Contract
Exhibit
4.6
Pogo
Producing Company LLC
(as
successor to Pogo Producing Company)
as
the Company
and
The
Bank of New York Trust Company, N.A.
as
Trustee
Dated
as of November 20,
2007
_________________
6.875%
Senior Subordinated Notes due 2017
Supplementing
the Indenture dated as of September 23, 2005, by and between Pogo Producing
Company, as the Company, and The Bank of New York Trust Company, N.A., as
Trustee.
THIS
SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as
of November 20, 2007, by and between POGO PRODUCING COMPANY LLC, a Delaware
limited liability company formerly known as PXP Acquisition LLC (the
“Company”), and THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee
(the “Trustee”), under the Indenture dated as of September 23, 2005
between Pogo Producing Company, a Delaware corporation and predecessor to
the
Company (“Pogo”), and the Trustee, as supplemented by a first
Supplemental Indenture dated as of November 6, 2007 (as so supplemented,
the
“Indenture”). Capitalized terms used herein and not
otherwise defined shall have the meaning assigned to them in the
Indenture.
WITNESSETH:
WHEREAS,
Pogo issued its 6.875% Senior Subordinated Notes due 2017 (the “Notes”)
pursuant to the Indenture;
WHEREAS,
Pogo merged (the “Merger”) with and into the Company on
November 6, 2007, with the Company continuing as the surviving entity,
pursuant to an Agreement and Plan of Merger dated July 17, 2007 by and
among Plains Exploration & Production Company, a Delaware corporation, the
Company and Pogo;
WHEREAS,
prior to the effective time of the Merger, Pogo offered to purchase for cash
any
and all outstanding Notes (the “Tender Offer”);
WHEREAS,
in connection with the Tender Offer, Pogo requested that Holders of the Notes
deliver their consents with respect to the deletion and/or amendment of certain
provisions of the Indenture;
WHEREAS,
as successor to Pogo, the Company has assumed Pogo’s rights and obligations with
respect to the Tender Offer;
WHEREAS,
Section 9.2 of the Indenture provides that the Company and the Trustee may
amend
the Indenture or the Notes with the written consent of the Holders of a majority
in outstanding principal amount of the Notes (including consents obtained
in
connection with the purchase of, or tender offer or exchange offer for, the
Notes);
WHEREAS,
the Holders of a majority of the outstanding principal amount of the Notes
have
duly consented to the proposed modifications set forth in this Supplemental
Indenture in accordance with Section 9.2 of the Indenture;
WHEREAS,
the Company has heretofore delivered or is delivering contemporaneously herewith
to the Trustee the Officers’ Certificate and the Opinion of Counsel described in
Section 9.6 of the Indenture; and
WHEREAS,
all conditions necessary to authorize the execution and delivery of this
Supplemental Indenture and to make this Supplemental Indenture valid and
binding
have been complied with or have been done or performed.
NOW,
THEREFORE, in consideration of the foregoing and notwithstanding any provision
of the Indenture which, absent this Supplemental Indenture, might operate
to
limit such action, the parties hereto, intending to be legally bound hereby,
agree as follows:
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ARTICLE
ONE
AMENDMENTS
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SECTION
1.01
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Amendments.
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(a) Subject
to Section 2.01 hereof, Section 4.2 of the Indenture is hereby amended and
restated to read, in its entirety, as follows:
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Section
4.2
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Compliance
with TIA Section 314(a)
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The
Company shall at all times comply with TIA Section 314(a).
(b) Subject
to Section 2.01 hereof, the Indenture is hereby amended by deleting in their
entireties Sections 4.3, 4.4, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13,
4.18,
4.19(b), 4.20, 4.21, 4.22 and 4.23 of the Indenture and the second sentence
of
Section 7.7(c) of the Indenture.
