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in the event of an Asset Sale, in each case plus accrued interest, in connection with any change of control offer
or asset sale offer required by the terms of such Indebtedness, but only if:
(a)
in the case of a Change of Control, the Issuer has first complied with and fully satisfied its obligations
under the provisions described under "—
Repurchase at the Option of Noteholders—Change of
Control
"; or
(b)
in the case of an Asset Sale, the Issuer has complied with and fully satisfied its obligations in
accordance with the covenant under the heading, "—
Repurchase at the Option of Noteholders—Asset
Sales
";
(8)
the repurchase, redemption or other acquisition for value of Capital Stock of the Issuer representing fractional
shares of such Capital Stock in connection with a merger, consolidation, amalgamation or other combination
involving the Issuer or any other transaction permitted by the Indenture;
(9)
the repurchase of Equity Interests deemed to occur upon the exercise of stock options or warrants to the extent
such Equity Interests represent a portion of the exercise price of those stock options or warrants;
(10)
the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of
Disqualified Stock of the Issuer or any Restricted Subsidiary of the Issuer issued on or after the Issue Date in
accordance with the Fixed Charge Coverage Ratio test described below under the caption "—
Incurrence of
Indebtedness and Issuance of Preferred Stock
";
(11)
payments of cash, dividends, distributions, advances or other Restricted Payments by the Issuer or any of its
Restricted Subsidiaries to allow the payment of cash in lieu of the issuance of fractional shares upon (x) the
exercise of options or warrants or (y) the conversion or exchange of Capital Stock of any such Person;
(12)
(a) advances or loans to any future, present or former officer, director, employee or consultant of the Issuer or
a Restricted Subsidiary to pay for the purchase or other acquisition for value of Equity Interests of the Issuer
(other than Disqualified Stock), or any obligation under a forward sale agreement, deferred purchase
agreement or deferred payment arrangement pursuant to any management equity plan or stock option plan or
any other management or employee benefit or incentive plan or other agreement or arrangement or (b)
advances, grants or loans in relation to any management equity plan or stock option plan or any other
management or employee benefit or incentive plan or unit trust, whether made directly to any such plan or
trust or to the trustees of any such plan or trust to pay for the purchase or other acquisition for value of Equity
Interests of the Issuer (other than Disqualified Stock);
provided
that the total aggregate amount of Restricted
Payments made under this clause (12) does not exceed $1.0 million in any calendar year;
(13)
the repurchase of Equity Interests of the Issuer directly or indirectly held by Mohammad Al Howqal to be held
as treasury stock;
provided
that the total aggregate amount of Restricted Payments made under this clause (13)
does not exceed $12.0 million plus the cash proceeds from the sale of such Equity Interests of the Issuer from
treasury stock since the Issue Date;
(14)
the repurchase, redemption or other acquisition or retirement for value of Equity Interests of the Issuer held as
at the Issue Date by Kuwait Energy Company KSCC as described in this Offering Memorandum;
(15)
so long as no Default has occurred and is continuing or would be caused thereby, the declaration or payment
of dividends or distributions, or the making of any cash payments, advances, loans or expense reimbursements
on the common stock or common equity interests of the Issuer or any direct or indirect parent company;
provided
that the aggregate amount of all such dividends or distributions under this clause (14) shall not
exceed in any fiscal year, 6.0% of the net cash proceeds received by the Issuer in any Public Equity Offering
or contributed to the equity of the Issuer; and
(16)
so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in
an aggregate amount not to exceed $20.0 million since the Issue Date.
The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted
Payment (or, in the case of a dividend, on the date of the declaration) of the asset(s) or securities proposed to be
transferred or issued by the Issuer or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
Unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness by virtue of its nature as
unsecured Indebtedness.
Incurrence of Indebtedness and Issuance of Preferred Stock
The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "
incur
") any Indebtedness (including Acquired Debt), and the Issuer will not issue any Disqualified Stock
and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock;
provided, however,
that the
Issuer may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock or preferred stock and any
Restricted Subsidiary of the Issuer may incur Indebtedness (including Acquired Debt) or issue preferred stock, if the
