Exhibit 10.3
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS NOTE UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO GULF COAST OIL CORPORATION THAT
SUCH REGISTRATION IS NOT REQUIRED.
SECURED TERM NOTE
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FOR VALUE RECEIVED, GULF COAST OIL CORPORATION, a Delaware corporation (the
"COMPANY"), promises to pay to LAURUS MASTER FUND, LTD., c/o M&C Corporate
Services Limited, P.O. Box 309 GT, Xxxxxx House, South Church Street, Xxxxxx
Town, Grand Cayman, Cayman Islands, Fax: 000-000-0000 (the "HOLDER") or its
registered assigns or successors in interest, the sum of Five Million Dollars
($5,000,000), together with any accrued and unpaid interest hereon, on October
30, 2009 (the "MATURITY DATE") if not sooner paid.
Capitalized terms used herein without definition shall have the meanings
ascribed to such terms in that certain Securities Purchase Agreement dated as of
the date hereof by and between the Company and the Holder (as amended, modified
and/or supplemented from time to time, the "PURCHASE AGREEMENT").
The following terms shall apply to this Secured Term Note (this "NOTE"):
ARTICLE 1
CONTRACT RATE AND AMORTIZATION
1.1 Contract Rate. Subject to Sections 2.2 and 3.9, interest payable on the
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outstanding principal amount of this Note (the "PRINCIPAL AMOUNT") shall accrue
at a rate per annum equal to seventeen and one-half percent (17.5%) (the
"CONTRACT RATE"). Interest shall be (i) calculated on the basis of a 360 day
year, and (ii) payable monthly, in arrears, commencing on July 1, 2006 and
continuing on the first business day of each consecutive calendar month
thereafter through and including the Maturity Date, and on the Maturity Date,
whether by acceleration or otherwise.
1.2 Payments. Amortizing payments of the aggregate principal amount
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outstanding under this Note at any time (the "PRINCIPAL AMOUNT") shall be made
by the Company on July 1, 2006 and on the first business day of each succeeding
month thereafter through and including the Maturity Date (each, an "AMORTIZATION
DATE"). So long as no Event of Default shall have occurred and then be
continuing, interest hereunder shall only be payable as a component of the
Amortization Amount (as hereafter defined) in accordance with the terms of this
Section 1.2. Subject to Article III below, commencing on the first Amortization
Date, the Company shall make monthly payments of principal and interest to the
Holder on each Amortization Date equal to the Amortization Amount. All such
payments shall be applied by the Holder (a) first to any fees and expenses owing
by the Company to the Holder pursuant to (i) this Note, (ii) the Purchase
Agreement and (iii) any other Related Agreement, (b) then to accrued and unpaid
interest due on this Note and (c) then to the outstanding Principal Amount under
this Note. In the event the Amortization Amount (as hereafter defined) during
any month is less than $25,000, then the Company shall nevertheless be required
to make a monthly payment to the Holder during such month in an amount equal to
the difference between $25,000 and the then applicable Amortization Amount,
which such payment shall be applied by the Holder to accrued and unpaid
interest, fees and expenses owing by the Company to the Holder in accordance
with subsections (a) and (b) of the immediately preceding sentence; provided,
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however, during such time as an Event of Default shall have occurred and be
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continuing, the Company shall make interest payments hereunder to the Holder in
accordance with Sections 1.1 and 2.2 of this Note without regard to any
reduction in such cash interest payment which may otherwise have been applicable
under this Section 1.2 had no Event of Default then been in existence. Any
outstanding Principal Amount together with any accrued and unpaid interest and
any and all other unpaid amounts which are then owing by the Company to the
Holder under this Note, the Purchase Agreement and/or any other Related
Agreement shall be due and payable on the Maturity Date. For purposes of this
Section, (a) the term "AMORTIZATION AMOUNT" shall mean an amount equal to the
product of (i) one-eighth (.125) times (ii) eighty percent (80%) (the
"APPLICABLE PERCENTAGE") of the Net Revenue relating to all oil and gas
properties of the Company (collectively, the "OIL AND GAS PROPERTIES") for the
calendar month immediately preceding the Amortization Date; provided, however,
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the Applicable Percentage shall increase to one hundred percent (100%) upon the