(c) Subject
to Section 2.01 hereof, Article V of the Indenture is hereby amended and
restated to read, in its entirety, as follows:
ARTICLE
V
SUCCESSOR
COMPANY
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Section
5.1
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Merger
and Consolidation
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The
Company will not consolidate with or merge with or into, or sell, convey,
assign, transfer or otherwise dispose of all or substantially all its properties
and assets to, any Person, unless the resulting, surviving or transferee
Person
(the “Successor Company”) will be a corporation, partnership, trust or
limited liability company organized and existing under the laws of the United
States of America, any State of the United States or the District of Columbia
and the Successor Company (if not the Company) will expressly assume, by
supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the
Securities and this Indenture and will expressly assume all of the obligations
of the Company under any Registration Rights Agreement then in
effect.
The
Successor Company will succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture.
(d) Subject
to Section 2.01 hereof, Sections 6.1 and 6.2 of the Indenture are hereby
amended
and restated to read, in their respective entireties, as follows:
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Section
6.1
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Events
of Default
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Each
of
the following is an “Event of Default”:
(1) default
in any payment of interest on any Security when due, continued for 30 days,
whether or not such payment is prohibited by the provisions described under
Article X;
(2) default
in the payment of principal of or premium, if any, on any Security when due
at
its Stated Maturity, upon optional redemption, upon required repurchase,
upon
declaration or otherwise, whether or not such payment is prohibited by the
provisions described under Article X;
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(3) failure
by the Company to comply for 30 days after notice with any of its obligations
under Article IV above (other than a failure to purchase Securities which
will constitute an Event of Default under clause (2) of this Section
6.1); or
(4) failure
by the Company to comply for 60 days after notice with any of its other
agreements contained in this Indenture.
However,
a Default under clauses (3) and (4) of this Section 6.1 will not
constitute an Event of Default until the Trustee or the Holders of at least
25%
in principal amount of the outstanding Securities notify the Company of the
Default and the Company does not cure such Default within the time specified
in
clauses (3) and (4) of this Section 6.1 after receipt of such
notice. Such notice must specify the Default, demand that it be
remedied and state that such notice is a “Notice of Default.”
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Section
6.2
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Acceleration
of Maturity; Rescission and
Annulment
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If
an
Event of Default occurs and is continuing, the Trustee by notice to the Company,
or the Holders of at least 25% in principal amount of the outstanding Securities
by notice to the Company and the Trustee, may, and the Trustee at the request
of
such Holders shall, declare the principal of premium, if any, and accrued
and
unpaid interest, if any, on all the Securities to be due and
payable. Upon such a declaration, such principal, premium and accrued
and unpaid interest will be due and payable immediately. The Holders
of a majority in principal amount of the outstanding Securities by notice
to the
Trustee may, on behalf of the Holders of all the Securities, rescind any
such
acceleration with respect to the Securities and its consequences if (1)
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction and (2) all existing Events of Default, other than
the
nonpayment of the principal of premium, if any, and interest on the Securities
that have become due solely by such declaration of acceleration, have been
cured
or waived.
(e) Subject
to Section 2.01 hereof, Sections 8.1 and 8.2 of the Indenture are hereby
amended
and restated to read, in their respective entireties, as follows:
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Section
8.1
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Discharge
of Liability on Securities;
Defeasance
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(a) Subject
to Section 8.1(c), when (i)(x) the Company delivers to the Trustee all
outstanding Securities (other than Securities replaced pursuant to Section
2.7) for cancellation or (y) all outstanding Securities not theretofore
delivered for cancellation have become due and payable, whether at their
Stated
Maturity or upon redemption, or will become due and payable within one year
or
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in the
name
and at the expense of the Company and the Company irrevocably deposits or
causes
to be deposited with the Trustee as trust funds in trust solely for the benefit
of the Holders money in U.S. dollars, U.S. Government Obligations, or a
combination thereof, in such amounts as will be sufficient without consideration
of any reinvestment of interest to pay and discharge the entire indebtedness
on
such Securities not theretofore delivered to the Trustee for cancellation
for
principal, premium, if any, and accrued interest to the date of their Stated
Maturity or redemption, (ii) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit or shall occur as a result
of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or
any
Subsidiary Guarantor is a party or by which the Company or any Subsidiary
Guarantor is bound; (iii) the Company has paid or caused to be paid (or has
deposited or caused to be deposited with the Trustee trust funds pursuant
to
clause (i) above with respect to the payment of) all sums payable by it under
this Indenture and the Securities; and (iv) the Company has delivered
irrevocable instructions to the Trustee under this Indenture to apply the
deposited money toward the payment of such Securities at maturity or the
Redemption Date, as the case may be, then the Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
(accompanied by an Officers’ Certificate and an Opinion of Counsel stating that
all conditions precedent specified herein relating to the satisfaction and
discharge of this Indenture have been complied with) and at the cost and
expense
of the Company.
