EXHIBIT 4.5
XXXXXXXX RESOURCES, INC.,
SUBSIDIARY GUARANTORS
NAMED HEREIN
and
THE BANK OF NEW YORK TRUST COMPANY OF FLORIDA, N.A.
Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of February 25, 2004
Supplementing the Indenture
Dated as of April 29, 1999
11 1/4% Senior Notes due 2007
This SECOND SUPPLEMENTAL INDENTURE, dated as of February 25, 2004, is
between XXXXXXXX RESOURCES, INC., a Nevada corporation (the "Company"), XXXXXXXX
OIL & GAS, INC., a Nevada corporation, XXXXXXXX OIL & GAS - LOUISIANA, LLC, a
Nevada limited liability company, XXXXXXXX OFFSHORE LLC, a Nevada limited
liability company, XXXXXXXX OIL & GAS HOLDINGS, INC., a Nevada corporation, and
THE BANK OF NEW YORK TRUST COMPANY OF FLORIDA, N.A. (as successor-in-interest to
U.S. Trust Company of Texas, N.A.) as Trustee (the "Trustee"). Capitalized terms
used herein but not otherwise defined shall have the meanings ascribed to them
in the Indenture (as defined below).
WHEREAS, the Company, certain Subsidiaries of the Company and the
predecessor-in-interest to Trustee entered into an Indenture, dated as of April
29, 1999, as the same was amended and supplemented by that certain First
Supplemental Indenture dated March 7, 2002, (collectively, the "Indenture"),
providing for the issuance by the Company from time to time, and the
establishment of the terms of, the Company's 11 1/4% Senior Notes due 2007;
WHEREAS, the parties hereto desire to modify and amend the Indenture to
remove certain restrictive covenants therefrom; and
WHEREAS, the Holders (as defined in the Indenture) of at least a majority
in aggregate principal amount of Outstanding Securities (as defined in the
Indenture) have consented to the amendments contained herein as required by
Section 8.2 of the Indenture;
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 Deletion of Covenants. Effective as of the date hereof, each
of the following sections of the Indenture (each, a "Deleted Covenant"),
together with all references to any such section set forth in the Indenture, are
hereby deleted in their entireties:
Section 9.2 Maintenance of Office or Agency;
Section 9.4 Corporate Existence;
Section 9.5 Payment of Taxes; Maintenance of
Properties; Insurance;
Section 9.6 Limitation on Conduct of Business;
Section 9.8 Provision of Financial Information;
Section 9.9 Limitation on Restricted Payments;
Section 9.10 Limitation on Guarantees by Subsidiary
Guarantors;
Section 9.11 Limitation on Indebtedness and
Disqualified Capital Stock;
Section 9.12 Additional Subsidiary Guarantors;
Section 9.13 Limitation on Issuances and Sales of
Capital Stock by Restricted Subsidiaries;
Section 9.14 Limitation on Liens;
Section 9.16(c) Limitation on Asset Sales;
Section 9.17 Limitation on Transactions with
Affiliates;
Section 9.18 Limitation on Dividends and Other
Payment Restrictions Affecting
Restricted Subsidiaries; and
Section 9.19 Limitation on Sale and Leaseback
Transactions.
Section 1.2 Covenant Concerning Certain Events of Default. Effective as of
the date hereof, subsections (d), (e), (f), (g), (h) and (i) of Section 4.1 of
the Indenture are hereby deleted in their entireties.
Section 1.3 Provision Concerning When Company May Consolidate, Etc., Only
on Certain Terms. Effective as of the date hereof, Section 7.1 of the Indenture
is hereby deleted in its entirety.
Section 1.4 Deletion of Definitions. Effective as of the date hereof, all
definitions set forth in Article One of the Indenture which relate solely to the
Deleted Covenants or to Section 7.1 of the Indenture are herby deleted in their
entireties from the 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 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.
ARTICLE III
Capitalized terms not otherwise defined herein shall have the meanings
given in the Indenture as supplemented hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the day and year first above written.
ISSUER:
XXXXXXXX RESOURCES, INC.
By: /s/ M. XXX XXXXXXX
------------------
Name: M. Xxx Xxxxxxx
Title: President and Chief Executive Officer
SUBSIDIARY GUARANTORS:
XXXXXXXX OIL & GAS, INC.
By: /s/ M. XXX XXXXXXX
------------------
Name: M. Xxx Xxxxxxx
Title: President and Chief Executive Officer
XXXXXXXX OIL & GAS-LOUISIANA, LLC
(f/k/a Xxxxxxxx Oil & Gas-Louisiana, Inc.)
By: /s/ M. XXX XXXXXXX
------------------
Name: M. Xxx Xxxxxxx
Title: President and Chief Executive Officer
XXXXXXXX OFFSHORE, LLC
By: /s/ M. XXX XXXXXXX
------------------
Name: M. Xxx Xxxxxxx
Title: President and Chief Executive Officer
XXXXXXXX OIL & GAS HOLDINGS, INC.
By: /s/ M. XXX XXXXXXX
------------------
Name: M. Xxx Xxxxxxx
Title: President and Chief Executive Officer
TRUSTEE:
THE BANK OF NEW YORK TRUST COMPANY
OF FLORIDA, N.A.
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