occurrence and during the continuance of an Event of Default and (b) "NET
REVENUE" shall mean the gross proceeds paid to the Company in respect of oil,
gas and/or other hydrocarbon production in which the Company has an interest
whether or not such proceeds are remitted to the lockbox account and/or any
other blocked account established by the Company in connection with the
transactions contemplated hereby net of, in each case, with respect to the
period for which such Net Revenue relates (i) the reasonable ordinary day to day
expenses associated with the Company's operation of the leases, xxxxx and
equipment, including fuel, materials, labor, maintenance, routine production
equipment replacement, repairs, routine workover costs to maintain production
from an existing completed well, royalty, severance tax and ad valorem tax, in
each case using accounting practices and procedures ordinary and customary in
the oil and gas industry (the "Lease Operating Expenses") and (ii) the Company's
reasonable estimate of its federal tax (including federal income tax) liability
(after taking into account all applicable deductions, depletion and credits)
(the "Estimated Taxes"), all of which, in the case of the foregoing clauses (i)
and (ii), shall be subject to the Holder's approval which shall be provided in
the exercise of the Holder's reasonable discretion based on such supporting
documentation from the Company as the Holder shall request.
ARTICLE 2
EVENTS OF DEFAULT
2.1 Events of Default. The occurrence of any of the following events set
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forth in this Section 4.1 shall constitute an event of default ("EVENT OF
DEFAULT") hereunder:
(a) Failure to Pay. The Company fails to pay when due any installment
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of principal, interest or other fees hereon in accordance herewith, or the
Company fails to pay any of the other Obligations (under and as defined in
the Master Security Agreement) when due, and, in any such case, such
failure shall continue for a period of three (3) days following the date
upon which any such payment was due.
(b) Breach of Covenant. The Company or any of its Subsidiaries
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breaches any covenant or any other term or condition of this Note in any
material respect and such breach, if subject to cure, continues for a
period of fifteen (15) days after the occurrence thereof.
(c) Breach of Representations and Warranties. Any representation,
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warranty or statement made or furnished by New Century Energy Corp. (the
"Parent"), the Company, any of its Subsidiaries or any guarantor (each a
"Guarantor") issuing to the Holder a guaranty agreement (each a "Guaranty")
in connection with the transaction contemplated hereby in this Note, the
Purchase Agreement or any other Related Agreement shall at any time be
false or misleading in any material respect on the date as of which made or
deemed made.
(d) Default Under Other Agreements. The occurrence of any default (or
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similar term) in the observance or performance of any other agreement or
condition relating to any indebtedness or contingent obligation, in each
case in an aggregate amount of not less than $100,000, of the Parent, the
Company or any of its Subsidiaries beyond the period of grace (if any), the
effect of which default is to cause, or permit the holder or holders of
such indebtedness or beneficiary or beneficiaries of such contingent
obligation to cause, such indebtedness to become due prior to its stated
maturity or such contingent obligation to become payable;
(e) Material Adverse Effect. Any change or the occurrence of any event
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which could reasonably be expected to have a Material Adverse Effect;
(f) Bankruptcy. The Parent, the Company, any of its Subsidiaries or
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any Guarantor shall (i) apply for, consent to or suffer to exist the
appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of creditors,
(iii) commence a voluntary case under the federal bankruptcy laws (as now
or hereafter in effect), (iv) be adjudicated a bankrupt or insolvent, (v)
file a petition seeking to take advantage of any other law providing for
the relief of debtors, (vi) acquiesce to, without challenge within ten (10)
days of the filing thereof, or failure to have dismissed, within thirty
(30) days, any petition filed against it in any involuntary case under such
bankruptcy laws, or (vii) take any action for the purpose of effecting any
of the foregoing;
(g) Judgments. Attachments or levies in excess of $100,000 in the