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(b) Subject
to Section 8.1(c) and Section 8.2, the Company at any time may
terminate (i) all its obligations under the Securities and this Indenture
(“legal defeasance option”), and after giving effect to such legal
defeasance, any omission to comply with such obligations shall no longer
constitute a Default or Event of Default or (ii) its obligations under
Section 4.5 and Section 4.14, and the Company may omit to
comply with and shall have no liability in respect of any term, condition
or
limitation set forth in any such covenant, whether directly or indirectly,
by
reason of any reference elsewhere herein to any such covenant or by reason
of
any reference in any such covenant to any other provision herein or in any
other
document and such omission to comply with such covenants shall no longer
constitute a Default or an Event of Default under Section 6.1(3) (clause
(ii) being referred to as the “covenant defeasance option”), but except
as specified above, the remainder of this Indenture and the Securities shall
be
unaffected thereby. The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its legal defeasance option or its
covenant defeasance option, each Subsidiary Guarantor shall be released from
its
obligations with respect to its Subsidiary Guarantee, and any security for
the
Securities (other than the trust referred to in Section 8.2(1)) shall be
released.
If
the
Company exercises its legal defeasance option, payment of the Securities
may not
be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Securities may not
be
accelerated because of an Event of Default specified in Section
6.1(3).
Upon
satisfaction of the conditions set forth herein and upon request of the Company,
the Trustee shall acknowledge in writing the discharge of those obligations
that
the Company terminates.
(c) Notwithstanding
the provisions of Section 8.1(a) and Section 8.1(b), the
obligations of the Company in Section 2.2, Section 2.3, Section
2.4, Section 2.5, Section 2.6, Section 2.7, Section
2.8, Section 2.9, Section 2.10, Section 4.1, Section
4.15, Section 4.16, Section 4.17, Section 4.19,
Section 7.7, Section 7.8 and in this Article VIII shall
survive until the Securities have been paid in full. Thereafter, the
obligations of the Company in Section 7.7, Section 8.4 and
Section 8.5 shall survive.
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Section
8.2
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Conditions
to Defeasance
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The
Company may exercise its legal defeasance option or its covenant defeasance
option only if:
(1) the
Company irrevocably deposits in trust with the Trustee for the benefit of
the
Holders money in U.S. dollars or U.S. Government Obligations or a combination
thereof for the payment of principal, premium, if any, and interest on the
Securities to their Stated Maturity or redemption, as the case may
be;
(2) the
Company delivers to the Trustee a certificate from a nationally recognized
firm
of independent accountants expressing their opinion that the payments of
principal, premium, if any, and interest when due and without reinvestment
on
the deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay principal, premium, if any, and interest when due on all
the
Securities to maturity;
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(3) no
Default or Event of Default shall have occurred and be continuing on the
date of
such deposit;
(4) such
legal defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company or any Subsidiary
Guarantor is a party or by which the Company or any Subsidiary Guarantor
is
bound;
(5) in
the case of the legal defeasance option, the Company shall have delivered
to the
Trustee an Opinion of Counsel (subject to customary exceptions, qualifications
and exclusions) in the United States stating that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling,
or
(ii) since the Issue Date there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders will not recognize income,
gain or loss for federal income tax purposes as a result of such deposit
and
legal defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
deposit and legal defeasance had not occurred;
(6) in
the case of the covenant defeasance option, the Company shall have delivered
to
the Trustee an Opinion of Counsel (subject to customary exceptions,
qualifications and exclusions) in the United States to the effect that the
Holders will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit and covenant defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times
as would have been the case if such deposit and covenant defeasance had not
occurred; and
(7) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent to legal
defeasance or covenant defeasance, as the case may be, have been complied
with.
