EXHIBIT 4.3
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE dated as of September 30, 2004 (this
"Supplemental Indenture"), is entered into by and between Pioneer Debt Sub, LLC,
a Texas limited liability company (the "Company"), and Wachovia Bank, National
Association, as trustee (the "Trustee"). Capitalized terms used herein and not
otherwise defined have the meanings set forth in the Indenture referred to
below.
RECITALS
A. Pioneer Evergreen Properties, LLC, a Texas limited liability company
("Merger Sub"), has heretofore executed and delivered to the Trustee an
indenture (as heretofore amended and supplemented, the "Indenture"), dated as of
March 10, 2004, providing for the issuance of 5.875% Senior Subordinated Notes
due 2012 (the "Securities").
B. The Company, Merger Sub and Pioneer BC Asset Sub, LLC, a Texas limited
liability company and a wholly-owned subsidiary of the Company ("Asset Sub"),
have entered into an Agreement and Plan of Merger dated as of September 29,
2004, pursuant to which Merger Sub, Asset Sub and the Company merged into each
other, with the Company and Asset Sub as the surviving entities (the "Merger").
C. Pursuant to the terms of the Merger and the Texas law, the obligations
of the Merger Sub under the Indenture and the Securities were allocated to, and
became liabilities of, the Company in the Merger.
D. Pursuant to Article V of the Indenture, upon consummation of the Merger,
the Company shall expressly assume, by supplemental indenture, executed and
delivered to the Trustee all obligations of Merger Sub under the Indenture and
the Securities and the Company will succeed to, and be substituted for, and may
exercise every right and power of Merger Sub under the Indenture and the
Securities.
E. In accordance with Section 9.1(2) of the Indenture, the Company and the
Trustee are authorized to execute and deliver this Supplemental Indenture to
amend the Indenture to provide for the assumption by the Company of the
obligations of Merger Sub under the Indenture and the Securities without the
consent of any Holder.
F. The Company desires and has requested the Trustee to join with it in
entering into this Supplemental Indenture for the purpose of amending the
Indenture to provide for the assumption by the Company of the obligations of
Merger Sub under the Indenture and the Securities.
G. The Company has duly authorized the execution and delivery of this
Supplemental Indenture.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Company
and the Trustee mutually covenant and agree for the equal and ratable benefit of
the Holders of the Securities as follows:
Section 1. Confirmation of Original Indenture. Except as amended and
supplemented hereby, the Indenture is hereby ratified, confirmed and reaffirmed
in all respects. The Indenture and this Supplemental Indenture shall be read,
taken and construed as one and the same instrument.
Section 2. Successor Company Substituted. In accordance with Article V of
the Indenture, upon consummation of the Merger, the Company shall succeed to,
and be substituted for, and may exercise every right and power of, Merger Sub
under the Securities and the Indenture with the same effect as if the Company
had been named therein as Merger Sub.
Section 3. Assumption of Obligations. Upon consummation of the Merger, the
Company hereby assumes all of the obligations of Merger Sub under the Indenture
and the Securities with the same effect as if the Company had been named therein
as Merger Sub.
Section 4. Miscellaneous.
(a) Execution of Supplemental Indenture. This Supplemental Indenture
is executed and shall be construed as an indenture supplemental to the Indenture
and, as provided in the Indenture, this Supplemental Indenture forms a part of
the Indenture.
(b) NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE 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.
(c) Counterparts. 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.
(d) Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
(e) The Trustee. 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.
[Remainder of page intentionally left blank]
2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
PIONEER DEBT SUB, LLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxx Xxxxxx
--------------------------------
Authorized Signator
Signature Page to the Second Supplemental Indenture
(5.875% Senior Subordinated Notes)
