Exhibit 4.1
XXXXXXXX RESOURCES, INC.,
GUARANTORS
NAMED HEREIN
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.
Trustee
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SECOND SUPPLEMENTAL INDENTURE
dated as of March 11, 2004
to
INDENTURE
dated as of February 25, 2004
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6 7/8% Senior Notes due 2012
THIS SECOND SUPPLEMENTAL INDENTURE dated as of March 11, 2004 (as
originally executed and as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, this "Second Supplemental Indenture"), is among
XXXXXXXX RESOURCES, INC., a Nevada corporation (hereinafter called the
"Company"), the GUARANTORS (as defined in the Indenture) and 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).
RECITALS OF THE COMPANY
WHEREAS, the Company, the Guarantors and 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, together with
the Original Indenture, the "Indenture"), providing for the issuance by the
Company from time to time, and the establishment of the terms of, the Company's
6 7/8% Senior Notes due 2012;
WHEREAS, Section 6.10 of the First Supplemental Indenture provides that
each Restricted Subsidiary that guarantees the payment of, assumes or in any
other manner becomes liable (whether directly or indirectly) with respect to any
Indebtedness of the Company or any other Restricted Subsidiary of the Company,
including, without limitation, Indebtedness under the Bank Credit Facility, will
execute and deliver a supplemental indenture agreeing to be bound by the terms
of the Indenture applicable to a Guarantor and providing for a Guarantee of the
Securities;
WHEREAS, effective March 10, 2004, (i) the Company formed Xxxxxxxx Oil
& Gas GP, LLC, a Nevada limited liability company ("COG-GP"), and Xxxxxxxx Oil &
Gas Investments, LLC, a Nevada limited liability company ("Investments"), and
contributed 0.1% of all outstanding stock of Xxxxxxxx Oil & Gas, Inc., a Nevada
corporation and an existing Restricted Subsidiary ("COGI"), to COG-GP and 99.9%
of the stock of COGI to Investments, and (ii) pursuant to Articles of
Conversion, COGI converted into a Nevada limited partnership, which is now known
as Xxxxxxxx Oil & Gas, LP; and
WHEREAS, COG-GP and Investments (collectively, the "Additional
Guarantors") have become Restricted Subsidiaries and desire to execute this
Second Supplemental Indenture for the purpose of agreeing to be bound by the
terms of the Indenture applicable to a Guarantor and providing for a Guarantee
of the Securities.
NOW, THEREFORE, for the purposes stated herein and for and in
consideration of the premises and covenants contained in the Indenture and in
this Second 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 Additional Guarantors.
(a) From the date of this Second Supplemental Indenture, in accordance
with Section 6.10 of the First Supplemental Indenture, each of the Additional
Guarantors shall be subject to the provisions, and agrees to be bound by the
terms, of the Indenture applicable to a Guarantor; and each of the Additional
Guarantors hereby unconditionally, jointly and severally, guarantees to each
Holder of Securities authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, the full and prompt performance of the
Company's obligations under the Indenture and the Securities.
(b) Notwithstanding the foregoing and the other provisions of the
Indenture, the Guarantees of the Additional Guarantors shall be automatically
and unconditionally released and discharged upon the terms and conditions set
forth in Section 9.3 of the First Supplemental Indenture.
ARTICLE II
Section 2.1 Ratification of Indenture.
As supplemented by this Second Supplemental Indenture, the Indenture is
in all respects ratified and confirmed, and the Indenture as supplemented by
this Second 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 Second 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 Second Supplemental Indenture and the Guarantees contained herein
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.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
ISSUER:
XXXXXXXX RESOURCES, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Senior Vice President, Chief Financial Officer,
Secretary and Treasurer
GUARANTORS:
XXXXXXXX OIL & GAS, LP
By: /s/ Xxxxxx X. Xxxxx
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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.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Senior Vice President, Chief Financial Officer,
Secretary and Treasurer
[SIGNATURE PAGE CONTINUES]
XXXXXXXX OIL & GAS-LOUISIANA, LLC
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Manager, Senior Vice President, Chief Financial
Officer, Secretary and Treasurer
XXXXXXXX OFFSHORE, LLC
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Manager, Senior Vice President, Chief Financial
Officer, Secretary and Treasurer
ADDITIONAL GUARANTORS:
XXXXXXXX OIL & GAS GP, LLC
By: /s/ Xxxxxx X. Xxxxx
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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
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Manager
TRUSTEE:
THE BANK OF NEW YORK TRUST COMPANY, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Vice President
