EXHIBIT 4.5
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE dated as of September 28, 2004 (this
"Supplemental Indenture"), is entered into by and between Pioneer Evergreen
Properties, 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. Evergreen Resources, Inc., a Colorado corporation ("Evergreen"), has
heretofore executed and delivered to the Trustee an indenture (the "Indenture"),
dated as of March 10, 2004, providing for the issuance of 5.875% Senior
Subordinated Notes due 2012 of Evergreen (the "Securities").
B. Evergreen has entered into an Agreement and Plan of Merger with the
Company dated as of September 28, 2004, pursuant to which Evergreen merged with
and into the Company, with the Company as the surviving entity (the "Merger").
C. 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 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.
D. 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 Evergreen under the Indenture and the Securities without the
consent of any Holder.
E. 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.
F. 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, 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 the Company.
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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.
Dated: September 28, 2004
PIONEER EVERGREEN PROPERTIES, LLC
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Manager
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxx Xxxxxx
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Authorized Signatory
Signature Page to the First Supplemental Indenture
(5.875% Senior Subordinated Notes)
