SIXTH SUPPLEMENTAL INDENTURE
Exhibit 4.2
XXXXXXXX RESOURCES, INC.,
GUARANTORS
NAMED HEREIN
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
Trustee
dated as of March 14, 2011
to
INDENTURE
dated as of February 25, 2004
67/8% Senior Notes due 2012
This SIXTH SUPPLEMENTAL INDENTURE, dated as of March 14, 2011, is among XXXXXXXX RESOURCES,
INC., a Nevada corporation (the “Company”), the GUARANTORS (as defined in the Indenture) and THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as successor in interest to THE BANK OF NEW YORK TRUST
COMPANY, N.A., as Trustee (hereinafter called the “Trustee”). Capitalized terms used herein but
not otherwise defined shall have the meanings ascribed to them in the Indenture (as defined below
and as supplemented hereby).
WHEREAS, the Company, certain Subsidiaries of the Company and the predecessor in interest to
the Trustee entered into an Indenture, dated as of February 25, 2004 (the “Original Indenture”), as
the same was amended and supplemented by that certain First Supplemental Indenture dated as of
February 25, 2004 (the “First Supplemental Indenture”), and by that certain Second Supplemental
Indenture dated as of March 11, 2004 (the “Second Supplemental Indenture”), and by that certain
Third Supplemental Indenture dated July 16, 2004 (the “Third Supplemental Indenture”), and by that
certain Fourth Supplemental Indenture dated May 20, 2005 (the “Fourth Supplemental Indenture”), and
by that certain Fifth Supplemental Indenture dated as of April 30, 2010 (the “Fifth Supplemental
Indenture” and together with the Original Indenture, the First Supplemental Indenture, the Second
Supplemental Indenture and the Third Supplemental Indenture, the “Indenture”), providing for the
issuance by the Company of the Company’s 67/8% Senior Notes due 2012;
WHEREAS, the parties hereto desire to modify and amend the Indenture to remove certain
covenants therefrom; and
WHEREAS, the Holders of at least a majority in aggregate principal amount of Outstanding
Securities have consented to the amendments contained herein as required by Section 5.2 of the
Indenture;
NOW, THEREFORE, for the purposes stated herein and for and in consideration of the premises
and covenants contained in the Indenture and in this Sixth Supplemental Indenture and for other
good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is
mutually covenanted and agreed as follows:
ARTICLE I
Section 1.1 Deletion of Covenants. Effective as of the date hereof, each of the
following sections of the First Supplemental Indenture (each, a “Deleted Covenant”), together with
all references to any such section set forth in the Indenture, are hereby deleted in their
entirety:
Section 6.4
|
Payment of Taxes; Maintenance of Properties; Insurance | |
Section 6.5
|
Statement by Officers as to Default | |
Section 6.6
|
Provision of Financial Information | |
Section 6.7
|
Limitation on Restricted Payments | |
Section 6.8
|
Limitation on Guarantees by Restricted Subsidiaries |
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Section 6.9
|
Limitation on Indebtedness and Disqualified Capital Stock | |
Section 6.10
|
Additional Guarantors | |
Section 6.11
|
Limitation on Issuances and Sales of Preferred Stock of Restricted Subsidiaries | |
Section 6.12
|
Limitation on Liens | |
Section 6.15
|
Limitation on Transactions with Affiliates | |
Section 6.16
|
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries | |
Section 6.17
|
Limitation on Sale and Leaseback Transactions. |
Section 1.2 Covenant Concerning Certain Events of Default. Effective as of the date
hereof, subsections (e) and (g) of Section 3.1 of the First Supplemental Indenture are hereby
deleted in their entireties.
Section 1.3 Provision Concerning Company May Consolidate, Etc. Effective as of the
date hereof, subsection (c) of Section 4.1 of the First Supplemental Indenture is hereby deleted in
its entirety.
Section 1.4 Deletion of Definitions. Effective as of the date hereof, all definitions
set forth in Section 1.1 of the First Supplemental Indenture which are referenced in or relate
solely to the Deleted Covenants or of the First Supplemental Indenture are herby deleted in their
entireties.
Section 1.5 Provision Concerning Notice to Trustee. Effective as of the date hereof,
Section 7.1 of the First Supplemental Indenture is hereby deleted in its entirety and replaced with
the following:
“Section 7.1 Notice to Trustee.
If the Company elects to redeem Securities pursuant to paragraph 5 of the Securities,
it shall notify the Trustee in writing of the redemption date, the principal amount of
Securities to be redeemed and that such redemption is being made pursuant to paragraph 5 of
the Securities.
The Company shall give each notice to the Trustee provided for in this Section at least
4 Business Days before the Redemption Date unless the Trustee consents to a shorter period.
Such notice shall be accompanied by an Officers’ Certificate and an Opinion of Counsel from
the Company to the effect that such redemption will comply with the conditions herein. Any
election to redeem Securities shall be revocable until the Company gives a notice of
redemption pursuant to Section 7.2 to the Holders of Securities to be redeemed.”
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Section 1.6 Provision Concerning Notice of Redemption. Effective as of the date
hereof, Section 7.3 of the First Supplemental Indenture is hereby deleted in its entirety and
replaced with the following:
“Section 7.3 Notice of Redemption.
