THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE 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) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN 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.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER SECTION 5 OF THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY
IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT, AND (2) AGREES TO OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER SUCH SECURITY
OR ANY INTEREST OR PARTICIPATION HEREIN, PRIOR TO THE DATE WHICH IS TWO YEARS
(OR SUCH SHORTER PERIOD THAT MAY BE HEREINAFTER PROVIDED UNDER RULE 144(K) UNDER
THE SECURITIES ACT PERMITTING RESALES OF RESTRICTED SECURITIES BY NON-AFFILIATES
WITHOUT RESTRICTION) (THE "RESALE RESTRICTION TERMINATION DATE") AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH DUNE ENERGY, INC.
OR ANY AFFILIATE OF DUNE ENERGY, INC. WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO DUNE ENERGY, INC. OR ANY OF ITS
SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7)
OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE RIGHT OF DUNE ENERGY, INC. AND THE TRUSTEE, OR OF THE
TRANSFER AGENT, AS APPLICABLE, PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND IN EACH OF THE FOREGOING CASES, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY APPLICABLE JURISDICTION. IN EACH
OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY SHALL BE COMPLETED AND DELIVERED BY THE TRANSFEROR
TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.
DUNE ENERGY, INC.
10 1/2% SENIOR SECURED NOTES DUE 2012
CUSIP No. 265338 AB 9
No. IAI-1 $250,000
Dune Energy, Inc., a Delaware corporation (the "Company," which term
includes any successor entity), for value received promises to pay to Cede & Co.
or registered assigns the principal sum of TWO HUNDRED FIFTY THOUSAND DOLLARS
($250,000) (or such principal amount as may be set forth in the records of the
Trustee hereinafter referred to in accordance with the Indenture) on June 1,
2012, and to pay interest thereon as hereinafter set forth.
Interest Rate: 10 1/2%
Interest Payment Dates: Interest will be payable semi-annually in
cash in arrears on June 1 and December 1 of each year, beginning on December 1,
2007.
Record Dates: May 15 and November 15.
Reference is made to the further provisions of this Note contained
on the reverse side of this Note, which will for all purposes have the same
effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officer.
DUNE ENERGY, INC.
By:
-----------------------------------
Name:
Title:
Dated: May 15, 2007
TRUSTEE CERTIFICATE OF AUTHENTICATION
This is one of the 10 1/2% Senior Secured Notes due 2012 referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: May 15, 2007 By:
-----------------------------------
Name:
Title:
10 1/2% SENIOR SECURED NOTES DUE 2012
1. Interest. Dune Energy, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the
rate per annum shown above. Interest on the Note will accrue from the most
recent date on which interest has been paid or, if no interest has been paid,
from and including the Issue Date. The Company will pay interest semi-annually
in arrears on each Interest Payment Date, commencing December 1, 2007. Interest
will be computed on the basis of a 360-day year comprised of twelve 30-day
months. The Company will pay interest on overdue principal at 1% per annum in
excess of the above rate and will pay interest on overdue installments of
interest at such higher rate to the extent lawful. Additional Interest may
accrue on this Note in certain circumstances pursuant to the Registration Rights
Agreement and all references to "interest" in this Note shall include any
Additional Interest due on this Note pursuant to the terms of the Registration
Rights Agreement.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are the registered Holders at the
close of business on the Record Date immediately preceding the Interest Payment
Date even if the Notes are cancelled on registration of transfer or registration
of exchange after such Record Date, and on or before such Interest Payment Date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company shall 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
("U.S. Legal Tender"). However, the Company may pay principal and interest by
check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address.
3. Paying Agent and Registrar. Initially, The Bank of New York (the
"Trustee") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders.
4. Indenture. The Notes and the Guarantees were issued under an
Indenture, dated as of May 15, 2007 (the "Indenture"), among the Company, the
Guarantors named therein, the Trustee and the Collateral Agent. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. 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 1939 (15
U.S. Code xx.xx. 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under
the TIA. Notwithstanding anything to the contrary herein, the Notes are subject
to all such terms, and Holders of Notes are referred to the Indenture and the
TIA for a statement of such terms. The Notes are senior secured obligations of
the Company. Each Holder, by accepting a Note, agrees to be bound by all of the
terms and provisions of the Indenture, as the same may be amended from time to
time.
