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EXHIBIT 4.9
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE dated as of August 9, 1999 (this
"Supplemental Indenture"), between Nuevo Energy Company, a Delaware corporation
(the "Company"), and State Street Bank and Trust Company, a Massachusetts trust
company, as trustee (the "Trustee").
WHEREAS, there has heretofore been executed and delivered to the
Trustee an Indenture dated as of June 8, 1998 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 8 7/8% Senior Subordinated Notes due 2008 (the "Securities");
WHEREAS, there are now outstanding under the Indenture Securities in
the aggregate principal amount of $100 million;
WHEREAS, the Company has offered to exchange new notes for all of the
Securities (the "Exchange Offer") and has solicited the consents (the
"Solicitations") to certain amendments (the "Amendments") to the Indenture
pursuant to the Company's Confidential Memorandum dated July 13, 1999, as
supplemented by press releases dated July 26, 1999 and August 5, 1999,
respectively, and by Supplement to Confidential Memorandum dated August 9, 1999;
WHEREAS, Section 9.2 of the Indenture provides that the Company and the
Trustee may amend the Indenture with the written consent of the Holders of at
least a majority in principal amount of the Securities then outstanding;
WHEREAS, the Company desires to amend certain provisions of the
Indenture, as set forth in Article II hereof;
WHEREAS, the holders of at least a majority in aggregate principal
amount of the Securities outstanding have 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 Securities:
ARTICLE I
EFFECTIVENESS AND OPERATIVE DATE
SECTION 1.1. Effectiveness; Operative Date. This Supplemental Indenture
shall become effective as of the date hereof. The terms of this Supplemental
Indenture will become operative only upon acceptance for exchange by the Company
of Securities validly tendered (and not withdrawn) pursuant to the terms of the
Exchange Offer. The date that this Supplemental Indenture becomes operative
shall be denominated herein as the "Operative Date."
ARTICLE II
AMENDMENTS TO INDENTURE
SECTION 2.1. Amendments to Indenture.
(a) The Indenture is hereby amended by deleting therefrom the following
provisions in their entirety and any references to those provisions: Sections
5.1(e), 5.1(g), 8.1(b), 8.1(c), 8.1(d), 8.1(f),
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8.1(g), 10.5, 10.6, 10.7, 10.9, 10.10, 10.11, 10.12, 10,14, 10.15, 10.16, 10.17,
10.18, and 10.19 including without limitation all references, direct or
indirect, thereto in Section 5.1, "Events of Default."
(b) Section 10.8(a) of the Indenture is hereby amended in its entirety
to read as follows:
"(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, an Officers'
Certificate stating that a review of the activities of the Company
and its Restricted Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a
view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate,
that to the best of such Officer's knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained
in this Indenture and no Default or Event of Default has occurred
and is continuing (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of
which such Officer may have knowledge and what action the Company
is taking or proposes to take with respect thereto). Such Officers'
Certificate shall comply with TIA Section 314(a)(4). For purposes
of this Section 10.8(a), such compliance shall be determined
without regard to any period of grace or requirement of notice
under this Indenture."
(c) Any definitions used exclusively in the deleted provisions of the
Indenture set forth in paragraph (a) of this Section 2.1 are hereby deleted in
their entirety from 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 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.
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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.
NUEVO ENERGY COMPANY
By: /s/ XXXXXX X. XXXX
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Name: Xxxxxx X. Xxxx
Title: Senior Vice President and Chief
Financial Officer
STATE STREET BANK AND TRUST COMPANY
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
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