Person’s obligations in respect of this Indenture and the Notes shall
continue to be in effect; and
	 
	 	(5)	 	the Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture (if any) comply with this
Indenture.





          For purposes of this Section 4.1, the sale, lease, conveyance, assignment, transfer,
or other disposition of all or substantially all of the properties and assets of one or more
Subsidiaries of the Company, which properties and assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the properties and assets of the Company
on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.




          The predecessor Company will be released from its obligations under this Indenture, and the
Successor Company will succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture, but, in the case of a lease of all or substantially all its
assets, the predecessor Company will not be released from the obligation to pay the principal of
and interest on the Notes.




          Notwithstanding the preceding clause (3), (x) any Restricted Subsidiary may consolidate or
merge with, merge into or transfer all or part of its properties and assets to the Company and (y)
the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the
Company in another jurisdiction to realize tax benefits; provided that, in the case of a Restricted
Subsidiary that merges into the Company, the Company will not be required to comply with the
preceding clause (5).




          In addition, the Company will not permit any Subsidiary Guarantor to consolidate with or merge
with or into any person (other than another Subsidiary Guarantor) and will not permit the
conveyance, transfer or lease of substantially all of the assets of any Subsidiary Guarantor
unless:





	 	(1)	 	(a) the resulting, surviving or transferee Person will be a
corporation, partnership, trust or limited liability company organized and
existing under the laws of the United States of America, any State of the
United States or the District of Columbia and such Person (if not such
Subsidiary Guarantor) will expressly assume, by supplemental indenture,
executed and delivered to the Trustee, all the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantees; (b) immediately after giving effect
to such transaction (and treating any Indebtedness that becomes an obligation
of the resulting, surviving or transferee Person or any Restricted Subsidiary
as a result of such transaction as having been Incurred by such Person or such
Restricted Subsidiary at the time of such transaction), no Default of Event of
Default shall have occurred and be continuing; and (c) the Company will have
delivered to the Trustee an Officers’ Certificate and an




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	 	 	 	Opinion of Counsel, each stating that such consolidation, merger or transfer
and such supplemental indenture (if any) comply with this Indenture; and






	 	(2)	 	the transaction is made in compliance with the provisions
described under Section 3.7, Section 3.10 and this Section
4.1.





ARTICLE V




Redemption of Notes




          Subject to Section 1.1 hereof, the provisions set forth in this Article V supersede and
replace in their entirety the provisions set forth in Article 3 of the Base Indenture, and such
provisions in the Base Indenture shall not at any time apply to the Notes.




          SECTION 5.1. Optional Redemption. Except as described below, the Notes are not
redeemable until November 15, 2011. On and after November 15, 2011, the Company may redeem all or,
from time to time, a part of the Notes upon not less than 30 nor more than 60 days’ notice, at the
following redemption prices (expressed as a percentage of principal amount) plus accrued and unpaid
interest on the Notes, if any, to the applicable date of redemption (any such date, a
“Redemption Date”) (subject to the right of Holders of record on the relevant record date
to receive interest due on the relevant interest payment date), if redeemed during the twelve-month
period beginning on November 15 of the years indicated below:




	 	 	 	 	 
	Year	 	Percentage
	2011
	 	 	105.938	%
	2012
	 	 	104.938	%
	2013 and thereafter
	 	 	100.00	%






          Prior to November 15, 2010, the Company may on any one or more occasions redeem up to 35% of
the original principal amount of the Notes (calculated after giving effect to any issuance of
Additional Notes)with the Net Cash Proceeds of one or more Equity Offerings at a redemption price
of 111.875% of the principal amount thereof, plus accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date); provided that





	 	(1)	 	at least 65% of the original principal amount of the Notes
remains outstanding after each such redemption; and
	 
	 	(2)	 	the redemption occurs within 60 days after the closing of such
Equity Offering.





          In addition, at any time prior to November 15, 2011, the Company may redeem all or, from time
to time, a part of the Notes upon not less than 30 nor more than 60 days’ notice, at a redemption
price equal to 100% of the principal amount thereof plus the Applicable Premium plus accrued and
unpaid interest, if any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment date).




          If the optional Redemption Date is on or after an interest record date and on or before the
related interest payment date, the accrued and unpaid interest, if any, will be paid to the Person
in whose name the Note is registered at the close of business, on such record date, and no
additional interest will be payable to Holders whose Notes will be subject to redemption by the
Company.




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          SECTION 5.2. Applicability of Article. Redemption of Notes at the election of the
Company or otherwise, as permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.




          SECTION 5.3. Election to Redeem; Notice to Trustee. The election of the Company to
redeem any Notes pursuant to Section 5.1 shall be evidenced by a resolution of the Board of
Directors. In case of any redemption at the election of the Company, the Company shall, upon not
later than the earlier of the date that is 45 days prior to the Redemption Date fixed by the
Company or the date on which notice is given to the Holders (except as provided in Section
5.5 or unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Notes to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to select the Notes to be
redeemed pursuant to Section 5.4.




          SECTION 5.4. Selection by Trustee of Notes to Be Redeemed. In the case of any partial
redemption, selection of the Notes for redemption will be made, subject to the procedures of DTC,
by the Trustee in compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not listed, then on a pro rata basis, by
lot or by such other method as the Trustee in its sole discretion will deem to be fair and
appropriate, although no Note of $1,000 in original principal amount or less will be redeemed in
part. If any Note is to be redeemed in part only, the notice of redemption relating to such Note
will state the portion of the principal amount thereof to be redeemed. A new Note in principal
amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof
upon cancellation of the original Note.




          For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed
only in part, to the portion of the principal amount of such Note which has been or is to be
redeemed.




          SECTION 5.5. Notice of Redemption. Notice of redemption shall be given by the Company
not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Notes to be
redeemed. The Company may request the Trustee to give notice of redemption in the Company’s name
and at the Company’s expense; provided, however, that the Company shall deliver to the Trustee, at
least 45 days prior to the Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee), an Officers’ Certificate requesting that the Trustee give such notice at the Company’s
expense and setting forth the information to be stated in such notice as provided in the following
items.




          All notices of redemption shall state:





	 	(1)	 	the Redemption Date,
	 
	 	(2)	 	the redemption price and the amount of accrued interest to the
Redemption Date payable as provided in Section 5.7, if any,
	 
	 	(3)	 	if less than all outstanding Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be redeemed, as
well as the aggregate principal amount of Notes to be redeemed and the
aggregate principal amount of Notes to be outstanding after such partial
redemption,
	 
	 	(4)	 	in case any Note is to be redeemed in part only, the notice
which relates to such Note shall state that on and after the Redemption Date,
upon surrender of such Note, the Holder will receive, without charge, a new
Note or Notes of authorized denominations for the principal amount thereof
remaining unredeemed,




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	 	(5)	 	that on the Redemption Date the redemption price (and accrued
interest, if any, to the Redemption Date payable as provided in Section
5.7) will become due and payable upon each such Note, or the portion
thereof, to be redeemed, and, unless the Company defaults in making the
redemption payment, that interest on Notes called for redemption (or the
portion thereof) will cease to accrue on and after said date,
	 
	 	(6)	 	the place or places where such Notes are to be surrendered for
payment of the redemption price and accrued interest, if any,
	 
	 	(7)	 	the name and address of the Paying Agent,
	 
	 	(8)	 	that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price,
	 
	 	(9)	 	the CUSIP number, and that no representation is made as to the
accuracy or correctness of the CUSIP number, if any, listed in such notice or
printed on the Notes, and
	 
	 	(10)	 	the paragraph of the Indenture pursuant to which the Notes are
to be redeemed.