Notice of redemption shall be given in the manner provided for in Section 10.3 hereof
not less than 3 Business Days nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be redeemed, the identification
(and, in the case of a partial redemption, the principal amounts) of the particular
Securities to be redeemed;
(d) that on the Redemption Date the Redemption Price (together with accrued interest,
if any, to the Redemption Date payable as provided in Section 7.5 hereof) will become due
and payable upon each such Security, or the portion thereof, to be redeemed, and that,
unless the Company shall default in the payment of the Redemption Price and any applicable
accrued interest, interest thereon will cease to accrue on and after said date; and
(e) the place or places where such Securities are to be surrendered for payment of the
Redemption Price.
Notice of redemption of Securities to be redeemed at the election of the Company shall
be given by the Company or, at the Company’s request, by the Trustee in the name and at the
expense of the Company. Failure to give such notice by mailing to any Holder of Securities
or any defect therein shall not affect the validity of any proceedings for the redemption of
other Securities.”
Section 1.7 Paragraph 7 of the Securities. Effective as of the date hereof, Paragraph
7 of the Securities is hereby deleted in its entirety and replaced with the following:
“7. Notice of Redemption.
Notice of redemption will be sent at least 3 Business Days but not more than 60 days
before the redemption date to each Holder of Securities to be redeemed at his or her
registered address. Securities in denominations larger than $1,000 may be redeemed in part
but only in whole multiples of $1,000. If money sufficient to pay the redemption price of
and accrued interest on all Securities (or portions thereof) to be redeemed on the
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redemption date is deposited with the Paying Agent on or before the redemption date and
certain other conditions are satisfied, on and after such date interest ceases to accrue on
such Securities (or such portions thereof) called for redemption.”
ARTICLE II
Section 2.1 Ratification of Indenture.
As supplemented by this Sixth Supplemental Indenture, the Indenture is in all respects
ratified and confirmed, and the Indenture as supplemented by this Sixth Supplemental Indenture
shall be read, taken and construed as one and the same instrument.
Section 2.2 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Second Supplemental Indenture by any provision of the Trust
Indenture Act, such required provisions shall control.
Section 2.3 Counterparts.
This Sixth Supplemental Indenture may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together constitute but one and the same
instrument.
Section 2.4 Governing Law.
This Sixth Supplemental Indenture shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York but without giving effect to applicable
principles of conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
Section 2.5 Trustee Not Responsible for Recitals.
The recitals contained herein are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee makes no representation as to
the validity or sufficiency of this Sixth Supplemental Indenture.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental Indenture to be
duly executed, all as of the day and year first above written.
| COMPANY: XXXXXXXX RESOURCES, INC. |
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| By: | /s/ XXXXXX X. XXXXX | |||
| Xxxxxx X. Xxxxx Senior Vice President, Chief Financial Officer, Secretary and Treasurer |
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| GUARANTORS: XXXXXXXX OIL & GAS, LP |
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| By: | /s/ XXXXXX X. XXXXX | |||
| Xxxxxx X. Xxxxx | ||||
| Senior Vice President, Chief Financial Officer, Secretary and Treasurer of Xxxxxxxx Resources, Inc., a Nevada corporation, acting in its capacity as the sole member of Xxxxxxxx Oil & Gas GP, LLC, a Nevada limited liability company, and as the sole member of such entity, acting on behalf of such entity in such entity's capacity as the sole general partner of Xxxxxxxx Oil & Gas, LP, a Nevada limited partnership | ||||
| XXXXXXXX OIL & GAS HOLDINGS, INC. |
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| By: | /s/ XXXXXX X. XXXXX | |||
| Xxxxxx X. Xxxxx | ||||
| Senior Vice President, Chief Financial Officer, Secretary and Treasurer |
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[Signature Pages Continue]
Signature Page to Sixth Supplemental Indenture
| XXXXXXXX OIL & GAS-LOUISIANA, LLC |
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| By: | /s/ XXXXXX X. XXXXX | |||
| Xxxxxx X. Xxxxx | ||||
| Manager, Senior Vice President, Chief Financial Officer, Secretary and Treasurer | ||||
| XXXXXXXX OIL & GAS GP, LLC |
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| By: | /s/ XXXXXX X. XXXXX | |||
| Xxxxxx X. Xxxxx | ||||
| Senior Vice President, Chief Financial Officer, Secretary and Treasurer of Xxxxxxxx Resources, Inc., a Nevada corporation, acting on behalf of such entity in its capacity as the sole member of Xxxxxxxx Oil & Gas GP, LLC | ||||
| XXXXXXXX OIL & GAS INVESTMENTS, LLC |
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| By: | /s/ XXXXXX X. XXXXX | |||
| Xxxxxx X. Xxxxx | ||||
| Manager | ||||
[Signature Pages Continue]
Signature Page to Sixth Supplemental Indenture
| TRUSTEE: THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. |
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| By: | /s/ XXXXX XXXXXXX-XXXXX | |||
| Name: Xxxxx Xxxxxxx-Xxxxx | ||||
| Title: Senior Associate | ||||
Signature Page to Sixth Supplemental Indenture