5. Redemption.
(a) Optional Redemption On or After June 1, 2010. The Notes are not
redeemable before June 1, 2010. Thereafter, the Company may redeem the Notes, at
its option, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at a redemption price at the redemption prices (expressed as percentages
of principal amount) set forth below plus accrued and unpaid interest to (but
not including) the redemption date, if redeemed during the twelve-month period
beginning on June 1 of the years set forth below:
Year Percentage
---- ----------
2010.......................................................... 105.250%
2011 and thereafter........................................... 100.000%
In addition, the Company must pay accrued and unpaid interest and
Additional Interest, if any, on the Notes redeemed to the Redemption Date.
(b) Optional Redemption Upon Equity Offerings. At any time, or from
time to time, prior to June 1, 2010, the Company may, at its option, use an
amount not to exceed the net cash proceeds of one or more Equity Offerings to
redeem up to 35% of the aggregate principal amount of the Notes (which includes
Additional Notes, if any) originally issued under this Indenture at a redemption
price of 110.500% of the aggregate principal amount thereof, plus accrued and
unpaid interest thereon, to the Redemption Date; provided that:
(1) at least 65% of the principal amount of Notes (which
includes Additional Notes, if any) originally issued under this Indenture
remains outstanding immediately after any such redemption; and
(2) the Company makes such redemption not more than 120 days
after the consummation of any such Equity Offering.
(c) Mandatory Redemption. The Company is not required to make any
mandatory redemption or sinking fund payments with respect to the Notes.
6. Notice of Redemption. Notice of redemption will be mailed by
first-class mail at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at such Holder's
registered address with a copy to the Trustee and Paying Agent. If fewer than
all of the Notes are to be redeemed, at any time, selection of Notes for
redemption will be made 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 so listed, on a pro rata basis, by lot or by
such method as the Trustee deems to be fair and appropriate; provided, that if
any such partial redemption is made with the proceeds of an Equity Offering, the
Trustee will select the Notes only on a pro rata basis or on as nearly a pro
rata basis as is practicable (subject to DTC procedures), unless such method is
otherwise prohibited. Notes in denominations of $1,000 may be redeemed only in
whole. The Trustee may select for redemption portions (equal to $1,000 or any
integral multiple thereof) of the principal amount of Notes that have
denominations larger than $1,000.
Except as set forth in the Indenture, if monies for the redemption
of the Notes called for redemption shall have been deposited with the Paying
Agent for redemption on such Redemption Date sufficient to pay such Redemption
Price plus accrued and unpaid interest and Additional Interest, if any, the
Notes called for redemption will cease to bear interest from and after such
Redemption Date, and the only remaining right of the Holders of such Notes will
be to receive payment of the Redemption Price plus accrued and unpaid interest
and Additional Interest, if any, as of the Redemption Date upon surrender to the
Paying Agent of the Notes redeemed.
7. Offers to Purchase. Sections 4.15 and 4.16 of the Indenture
provide that upon the occurrence of a Change of Control and after certain Asset
Sales, respectively, and subject to further limitations contained therein, the
Company will make an offer to purchase certain amounts of the Notes in
accordance with the procedures set forth in the Indenture.
8. Registration Rights. Pursuant to the Registration Rights
Agreement among the Company, the Guarantors and the Initial Purchaser, the
Company will be obligated to consummate an Exchange Offer. Upon such Exchange
Offer, the Holders of Notes shall have the right, subject to compliance with
securities laws, to exchange such Notes for 10 1/2 % Senior Secured Notes due
2012, which have been registered under the Securities Act (the "Exchange
Notes"), in like principal amount and having terms identical in all material
respects to the Initial Notes. The Holders of the Initial Notes shall be
entitled to receive certain Additional Interest payments in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
9. Denominations; Transfer; Exchange. The Notes are in registered
form, without coupons, in denominations of $1,000 and integral multiples
thereof. A Holder shall register the transfer of or exchange of Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes, fees or similar governmental charges payable in connection therewith
as permitted by the Indenture. The Registrar need not register the transfer of
or exchange of any Notes or portions thereof selected for redemption.
