EXHIBIT 10.41
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XXXXXX XXXXXXXX OIL CORPORATION
AMENDMENT TO
THE
SHARE PURCHASE AGREEMENT
DATED AS OF
NOVEMBER 1, 2000
BY AND BETWEEN
KHANTY MANSIYSK OIL CORPORATION
AND
WALDO SECURITIES S.A.
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AMENDMENT TO THE SHARE PURCHASE AGREEMENT
This Amendment (the "AMENDMENT") is made as of the 1st day of
November, 2000, by and between Khanty Mansiysk Oil Corporation, a Delaware
corporation (the "COMPANY"), and Waldo Securities S.A. (the "SELLER"), an
international business company organized under the laws of the British Virgin
Islands.
RECITALS
WHEREAS, the Company and the Seller have previously entered
into a Share Purchase Agreement, dated as of June 29, 2000 (the "SHARE PURCHASE
AGREEMENT"); and
WHEREAS, the Company and the Seller desire to amend the Share
Purchase Agreement and the terms of the promissory notes issued by the Company
pursuant thereto in the manner set forth below.
NOW, THEREFORE, in consideration of the premises and of the
mutual promises, representations, warranties, covenants, conditions and
agreements contained herein, the parties hereto, intending to be legally bound
by the terms hereof, agree as follows:
ARTICLE I
DEFINITIONS
1.1. All capitalized terms used herein, unless otherwise
defined herein, shall have the meanings given them in the Share Purchase
Agreement, and each reference in the Share Purchase Agreement to "this
Agreement", "hereof", "herein", "hereunder", or "hereby", and each other similar
reference shall be deemed to refer to the Share Purchase Agreement, as amended
hereby.
ARTICLE II
AMENDMENTS
2.1. Subsection a. of Section 2.2 is hereby amended in its
entirety to read as follows:
"a. IPO NOTE. No interest shall accrue or be payable
on the unpaid principal amount of the IPO Note
prior to December 31, 2000. Commencing on January
1, 2001 and provided that the IPO Note has not
been previously redeemed in accordance with
Section 2.4 hereof, the Company shall pay interest
on the unpaid principal amount of the IPO Note
until such principal amount shall be paid in full,
at a rate equal to 12% per annum. Accrued interest
on the unpaid principal amount of the IPO Note
shall be payable quarterly on September 30,
December 31, March 31 and June 30 of each year to
the holder thereof, as determined by the reference
to the Company's note registration books on the
first day of the relevant month when payment is
due, until the IPO Note is paid in full with the
first such payment due on March 31, 2001. The
Company shall make each payment under the IPO Note
not later than 12:00 noon, New York City time, on
the day when due. All computations of interest
shall be made on the basis of a year of 365 or 366
days, as the case may be, in each case for the
actual number of days (including the first day but
excluding the last day) elapsed. Whenever any
payment under the Note shall be stated to be due
on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day,
and such extension of time shall in such case be
included in the computation of
payment of interest. The IPO Note shall mature on
December 31, 2001, unless previously redeemed as
set forth in Sections 2.3 or 2.4 hereof."
2.2. The last sentence of subsection b. of Section 2.2 is
hereby amended by replacing the words "December 31, 2005" with the words
"December 31, 2004".
2.3. The words "in the case of the Remainder Note" is hereby
deleted from (A) the first sentence of subsection a. of Section 2.4, (B) clause
(iv) of the second sentence of subsection a. of Section 2.5 and (C) the first
sentence of Section 2.6.
2.4. All references in the Share Purchase Agreement to the IPO
Note shall hereafter be deemed to be a reference to the promissory note that
shall be issued to the Seller (the "REPLACEMENT NOTE") in the form attached
hereto as Exhibit A, subject to the Seller complying with the terms hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Each of the Company and the Seller represents and
warrants with respect to itself, as of the date of this Amendment, as follows:
a. it has all requisite power and authority, corporate and
otherwise, to execute, deliver and perform all of its
obligations under this Amendment and the Share Purchase
Agreement, as amended hereby;
b. it has taken all necessary action to authorize the
execution, delivery and performance by it of this
Amendment and the Share Purchase Agreement, as amended
hereby; and
c. this Amendment has been duly executed and delivered by
it and this Amendment and the Share Purchase Agreement,
as amended hereby, constitute its valid and legally
binding obligations, enforceable against it in
accordance with their respective terms.
ARTICLE IV
MISCELLANEOUS
4.1. This Amendment shall become effective immediately upon
execution by the parties hereto. The Company hereby agrees to issue to the
Seller the Replacement Note upon its receipt of the original IPO Note (as such
term was defined prior to giving effect to this Amendment) issued to the Seller
on June 30, 2000.
4.2. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of law provisions thereof.
4.3. The Share Purchase Agreement, as amended by this
Amendment, shall remain in full force and effect. Any reference to the Share
Purchase Agreement in any instrument or document executed by either party shall
mean the Share Purchase Agreement as amended hereby. Except as expressly
provided herein, there are no other amendments to the Share Purchase Agreement.
This Amendment may be amended only by an instrument in writing signed by each of
the parties hereto.
4.4. This Amendment may be signed in counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
KHANTY MANSIYSK OIL CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
Title: Chief Executive Officer
WALDO SECURITIES S.A.
By: /s/ Xx. Xxxxxx Xxxxxxxxxxx
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Name: Xx. Xxxxxx Xxxxxxxxxxx
Title: Director
EXHIBIT A
SERIES A SUBORDINATED NOTE
IPO NOTE
KHANTY MANSIYSK OIL CORPORATION
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER STATE SECURITIES
LAWS. THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO THE CONDITIONS SPECIFIED IN A SHARE PURCHASE AGREEMENT DATED
JUNE 29, 2000, AS AMENDED, AND A SHAREHOLDERS AGREEMENT DATED JUNE 29,
2000. A COPY OF SUCH CONDITIONS WILL BE FURNISHED BY THE COMPANY TO THE
HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE. THESE SECURITIES
MAY NOT BE RESOLD OR TRANSFERRED UNLESS SUCH CONDITIONS ARE COMPLIED
WITH AND UNLESS REGISTERED OR EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS.
PROMISSORY NOTE
US$ 10,005,925 November ____, 2000
FOR VALUE RECEIVED, Khanty Mansiysk Oil Corporation, a
Delaware corporation (the "COMPANY"), hereby promises to pay to the order of
Waldo Securities S.A. (the "LENDER"), a company organized and existing under the
laws of the British Virgin Islands, the principal sum of Ten Million Five
Thousand Nine Hundred Twenty Five United States Dollars (US$ 10,005,925), with
no interest payable on the outstanding balance thereof from the date hereof
until December 31, 2000, and from January 1, 2001 until paid in full, with
interest on the outstanding balance thereof at the rate of 12% per annum.
This Note (the "NOTE") is issued pursuant to and is entitled
to the benefits of, and is subject to the provisions of, the Share Purchase
Agreement, dated June 29, 2000, between the Company and Lender (as amended or
otherwise supplemented from time to time, the "SHARE PURCHASE AGREEMENT"). The
Share Purchase Agreement, among other things, contains provisions for (i)
optional redemption, (ii) restrictions on transfer of the Note, and (iii)
exchange of Notes in denominations of $100,000 or integral multiples thereof.
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Share Purchase Agreement.
This Note is also subject to the following terms and
conditions:
1. COMPUTATION AND PAYMENT OF INTEREST. No interest shall
accrue or be payable by the Company on the unpaid principal amount of this Note
from the date of this Note until December 31, 2000. Commencing on January 1,
2001, the Company shall pay interest on the unpaid principal amount of the Note
until such principal amount shall be paid in full, at a rate equal to 12% per
annum. Accrued interest on the unpaid principal amount of the Note shall be
payable quarterly on September 30, December 31, March 31 and June 30 of each
year until the Note is paid in full with the first such payment due on March 31,
2001. The Company shall make each payment under the Note to the holder thereof,
as determined by the reference to the Company's note registration books on the
first day of the relevant month when payment is due, not later than 12:00 noon,
New York City Time, on the day when due. All computations of interest shall be
made on the basis of a year of 365 or 366 days, as the case may be, in each case
for the actual number of days
(including the first day but excluding the last day) elapsed. Whenever any
payment under the Note shall be stated to be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment
of interest.
