Exhibit 10.3
Execution Version
AMENDED AND RESTATED SECURITIES
AGENCY AGREEMENT
THIS AMENDED AND RESTATED SECURITIES
AGENCY AGREEMENT (this “ Agreement ”)
dated as of October 24, 2008 is entered into by and among THE
BANK OF NEW YORK MELLON, a New York banking corporation, not in its
individual capacity but solely as trustee under the Original
Indenture (as defined herein) (the “ Original
Trustee ”), as trustee under the New Indenture (as
defined herein) (the “ New Trustee ”) and
as collateral agent under the Original Indenture and the New
Indenture (the “ Collateral Agent ” and,
together with the Original Trustee, the New Trustee and the holders
of the Notes (as defined below), the “ Secured
Parties ”), JSC BTA SECURITIES, a Kazakhstan joint
stock company incorporated under the laws of Kazakhstan,
No. 14024-1910-T00, broker-dealer license No. 0401201983,
as Securities Agent in the Republic of Kazakhstan (the “
Securities Agent ”), TRANSMERIDIAN EXPLORATION
INC., a company incorporated under the laws of the British Virgin
Islands (“ TME ”), and BRAMEX MANAGEMENT,
INC., a company incorporated under the laws of the British Virgin
Islands (“ Bramex ” and, together with
TME, the “ Issuers ”).
RECITALS
WHEREAS, pursuant to that certain
Indenture, dated as of December 12, 2005, as supplemented by
the First and Second Supplemental Indentures thereto, dated as of
December 22, 2005 and May 24, 2006, respectively (the
“ Existing Indenture ” and, such Existing
Indenture, as supplemented by the Third Supplemental Indenture,
dated as of the date hereof (and as further amended, restated,
supplemented or otherwise modified from time to time, the “
Original Indenture ”)), by and among TME, the
Original Trustee, Transmeridian Exploration Incorporated (the
“ Parent ”), as guarantor, and the other
guarantors party thereto (the “ Subsidiary
Guarantors ” and, together with the Parent, the
“ Guarantors ”), TME issued $290 million
aggregate principal amount of its senior secured notes due 2010
(the “ Original Notes”);
WHEREAS, to secure the obligations
of TME under the Original Notes and the Existing Indenture, the
Original Trustee, the Securities Agent and the Issuers entered into
the Securities Agency Agreement, dated as of January 3, 2006,
as amended on May 24, 2006 (the “ Original
Securities Agency Agreement ”);
WHEREAS, to secure the obligations
of the Issuers and the Guarantors under the Existing Indenture and
the Original Notes, the Issuers executed and delivered (i) the
Conditional Share Transfer Agreement, dated as of January 3,
2006, as amended on May 24, 2006 (the “ Original
CSTA ”), among the Issuers and the Securities Agent,
and (ii) the Share Encumbrance and Pledge Agreement, dated as
of January 3, 2006, as amended on May 24, 2006 (the
“ Original SEPA ”), among the Issuers and
the Securities Agent;
WHEREAS, none of the Original Notes
are owned by (i) TME or by any Person that is or may be a
Person directly or indirectly controlling or controlled by or under
direct or indirect common control with TME or (ii) United
Energy Group Limited, an exempted company with limited liability
existing under the laws of Bermuda (“ UEGL
”), other than the $43,159,000 aggregate principal amount of
Original Notes (the “ Specified Original Notes
”) owned by UEGL;
WHEREAS, pursuant to that certain Indenture,
dated as of the date hereof, by and among TME, the New Trustee and
the Guarantors (as amended, amended and restated, supplemented or
otherwise modified from time to time, the “ New
Indenture ” and, together with the Original Indenture,
the “ Indentures ”), TME is authorized to
issue its senior secured notes due 2010 (the “ New
Notes ” and, together with the Original Notes, the
“ Notes ”) in an aggregate principal
amount of up to $177,726,000 (or such other aggregate principal
amount set forth in an Authentication Order delivered on the Issue
Date (as defined in the New Indenture)) in exchange for all or a
portion of the Original Notes;
WHEREAS, pursuant to the Offering
Memorandum and Consent Solicitation Statement, dated as of
July 23, 2008 (as amended or supplemented, the “
Solicitation Statement ”), of TME and the
Parent, TME and the Parent have solicited consents of the holders
of the Original Notes to authorize certain amendments to the
Existing Indenture and to the Security Documents (as defined in the
Existing Indenture), including the Original Securities Agency
Agreement, and in connection therewith, TME has obtained the
written consent of the holders of at least a majority in
outstanding principal amount of the Original Notes to the substance
of the amendment and restatement in its entirety of the Original
Securities Agency Agreement, as set forth herein, and the amendment
and restatement in its entirety of each of the Original CSTA and
the Original SEPA, as set forth in the CSTA and the SEPA (each as
defined below), respectively, evidence of which that is
satisfactory to the Original Trustee having been filed