10. Persons Deemed Owners. The registered Holder of a Note shall be
treated as the owner of it for all purposes.
11. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent may
pay the money without interest thereon back to the Company. After that, all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
12. Discharge Prior to Redemption or Maturity. If the Company at any
time deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
stated maturity and complies with the other provisions of the Indenture relating
thereto, the Company will be discharged from certain provisions of the Indenture
and the Notes (including certain covenants, but excluding its obligation to pay
the principal of and interest and Additional Interest, if any, on the Notes).
13. Amendment; Supplement; Waiver. Subject to certain exceptions,
the Indenture, the Notes, the Guarantees and the Collateral Agreements may be
amended or supplemented with the written consent of the Holders of a majority in
aggregate principal amount of the Notes then outstanding, and any existing
Default or Event of Default or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding. Without consent of any Holder, the parties
thereto may amend or supplement the Indenture, the Notes, the Guarantees, or the
Collateral Agreements to, among other things, cure any ambiguity, defect or
inconsistency, provide for uncertificated Notes in addition to or in place of
certificated Notes, provide for the assumption of the Company's or any
Guarantor's obligations in accordance with Section 5.01 and Section 10.04 of the
Indenture, make any other change that would provide any additional rights or
benefits to the Holders that does not adversely affect the legal rights of any
Holder of a Note, to comply with the TIA, to allow for additional guarantees, if
necessary, in connection with any addition or release of Collateral permitted
under the Indenture or the Collateral Agreements, to release a Guarantor from
its Guarantee as permitted by the Indenture and to conform the text of the
Indenture, the Collateral Agreements, the Notes and the Guarantees to the
Offering Circular if necessary.
14. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Restricted Subsidiaries to, among other
things, incur additional Indebtedness or grant Liens, make payments in respect
of their Capital Stock or certain Indebtedness, enter into transactions with
Affiliates, create dividend or other payment restrictions affecting
Subsidiaries, merge or consolidate with any other Person, sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets or adopt a plan of liquidation. Such limitations are subject to a number
of important qualifications and exceptions. The Company must annually report to
the Trustee on compliance with such limitations.
15. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes, the
Guarantees and the Indenture, the predecessor will be released from those
obligations.
16. Defaults and Remedies. If an Event of Default occurs and is
continuing (other than certain events of bankruptcy involving the Company), the
Trustee or the Holders of at least 25% in aggregate principal amount of
outstanding Notes may declare all the Notes to be due and payable in the manner,
at the time and with the effect provided in the Indenture. Holders of Notes may
not enforce the Indenture except as provided in the Indenture. The Trustee is
not obligated to enforce the Indenture or the Notes unless it has received
reasonable indemnity satisfactory to it. The Indenture permits, subject to
certain limitations therein provided, Holders of a majority in aggregate
principal amount of the Notes then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of Notes
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that withholding notice is in
their interest.
17. Trustee Dealings with Company. Subject to the terms of the TIA
and 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 the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
18. No Recourse Against Others. No past, present or future
affiliate, director, officer, employee, incorporator or holder of any equity
interests in the Company or a Guarantor or any direct or indirect parent
corporation of the Company or a Guarantor, as such, will have any liability for
any obligations of the Company or a Guarantor under the Notes, the Guarantees or
the Indenture, or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Each of the parties hereto acknowledge
that such waiver may not be effective to waive liabilities under the federal
securities laws.
19. Guarantees. Payment of principal and interest (including
interest on overdue principal and overdue interest, if lawful), is
unconditionally and irrevocably guaranteed, jointly and severally, by each of
the Guarantors.
20. Authentication. This Note shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on this
Note.
21. Governing Law. THIS NOTE, THE INDENTURE, THE GUARANTEES AND THE
COLLATERAL AGREEMENTS (OTHER THAN THE MORTGAGES) SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE, THE INDENTURE, THE
GUARANTEES AND THE COLLATERAL AGREEMENTS (OTHER THAN THE MORTGAGES) OR THE
TRANSACTIONS CONTEMPLATED BY THIS NOTE.
22. Abbreviations and Defined Terms. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
23. Security. The Company's and Guarantors' obligations under the
Notes are secured by liens on the Collateral pursuant to the terms of the
Collateral Agreements. The actions of the Trustee and the Holders of the Notes
secured by such liens and the application of proceeds from the enforcement of
any remedies with respect to such Collateral are limited pursuant to the terms
of the Collateral Agreements.