2. PAYMENT OF PRINCIPAL. Unless sooner declared due hereunder
or earlier redeemed in accordance with the Share Purchase Agreement, the
principal amount of this Note shall be paid on the date fixed for such payment
pursuant to Section 2.2(a) of the Share Purchase Agreement.
3. METHOD OF PAYMENT. Payments of principal shall be made in
United States dollars by wire transfer in immediately available funds to the
account specified by the Lender or other holder of this Note (the "HOLDER");
provided, however, that in the event of redemption of the Note pursuant to
Section 2.4 of the Share Purchase Agreement, payment of the outstanding
principal may be made, at the option of the Company, in cash or in common stock
of the Company, or in any combination thereof. Principal shall be paid at such
place as the Holder may designate in writing to the Company. The Holder must
surrender this Note to the Company upon the earlier of the redemption hereof in
accordance with the Share Purchase Agreement or at the time of final payment of
principal.
4. PREPAYMENT. The Company shall have the right to prepay this
Note prior to maturity in accordance with the Share Purchase Agreement without
the consent of the Lender.
5. INTEREST AFTER DUE DATE. If the principal of this Note is
not paid when due, as a result of redemption or otherwise, the overdue amount
shall bear interest from the due date until paid at an annual rate of 12%.
6. INTEREST SAVINGS CLAUSE. Notwithstanding any other
provision hereof, the interest payable hereunder shall be limited to the maximum
amount permitted under applicable law. If any amount is paid hereunder which
would be usurious under applicable law, it shall be deemed a payment of
principal or shall be promptly refunded to the Company as necessary to avoid
violation of any applicable usury statute.
7. APPLICATION OF PAYMENTS. All payments received on this Note
shall first be applied to the payment of accrued interest (if any) pursuant to
Sections 1 or 5 of this Note and then to the reduction of principal.
8. WAIVERS. The Company, for itself and its successors and
assigns and any endorsers of this Note from time to time hereby waives
presentment for payment, demand, notice of dishonor, protest, notice of protest
and any other notice not provided for in the Share Purchase Agreement that the
Company may lawfully waive. No delay in exercising any right under this Note
shall operate as a waiver of such right or any other right under this Note, nor
shall any omission in exercising any right on the part of the Holder under this
Note operate as a waiver of any other rights. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
9. ATTORNEYS' FEES. If this Note or interest thereon is not
paid when due, or suit is brought to enforce any right hereunder, the Company
and each successor, assignee and endorser of this Note agrees to pay all
reasonable costs of collection and enforcement, including reasonable attorneys'
fees. In the event of any bankruptcy or insolvency proceedings involving the
Company, costs of collection shall include all costs and attorneys' fees
incurred in connection with such proceedings, including the fees of counsel for
attendance at meetings of creditors.
10. RIGHTS AND PRIORITIES. The rights and priorities of the
Holders of this Note with respect to payment of interest and principal shall be
subordinated in right of payment to the notes issued by the Company pursuant to
the US$ 55,000,000 financing conducted by the Company in October 1997 (the
"SENIOR FINANCING") and shall rank PARI PASSU with the rights and priorities of
all other current and future unsecured indebtedness of the Company of similar
size (being less than US$ 10 Million) and tenor.
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11. SUBORDINATION.
(a) The indebtedness of the Company evidenced hereunder shall be
junior and subordinate to all Senior Debt. As used in this
Note, the term "SENIOR DEBT" means: (i) all securities issued
by the Company pursuant to the Senior Financing and (ii) any
refundings, renewals or extensions of any indebtedness
described in clause (i) above.