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aggregate are made upon the Parent, the Company, or its Subsidiary's or any
Guarantor's assets or a judgment is rendered against the Company's, any of
its Subsidiary's or any Guarantor's property involving a liability of more
than $100,000 which shall not have been vacated, discharged, stayed or
bonded within thirty (30) days from the entry thereof;
(h) Insolvency. The Parent or the Company or any Guarantor shall admit
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in writing its inability, or be generally unable, to pay its debts as they
become due or cease operations of its present business;
(i) Change of Control. A Change of Control (as defined below) shall
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occur with respect to the Company, unless Holder shall have expressly
consented to such Change of Control in writing. A "CHANGE OF CONTROL" shall
mean any event or circumstance as a result of which (i) any "PERSON" or
"GROUP" (as such terms are defined in Sections 13(d) and 14(d) of the
Exchange Act, as in effect on the date hereof), other than the Holder, is
or becomes the "BENEFICIAL OWNER" (as defined in Rules 13(d)-3 and 13(d)-5
under the Exchange Act), directly or indirectly, of 35% or more on a fully
diluted basis of the then outstanding voting equity interest of the Company
(other than a "PERSON" or "GROUP" that beneficially owns 35% or more of
such outstanding voting equity interests of the Company on the date
hereof), (ii) unless the Holder provides its written consent thereto (which
shall not be unreasonably withheld), the Board of Directors of the Company
shall cease to consist of a majority of the Company's board of directors on
the date hereof (or directors appointed by a majority of the board of
directors in effect immediately prior to such appointment) or (iii) the
Company or any of its Subsidiaries merges or consolidates with, or sells
all or substantially all of its assets to, any other person or entity;
(j) Indictment; Proceedings. The indictment or threatened indictment
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of the Parent, the Company, any of its Subsidiaries or any Guarantor or any
executive officer of the Parent, the Company or any of its Subsidiaries
under any criminal statute, or commencement or threatened commencement of
criminal or civil proceeding against the Parent, the Company, any of its
Subsidiaries or any Guarantor or any executive officer of the Parent, the
Company, any of its Subsidiaries or any Guarantor pursuant to which statute
or proceeding penalties or remedies sought or available include forfeiture
of any of the property of the Company, any of its Subsidiaries or any
Guarantor; or
(k) The Purchase Agreement and Related Agreements. (i) An Event of
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Default shall occur under and as defined in the Purchase Agreement or any
other Related Agreement (including, without limitation, the breach by any
Guarantor of any provision of any Guaranty), (ii) the Parent, the Company,
any of its Subsidiaries or any Guarantor shall breach any term or provision
of the Purchase Agreement or any other Related Agreement in any material
respect and such breach, if capable of cure, continues unremedied for a
period of fifteen (15) days after the occurrence thereof, (iii) the Parent,
the Company, any of its Subsidiaries or any Guarantor attempts to
terminate, challenges the validity of, or its liability under, the Purchase
Agreement or any Related Agreement, (iv) any proceeding shall be brought to
challenge the validity, binding effect of the Purchase Agreement or any
Related Agreement, (v) the Purchase Agreement or any Related Agreement
ceases to be a valid, binding and enforceable obligation of the Parent, the
Company, any of its Subsidiaries or any Guarantor (to the extent such
persons or entities are a party thereto) or (vi) an Event of Default shall
occur under and as defined in any one or more of the following documents:
(A) the Securities Purchase Agreement dated as of June 30, 2005 by and
between the Parent and the Holder (the "June 2005 Purchase Agreement"), (B)
each Related Agreement referred to in the June 2005 Purchase Agreement, (C)
the Securities Purchase Agreement dated as of September 19, 2005 by and
between the Parent and the Holder (the "September 2005 Purchase
Agreement"), (D) each Related Agreement referred to in the September 2005
Purchase Agreement, (E) the Securities Purchase Agreement dated as of April
28, 2006 by and between the Company and the Holder (the "April 2006
Purchase Agreement") and (F) each Related Agreement referred to in the
April 2006 Purchase Agreement, as each may be amended, restated, modified
and/or supplemented from time to time.
2.2 Default Interest. Following the occurrence and during the continuance
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of an Event of Default, the Company shall pay additional interest on this Note
in an amount equal to two percent (2%) per month, and all outstanding
obligations under this Note, the Purchase Agreement and each other Related
Agreement, including unpaid interest, shall continue to accrue interest at such
additional interest rate from the date of such Event of Default until the date
such Event of Default is cured or waived.
2.3 Default Payment. Following the occurrence and during the continuance of
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an Event of Default, the Holder, at its option, may demand repayment in full of
all obligations and liabilities owing by Company to the Holder under this Note,
the Purchase Agreement and/or any other Related Agreement and/or may elect, in
addition to all rights and remedies of the Holder under the Purchase Agreement
and the other Related Agreements and all obligations and liabilities of the
Company under the Purchase Agreement and the other Related Agreements, to
require the Company to make a Default Payment ("DEFAULT PAYMENT"). The Default
Payment shall be 130% of the outstanding principal amount of the Note, plus
accrued but unpaid interest, all other fees then remaining unpaid, and all other
amounts payable hereunder. The Default Payment shall be applied first to any
fees due and payable to the Holder pursuant to this Note, the Purchase
Agreement, and/or the other Related Agreements, then to accrued and unpaid
interest due on this Note and then to the outstanding principal balance of this
Note. The Default Payment shall be due and payable immediately on the date that
the Holder has exercised its rights pursuant to this Section 2.3.
ARTICLE 3
MISCELLANEOUS
3.1 Cumulative Remedies. The remedies under this Note shall be cumulative.
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3.2 Failure or Indulgence Not Waiver. No failure or delay on the part of
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the Holder hereof in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other right, power or privilege. All rights and remedies existing
hereunder are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
3.3 Notices. Any notice herein required or permitted to be given shall be
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in writing and shall be deemed effectively given: (a) upon personal delivery to
the party notified, (b) when sent by confirmed telex or facsimile if sent during
normal business hours of the recipient, if not, then on the next business day,
(c) five days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to the Company
at the address provided in the Purchase Agreement executed in connection
herewith, and to the Holder at the address provided in the Purchase Agreement
for such Holder, with a copy to Xxxx X. Xxxxxx, Esq., 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, xxxxxxxxx number (000) 000-0000, or at such
other address as the Company or the Holder may designate by ten days advance
written notice to the other parties hereto. A Notice of Conversion shall be
deemed given when made to the Company pursuant to the Purchase Agreement.
3.4 Amendment Provision. The term "NOTE" and all references thereto, as
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used throughout this instrument, shall mean this instrument as originally
executed, or if later amended or supplemented, then as so amended or
supplemented, and any successor instrument as such successor instrument may be
amended or supplemented.
3.5 Assignability. This Note shall be binding upon the Company and its
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successors and assigns, and shall inure to the benefit of the Holder and its
successors and assigns, and may be assigned by the Holder in accordance with the
requirements of the Purchase Agreement. The Company may not assign any of its
obligations under this Note without the prior written consent of the Holder, any
such purported assignment without such consent being null and void.
3.6 Cost of Collection. In case of any Event of Default under this Note,
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the Company shall pay the Holder reasonable costs of collection, including
reasonable attorneys' fees.
3.7 Governing Law, Jurisdiction and Waiver of Jury Trial.
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(a) THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(b) THE COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN
THE COMPANY, ON THE ONE HAND, AND THE HOLDER, ON THE OTHER HAND, PERTAINING
TO THIS NOTE OR ANY OF THE OTHER RELATED AGREEMENTS OR TO ANY MATTER
ARISING OUT OF OR RELATED TO THIS NOTE OR ANY OF THE RELATED AGREEMENTS;
PROVIDED, THAT THE COMPANY ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS
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MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK,
STATE OF NEW YORK; AND FURTHER PROVIDED, THAT NOTHING IN THIS NOTE SHALL BE
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DEEMED OR OPERATE TO PRECLUDE THE HOLDER FROM BRINGING SUIT OR TAKING OTHER
LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT THE OBLIGATIONS, TO
REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE HOLDER. THE COMPANY
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE COMPANY HEREBY WAIVES
ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS. THE COMPANY HEREBY WAIVES PERSONAL
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SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH
ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER
PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE
COMPANY AT THE ADDRESS SET FORTH IN THE PURCHASE AGREEMENT AND THAT SERVICE
SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF THE COMPANY'S ACTUAL
RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER
POSTAGE PREPAID.