          SECTION 5.6. Deposit of Redemption Price. Prior to 10:00 a.m. New York City time, on
any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section
2.4) an amount of money sufficient to pay the redemption price of, and accrued interest on, all
the Notes which are to be redeemed on that date.




          SECTION 5.7. Notes Payable on Redemption Date. Notice of redemption having been given
as aforesaid, the Notes so to be redeemed shall, on the Redemption Date, become due and payable at
the redemption price therein specified (together with accrued interest, if any, to the Redemption
Date), and from and after such date (unless the Company shall default in the payment of the
redemption price and accrued interest) such Notes shall cease to bear interest. Upon surrender of
any such Note for redemption in accordance with said notice, such Note shall be paid by the Company
at the redemption price, together with accrued interest, if any, to the Redemption Date (subject to
the rights of Holders of record on the relevant record date to receive interest due on the relevant
interest payment date).




          If any Note called for redemption shall not be so paid upon surrender thereof for redemption,
the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at
the rate borne by the Notes.




          SECTION 5.8. Notes Redeemed in Part. Any Note which is to be redeemed only in part
(pursuant to the provisions of this Article) shall be surrendered at the office or agency of the
Company maintained for such purpose pursuant to Section 3.13 (with, if the Company or the
Trustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to
the Company duly executed by, the Holder thereof or such Holder’s attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and make available for
delivery to the Holder of such Note at the expense of the Company, a new Note or Notes, of any
authorized denomination as requested by such Holder, in an aggregate principal amount equal to and
in exchange for the unredeemed portion of the principal of the Note so surrendered, provided, that
each such new Note will be in a principal amount of $2,000 or larger integral multiples of $1,000.





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ARTICLE VI




Defaults and Remedies




          Subject to Section 1.1 hereof, the provisions set forth in this Article VI supersede and
replace in their entirety the provisions set forth in Article 6 of the Base Indenture, and such
provisions in the Base Indenture shall not at any time apply to the Notes.




          SECTION 6.1. Events of Default. Each of the following is an “Event of
Default”:





	 	(1)	 	default in any payment of interest on any Note when due,
continued for 30 days;
	 
	 	(2)	 	default in the payment of principal of or premium, if any, on
any Note when due at its Stated Maturity, upon optional redemption, upon
required repurchase, upon declaration or otherwise;
	 
	 	(3)	 	failure by the Company or any Subsidiary Guarantor to comply
with its obligations under Article IV;
	 
	 	(4)	 	failure by the Company to comply for 30 days after notice with
any of its obligations under Sections 3.2 through 3.12,
inclusive, and 3.16 (in each case, other than a failure to purchase
Notes which will constitute an Event of Default under clause (2) above and
other than a failure to comply with Article IV which is covered by
clause (3));
	 
	 	(5)	 	failure by the Company to comply for 60 days after notice with
its other agreements contained in this Indenture;
	 
	 	(6)	 	default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of
its Restricted Subsidiaries), other than Indebtedness owed to the Company or a
Restricted Subsidiary, whether such Indebtedness or guarantee now exists, or is
created after the date of this Indenture, which default:






	 	(a)	 	is caused by a failure to pay principal of, or
interest or premium, if any, on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness
(“payment default”); or
	 
	 	(b)	 	results in the acceleration of such
Indebtedness prior to its maturity (the “cross acceleration
provision”);






	 	 	 	and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there
has been a payment default or the maturity of which has been so accelerated,
aggregates $25.0 million or more;
	 
	 	(7)	 	(a) the Company or a Significant Subsidiary or group of
Restricted Subsidiaries that, taken together (as of the latest audited
consolidated financial statements for




61









 






	 	 	 	the Company and its Restricted Subsidiaries), would constitute a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:






	 	(i)	 	commences a voluntary case or
proceeding;
	 
	 	(ii)	 	consents to the entry of
judgment, decree or order for relief against it in an
involuntary case or proceeding;
	 
	 	(iii)	 	consents to the appointment of a
Custodian of it or for any substantial part of its property;
	 
	 	(iv)	 	makes a general assignment for
the benefit of its creditors;
	 
	 	(v)	 	consents to or acquiesces in the
institution of a bankruptcy or an insolvency proceeding against
it; or
	 
	 	(vi)	 	takes any comparable action under
any foreign laws relating to insolvency; or





          (b) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:





	 	(vii)	 	is for relief in an involuntary
case against the Company or a Significant Subsidiary or group of
Restricted Subsidiaries that, taken together (as of the latest
audited consolidated financial statements for the Company and
its Restricted Subsidiaries), would constitute a Significant
Subsidiary;
	 
	 	(viii)	 	appoints a Custodian for all or substantially all of the
property of the Company or a Significant Subsidiary or group of
Restricted Subsidiaries that, taken together (as of the latest
audited consolidated financial statements for the Company and
its Restricted Subsidiaries), would constitute a Significant
Subsidiary; or
	 
	 	(ix)	 	orders the winding up or
liquidation of the Company or a Significant Subsidiary or group
of Restricted Subsidiaries that, taken together (as of the
latest audited consolidated financial statements for the Company
and its Restricted Subsidiaries), would constitute a
Significant; and
	 
	 	(x)	 	in each case the order, decree or
relief remains unstayed and in effect for 60 days;






	 	(8)	 	failure by the Company or any Significant Subsidiary or group
of Restricted Subsidiaries that, taken together (as of the latest audited
consolidated financial statements for the Company and its Restricted
Subsidiaries), would constitute a Significant Subsidiary to pay final judgments
aggregating in excess of $25.0 million (net of any amounts that a reputable and
creditworthy insurance company has acknowledged liability for in writing),
which judgments are not paid,




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	 	 	 	discharged or stayed for a period of 60 days (the “judgment default
provision”); or
	 
	 	(9)	 	any Subsidiary Guarantee of a Significant Subsidiary or group
of Restricted Subsidiaries that taken together as of the latest audited
consolidated financial statements for the Company and its Restricted
Subsidiaries would constitute a Significant Subsidiary ceases to be in full
force and effect (except as contemplated by the terms of this Indenture) or is
declared null and void in a judicial proceeding; or any Subsidiary Guarantor
that is a Significant Subsidiary or group of Subsidiary Guarantors that taken
together as of the latest audited consolidated financial statements of the
Company and its Restricted Subsidiaries would constitute a Significant
Subsidiary denies or disaffirms its obligations under this Indenture or its
Subsidiary Guarantee.




However, a Default under clauses (4) and (5) of this Section 6.1 will not constitute an
Event of Default until the Trustee or the Holders of 25% in principal amount of the outstanding
Notes notify the Company of the Default and the Company does not cure such Default within the time
specified in clauses (4) and (5) of this Section 6.1 after receipt of such notice.




