EXHIBIT 4.7
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE dated as of September 28, 2004 (this
"Supplemental Indenture"), is entered into by and among Pioneer Natural
Resources Company, a Delaware corporation ("Pioneer"), Pioneer Evergreen
Properties, LLC, a Texas limited liability company (the "Company"), and Wachovia
Bank, National Association, the successor to First Union National Bank, a
national banking 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. Pursuant to the terms of that certain Agreement and Plan of Merger dated
as of May 3, 2004, by and among Pioneer, BC Merger Sub, Inc., a Colorado
corporation and a wholly-owned subsidiary of Pioneer ("Merger Sub"), and
Evergreen Resources, Inc., a Colorado corporation ("Evergreen"), Merger Sub has
merged with and into Evergreen with Evergreen as the surviving corporation and a
wholly-owned subsidiary of Pioneer (the "First Merger").
B. As a result of the First Merger, the 4.75% Senior Convertible Notes due
2021 of Evergreen (the "Securities"), issued pursuant to that certain Indenture
dated as of December 18, 2001, by and between Evergreen and the Trustee (as
heretofore amended and supplemented, the "Indenture") will be convertible into
the Evergreen Common Stock Consideration Units, as provided in the First
Supplemental Indenture by and among Pioneer, Evergreen and Trustee, dated as of
September 28, 2004.
C. Immediately following the First Merger, Evergreen has entered into an
Agreement and Plan of Merger with the Company dated as of September 28, 2004,
pursuant to which Evergreen has merged with and into the Company, with the
Company as the surviving entity (collectively with the First Merger, the
"Merger").
D. Pursuant to Article VII 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 Evergreen under the Indenture
and the Securities and the Company will succeed to, and be substituted for, and
may exercise every right and power of Evergreen under the Indenture and the
Securities.
E. In accordance with Section 11.1(a) 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 Evergreen under the Indenture and the Securities without notice
to or the consent of any Securityholder.
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
Evergreen under the Indenture and the Securities.
G. The Company and Pioneer have 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, Pioneer, 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 VII 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, Evergreen
under the Securities and the Indenture with the same effect as if the Company
had been named therein as Evergreen.
Section 3. Assumption of Obligations. Upon consummation of the Merger, the
Company hereby assumes all of the obligations of Evergreen under the Indenture
and the Securities with the same effect as if the Company had been named therein
as Evergreen.
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 Pioneer and the Company.
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2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
Dated: September 28, 2004
PIONEER EVERGREEN PROPERTIES, LLC
By: /s/ Richard P. Dealy
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Name: Richard P. Dealy
Title: Manager
PIONEER NATURAL RESOURCES COMPANY
By: /s/ Richard P. Dealy
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Name: Richard P. Dealy
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Doug Milner
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Authorized Signatory
Signature Page to the Second Supplemental Indenture
(4.75% Senior Convertible Notes)