EXHIBIT 4.1
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of July
2, 2004, is by and among Xxxxxx & Xxxxx Corporation, an Ohio corporation (the
"Company"), as issuer, the Subsidiary Guarantors (as defined in the Indenture),
as guarantors and La Salle National Association, formerly known as La Salle
National Bank (the "Trustee"), as trustee.
RECITALS
WHEREAS, the Company, as issuer, the Subsidiary Guarantors and the Trustee
entered into that certain indenture (the "Indenture"), dated as of June 27,
1997;
WHEREAS, on June 27, 1997, the Company issued $225,000,000 aggregate
principal amount of its 9-7/8% Senior Subordinated Notes due 2007 (the "Notes");
WHEREAS, Section 9.2 of the Indenture provides that, with the consent of
the Holders of a majority in principal amount of the Notes then outstanding
(including consents obtained in connection with a tender offer for the Notes),
the Company, when authorized by a resolution of its Board of Directors, and the
Trustee may enter into an indenture supplemental to the Indenture for the
purpose of amending or supplementing any provisions of the Indenture (with
certain exceptions not relevant to this Supplemental Indenture);
WHEREAS, Section 9.2 of the Indenture further provides that (subject to
certain exceptions not relevant to this Supplemental Indenture) the Holders of a
majority in principal amount of the Notes then outstanding may waive compliance
in a particular instance by the Company with any provision of the Indenture;
WHEREAS, the Company and the Subsidiary Guarantors desire and have
requested the Trustee to join with them in entering into this Supplemental
Indenture for the purpose of amending the Indenture in certain respects as
permitted by Section 9.2 of the Indenture;
WHEREAS, the Company has been soliciting consents to this Supplemental
Indenture upon the terms and subject to the conditions set forth in its Offer to
Purchase and Consent Solicitation Statement dated June 16, 2004 and the related
Consent and Letter of Transmittal (which together, including any amendments,
modifications or supplements thereto, constitute the "Tender Offer"); and
WHEREAS, the Company (1) has received the consent of the Holders of, and
will accept for payment under the Tender Offer promptly after the Consent
Payment Deadline (June 29, 2004) more than a majority in principal amount of the
outstanding Notes, and will accept for payment under the Tender Offer and
promptly after the Expiration Time (July 15, 2004, unless extended), any
remaining Notes tendered promptly all as certified by an Officers' Certificate
delivered to the Trustee simultaneously with the execution and delivery of this
Supplemental Indenture, (2) has delivered to the Trustee simultaneously with the
execution and delivery of this Supplemental Indenture an Opinion of Counsel
relating to this Supplemental Indenture as contemplated by Section 9.6 of the
Indenture and (3) has satisfied all other conditions required
under Article 9 of the Indenture to enable the Company and the Trustee to enter
into this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company, the Subsidiary Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders as follows:
ARTICLE I
DELETIONS
1.1 DELETION OF SECTIONS 4.3, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13,
4.15, 4.16 AND 4.17. Sections 4.3, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.15,
4.16 and 4.17 of the Indenture are hereby deleted in their entirety.
ARTICLE II
AMENDMENTS.
2.1 AMENDMENTS TO ARTICLE 5. Section 5.1 of the Indenture is hereby
amended and restated to read as follows:
Section 5.1. MERGER, CONSOLIDATION OR SALE OF
SUBSTANTIALLY ALL ASSETS.
Except for the Acquisition, the Company shall not
consolidate or merge with or into (whether or not the Company
is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all
of its properties or assets, in one or more related
transactions, to another Person, and the Company may not
permit any of its Restricted Subsidiaries to enter into any
such transaction or series of transactions if such transaction
or series of transactions would, in the aggregate, result in a
sale, assignment, transfer, lease, conveyance, or other
disposition of all or substantially all of the properties or
assets of the Company to another Person, in either case unless
(i) the Company is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have
been made (the "Surviving Entity") is a corporation organized
or existing under the laws of the United States, any state
thereof or the District of Columbia; (ii) the Surviving Entity
(if the Company is not the continuing obligor under this
Indenture) assumes all the obligations of the Company under
the Notes and this Indenture pursuant to a supplemented
indenture in a form reasonably satisfactory to the Trustee;
and (iii) immediately before and after giving effect to such
transaction or series of transactions no Default or Event of
Default exists. Any Restricted Subsidiary may consolidate
with, merge into or transfer all or part of its properties and
assets to the Company, and any Wholly Owned Restricted
Subsidiary may
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consolidate with, merge into or transfer all or part of its
properties and assets to another Wholly Owned Restricted
Subsidiary.
None of the provisions of this Section 5.1 shall be
deemed to prevent the merger of the Company with an Affiliate
incorporated solely for the purpose of reincorporating the
Company in another jurisdiction. This Section 5.1 shall not
apply to any consolidation, merger, sale, assignment,
transfer, lease or other disposition if the Company shall have
elected to redeem the Notes pursuant to Section 3.7 and such
redemption takes place prior to or simultaneously with the
Company's consolidation or merger with or into another Person.
2.2 AMENDMENTS TO ARTICLE 6. Section 6.1 of the Indenture is hereby
amended and restated to read as follows:
Section 6.1. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest,
if any, on the Notes when the same becomes due and payable
and the Default continues for a period of 30 days, whether
or not such payment is prohibited by the provisions of
Article 10 hereof;
(2) the Company defaults in the payment of the
principal of or premium, if any, on the Notes, whether or
not such payment is prohibited by the provisions of Article
10 hereof;
(3) the Company or a Subsidiary Guarantor fails to
observe or perform any covenant, condition or agreement on
the part of the Company or a Subsidiary Guarantor to be
observed or performed pursuant to Article 5 hereof; or
(4) the Company fails to comply with any of its other
agreements or covenants in, or provisions of, the Notes or
this Indenture and the Default continues for 60 consecutive
days after the notice specified below.
A Default under clause (4) is not an Event of Default until
the Trustee notifies the Company, or the Holders of at least
25% in principal amount of the then outstanding Notes notify
the Company and the Trustee, of the Default and the Company
does not cure the Default within 60 days after receipt of the
notice. Each notice must specify the Default, demand that it
be remedied and state that the notice is a "Notice of
Default."
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ARTICLE IV
MISCELLANEOUS
4.1 DEFINITIONS. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture. For all purposes of this
Supplemental Indenture, except as otherwise herein expressly provided or unless
the context otherwise requires, the words "herein," "hereof" and "hereby" and
other words of similar import used in this Supplemental Indenture refer to this
Supplemental Indenture as a whole and not to any particular section hereof.
4.2 RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURE PART OF INDENTURE.
Except as expressly amended hereby, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and 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.
4.3 EFFECTIVE DATE. The provisions of this Supplemental Indenture shall
be effective only upon execution and delivery of this instrument by the parties
hereto promptly following the Consent Payment Deadline. Notwithstanding the
foregoing sentence, the provisions of this Supplemental Indenture shall become
operative only upon the purchase of more than a majority in principal amount of
the outstanding Notes pursuant to the Tender Offer. The Company shall notify the
Trustee promptly after the occurrence of such purchase.
4.4 ENDORSEMENT AND CHANGE OF FORM OF NOTES. Any Notes authenticated and
delivered after the close of business on the date that this Supplemental
Indenture becomes operative in substitution for Notes then outstanding and all
Notes presented or delivered to the Trustee on and after that date for such
purpose shall be stamped, imprinted or otherwise legended by the Trustee, with a
notation as follows:
"Effective as of July 7, 2004, certain restrictive covenants of the
Company, certain provisions governing mergers and certain Events of
Default have been eliminated or limited, as provided in the Supplemental
Indenture, dated as of July 2, 2004. Reference is hereby made to said
Supplemental Indenture, copies of which are on file with the Trustee, for
a description of the amendments made therein."
4.5 GOVERNING LAW. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
4.6 TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation
as to the validity or sufficiency of this Supplemental Indenture.
4.7 COUNTERPARTS. The parties may sign any number of copies or
counterparts of this Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
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4.8 EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
COMPANY:
XXXXXX & BLAKE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
SUBSIDIARY GUARANTORS:
THE CANTON OIL & GAS COMPANY
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
XXXX LAKE DRILLING, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
TRUSTEE:
LA SALLE NATIONAL ASSOCIATION, FORMERLY
KNOWN AS LA SALLE NATIONAL BANK
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: First Vice President
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