EXHIBIT 4.4
XXXXXXX RESOURCES CORPORATION
$150,000,000
7.55% SENIOR NOTES DUE 2007
SECOND SUPPLEMENTAL INDENTURE
XXXXXXX RESOURCES CORPORATION,
as Issuer,
and
BANKERS TRUST COMPANY,
as Trustee
Dated as of
August 2, 2001
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this "Second Supplemental Indenture")
dated as of August 2, 2001, by and among Xxxxxxx Resources Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), The Xxxxxxxx Companies, Inc. a corporation duty organized and
existing under the laws of the State of Delaware ("Xxxxxxxx"), Resources
Acquisition Corp., a wholly owned subsidiary of Xxxxxxxx and a corporation duly
organized and existing under the laws of the State of Delaware ("Resources
Acquisition") and Bankers Trust Company, a banking corporation existing under
the laws of the State of New York, as trustee (the "Trustee");
WHEREAS, the Company and the Trustee have heretofore executed and
delivered an indenture dated as of February 1, 1997, as previously supplemented
and amended (the "Indenture") to provide for the issuance of the Company's 7.55%
Senior Notes due 2007 (the "Notes"); and
WHEREAS, on May 7, 2001, the Company, Xxxxxxxx, and Resources
Acquisition entered into an Agreement and Plan of Merger (the "Merger
Agreement") pursuant to which, subject to the satisfaction of the conditions set
forth in the Merger Agreement, the Company will be merged with and into
Resources Acquisition (the "Merger"), with Resources Acquisition being the
surviving corporation and being re-named "Xxxxxxxx Production RMT Company" as a
result of the Merger; and
WHEREAS, the Merger will be consummated pursuant to the terms of the
Merger Agreement, and therefore Resources Acquisition, pursuant to Section 5.02
of the Indenture and subject to the satisfaction of the conditions set forth in
Section 5.01 of the Indenture, will assume all the obligations of the Company
under the Indenture and the Notes; and
WHEREAS, Section 4.10(b) of the Indenture provides, among other
things, that, any person may become a guarantor of the Notes by executing and
delivering to the Trustee a supplemental indenture which subjects such person to
the provisions of the Indenture as a guarantor; and
WHEREAS, Xxxxxxxx is willing to become a guarantor of the Notes by
executing and delivering to the Trustee this Second Supplemental Indenture which
will subject Xxxxxxxx to the provisions of the Indenture as a guarantor; and
WHEREAS, all action on the part of the Company necessary to authorize
its execution, delivery and performance of the Indenture, as further
supplemented by this Second Supplemental Indenture, has been duly taken; and
WHEREAS, Xxxxxxxx, Resources Acquisition and the Company desire and
have requested the Trustee to join in the execution and delivery of this Second
Supplemental Indenture for the purpose of amending the Indenture.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, it is mutually covenanted and agreed for the equal and
ratable benefit of all holders of the Notes as follows, effective upon execution
hereof by the Trustee:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms which are used but not
defined herein shall have the meanings ascribed to such terms in the Indenture.
ARTICLE II
AMENDMENTS TO INDENTURE
Section 2.1 Assumption of Certain Obligations.
(a) Upon consummation of the Merger, pursuant to Sections 5,01
and 5.02 of the Indenture, Resources Acquisition hereby assumes all of the
obligations of the Company under the Indenture and the Securities.
(b) Upon consummation of the Merger, the Company and the
Trustee hereby acknowledge that Resources Acquisition is a Successor, as such
term is defined in Section 5.01(a) of the Indenture, and therefore Resources
Acquisition shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under the Indenture and the Securities as if
Resources Acquisition had been named therein.
Section 2.2 Deliveries by the Company
(a) Pursuant to Section 5.01(c) of the Indenture and prior to
the consummation of the Merger, the Company shall deliver to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that the Merger and
the Second Supplemental Indenture comply with the provisions of the Indenture.
Section 2.3 Guarantee by Xxxxxxxx.
(a) Upon consummation of the Merger, Xxxxxxxx shall become a
guarantor of the Securities pursuant to Section 4.10(b) of the Indenture by
executing and delivering to the Trustee (i) this Second Supplemental Indenture,
(ii) the Guarantee, which will become effective upon consummation of the Merger,
in the form attached hereto as Exhibit A and (iii) an Opinion of Counsel and
Officers' Certificate as required by Section 4.10(b) of the Indenture.
(b) Upon consummation of the Merger, Xxxxxxxx agrees to be
subject to the provisions of the Indenture as a guarantor.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.1 Execution as Supplemental Indenture. This Second
Supplemental Indenture is executed and shall be construed as an indenture
supplement to the Indenture and, as provided in Article IX of the Indenture,
this Second Supplemental Indenture forms a part thereof. Except as herein
expressly otherwise defined, the use of the terms and expressions herein is in
accordance with the definitions, uses and constructions contained in the
Indenture.
Section 3.2 Effect of Second Supplemental Indenture. From and after the
execution and delivery of this Second Supplemental Indenture, the Indenture
shall be deemed to be modified as herein provided, but except as modified
hereby, the Indenture shall continue in full force and effect. The Indenture as
modified hereby shall be read, taken and construed as one and the same
instrument.
Section 3.3 Notice.
(a) Any notice or communication by the Trustee to Resources
Acquisition is duly given if in writing and delivered in person or by express
mail service to the address set forth below:
Resources Acquisition Corp.
c/o The Xxxxxxxx Companies, Inc.
One Xxxxxxxx Center
Tulsa, Oklahoma 74172
Attention: [__________]
(b) Any notice or communication by the Trustee to Xxxxxxxx is
duly given if in writing and delivered in person or by express mail service to
the address set forth below:
The Xxxxxxxx Companies, Inc.
One Xxxxxxxx Center
Tulsa, Oklahoma 74172
Attention: [__________]
Section 3.4 Governing Law. This Second Supplemental Indenture shall be
governed by, and construed and interpreted in accordance with, the internal laws
of the State of New York, without giving effect to the conflict of laws
provisions thereof.
Section 3.5 Counterparts This Second Supplemental Indenture maybe
executed in separate counterparts each of which shall be an original and all of
which taken together shall constitute one and the same agreement.
(SIGNATURE PAGE TO FOLLOW)
WITNESS WHEREOF, the Company, Xxxxxxxx, Resources Acquisition and the
Trustee have executed this Second Supplemental Indenture or caused this Second
Supplemental Indenture to be executed by their respective officers thereunto
duly authorized as of August 2, 2001.
XXXXXXX RESOURCES CORPORATION
By: /s/ Xxxxx X. Xxx
--------------------------------------
Name: Xxxxx X. Xxx
Title: Chairman and Chief Executive
Officer
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
RESOURCES ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
BANKERS TRUST COMPANY OF NEW YORK
By: /s/ Xxxxx Xxxxxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxxxxx
Title: Account Manager