24. 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 as a convenience to the Holders of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification numbers
printed thereon.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture. Requests may be made to:
Dune Energy, Inc., 0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000.
GUARANTEE
10 1/2 % SENIOR SECURED NOTES DUE 2012
The undersigned and its successors under the Indenture has
irrevocably and unconditionally guaranteed, on a senior secured basis to the
extent set forth in the Indenture, dated as of May 15, 2007, by and among Dune
Energy, Inc. (the "Company"), the Guarantors and Bank of New York, as Trustee
and Collateral Agent (the "Indenture"), (i) the due and punctual payment of the
principal of, premium, if any, and interest on the Notes, whether at maturity,
by acceleration or otherwise, the due and punctual payment of interest on the
overdue principal of (including interest accruing at the then applicable rate
provided in the Indenture, the Notes, the Guarantees or any Collateral Agreement
after the occurrence of any Event of Default set forth in Section 6.01(6) or (7)
of the Indenture, whether or not a claim for post-filing or post-petition
interest is allowed under applicable law following the institution of a
proceeding under bankruptcy, insolvency or similar law) and interest on the
Notes, to the extent lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms set forth in Article Ten of the Indenture and (ii) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Capitalized terms used herein have the
meanings assigned to them in the Indenture unless otherwise indicated.
THE OBLIGATIONS OF THE UNDERSIGNED TO HOLDERS OF THE NOTES AND TO
THE TRUSTEE PURSUANT TO THIS NOTATION OF GUARANTEE (THE "GUARANTEE") AND THE
INDENTURE ARE EXPRESSLY SET FORTH IN ARTICLE TEN OF THE INDENTURE AND REFERENCE
IS XXXXXX MADE TO THE INDENTURE FOR THE PRECISE TERMS OF THE GUARANTEE AND ALL
OTHER PROVISIONS OF THE INDENTURE TO WHICH THE GUARANTEE RELATES. EACH HOLDER OF
A NOTE, BY ACCEPTING THE SAME, (A) AGREES TO AND SHALL BE BOUND BY SUCH
PROVISIONS AND (B) APPOINTS THE TRUSTEE ATTORNEY-IN-FACT FOR SUCH HOLDER FOR
SUCH PURPOSES.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
[remainder of page intentionally left blank]
VAQUERO PARTNERS LLC
DUNE OPERATING COMPANY
By:____________________________________
Name:
Title:
GOLDKING ENERGY CORPORATION
By:____________________________________
Name:
Title:
GOLDKING OPERATING COMPANY
By:____________________________________
Name:
Title:
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint_________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Dated:________________________ Signed:_____________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:______________________________________
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) August 23, 2008, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that this Note is being transferred:
[Check One]
(1) ______ to the Company or a subsidiary thereof; or
(2) ______ pursuant to and in compliance with Rule 144A under the
Securities Act; or
(3) ______ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that has
furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can
be obtained from the Trustee); or
(4) ______ outside the United States to a person other than a "U.S.
person" in compliance with Rule 904 of Regulation S under the
Securities Act; or
(5) ______ pursuant to the exemption from registration provided by Rule
144 under the Securities Act; or
(6) ______ pursuant to an effective registration statement under the
Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered Holder thereof; provided that if box (3), (4) or (5) is checked, the
Company or the Trustee may require, prior to registering any such transfer of
the Notes, in its sole discretion, such legal opinions, certifications
(including an investment letter in the case of box (3) or (4)) and other
information as the Trustee or the Company has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Note in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.15 of the Indenture shall have
been satisfied.
Dated:________________________ Signed:_____________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:______________________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: _____________________ ______________________________________________
NOTICE: To be executed by an executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate
box:
Section 4.15 |_|
Section 4.16 |_|
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount you elect to have purchased:
$ __________________________________
Dated:_______________________ ________________________________________
NOTICE: The signature on this assignment
must correspond with the name as
it appears upon the face of the
within Note in every particular
without alteration or
enlargement or any change
whatsoever and be guaranteed by
the endorser's bank or broker.
Signature Guarantee:
