EXHIBIT 4.1
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE dated as of September 16, 2002 (the
"SUPPLEMENTAL INDENTURE"), between XXXXXX PETROLEUM COMPANY, a Delaware
corporation (the "COMPANY"), having its principal office at 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, and AMERICAN STOCK TRANSFER & TRUST COMPANY,
a corporation duly authorized and existing under the laws of the state of New
York, as trustee (the "TRUSTEE").
WHEREAS, there has heretofore been executed and delivered to the
Trustee an Indenture dated as of July 31, 1997 between the Company and the
Trustee (as the same has been amended or supplemented from time to time by one
or more indentures supplemental thereto entered into pursuant to the applicable
provisions thereof, the "INDENTURE"), providing for the issuance of the
Company's 10.125% Senior Subordinated Notes due 2002 (the "NOTES");
WHEREAS, with respect to the Notes of all Holders other than the
Consenting Holders (defined below), Money in the amount necessary to pay all
principal, interest, premium, and other amounts due and owing at Maturity under
such Notes has been deposited with the Trustee in trust for such Holders;
WHEREAS, there are now outstanding under the Indenture Notes in the
aggregate principal amount of $22,915,000;
WHEREAS, the Company has received consents from all Holders of
Outstanding Notes ("CONSENTING HOLDERS") to certain amendments to the Indenture;
WHEREAS, Section 902 of the Indenture provides that the Company and the
Trustee may amend the Indenture with the written consent of the Holders (as
defined in the Indenture) of at least a majority in principal amount of the
Notes then outstanding, or with respect to certain amendments, with the consent
of the Holder of each Outstanding Note;
WHEREAS, the Company desires to amend certain provisions of the
Indenture, as set forth in Article II hereof;
WHEREAS, the Holder of each Outstanding Note is a Consenting Holder
that has consented to the amendments effected by this Supplemental Indenture;
and
WHEREAS, all matters necessary to make this Supplemental Indenture a
valid agreement, in accordance with its terms, have been done.
NOW THEREFORE, this Supplemental Indenture witnesseth that, for and in
consideration of the premises, the Company and the Trustee agree as follows for
the equal and ratable benefit of the Holders of the Notes:
ARTICLE I
EFFECTIVENESS
SECTION 1.1. Effectiveness. This Supplemental Indenture shall become
effective as of the date hereof.
ARTICLE II
AMENDMENTS TO INDENTURE
SECTION 2.1. Amendments to Indenture.
(a) The definition of Redemption Price in Section 101 is hereby amended
in its entirety to read as follows:
"'Redemption Price', with respect to any Note or portion
thereof to be redeemed, means 100% of the principal amount of
the Note to be redeemed."
(b) Section 1007(a)(ii) of the Indenture is hereby amended in its
entirety to read as follows:
"The Interest Coverage Ratio would have been less than (x) 1.1
to 1.0 for the period commencing September 15, 2002 through
December 31, 2003, or (y) 2.4 to 1.0 for all periods
commencing January 1, 2004."
(c) Section 1101 of the Indenture is hereby amended in its entirety to
read as follows:
"The Company may, at its option, redeem all or any part of the
Notes at any time, at the Redemption Price, together with
interest accrued to the Redemption Date. Redemption of Notes
at the option of the Company as permitted hereby shall be made
in accordance with the terms of such Notes and this Article."
(d) The Form of Exchange Note attached as Exhibit 2 to Appendix A of
the Indenture is hereby amended in its entirety by deleting the Form of Exchange
Note (Exhibit 2 to Appendix A) and replacing such Form of Exchange Note with the
Form of Amended Note (the "AMENDED NOTE") attached hereto as Exhibit I. The
Trustee shall authenticate and deliver Amended Notes and exchange such Amended
Notes for any Notes outstanding on the date hereof that are held by Consenting
Holders. Such Amended Notes shall be deemed Notes for purposes of the Indenture.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Instruments To Be Read Together. This Supplemental
Indenture is an indenture supplemental to and in implementation of the
Indenture, and said Indenture and this Supplemental Indenture shall henceforth
be read together:
SECTION 3.2 Confirmation. The Indenture as amended and supplemented by
this Supplemental Indenture is in all respects confirmed and preserved.
