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EXHIBIT 4.10
SECOND SUPPLEMENTAL INDENTURE
SECOND 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 April 1, 1996 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 9 1/2% Senior Subordinated Notes due 2006 (the "Securities");
WHEREAS, there are now outstanding under the Indenture Securities in the
aggregate principal amount of $160 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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