therewith;
WHEREAS, the Issuers, the Original
Trustee, the New Trustee, the Collateral Agent and the Securities
Agent have each agreed to enter into this Agreement to amend and
restate the Original Securities Agency Agreement to (a) secure
the obligations of the Issuers under the Notes and the Indentures
and (b) make the other modifications to the Original
Securities Agency Agreement as set forth herein;
WHEREAS, to secure the obligations
of the Issuers and the Guarantors under the Indentures and the
Notes (the “ Secured Obligations ”), the
Issuers have agreed, among other things, to execute and deliver (i)
the Amended and Restated Conditional Share Transfer Agreement (the
“ CSTA ”) and the Amended and Restated
Share Encumbrance and Pledge Agreement (the “
SEPA ”) and (ii) the other documents
listed on Exhibit A (the CSTA, the SEPA, such other documents
listed on Exhibit A and any such other agreements as may be entered
into from time to time with the prior written consent of the
Collateral Agent with respect to the Shares (as defined in the
CSTA) collectively, the “ Kazakhstan Documents
”); and
WHEREAS, pursuant to Sections 9.6
and 12.4 of the Existing Indenture, the Original Trustee has
received an Officer’s Certificate and an Opinion of Counsel
as to the matters specified therein with respect to execution and
delivery by the Trustee hereof.
NOW, THEREFORE, in consideration of
the premises, the parties hereto hereby amend and restate the
Original Securities Agency Agreement in its entirety and agree as
follows:
Section 1. Definitions
Capitalized terms used herein and
not otherwise defined herein and the term “outstanding”
shall have the respective meanings given to such terms in the
Original Indenture.
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Section 2. Appointment of Securities
Agent; Successor Securities Agent
The Issuers hereby appoint the
Securities Agent, and the Securities Agent hereby accepts such
appointment, pursuant to the terms of this Agreement, as securities
agent to act on behalf of the Collateral Agent, acting on behalf of
the Original Trustee under the Original Indenture for the benefit
of the Original Trustee and the holders of the Original Notes and
the New Trustee under the New Indenture for the benefit of the New
Trustee and the holders of the New Notes, but, in each such case,
solely in respect of the Kazakhstan Documents and the Shares
covered thereby. The Securities Agent shall be and is hereby
authorized to exercise such rights and powers as instructed from
time to time by the Collateral Agent to perform its obligations as
Securities Agent under this Agreement and as Securities Agent
and/or beneficiary under the Kazakhstan Documents. Except as
otherwise expressly set forth in this Agreement, the Securities
Agent shall not take any action with respect to the Shares, whether
pursuant to this Agreement or any of the Kazakhstan Documents,
except pursuant to the written instructions of the Collateral
Agent.
(a) The Securities Agent is an
independent contractor and shall have no authority to act for or
represent any Secured Party except as expressly set forth herein.
Notwithstanding any provision to the contrary elsewhere, the
Securities Agent shall not have any authority, rights, duties or
responsibilities, except those expressly set forth in the
Kazakhstan Documents to which it is a party and those arising out
of its acceptance and administration of this Agreement. The
Securities Agent does not owe fiduciary duties to any Secured Party
or any other person in connection with the performance of its
duties hereunder other than (i) the duty to safekeep the
Shares in its custody and (ii) the duty to take no action
which would impair the interests of any Secured Party in the
Shares. At the expense of the Issuers, the Securities Agent may
retain counsel and other experts, and may rely conclusively on the
advice of such counsel and other experts. If the Securities Agent
is required to take any action hereunder, including, but not
limited to, beginning any legal action or proceeding or taking any
steps to enforce or realize upon any security interest created by
the Kazakhstan Documents, the Issuers shall reimburse and indemnify
(whether by way of payment in advance or otherwise) the Securities
Agent against all costs, claims, expenses (including legal fees)
and liabilities it will or may expend or incur in taking such
action.
(b) The Securities Agent may be
removed any time with or without cause by written notice by the
Collateral Agent. Prior to the effectiveness of any such removal,
the Issuers shall have the right to appoint a successor Securities
Agent. Upon the acceptance of any appointment as Securities Agent
hereunder by a successor Securities Agent, such successor
Securities Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring
Securities Agent, and the retiring Securities Agent shall be
discharged from its duties and obligations under this Agreement.