(b) In the event of any dissolution, winding up, liquidation,
reorganization or other similar proceedings relative to the
Company, its property or its operations (whether in
bankruptcy, insolvency or receivership proceedings, or upon an
assignment for the benefit of creditors, or any other
marshalling of assets of the Company or otherwise), then all
Senior Debt shall first be paid in full in cash or cash
equivalents before the Company shall be entitled to retain any
payment or distribution of assets made after such event with
respect to the Notes. In any such proceeding, any payment or
distribution of assets to which the Holder would be entitled
if the Notes were not subordinated to the Senior Debt shall be
paid by the trustee or agent or other person making such
payment or distribution, or by the Holder if received by it,
directly to the holders of the Senior Debt (pro rata) to the
extent necessary to make payment in full of all Senior Debt
remaining unpaid, after giving effect to any concurrent
payment or distribution to or for the holders of the Senior
Debt.
(c) The Company may, from time to time (and with respect to
payments of principal of the Notes, upon 30-days prior written
notice to the holders of the Senior Debt), pay or cause to be
paid to the Holder and the Holder may accept and retain
scheduled payments in respect of interest and principal on the
Notes, as originally executed and delivered, unless at the
time of any such proposed payment or immediately after giving
effect thereto, there shall exist any default with respect to
the Senior Debt that permits holders of the Senior Debt as to
which such default relates to accelerate its maturity (each, a
"SENIOR EVENT OF DEFAULT") and the holders of the Senior Debt
have notified the Company in writing of the existence of such
Senior Event of Default prior to such payment. If the Holder
receives payment from the Company pursuant to this Section
11(c), such payment shall be deemed to constitute a
representation by the Company to the holders of the Senior
Debt and to the Holder that no Senior Event of Default exists,
and that such payment is permitted to be paid to the Holder
under the Notes; and the Holder shall be entitled to keep and
retain such payments, unless the holders of the Senior Debt
shall have notified the Company or the Holder of a Senior
Event of Default in writing prior to such payment, in which
case (if such Senior Event of Default in fact existed on the
date of such payment) the Holder shall forthwith deliver such
payment or an amount of cash equal thereto to the holders of
the Senior Debt for application in payment of the Senior Debt.
(d) In the event that the Holder shall receive any payment or
distribution of assets which the Holder is not entitled to
retain under the provisions of the Notes, the Holder shall
hold any amount so received in trust for the holders of Senior
Debt and, upon the request of any holder of Senior Debt, shall
forthwith turn over such payment or distribution (without
liability for interest thereon) to the holders of Senior Debt
(pro rata) in the form received to be applied to Senior Debt.
Any holder of Senior Debt may at any time and from time to
time without the consent of or notice to the Holder: (i)
extend, renew, modify or amend the terms of Senior Debt; (ii)
sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (iii)
release any guarantor or any other person (except the Company)
liable in any manner for the Senior Debt; (iv) exercise or
refrain from exercising any
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rights against the Company or any other person; and (v) apply
any sums by whomever paid or however realized to Senior Debt.
Any and all of such actions set forth in this Section 11 may
be taken by holders of Senior Debt without incurring
responsibility to the Holder and without impairing or
releasing the obligations of the Holder under this Section 11.
(e) No holder of Senior Debt shall be prejudiced in its right to
enforce subordination of the Notes by any act or failure to
act by the Company or anyone in custody of the Company's
assets or property. No amendment or modification of the terms
of this Section 11 shall be effective as against any holder of
Senior Debt without the consent of such holder.
12. NOTICES. Any notice, request, demand, consent, approval or
other communication which the Company or the Holder are obligated or may elect
to give hereunder shall be given in the form and in the manner set forth in the
Share Purchase Agreement for the giving of notices thereunder and shall be
deemed given for the purposes hereof at such time as the same, if given under
the Share Purchase Agreement, would be deemed given.
13. SEVERABILITY. If any provision of this Note or the
application thereof to any party or circumstances is held invalid or
unenforceable, the remainder of this Note and the application of such provision
to other parties or circumstances will not be affected thereby and the
provisions of this Note shall be several in any such instance.
14. GOVERNING LAW. This Note shall be governed by and
interpreted in accordance with the laws of the State of New York applicable to
agreements made and to be performed within such State.
KHANTY MANSIYSK OIL CORPORATION
By:
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Name: Xxxx X. Xxxxxxxxxxx
Title: Chief Executive Officer
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