          SECTION 6.2. Acceleration. If an Event of Default (other than an Event of Default
described in clause (7) of Section 6.1) occurs and is continuing, the Trustee by notice to
the Company, or the Holders of at least 25% in principal amount of the outstanding Notes by notice
to the Company and the Trustee, may, and the Trustee at the request of such Holders shall, declare
the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes to be
due and payable. Upon such a declaration, such principal, premium and accrued and unpaid interest
will be due and payable immediately. In the event of a declaration of acceleration of the Notes
because an Event of Default described in clause (6) of Section 6.1 has occurred and is
continuing, the declaration of acceleration of the Notes shall be automatically annulled if the
Event of Default or payment default triggering such Event of Default pursuant to clause (6) of
Section 6.1 shall be remedied or cured by the Company or a Restricted Subsidiary or waived
by the Holders of the relevant Indebtedness within 20 days after the declaration of acceleration
with respect thereto and if (1) the annulment of the acceleration of the Notes would not conflict
with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of
Default, except nonpayment of principal, premium or interest on the Notes that became due solely
because of the acceleration of the Notes, have been cured or waived. If an Event of Default
described in clause (7) of Section 6.1 above occurs and is continuing, the principal of, premium,
if any, and accrued and unpaid interest on all the Notes will become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any Holders. The
Holders of a majority in principal amount of the outstanding Notes may waive any or all past
defaults (except with respect to nonpayment of principal, premium or interest) and rescind any such
acceleration with respect to the Notes and its consequences if (1) rescission would not conflict
with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of
Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes
that have become due solely by such declaration of acceleration, have been cured or waived.




          SECTION 6.3. Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of (or premium, if any)
or interest on the Notes or to enforce the performance of any provision of the Notes or this
Indenture.




          The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Noteholder in
exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or



63









 






constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.




          SECTION 6.4. Waiver of Past Defaults. Subject to Section 6.2, the Holders of
a majority in principal amount of the outstanding Notes by notice to the Trustee may (a) waive, by
their consent (including, without limitation consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Notes), an existing Default or Event of Default and its
consequences except (i) a Default or Event of Default in the payment of the principal of, or
premium, if any, or interest on a Note or (ii) a Default or Event of Default in respect of a
provision that under Section 9.2 cannot be amended without the consent of each Noteholder
affected and (b) rescind any such acceleration with respect to the Notes and its consequences if
rescission would not conflict with any judgment or decree of a court of competent jurisdiction.
When a Default or Event of Default is waived, it is deemed cured, but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any consequent right.




          SECTION 6.5. Control by Majority. The Holders of a majority in principal amount of
the outstanding Notes may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture
or, subject to Sections 7.1 and 7.2, that the Trustee determines is unduly prejudicial to the
rights of other Noteholders or would involve the Trustee in personal liability; provided, however,
that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent
with such direction. Prior to taking any action hereunder, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against all losses and expenses caused by
taking or not taking such action.




          SECTION 6.6. Limitation on Suits. Subject to the provisions of this Indenture
relating to the duties of the Trustee, if an Event of Default occurs and is continuing, the Trustee
will be under no obligation to exercise any of the rights or powers under the Indenture at the
request or direction of any of the Holders unless such Holders have offered to the Trustee
reasonable indemnity or security against any loss, liability or expense. Except to enforce the
right to receive payment of principal, premium, if any, or interest when due, no Holder may pursue
any remedy with respect to this Indenture or the Notes unless:





	 	(1)	 	such Holder has previously given to the Trustee notice stating
that an Event of Default is continuing;
	 
	 	(2)	 	Holders of at least 25% in principal amount of the outstanding
Notes have requested that the Trustee pursue the remedy;
	 
	 	(3)	 	such Holders have offered to the Trustee reasonable security or
indemnity against any loss, liability or expense;
	 
	 	(4)	 	the Trustee has not complied with such request within 60 days
after receipt of the request and the offer of security or indemnity; and
	 
	 	(5)	 	the Holders of a majority in principal amount of the
outstanding Notes have not given the Trustee a direction that, in the opinion
of the Trustee, is inconsistent with such request within such 60-day period.





          A Noteholder may not use this Indenture to prejudice the rights of another Noteholder or to
obtain a preference or priority over another Noteholder.




64









 








          SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture (including, without limitation, Section 6.6), the right of any
Holder to receive payment of principal of, premium (if any) or interest on the Notes held by such
Holder, on or after the respective due dates expressed in the Notes shall not be impaired or
affected without the consent of such Holder.




          SECTION 6.8. Collection Suit by Trustee. If an Event of Default specified in clauses
(1) or (2) of Section 6.1 occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company for the whole amount then due and
owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.7 of the Base Indenture.




          SECTION 6.9. Trustee May File Proofs of Claim. The Trustee is authorized to file such
proofs of claim and other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any
judicial proceedings relative to the Company and the Subsidiary Guarantors (or any other obligor
upon the Notes), its creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any such claims and
any custodian in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.7 of the Base Indenture. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 of the Base Indenture out of
the estate in any such proceeding, shall be denied for any reason, payment of the same shall be
secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.




          SECTION 6.10. Priorities. If the Trustee collects any money or property pursuant to
this Article VI, it shall pay out the money or property in the following order:





     FIRST: to the Trustee for amounts due under Section 7.7 of the Base Indenture;




     SECOND: to Noteholders for amounts due and unpaid on the Notes for principal, premium,
if any, and interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal and interest, respectively; and




     THIRD: to the Company.



          The Trustee may fix a record date and payment date for any payment to Noteholders pursuant to
this Section 6.10. At least 15 days before such record date, the Company shall mail to
each Noteholder and the Trustee a notice that states the record date, the payment date and amount
to be paid.




          SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as



65









 






Trustee, a court in its discretion may require the filing by any party litigant in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by the
Company, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10%
in outstanding principal amount of the Notes.




          SECTION 6.12. Additional Payments. In the case of any Event of Default occurring by
reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have had to pay if the
Company then had elected to redeem the Notes pursuant to the optional redemption provisions of this
Indenture or was required to repurchase the Notes, an equivalent premium shall also become and be
immediately due and payable to the extent permitted by law upon the acceleration of the Notes. If
an Event of Default occurs prior to November 15, 2011 by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Company with the intention of avoiding the prohibition
on redemption of the Notes prior to November 15, 2011, the premium specified in this Indenture
shall also become immediately due and payable to the extent permitted by law upon the acceleration
of the Notes.




          SECTION 6.13. Waiver of Stay. The Company and the Subsidiary Guarantors covenant (to
the extent permitted by applicable law) that it will not at any time insist upon, plead or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or
other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive
the Company or any Subsidiary Guarantor from paying all of any portion of the principal of
(premium, if any, on) or interest on the Notes as contemplated herein, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may lawfully do so) the
Company and the Subsidiary Guarantors hereby expressly waive all benefit or advantage of any such
law, and covenants that they will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such power as though no
such law had been enacted.




ARTICLE VII




Appointment of The Bank of New York




          SECTION 7.1. Appointment of The Bank of New York. The Company hereby appoints the Trustee
as trustee under the Indenture with respect to the Notes. The Company shall execute and deliver
such further instruments and do such other things as the Trustee may reasonably require to more
fully and certainly vest and confirm in the Trustee all the rights, trusts, and powers hereby
delivered and confirmed upon the Trustee.




          SECTION 7.2. Acceptance of Trustee. The Trustee hereby accepts its appointment as trustee
with respect to the Notes and shall hereby be vested with all of the authority, rights, powers,
trusts, immunities, duties, benefits and obligations of a Trustee under the Indenture.




          SECTION 7.3. Qualification of Trustee. The Trustee hereby represents and warrants to the
Company that the Trustee is qualified under the provisions of Section 310 of the TIA and Article 7
of the Base Indenture to act as trustee with respect to the Notes under the Indenture.




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ARTICLE VIII




Discharge of Indenture; Defeasance




          SECTION 8.1. Discharge of Liability on Notes; Defeasance. (a) Subject to Section
8.1(c), when (i)(x) the Company delivers to the Trustee all outstanding Notes (other than Notes
replaced pursuant to Section 2.7) for cancellation or (y) all outstanding Notes not
theretofore delivered for cancellation have become due and payable or will become due and payable
at their Stated Maturity within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption pursuant to
Article V hereof and the Company or any Subsidiary Guarantor has irrevocably deposited or
caused to be irrevocably deposited with the Trustee as trust funds in trust solely for the benefit
of the Holders cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such
amounts as will be sufficient without consideration of any reinvestment of interest to pay and
discharge the entire indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation for principal, premium, if any, and accrued interest to the date of maturity or
redemption; (ii) no Default or Event of Default shall have occurred and be continuing on the date
of such deposit or shall 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 material instrument to which the
Company is a party or by which the Company or any Subsidiary Guarantor is bound (in each case,
other than any breach of a covenant related to the Incurrence of Indebtedness used to fund the
discharge of this Indenture); (iii) the Company or any Subsidiary Guarantor has paid or caused to
be paid all sums payable under this Indenture and the Notes; and (iv) the Company has delivered
irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward
the payment of such Notes at maturity or the Redemption Date, as the case may be, then the Trustee
shall acknowledge satisfaction and discharge of this Indenture on demand of the Company
(accompanied by an Officers’ Certificate and an Opinion of Counsel stating that all conditions
precedent specified herein relating to the satisfaction and discharge of this Indenture have been
complied with) and at the cost and expense of the Company.




          (b) Subject to Sections 8.1(c) and 8.2, the Company at any time may terminate
(i) all its obligations under the Notes and this Indenture and all obligations of the Subsidiary
Guarantors under the Subsidiary Guarantees and this Indenture (“legal defeasance option”),
and after giving effect to such legal defeasance, any omission to comply with such obligations
shall no longer constitute a Default or Event of Default or (ii) its obligations under Sections
3.2 through 3.12, inclusive, Section 3.16 and Section 4.1(3) and the
Company may omit to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to comply with such
covenants shall no longer constitute a Default or an Event of Default under Section 6.1(4)
and 6.1(5) and the operation of Sections 6.1(6), 6.1(7) (but only with
respect to Significant Subsidiaries), 6.1(8) and 6.1(9), and the events specified
in such Sections shall no longer constitute an Event of Default (clause (ii) being referred to as
the “covenant defeasance option”), but except as specified above, the remainder of this
Indenture and the Notes shall be unaffected thereby. The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.




          If the Company exercises its legal defeasance option, payment of the Notes may not be
accelerated because of an Event of Default with respect to the Notes, and the Subsidiary Guarantees
in effect at such time shall terminate. If the Company exercises its covenant defeasance option,
payment of the Notes may not be accelerated because of an Event of Default specified in Section
6.1(4), 6.1(5), 6.1(6), 6.1(7) (but only with respect to Significant
Subsidiaries), 6.1(8) or 6.1(9) or because of the failure of the Company to comply
with Section 4.1(3).




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          Upon satisfaction of the conditions set forth herein and upon request of the Company, the
Trustee shall acknowledge in writing the discharge of those obligations that the Company
terminates.




          (c) Notwithstanding the provisions of Sections 8.1(a) and (b), the Company’s
obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6,
2.7, 2.8, 2.9, 3.13, 3.14, 6.7, 7.7,
7.8 and in this Article VIII shall survive until the Notes have been paid in full.
Thereafter, the Company’s obligations in Sections 7.7, 8.4 and 8.5 shall
survive.




          SECTION 8.2. Conditions to Defeasance. The Company may exercise its legal defeasance
option or its covenant defeasance option only if:





	 	(1)	 	the Company irrevocably deposits in trust with the Trustee for
the benefit of the Holders money in U.S. dollars or U.S. Government Obligations
or a combination thereof for the payment of principal, premium, if any, and
interest on the Notes to maturity or redemption, as the case may be;
	 
	 	(2)	 	the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their opinion
that the payments of principal and interest when due and without reinvestment
on the deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay principal, premium, if any, and interest when due on all the
Notes to maturity;
	 
	 	(3)	 	no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, with respect to the Company under
Section 6.1(7), on the 123rd day after such date of deposit (except as
a result of any breach of covenants in connection with Incurring Indebtedness
to fund such defeasance);
	 
	 	(4)	 	such legal defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default under, this Indenture or
any other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
	 
	 	(5)	 	the Company shall have delivered to the Trustee an Opinion of
Counsel (subject to customary assumptions and exclusions) to the effect that
(A) the Notes and (B) assuming no intervening bankruptcy of the Company between
the date of deposit and the 123rd day following the deposit and that no Holder
of the Notes is an insider of the Company within the meaning of the Bankruptcy
Law, after the 123rd day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors’ right generally;
	 
	 	(6)	 	in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel (subject to customary
assumptions and exclusions) in the United States stating that (i) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (ii) since the date of this Indenture there has been a change in
the applicable Federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Noteholders will
not recognize income, gain or loss for Federal income tax purposes as a result
of such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at




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	 	 	 	the same times as would have been the case if such legal defeasance had not
occurred;
	 
	 	(7)	 	in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel (subject to customary
assumptions and exclusions) in the United States to the effect that the
Noteholders will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and covenant defeasance and will be
subject to Federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit and covenant defeasance
had not occurred; and
	 
	 	(8)	 	the Company delivers to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Notes and this Indenture as contemplated by
this Article VIII have been complied with.





          SECTION 8.3. Application of Trust Money. The Trustee shall hold in trust money or
U.S. Government Obligations deposited with it pursuant to this Article VIII. It shall
apply the deposited money and the money from U.S. Government Obligations through the Paying Agent
and in accordance with this Indenture to the payment of principal of and interest on the Notes.




          SECTION 8.4. Repayment to Company. The Trustee and the Paying Agent shall promptly
turn over to the Company upon request any excess money, U.S. Government Obligations or securities
held by them upon payment of all the obligations under this Indenture.




          Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay
to the Company upon request any money held by them for the payment of principal of or interest on
the Notes that remains unclaimed for two years, and, thereafter, Noteholders entitled to the money
must look to the Company for payment as general creditors.




          SECTION 8.5. Indemnity for U.S. Government Obligations. The Company shall pay and
shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on such U.S.
Government Obligations.




          SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with this Article VIII by reason of any
legal proceeding or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the obligations of the Company
and the Subsidiary Guarantors under this Indenture and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to this Article VIII until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance
with this Article VIII; provided, however, that, if the Company has made any payment of
interest on or principal of any Notes because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Notes to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.




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ARTICLE IX




Amendments




          SECTION 9.1. Without Consent of Holders. The Company, the Subsidiary Guarantors and
the Trustee may amend this Indenture and the Notes without consent of any Noteholder:





	 	(1)	 	to cure any ambiguity, omission, defect or inconsistency;
	 
	 	(2)	 	to provide for the assumption by a Successor Company of an
obligation of the Company or any Subsidiary Guarantor under this Indenture;
	 
	 	(3)	 	to provide for uncertificated Notes in addition to or in place
of certificated Notes (provided that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Code, or in a manner such
that the uncertificated Notes are described in Section 163(f) (2) (B) of the
Code);
	 
	 	(4)	 	to add Guarantees with respect to the Notes or release a
Subsidiary Guarantor upon its designation as an Unrestricted Subsidiary;
provided, however, that the designation is in accordance with the terms of this
Indenture;
	 
	 	(5)	 	to secure the Notes;
	 
	 	(6)	 	to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company;
	 
	 	(7)	 	to make any change that does not adversely affect the legal
rights of any Noteholder in any material respect;
	 
	 	(8)	 	to comply with any requirement of the SEC in connection with
the qualification of this Indenture, under the Trust Indenture Act; or
	 
	 	(9)	 	to provide for the issuance of Exchange Notes which shall have
terms substantially identical in all respects to the Notes (except that the
transfer restrictions contained in the Notes shall be modified or eliminated as
appropriate) and which shall be treated, together with any outstanding Notes,
as a single class of securities;
	 
	 	(10)	 	to release a Subsidiary Guarantor from its obligations under
its Subsidiary Guarantee or this Indenture in accordance with the applicable
provisions of this Indenture;
	 
	 	(11)	 	to provide for the appointment of a successor trustee; provided
that the successor trustee is otherwise qualified and eligible to act as such
under the terms of this Indenture; or
	 
	 	(12)	 	conform the text of the Indenture, the Notes or the Subsidiary
Guarantees to any provision of this “Description of notes” to the extent that
such provision in this “Description of notes” is intended to be a verbatim
recitation of a provision of the Indenture, the Notes or the Subsidiary
Guarantees.










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          After an amendment under this Section 9.1 becomes effective, the Company shall mail to
Noteholders a notice briefly describing such amendment. The failure to give such notice to all
Noteholders, or any defect therein, shall not impair or affect the validity of an amendment under
this Section 9.1.




          SECTION 9.2. With Consent of Holders. Except as provided below, this Indenture and
the Notes may be amended or supplemented with the consent of the Holders of a majority in principal
amount of the Notes then outstanding (including without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Notes) and, except as provided below,
any past default or compliance with any provisions may be waived with the consent of the Holders of
a majority in principal amount of the Notes then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes).
However, without the consent of each Holder of an outstanding Note affected, no amendment,
supplement or waiver may, among other things:





	 	(1)	 	reduce the principal amount of Notes whose Holders must consent
to an amendment;
	 
	 	(2)	 	reduce the stated rate of or extend the stated time for payment
of interest on any Note;
	 
	 	(3)	 	reduce the principal of or extend the Stated Maturity of any
Note;
	 
	 	(4)	 	reduce the premium payable upon the redemption or repurchase of
any Note or change the time at which any Note may be redeemed or repurchased as
described under Article V, Section 3.7 or Section 3.9
with respect to a Change of Control or Asset Disposition, as the case may be,
that has occurred, in each case whether through an amendment or waiver of
provisions in the covenants, definitions or otherwise;
	 
	 	(5)	 	make any Note payable in currency other than that stated in the
Note;
	 
	 	(6)	 	impair the right of any Holder to receive payment of, premium,
if any, principal of and interest on such Holder’s Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment on or
with respect to such Holder’s Notes;
	 
	 	(7)	 	make any change in the amendment or waiver provisions which
require each Holder’s consent; or
	 
	 	(8)	 	modify the Subsidiary Guarantees in any manner adverse to the
Holders of the Notes.





          It shall not be necessary for the consent of the Holders under this Section 9.2 to
approve the particular form of any proposed amendment, but it shall be sufficient if such consent
approves the substance thereof. A consent to any amendment or waiver under this Indenture by any
Holder of the Notes given in connection with a tender of such Holder’s Notes will not be rendered
invalid by such tender.




          After an amendment under this Section 9.2 becomes effective, the Company shall mail to
Noteholders a notice briefly describing such amendment. The failure to give such notice to all



71









 






Noteholders, or any defect therein, shall not impair or affect the validity of an amendment
under this Section 9.2.




          SECTION 9.3. Compliance with Trust Indenture Act. Every amendment or supplement to
this Indenture or the Notes shall comply with the TIA as then in effect.




          SECTION 9.4. Revocation and Effect of Consents and Waivers. A consent to an amendment
or a waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of that Note or
portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation
of the consent or waiver is not made on the Note. However, any such Holder or subsequent Holder
may revoke the consent or waiver as to such Holder’s Note or portion of the Note if the Trustee
receives the notice of revocation before the date the amendment or waiver becomes effective. After
an amendment or waiver becomes effective, it shall bind every Noteholder. An amendment or waiver
shall become effective upon receipt by the Trustee of the requisite number of written consents
under Section 9.1 or 9.2 as applicable.




          The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Noteholders entitled to give their consent or take any other action described above
or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Noteholders at such
record date (or their duly designated proxies), and only those Persons, shall be entitled to give
such consent or to revoke any consent previously given or to take any such action, whether or not
such Persons continue to be Holders after such record date. No such consent shall become valid or
effective more than 120 days after such record date.




          SECTION 9.5. Notation on or Exchange of Notes. If an amendment changes the terms of a
Note, the Trustee may require the Holder of the Note to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Note regarding the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note
shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure
to make the appropriate notation or to issue a new Note shall not affect the validity of such
amendment.




          SECTION 9.6. Trustee To Sign Amendments. The Trustee shall sign any amendment
authorized pursuant to this Article IX if the amendment does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not
sign it. In signing such amendment the Trustee shall be provided with indemnity reasonably
satisfactory to it and shall receive, in addition to the documents required by Section
11.4, and (subject to Sections 7.1 and 7.2) shall be fully protected in relying
upon an Officers’ Certificate and an Opinion of Counsel stating that such amendment is authorized
or permitted by this Indenture.




ARTICLE X




Subsidiary Guarantees




          SECTION 10.1. Subsidiary Guarantees. Each Subsidiary Guarantor hereby fully and
unconditionally guarantees, as primary obligor and not merely as surety, jointly and severally with
each other Subsidiary Guarantor, to each Holder of the Notes and the Trustee the full and punctual
payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the
principal of, premium, if any, and interest on the Notes and all other obligations and liabilities
of the Company under this Indenture (all the foregoing being hereinafter collectively called the
“Obligations”). Each Subsidiary Guarantor further agrees (to the extent permitted by law)
that the Obligations may be extended or




72









 







renewed, in whole or in part, without notice or further assent from it, and that it will
remain bound under this Article X notwithstanding any extension or renewal of any
Obligation.




          Each Subsidiary Guarantor waives presentation to, demand of payment from and protest to the
Company of any of the Obligations and also waives notice of protest for nonpayment. Each
Subsidiary Guarantor waives notice of any default under the Notes or the Obligations. The
obligations of each Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any
Holder to assert any claim or demand or to enforce any right or remedy against the Company or any
other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension
or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Obligations or any of them; (e) the failure of
any Holder to exercise any right or remedy against any other Subsidiary Guarantor; or (f) any
change in the ownership of the Company.




          Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a
Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require
that any resort be had by any Holder to any security held for payment of the Obligations.




          Except as expressly set forth in Sections 8.1(b) and 10.2, the obligations of
each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment
or termination for any reason (other than payment of the Obligations in full), including any claim
of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of
setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of
the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to
enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary
Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law
or equity.




          Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof,
of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by
any Holder upon the bankruptcy or reorganization of the Company or otherwise.




          In furtherance of the foregoing and not in limitation of any other right which any Holder has
at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the
Company to pay any of the Obligations when and as the same shall become due, whether at maturity,
by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will,
upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing
and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent
not prohibited by law) and except as provided in Section 10.2.




          Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the
one hand, and the Holders, on the other hand, (x) the maturity of the Obligations guaranteed hereby
may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the Obligations guaranteed hereby and (y) in the event of any such declaration of
acceleration of such



73









 






Obligations, such Obligations (whether or not due and payable) shall forthwith become due and
payable by the Subsidiary Guarantor for the purposes of this Subsidiary Guarantee.




          SECTION 10.2. Limitation on Liability; Termination, Release and Discharge.




          (a) The obligations of each Subsidiary Guarantor hereunder will be limited as set forth in
Section 10.3.




          (b) Subject to Section 3.7 and Article IV, each Subsidiary Guarantor may
consolidate with or merge into or sell all or substantially all of its property and assets to the
Company or another Subsidiary Guarantor without limitation. Upon the sale or disposition of a
Subsidiary Guarantor (by merger, consolidation, the sale of its Capital Stock or the sale of all or
substantially all of its properties and assets (other than by lease)), whether or not the
Subsidiary Guarantor is the surviving corporation in such transaction, to a Person (whether or not
an Affiliate of the Subsidiary Guarantor) which is not the Company or a Restricted Subsidiary of
the Company, which sale or disposition is otherwise in compliance with this Indenture (including,
without limitation, Sections 3.7, 3.10 and Article IV), such Subsidiary
Guarantor will be deemed released from its Subsidiary Guarantee and its obligations under this
Indenture; provided, however, that any such termination will occur only to the extent that all
obligations of such Subsidiary Guarantor under the Senior Secured Credit Agreement and any other
agreements relating to any other Indebtedness of the Company or its Restricted Subsidiaries will
also terminate upon such release, sale or transfer.




          (c) A Subsidiary Guarantor will be deemed released and relieved of its obligations under this
Indenture without any further action required on the part of the Company or such Subsidiary
Guarantor (i) upon the designation of such Subsidiary Guarantor as an Unrestricted Subsidiary in
accordance with the terms of this Indenture, (ii) if the Subsidiary Guarantor is dissolved or
liquidated in accordance with Section 3.14, (iii) in connection with a legal defeasance in
accordance with Article VIII or (iv) if such Subsidiary Guarantor is released as a
guarantor under the Senior Secured Credit Agreement.




          SECTION 10.3. Limitation of Subsidiary Guarantors’ Liability. The Subsidiary
Guarantors, and by acceptance hereof each Holder, hereby confirm that it is the intention of all
such parties that the guarantee by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee
not constitute a fraudulent transfer or conveyance for purposes of the Federal Bankruptcy Code, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or
state law. To effectuate the foregoing intention, the Holders and each Subsidiary Guarantor hereby
irrevocably agree that the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee
will be 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 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 Subsidiary Guarantee or pursuant to Section 10.4 hereof, result in the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee not constituting such a fraudulent
conveyance or fraudulent transfer. This Section 10.3 is for the benefit of the creditors of
each Subsidiary Guarantor.




          SECTION 10.4. Contribution. Each Subsidiary Guarantor hereby agrees that to the
extent that any Subsidiary Guarantor shall have paid more than its proportionate share of any
payment made on the obligations under the Subsidiary Guarantees, such Subsidiary Guarantor shall be
entitled to seek and receive contribution from and against the Company or any other Subsidiary
Guarantor who has not paid its proportionate share of such payment. Each Subsidiary Guarantor’s
right of contribution shall be subject to the terms and conditions of Section 3.6. The
provisions of this Section 10.4 shall in no



74









 






respect limit the obligations and liabilities of each Subsidiary Guarantor to the Trustee and
the Holders, and each Subsidiary Guarantor shall remain liable to the Trustee and the Holders for
the full amount guaranteed by such Subsidiary Guarantor hereunder.




ARTICLE XI




Miscellaneous




          SECTION 11.1. Notices. Any notice or communication is duly given if in writing and
delivered in Person or by first class mail (registered or certified, return receipt requested),
facsimile transmission or overnight air courier guaranteeing next day delivery, to the others’
address:




          If to the Company or any Subsidiary Guarantor:







McMoRan Exploration Co.

1615 Poydras St.

New Orleans, LA 70112

Attention: Chief Financial Officer and Treasurer




          If to the Trustee:






The Bank of New York

101 Barclay Street, 8 West

New York, NY 10286

Attention: Corporate Trust Administration

Fax: 212-815-5707







          The Company or the Trustee, by notice to the other, may designate additional or different
addresses for subsequent notices or communications.







          All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.







          Any notice or communication to a Holder will be mailed by first class mail, postage prepaid,
or by overnight air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication will also be so mailed to any Person described
in TIA § 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a
Holder or any defect in it will not affect its sufficiency with respect to other Holders.







          If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.







          If the Company mails a notice or communication to Holders, it will mail a copy to the Trustee
and each Agent at the same time.




          SECTION 11.2. Indenture. In the event of any conflict or inconsistency between this
Supplemental Indenture and the Base Indenture, the provisions of this Supplemental Indenture shall
prevail.




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          SECTION 11.3. Governing Law. The laws of the State of New York shall govern this
Supplemental Indenture and the Notes.




          SECTION 11.4. Successors and Assigns. All covenants and agreements of the Company and the
Subsidiary Guarantors in this Supplemental Indenture and the Notes shall bind their successors and
assigns. All agreements of the Trustee in this Supplemental Indenture shall bind its successors and
assigns.




          SECTION 11.5. Duplicate Originals. This Supplemental Indenture may be executed in
counterparts, each of which shall be an original, but such counterparts shall together constitute
but one instrument.




          SECTION 11.6. Severability. In case any one or more of the provisions contained in this
Supplemental Indenture or in the Notes shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Supplemental Indenture or of the Notes.




76









 




IN WITNESS
WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date
first above written.




	 	 	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	MCMORAN EXPLORATION CO.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Kathleen L. Quirk	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Kathleen L. Quirk	 	 
	 

	 	 	 	Title:
	 	Senior Vice President & Treasurer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	MCMORAN OIL & GAS LLC, as a Subsidiary
     Guarantor	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Kathleen L. Quirk	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Kathleen L. Quirk	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FREEPORT CANADIAN EXPLORATION

     COMPANY, as a Subsidiary Guarantor	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Nancy D. Parmelee	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Nancy D. Parmelee	 	 
	 

	 	 	 	Title:
	 	Secretary	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	K-MC VENTURE I LLC, as a Subsidiary Guarantor	 	 
	 	 	By: McMoRan Oil & Gas LLC, its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Kathleen L. Quirk	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Kathleen L. Quirk	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	MCMORAN INTERNATIONAL INC., as a
     Subsidiary Guarantor	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Nancy D. Parmelee	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Nancy D. Parmelee	 	 
	 

	 	 	 	Title:
	 	Secretary	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robert A. Massimillo	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robert A. Massimillo	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 






Signature Page to the Supplemental Indenture




 









 








EXHIBIT A




[FORM OF FACE OF NOTE]




[Global Notes Legend, if applicable]



UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES
OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.




	 		
	No. [                    ]
	 	Principal Amount $[                    ]
	 
	 	CUSIP NO. [                    ]






McMoRan Exploration Co.




11.875% Senior Notes due 2014



          McMoRan Exploration Co., a Delaware corporation, promises to pay to
[                    ],
or registered assigns, the principal sum of [          ] Dollars, on
[                     ], 2014.




          Interest Payment Dates: May 15 and November 15

          Record Dates: May 1 and November 1




          Additional provisions of this Note are set forth on the other side of this Note.




A-1









 





Date: [                    ]




	 	 	 	 	 	 	 
	 	 	MCMORAN EXPLORATION CO.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 






TRUSTEE’S CERTIFICATE OF

AUTHENTICATION




THE BANK OF NEW YORK

as Trustee, certifies

that this is one of

the Notes referred

to in the Indenture.




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Officer
	 	 






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[FORM OF REVERSE SIDE OF NOTE]




11.875% Senior Notes due 2014




1. Interest




          McMoRan Exploration Co., a Delaware corporation (such corporation, and its successors and
assigns under the Indenture hereinafter referred to, being herein called the “Company”),
promises to pay interest on the principal amount of this Note at the rate per annum shown above.




          The Company will pay interest semiannually on May 15 and November 15 of each year commencing
[     ], 20[     ]. Interest on the Notes will accrue from the most recent date to which
interest has been paid on the Notes or, if no interest has been paid, from [     ], 20[
]. The Company shall pay interest on overdue principal or premium, if any (plus interest on such
interest to the extent lawful), at the rate borne by the Notes to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.




2. Method of Payment




          By no later than 10:00 a.m. (New York City time) on the date on which any principal of or
interest on any Note is due and payable, the Company shall irrevocably deposit with the Trustee or
the Paying Agent money sufficient to pay such principal, premium, if any, and/or interest. The
Company will pay interest (except Defaulted Interest) to the Persons who are registered Holders of
Notes at the close of business on the May 1 or November 1 next preceding the interest payment date
even if Notes are cancelled, repurchased or redeemed after the record date and on or before the
interest payment date. Holders must surrender Notes to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United States that at the
time of payment is legal tender for payment of public and private debts. Payments in respect of
Notes represented by a Global Note (including principal, premium, if any, and interest) will be
made by the transfer of immediately available funds to the accounts specified by The Depository
Trust Company. The Company shall make all payments in respect of a Definitive Note (including
principal, premium, if any, and interest) at the office or agency of the Company maintained for
such purpose; provided, however, that, at the option of the Company, each installment of interest
may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses
shall appear on the Note Register or (ii) wire transfer to an account located in the United States
maintained by the payee.




3. Paying Agent and Registrar




          Initially, The Bank of New York (the “Trustee”) will act as Trustee, Paying Agent and
Registrar. The Company may appoint and change any Paying Agent, Registrar or co-registrar without
notice to any Noteholder. The Company or any of its Subsidiaries may act as Paying Agent,
Registrar or co-registrar.




4. Indenture




          The Company issued the Notes under an Indenture, dated as of November 14, 2007 (the “Base
Indenture”), as supplemented by the First Supplemental Indenture, dated as of November 14, 2007
(the “First Supplemental Indenture” and, together with the Base Indenture, as either may be
further amended or supplemented from time to time in accordance with the terms thereof, the
“Indenture”), among the Company, the Subsidiary Guarantors and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of




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1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the Indenture (the
“Trust Indenture Act”; provided, however, that in the event the Trust Indenture Act is
amended after such date, “Trust Indenture Act” shall mean, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all
such terms, and Noteholders are referred to the Indenture and the Trust Indenture Act for a
statement of those terms.




          The Notes are senior unsecured obligations of the Company. The aggregate principal amount of
securities that may be authenticated and delivered under the Indenture is unlimited. This Note is
one of the 11.875% Senior Notes due 2014 referred to in the Indenture. The Notes include (i)
$300,000,000 aggregate principal amount of the Company’s 11.875% Senior Notes due 2014 issued under
the Indenture on November 14, 2007.




          To guarantee the due and punctual payment of the principal, premium, if any, and interest on
the Notes and all other amounts payable by the Company under the Indenture and the Notes when and
as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according
to the terms of the Notes and the Indenture, the Subsidiary Guarantors have unconditionally
guaranteed (and future Subsidiary Guarantors, together with the Subsidiary Guarantors as of the
date hereof, will unconditionally guarantee), jointly and severally, such obligations on a
unsecured senior basis pursuant to the terms of the Indenture.




5. Redemption




          The Notes are redeemable as provided for in Article V of the First Supplemental Indenture.




6. Repurchase Provisions




          (a) Upon a Change of Control, the Company will be required to offer to repurchase all or any
part (equal to $2,000 or larger integral multiples of $1,000) of the Notes at a purchase price in
cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to
the date of repurchase (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) as provided in, and subject to the
terms of, the Indenture.




          (b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to
Section 3.7 of the First Supplemental Indenture, the Company will be required to apply such
Excess Proceeds to the offer to purchase of the Notes and any Pari Passu Notes in accordance with
the procedures set forth in Section 3.7 of the First Supplemental Indenture.




7. Denominations; Transfer; Exchange




          The Notes are in registered form without coupons in denominations of principal amount of
$2,000 and whole multiples of $1,000. A Holder may transfer or exchange Notes in accordance with
the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange of any Note for a
period beginning (i) 15 days before the selection of Notes to be repurchased or redeemed and ending
at the close of business on the day of such selection (except, in the case of Notes to be redeemed
in part, the portion of the Note not to be redeemed) or (ii) 15 days before an interest payment
date and ending on such interest payment date.




A-4









 








8. Persons Deemed Owners




          The registered Holder of this Note may be treated as the owner of it for all purposes.




9. Unclaimed Money




          If money for the payment of principal or interest remains unclaimed for two years, the Trustee
or Paying Agent shall pay the money back to the Company at its request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.




10. Defeasance




          Subject to certain conditions set forth in the Indenture, the Company at any time may
terminate some or all of its obligations under the Notes and the Indenture if the Company deposits
with the Trustee money or U.S. Government Obligations for the payment of principal and interest on
the Notes to redemption or maturity, as the case may be.




11. Amendment, Waiver, Defaults and Remedies




          The First Supplemental Indenture may be amended as provided in Article IX thereof. The Base
Indenture may be amended as provided in Article 9 thereof.




          Noteholders may not enforce the Indenture or the Notes except as provided in the Indenture.
The Trustee may refuse to enforce the Indenture or the Notes unless it receives reasonable
indemnity or security. Subject to certain limitations, Holders of a majority in principal amount
of the Notes may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Noteholders notice of any continuing Default or Event of Default (except a Default or
Event of Default in payment of principal or interest) if it determines that withholding notice is
in their interest.




12. Trustee Dealings with the Company




          Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise
deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise
deal with the Company or its affiliates with the same rights it would have if it were not Trustee.




13. No Recourse Against Others




          An incorporator, director, officer, employee, stockholder or controlling person, as such, of
the Company or any Subsidiary Guarantor shall not have any liability for any obligations of the
Company or any Subsidiary Guarantor under the Notes, the Indenture or the Subsidiary Guarantees or
for any claim based on, in respect of or by reason of such obligations or their creation. By
accepting a Note, each Noteholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Notes.