After any Securities Agent’s removal hereunder as Securities
Agent, the provisions of this Agreement shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was
Securities Agent under this Agreement and the Kazakhstan
Documents.
(c) Beyond the exercise of
reasonable care in the custody thereof, the Securities Agent shall
have no duty as to any Shares in its possession or control or in
the possession or control of any nominee, agent or bailee or any
income thereon or as to preservation of rights against prior
parties or any other rights pertaining thereto. The Securities
Agent shall be deemed to have exercised reasonable care in the
custody of the Shares in its possession if the Shares are accorded
treatment substantially equal to that which it accords its own
property and
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shall not be liable or responsible
for any loss or diminution in the value of any of the Shares, by
reason of the act or omission of any carrier, forwarding agency or
other agent or bailee selected by the Securities Agent in good
faith.
(d) The Issuers shall concurrently
give to the Securities Agent copies of all notices given by the
Issuers to the Collateral Agent, the Original Trustee or the New
Trustee pursuant to the Indentures, provided that the failure to
provide to the Securities Agent a copy of a notice properly
delivered to such Collateral Agent, Original Trustee or New Trustee
shall not be a separate default or Event of Default under the
Original Indenture or an Event of Default under the New Indenture,
the Kazakhstan Documents or this Agreement. The Collateral
Agent will have the right to appoint a person who will be in charge
of exercising the rights derived from or related to the Shares or
that may be applicable to its defense, in which case the Securities
Agent will be obligated only to grant the necessary powers of
attorney. In the event of and following such an appointment, the
Collateral Agent shall give prompt notice of such appointment to
the Issuers.
Section 3. Responsibilities of
Securities Agent
The obligations of the Securities
Agent under this Agreement shall be to:
(a) duly execute and deliver and act
as Securities Agent or beneficiary under the Kazakhstan Documents
for the benefit of the Collateral Agent under the Indentures as
requested by the Collateral Agent in writing;
(b) duly perform all of its duties
and obligations under the Kazakhstan Documents, specifically those
obligations to enforce its rights against the Shares, but only as
and to the extent instructed by the Collateral Agent in
writing;
(c) upon the occurrence of an Event
of Default under either Indenture, take such action as requested by
written instructions of the Collateral Agent under the applicable
Indenture, specifically including the actions specified under
Section 2.1 of the CSTA (but in no event otherwise) in a
manner consistent with applicable law. In this regard, the
Securities Agent shall be entitled to rely and act upon, and shall
be fully protected in relying and acting upon, any note, writing,
resolution, notice, consent, certificate, request, demand,
direction, instruction, waiver, receipt, agreement, affidavit,
letter, statement, order or written document or written
communication reasonably believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel and other
experts retained or employed by the Securities Agent in its
reasonable discretion;
(d) be deemed not to have actual,
constructive, direct or indirect knowledge or notice of the
occurrence of any Event of Default under either Indenture or any
right or obligation to give a Transfer Instruction (as defined in
the CSTA), except upon receipt by the Securities Agent of a written
notice or a certificate from the Collateral Agent stating that an
Event of Default under the applicable Indenture has occurred and
that a Transfer Instruction should be delivered. The Securities
Agent shall have no obligation whatsoever, either prior to or after
receiving such written notice or certificate, to inquire whether an
Event of Default under the applicable Indenture has in fact
occurred and shall be entitled to rely conclusively, and shall be
fully protected in so relying, on any notice or certificate so
furnished to it;
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(e) take such other actions
reasonably requested by the Collateral Agent in accordance with
this Agreement;
(f) file the required statements and
record the required documents or instruments in the appropriate
public office at any time or times necessary to preserve the
interests of each Secured Party in the Shares;
(g) following completion of a Share
Transfer (as defined in the CSTA), at the direction of the
Collateral Agent, sell the Shares in a manner consistent with
applicable law for cash or other consideration in one or more
transactions in such manner and to such purchasers as shall be
directed in writing by the Collateral Agent;
(h) remit all Sales Proceeds (as
defined in the CSTA) forthwith to the Collateral Agent until the
Collateral Agent shall have received at its offices in New York,
New York an aggregate amount equal to all amounts owed by the
Issuers with respect to the Secured Obligations, and upon receipt
by the Securities Agent of a written certification from the
Collateral Agent that the Collateral Agent has received Sales
Proceeds from the sales of Transf