SECTION 3.3 Terms Defined. Capitalized terms used in this Supplemental
Indenture and not otherwise defined herein shall have the respective meanings
set forth in the Indenture.
SECTION 3.4 Headings. The headings of the Articles and Sections of this
Supplemental Indenture have been inserted for convenience of reference only, and
are not to be considered a part hereof and shall in no way modify or restrict
any of the terms and provisions hereof.
SECTION 3.5 Governing Laws. The laws of the State of New York shall
govern this Supplemental Indenture.
SECTION 3.6 Counterparts. This Supplemental Indenture may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 3.7 Compliance with the Trust Indenture Act. This Supplemental
Indenture shall be interpreted to comply in every respect with the Trust
Indenture Act of 1939, as amended (the "TIA"). If any provision of this
Supplemental Indenture limits, qualifies or conflicts with the duties imposed by
the TIA, the imposed duties shall control.
SECTION 3.8 Acceptance by Trustee. The Trustee accepts the amendments
to the Indenture effected by this Supplemental Indenture and agrees to execute
the trusts created by the Indenture as hereby amended, but upon the terms and
conditions set forth in the Indenture.
SECTION 3.9 Responsibility of Trustee. The recitals contained herein
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Supplemental Indenture, except that the
Trustee is duly authorized to execute and deliver this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the date first written
above.
XXXXXX PETROLEUM COMPANY
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, Senior Vice
President and Chief Financial
Officer
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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EXHIBIT I
EXHIBIT 3
TO APPENDIX A
[FORM OF FACE OF AMENDED NOTE]
XXXXXX PETROLEUM COMPANY
No._____ CUSIP No.__________
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS GLOBAL NOTE IS EXCHANGEABLE FOR NOTES IN DEFINITIVE, FULLY
REGISTERED FORM, WITHOUT INTEREST COUPONS, IF (A) DTC NOTIFIES THE COMPANY THAT
IT IS UNWILLING OR UNABLE TO CONTINUE AS DEPOSITORY FOR THIS GLOBAL NOTE OR IF
AT ANY TIME DTC CEASES TO BE A "CLEARING AGENCY" REGISTERED UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED, AND A SUCCESSOR DEPOSITORY IS NOT APPOINTED BY
THE COMPANY WITHIN 90 DAYS OF SUCH NOTICE, (B) THE COMPANY EXECUTES AND DELIVERS
TO THE TRUSTEE A NOTICE THAT THIS GLOBAL NOTE SHALL BE TRANSFERABLE,
REGISTRABLE AND EXCHANGEABLE, AND SUCH TRANSFER SHALL BE REGISTRABLE, OR (C) AN
EVENT OF DEFAULT (AS HEREINAFTER DEFINED) HAS OCCURRED AND IS CONTINUING WITH
RESPECT TO THE NOTES.
GLOBAL NOTE Representing 10.125% Senior Subordinated Notes due 2004
XXXXXX PETROLEUM COMPANY, a Delaware corporation, hereby promises to
pay to CEDE & CO., or registered assigns, the principal sum indicated on
Schedule A hereof, on July 31, 2004.
Interest Payment Dates: December 15, March 15, June 15 and September
15, commencing December 15, 2002.
Record Dates: December 1, March 1, June 1 and September 1.
Additional provisions of this Note are set forth on the other side of
this Note.
IN WITNESS WHEREOF, XXXXXX PETROLEUM COMPANY has caused this instrument
to be duly executed under its corporate seal.
Dated:
XXXXXX PETROLEUM COMPANY [CORPORATE SEAL]
By:
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Name:
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Title:
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Attest:
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Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
AMERICAN STOCK TRANSFER & TRUST COMPANY, as Trustee, certifies that
this is one of the Notes referred to in the Indenture.
By:
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Authorized Signatory
[FORM OF REVERSE SIDE OF AMENDED NOTE]
10.125% Senior Subordinated Note due 2004
1. Interest. Xxxxxx Petroleum Company, a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Note at the rate per annum shown above. The Company
will pay interest quarterly on March 15, June 15, September 15, and December 15
of each year, and on July 31, 2004. Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the Issue Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered holders of Notes
at the close of business on March 1, June 1, September 1 or December 1
immediately preceding the interest payment date even if Notes are canceled after
the record date and on or before the interest payment date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Company
will pay principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts. Payments in
respect of the Notes represented by a Global Note (including principal, premium
and interest) will be made by wire transfer of immediately available funds to
the accounts specified by The Depository Trust Company, but, at the option of
the Company, interest may be paid by check mailed to the registered Holders at
their registered addresses. The Company will make all payments in respect of a
certificated Note (including principal, premium and interest), by mailing a
check to the registered address of each Holder thereof; provided, however, that
payments on the Notes may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 30
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
3. Paying Agent and Registrar. Initially, American Stock Transfer &
Trust Company, a New York corporation ("Trustee"), will act as Paying Agent and
Note Registrar. The Company may appoint and change any Paying Agent, Note
Registrar or co-registrar without notice. The Company or any of its domestically
incorporated Wholly Owned Restricted Subsidiaries may act as Paying Agent, Note
Registrar or co-registrar.
4. Indenture. The Company issued the Notes under an Indenture dated as
of July 31, 1997, as amended by the First Supplemental Indenture dated as of
June 26, 2002 and the Second Supplemental Indenture dated as of September 16,
2002 (as such may be amended from time to
time, the "Indenture"), between the Company and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of the Indenture (the "Act"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Notes are subject to all such terms, and Holders
are referred to the Indenture and the Act for a statement of those terms.
The Notes are unsecured senior subordinated obligations of the Company
limited to up to $36,000,000 aggregate principal amount at any one time
Outstanding. This Note is one of the Amended Notes referred to in the Indenture.
5. Denominations; Transfer; Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. Upon any
transfer or exchange, the Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to
pay any taxes required by law or permitted by the Indenture. The Registrar need
not register the transfer of or exchange any Notes selected for redemption
(except, in the case of a Note to be redeemed in part, the portion of the Note
not to be redeemed) or to transfer or exchange any Notes for a period of 15 days
prior to a selection of Notes to be redeemed or 15 days before an interest
payment date.
6. Subordination. The indebtedness of the Company evidenced by the
Notes, including the principal thereof and interest thereon (including
post-default interest), is expressly subordinated, to the extent and to the
manner set forth in the Indenture, in right of payment to the prior payment in
full of all of the Company's obligations to holders of Senior Indebtedness. Each
Holder of Notes, by acceptance thereof, (a) agrees to and shall be bound by such
provisions of the Indenture and all other provisions of the Indenture; (b)
authorizes and directs the Trustee to take such action on such Holder's behalf
as may be necessary or appropriate to effectuate the subordination of the Notes
as provided in the Indenture; and (c) appoints the Trustee as such Holder's
attorney-in-fact for any and all such purposes.
7. Optional Redemption. The Notes are subject to redemption, at the
option of the Company, in whole or in part, at any time, upon not less than 30
or more than 60 days' notice at the Redemption Price, together in the case of
any such redemption with accrued and unpaid interest, if any, to the Redemption
Date, all as provided in the Indenture.
In the case of any redemption of Notes, interest installments whose Stated
Maturity is on or prior to the Redemption Date will be payable to Holders of
such Notes, or one or more Predecessor Notes. Notes (or portions thereof) for
whose redemption and payment provision is made in accordance with the Indenture
shall cease to bear interest from and after the Redemption Date. In the event of
redemption or purchase of this Note in part only, a new Note or Notes for the
unredeemed or unpurchased portion hereof shall be issued in the name of the
Holder hereof upon
the cancellation hereof. If fewer than all Notes are redeemed, the Trustee will
select the Notes to be redeemed by lot or such other method as the Trustee may
deem fair and appropriate.
8. Notice of Redemption. Notice of redemption shall be given to the
Holders of Notes to be redeemed by mailing a notice of such redemption not less
than 30 or more than 60 days prior to the Redemption Date at their addresses as
they shall appear on the Note Register, all as provided in the Indenture.
If this Note (or a portion hereof) is duly called for redemption and
funds for payment are duly provided, this Note (or such portion hereof) shall
cease to bear interest from and after such Redemption Date.
Interest installments whose Stated Maturity is on the Redemption Date
will be payable to the Holders of such Notes, or one or more Predecessor Notes,
of record at the close of business on the relevant Regular Record Date referred
to on the face hereof, all as provided in the Indenture. In the event of
redemption or repayment of this Note in part only, a new Note or Notes for the
unredeemed or unrepaid portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof.
9. Defaults and Remedies. Except as may be provided in the Indenture,
if an Event of Default with respect to the Notes shall occur and be continuing,
the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Notes may declare the principal of all the Notes due and payable
in the manner and with the effect provided in the Indenture. The Indenture
provides that such declaration and its consequences may, in certain events, be
annulled by the Holders of a majority in aggregate principal amount of the
Outstanding Notes.
10. Discharge and Defeasance. The Indenture contains provisions for (i)
defeasance at any time of the entire indebtedness of the Company on this Note
and (ii) discharge from certain restrictive covenants and the related Defaults
and Events of Default, upon compliance by the Company with certain conditions
set forth therein, which provisions apply to this Note.
11. Amendment and Waiver. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders of the
Notes under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the Notes
at the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Notes at
the time Outstanding, on behalf of the Holders of all Notes, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
Without the consent of any Holder, the Company and the Trustee may amend or
supplement the Indenture or the Notes to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place of
certificated Notes and to make certain other specified changes and other changes
that do not adversely affect the interests of any Holder.
12. Obligations Absolute. No reference herein to the Indenture and no
provisions of this Note or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, places and rate, and in the coin or
currency, herein prescribed.
13. No Recourse Against Others. A director, officer, employee,
incorporator, shareholder or Affiliate of the Company, as such, past, present or
future shall not have any personal liability under this Note or the Indenture by
reason of his or its status as such director, officer, employee, incorporator,
shareholder or Affiliate, or any liability for any obligations of the Company
under the Notes or the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Holder, by accepting this
Note, waives and releases all such liability. Such waiver and release are part
of the consideration for the issuance of this Note.
14. Persons Deemed Owners. Prior to the due presentment of this Note
for registration of transfer or exchange, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Trustee, nor any such agent shall be
affected by notice to the contrary.
15. Definitions. All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
16. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes as a convenience to the Holders
thereof. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identifying
information printed hereon.
17. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York.
Each Holder of a Note covenants and agrees by such Holder's acceptance
thereof to comply with and be bound by the foregoing provisions.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to the Company at 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000.
Assignment Form
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
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(Print or type assignee's name, address and zip code)
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(Insert assignee's social security or tax I.D. No.)
and irrevocably appoint __________________________________ agent to transfer
this Note on the books of the Company. The agent may substitute another to act
for him.
Signature:
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Date:
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Sign exactly as your name appears on the other side of this Note.
Signature Guarantee:
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(Signature must be guaranteed)
Notice: Signature(s) must be guaranteed by an institution which is a participant
in the Securities Transfer Agent Medallion Program ("STAMP") or similar program.
[TO BE ATTACHED TO GLOBAL NOTES]
Schedule A
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount at maturity of this Global Note shall be
$__________. The following increases or decreases in this Global Note have been
made:
Principal Amount of
Amount of decrease Amount of increase this Global Note Signature of authorized
Date of in principal amount in principal amount following such increase signatory of Trustee a
Exchange of this Global Note of the Global Note or decrease Securities Custodian
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