14. Authentication




          This Note shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent acting on its behalf) manually signs the certificate of authentication on the
other side of this Note.




A-5









 








15. Abbreviations




          Customary abbreviations may be used in the name of a Noteholder or an assignee, such as TEN
COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights
of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to
Minors Act).




16. CUSIP Numbers




          Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Notes and has directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience to Noteholders. No
representation is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.




17. Governing Law




          This Note shall be governed by, and construed in accordance with, the laws of the State of New
York.




          The Company will furnish to any Noteholder upon written request and without charge to the
Noteholder a copy of the Indenture, which has in it the text of this Note. Requests may be made
to:



McMoRan Exploration Co.

1615 Poydras St.

New Orleans, LA 70112

Attention: Senior Vice President and Treasurer




A-6









 





ASSIGNMENT FORM




          To assign this Note, fill in the form below:




          I or we assign and transfer this Note to



 



(Print or type assignee’s name, address and zip code)



 



(Insert assignee’s soc. sec. or tax I.D. No.)





and irrevocably appoint                     agent to transfer this Note
on the
books of the Company. The agent may substitute another to act for him.



			
	Date:                                                 
                       
	 	Your
Signature:                                            
  






	 	 	 	 	 
	Signature Guarantee:
	 	 	 	 
	 

	 	 

(Signature must be guaranteed)
	 	 





 




Sign exactly as your name appears on the other side of this Note.



The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.




	 	 	 	 	 	 	 
	 

	 	 	 	 

Signature
	 	 
	 
	 	 	 	 	 	 
	Signature Guarantee:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

(Signature must be guaranteed)

	 	 
	 	 

Signature
	 	 





The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.




A-7









 








[TO BE ATTACHED TO GLOBAL NOTES]




SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE




The following increases or decreases in this Global Note have been made:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount of	 	Signature of
	 	 	  	 	 	 	this Global Note	 	Authorized
	 	 	Amount of Decrease 	 	Amount of Increase	 	following such	 	Signatory of
	 	 	in Principal Amount	 	in Principal Amount	 	decrease or	 	Trustee or Notes
	Date of Exchange	 	of this Global Note	 	of this Global Note	 	increase	 	Custodian
	 
	 	 
	 	 
	 	 
	 	 





A-8









 






OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Company pursuant to Section
3.7 or Section 3.9 of the First Supplemental Indenture, check either box:




	 	 	 
	o
	 	o
	3.7
	 	3.9






          If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 3.7 or Section 3.9 of the First Supplemental Indenture, state the amount in
principal amount (must be integral multiple of $1,000): $




	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Your	 	 	 	 
	Date:

	 	 	 	 	 	Signature	 	 	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 
	 	 	 	 	 	 	(Sign exactly as your name appears on the other side of the Note)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Signature
	 	 	 	 	 	 	 	 	 	 
	Guarantee:
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	(Signature must be guaranteed)	 	 





The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to SEC Rule 17Ad-15.





A-9









 








EXHIBIT B




FORM OF SUBSIDIARY GUARANTEE




          This
Supplemental Indenture, dated as of         (this “Supplemental
Indenture” or “Guarantee”), among [name of future Subsidiary Guarantor] (the
“Guarantor”), McMoRan Exploration Co. (together with its successors and assigns, the
“Company”), each other Subsidiary Guarantor under the Indenture referred to below, and The
Bank of New York as Trustee under the Indenture referred to below.




W I T N E S S E T H:




          WHEREAS, the Company and the Trustee have heretofore executed and delivered an Indenture,
dated as of November 14, 2007 (the “Base Indenture”), as supplemented by a First Supplemental
Indenture, dated as of November 14, 2007, among the Company, the Subsidiary Guarantors and the
Trustee (the “First Supplemental Indenture”) and, together with the Base Indenture (as amended,
supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of
11.875% Senior Notes due 2014 of the Company (the “Notes”);




          WHEREAS, Section 3.11 of the First Supplemental Indenture provides that the Company is
required to cause certain Restricted Subsidiaries created or acquired by the Company, to execute
and deliver to the Trustee a Subsidiary Guarantee in the form contemplated by the Indenture; and




          WHEREAS, pursuant to Section 9.1 of the First Supplemental Indenture, the Company, the
Subsidiary Guarantors and the Trustee are authorized to execute and deliver this Supplemental
Indenture to amend the Indenture, without the consent of any Noteholder;




          NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guarantor, the Company, the
Subsidiary Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit
of the Holders of the Notes as follows:




ARTICLE I




Definitions




          SECTION 1.1 Defined Terms. As used in this Subsidiary Guarantee, terms defined in the
Indenture or in the preamble or recital hereto are used herein as therein defined. The words
“herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.




ARTICLE II




Agreement to be Bound; Guarantee




          SECTION 2.1 Agreement to be Bound. The Guarantor hereby becomes a party to the
Indenture, as a Subsidiary Guarantor and as such will have all of the rights and be subject to all
of the obligations and agreements of a Subsidiary Guarantor under the Indenture. The Guarantor
agrees to be bound by all of the provisions of the Indenture applicable to a Subsidiary Guarantor
and to perform all of the obligations and agreements of a Subsidiary Guarantor under the Indenture.




          SECTION 2.2 Guarantee. The Guarantor hereby fully, unconditionally and irrevocably
guarantees, as primary obligor and not merely as surety, jointly and severally with each other
Subsidiary




B-1









 




Guarantor, to each Holder of the Notes and the Trustee, the full and punctual payment when
due, whether at maturity, by acceleration, by redemption or otherwise, of the Obligations, subject
to and in accordance with Article X of the Indenture.




ARTICLE III




Miscellaneous




          SECTION 3.1 Notices. All notices and other communications to the Guarantor shall be
given as provided in the Indenture for notices to the Company.




          SECTION 3.2 Parties. Nothing expressed or mentioned herein is intended or shall be
construed to give any Person, firm or corporation, other than the Holders and the Trustee, any
legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the
Indenture or any provision herein or therein contained.




          SECTION 3.3 Governing Law. This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York.




          SECTION 3.4 Severability Clause. In case any provision in this Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby and such provision shall
be ineffective only to the extent of such invalidity, illegality or unenforceability.




          SECTION 3.5 Ratification of Indenture; Supplemental Indentures Part of Indenture.
Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all
the terms, conditions and provisions thereof shall remain in full force and effect. This
Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of
Notes heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes
no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.




          SECTION 3.6 Counterparts. The parties hereto may sign one or more copies of this
Supplemental Indenture in counterparts, all of which together shall constitute one and the same
agreement.




          SECTION 3.7 Headings. The headings of the Articles and the sections in this Guarantee
are for convenience of reference only and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.




B-2









 






IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.




	 	 	 	 	 	 	 
	 	 	[SUBSIDIARY GUARANTOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:

Title:
	 	 
	 
	 	 	 	 	 	 
	 	 	MCMORAN EXPLORATION CO.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
 

Name:
	 	 
	 

	 	 	 	Title: 	 	 
	 
	 	 	 	 	 	 
	 	 	[EACH EXISTING SUBSIDIARY GUARANTOR],

     as a Subsidiary Guarantor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
 

Name:
	 	 
	 

	 	 	 	Title: 	 	 







B-3









 








SCHEDULE 3.8




EXISTING AFFILIATE AGREEMENTS