(c) THE COMPANY DESIRES THAT ITS DISPUTES BE RESOLVED BY A JUDGE
APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE COMPANY
HERETO WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT,
TORT, OR OTHERWISE BETWEEN THE HOLDER AND THE COMPANY ARISING OUT OF,
CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS NOTE, ANY OTHER RELATED AGREEMENT OR
THE TRANSACTIONS RELATED HERETO OR THERETO.
3.8 Severability. In the event that any provision of this Note is invalid
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or unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law. Any such provision which may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision of this
Note.
3.9 Maximum Payments. Nothing contained herein shall be deemed to establish
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or require the payment of a rate of interest or other charges in excess of the
maximum permitted by applicable law. In the event that the rate of interest
required to be paid or other charges hereunder exceed the maximum rate permitted
by such law, any payments in excess of such maximum rate shall be credited
against amounts owed by the Company to the Holder and thus refunded to the
Company.
3.10 Security Interest, Guarantee and Mortgages. The Holder has been
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granted a security interest (i) in certain assets of the Company and the Parent
as more fully described in the Master Security Agreement dated as of April 28,
2006 and reaffirmed by the Company in the Reaffirmation and Ratification
Agreement dated as of the date hereof, (ii) in the equity interests of the
Parent in the Company pursuant to the Stock Pledge Agreement dated as of April
28, 2006 and reaffirmed by the Parent in the Reaffirmation and Ratification
Agreement dated as of the date hereof (the "Parent Reaffirmation Agreement"),
(iii) in the oil and gas properties of the Company pursuant to the Amended and
Restated Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of the date hereof and (iv) in the oil and gas
properties of the Parent and its Subsidiaries pursuant to an Amended and
Restated Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of April 26, 2006 and reaffirmed by the Parent
and its Subsidiaries in the Parent Reaffirmation Agreement. The obligations of
the Company under this Note are guaranteed by the Parent and its Subsidiaries
pursuant to the Guaranty dated April 28, 2006 and reaffirmed by the Parent and
its Subsidiaries in the Parent Reaffirmation Agreement.
3.11 Construction. Each party acknowledges that its legal counsel
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participated in the preparation of this Note and, therefore, stipulates that the
rule of construction that ambiguities are to be resolved against the drafting
party shall not be applied in the interpretation of this Note to favor any party
against the other.
3.12 Registered Obligation. This Note is intended to be a registered
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obligation within the meaning of Treasury Regulation Section 1.871-14(c)(1)(i)
and the Company (or its agent) shall register this Note (and thereafter shall
maintain such registration) as to both principal and any stated interest.
Notwithstanding any document, instrument or agreement relating to this Note to
the contrary, transfer of this Note (or the right to any payments of principal
or stated interest thereunder) may only be effected by (i) surrender of this
Note and either the reissuance by the Company of this Note to the new holder or
the issuance by the Company of a new instrument to the new holder, or (ii)
transfer through a book entry system maintained by the Company (or its agent),
within the meaning of Treasury Regulation Section 1.871-14(c)(1)(i)(B).
[Balance of page intentionally left blank; signature page follows]
IN WITNESS WHEREOF, the Company has caused this Secured Term Note to be signed
in its name effective as of this 30th day of June 2006.
GULF COAST OIL CORPORATION
By: Xxxxxx X. XxXxxxxxx
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Name: Xxxxxx X. XxXxxxxxx
Title: President & CEO
WITNESS:
/s/ Xxxxxxxx Xxxxxx
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