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SECTION
1.02
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Amendment
of Definitions;
Cross-References.
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Subject
to Section 2.01 hereof, the Indenture is hereby amended by deleting any
definitions from the Indenture with respect to which references would be
eliminated as a result of the amendments of the Indenture pursuant to Section
1.01 hereof. Notwithstanding any provision in the Indenture to the
contrary, each cross-reference to the sections of the Indenture that is
eliminated as a result of the amendments set forth in Article One of this
Supplemental Indenture, as in effect immediately prior to this Supplemental
Indenture becoming operative, shall be of no further force or
effect.
ARTICLE
TWO
MISCELLANEOUS
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SECTION
2.01
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Effect
of Supplemental Indenture.
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Except
as
amended hereby, all of the terms of the Indenture shall remain and continue
in
full force and effect and are hereby confirmed in all respects. From
and after the date of this Supplemental Indenture, all references to the
Indenture (whether in the Indenture or in any other agreements, documents
or
instruments) shall be deemed to be references to the Indenture as amended
and
supplemented by this Supplemental Indenture. Every Holder of Notes
heretofore or hereafter authenticated and delivered under the Indenture shall
be
bound hereby and all terms and conditions of both shall be read together
as
though they constitute a single instrument, except that in the case of conflict
the provisions of this Supplemental Indenture shall control. The
provisions of this Supplemental Indenture shall be effective only upon execution
and delivery of this instrument by the parties
hereto. Notwithstanding the preceding sentence, the provisions of
this Supplemental Indenture shall become operative only upon the purchase
by the
Company of a majority of the outstanding principal amount of Notes pursuant
to
the Tender Offer, with the result that the amendments to the Indenture effected
by this Supplemental Indenture shall be deemed to be revoked retroactive
to the
date hereof if such purchase shall not occur. The Company shall
notify the Trustee promptly after the occurrence of such purchase or promptly
after the Company shall determine that such purchase will not
occur.
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SECTION
2.02
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Governing
Law.
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THE
LAWS
OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE AND ENFORCE
THIS
SUPPLEMENTAL INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES.
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SECTION
2.03
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No
Representations by Trustee.
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The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this Supplemental Indenture or for or in respect
of the recitals contained herein, all of which recitals are made solely by
the
Company. This Supplemental Indenture is executed and accepted by the
Trustee subject to all the terms set forth in the Indenture with the same
force
and effect as if those terms were repeated at length herein and made applicable
to the Trustee with respect hereto.
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SECTION
2.04
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Multiple
Originals; Counterparts.
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The
parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to
prove this Supplemental Indenture. This Supplemental Indenture may be
executed in multiple counterparts which, when taken together, shall constitute
one instrument.
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SECTION
2.05
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Headings.
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The
headings of the Articles and Sections of this Supplemental Indenture have
been
inserted for convenience of reference only, are not intended to be considered
a
part hereof and shall not modify or restrict any of the terms or provisions
hereof.
(Signature
Page Follows)
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IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed all as of the date hereof.
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POGO
PRODUCING COMPANY LLC
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By:
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/s/
XXXXXXX X. XXXXXXX
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Name:
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Xxxxxxx
X. Xxxxxxx
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Title:
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Vice
President and Treasurer
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THE
BANK OF NEW YORK TRUST COMPANY, N.A.,
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AS
TRUSTEE
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By:
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/s/
XXXXXXXX
XXXXXXX
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Name:
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Xxxxxxxx
Xxxxxxx
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Title:
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Assistant
Vice President
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