FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"),
dated as of September 19, 1996, between XXXXXX & XXXXX, INC., a Delaware
corporation (the "Company"), the SUBSIDIARY GUARANTORS (as defined in the
Indenture described below) and FLEET NATIONAL BANK (formerly known as Shawmut
Bank Connecticut, National Association), trustee (the "Trustee"). All
capitalized terms used herein without definition herein shall have the meanings
ascribed thereto in the Indenture.
WITNESSETH:
WHEREAS, the Company and the Trustee have heretofore executed
and delivered an Indenture, dated as of December 1, 1994 (the "Indenture"),
pursuant to which the Company issued its 13 1/2% Senior Notes Due 2004 in the
aggregate principal amount of $125,000,000; and
WHEREAS, Section 9.2 of the Indenture provides that with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities, the Company, when authorized by a Board Resolution, the
Subsidiary Guarantors, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental to the Indenture for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of modifying in any manner the rights of
the Holders under the Indenture (with certain exceptions not relevant to this
Supplemental Indenture); and
WHEREAS, 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 in certain respects as permitted by said Section 9.2; and
WHEREAS, the Company has been soliciting consents to the
substance of this Supplemental Indenture upon the terms and subject to the
conditions set forth in its Consent Solicitation Statement dated August 20, 1996
and in the related Letter of Transmittal and Consent (which together constitute
the "Solicitation"); and
WHEREAS, the Company has (1) filed with the Trustee consents
to the substance of this Supplemental Indenture executed and delivered by the
Holders of not less than a majority in principal amount of the Outstanding
Securities of record as of August 20, 1996, (2) delivered to the Trustee an
Opinion of Counsel relating to this First Supplemental Indenture as contemplated
by Section 9.3 of the Indenture and (3) satisfied all other conditions required
under Article IX of the Indenture to enable the Company and the Trustee to enter
into this Supplemental Indenture.
NOW, THEREFORE, for and in consideration of the foregoing, the
Company, the Subsidiary Guarantor and the Trustee agree for the benefit of the
other and for the equal and ratable benefit of the Holders of the Securities as
follows:
SECTION 1 Amendments of Section 1.1 of the Indenture.
(a) Paragraph (i) of the definition of "Permitted Indebtedness," in
Section 1.1 of the Indenture, is amended to read in its entirety as follows:
"(i) Indebtedness of the Company under one or more bank credit
or revolving credit facilities in an aggregate principal amount at any
one time outstanding not to exceed the greater of (A) $50 million or
(B) an amount equal to the sum of (x) $20 million and (y) 20% of
Adjusted Consolidated Net Tangible Assets determined as of the date of
the incurrence of such Indebtedness (such greater amount being referred
to as the "Adjusted Maximum Credit Amount") (plus interest and fees
payable under such facilities), less any amounts derived from Asset
Sales of any Original Properties and applied to the required permanent
reduction of Indebtedness (and a permanent reduction of the related
commitment to lend in the case of a revolving credit facility) under
such credit facilities as contemplated by Section 10.17(b)(i) hereof
(the "Maximum Credit Amount") (with the Maximum Credit Amount to be an
aggregate maximum amount for the Company and all Restricted
Subsidiaries, pursuant to clause (i) of the definition of "Permitted
Subsidiary Indebtedness"), and any renewals, amendments, extensions,
supplements, modifications, deferrals, refinancings or replacements
(each, for purposes of this clause, a "refinancing") thereof by the
Company, including any successive refinancings thereof by the Company,
so long as the aggregate principal amount of any such new Indebtedness,
together with the aggregate principal amount of all other Indebtedness
outstanding pursuant to this clause (i) (and clause (i) of the
definition of "Permitted Subsidiary Indebtedness") shall not at any one
time exceed the Maximum Credit Amount; provided, however, and
notwithstanding the foregoing provisions of this clause (i), the
Company may not incur Indebtedness pursuant to this clause (i) for the
purpose of (a) acquiring oil and gas Properties, (b) refinancing
Acquired Indebtedness relating to an acquisition of oil and gas
Properties or (c) making an Investment in an Unrestricted Subsidiary
for either of the foregoing purposes, if as a result of such incurrence
the aggregate principal amount of Indebtedness incurred for such
purposes pursuant to this clause (i) (and clause (i) of the definition
of "Permitted Subsidiary Indebtedness") that would then be outstanding
would exceed 50% of the Adjusted Maximum Credit Amount (plus interest
and fees), unless in each case the incurrence of such Indebtedness
which would be in excess of 50% of the Adjusted Maximum Credit Amount
would satisfy the requirements of subclauses (x), (y) and (z) of clause
(a) of Section 10.12 hereof (it being understood that in connection
with any repayments of principal under such credit facilities, the
Company may designate in its discretion the application of such
repayments to either Indebtedness incurred for the foregoing purposes
or to other Indebtedness incurred under such facilities);"
(b) Paragraph (k) of the definition of "Permitted Liens," in Section
1.1 of the Indenture, is amended to read in its entirety as follows:
"(k) Liens securing Indebtedness incurred to finance the
construction, purchase or lease of, or repairs, improvements or
additions to, property of the Company or any Restricted Subsidiary,
provided, however, that such Lien shall be created (A) in the case of
any Asset Acquisition, within 180 days of the closing of such Asset
Acquisition and (B) in all other cases, within 90 days after the date
of acquisition, construction or improvement of such property or asset
by the Company or such Restricted Subsidiary; provided, further,
however, that in each case, such Lien does not extend to any other
property or asset of the Company and its Restricted Subsidiaries;"
(c) Paragraph (i) of the definition of "Permitted Subsidiary
Indebtedness," in Section 1.1 of the Indenture, is amended to read in its
entirety as follows:
"(i) Indebtedness of any Restricted Subsidiary under one or
more bank credit or revolving credit facilities (and "refinancings"
thereof) in an amount at any one time outstanding not to exceed the
Maximum Credit Amount (in the aggregate for all Restricted Subsidiaries
and the Company, pursuant to clause (i) of the definition of "Permitted
Indebtedness"); provided, however, and notwithstanding the foregoing
provisions of this clause (i), the Restricted Subsidiaries may not
incur Indebtedness pursuant to this clause (i) for the purpose of (a)
acquiring oil and gas Properties, (b) refinancing Acquired Indebtedness
relating to an acquisition of oil and gas Properties or (c) making an
Investment in an Unrestricted Subsidiary for either of the foregoing
purposes, if as a result of such incurrence the aggregate principal
amount of Indebtedness incurred for such purposes pursuant to this
clause (i) (and clause (i) of the definition of "Permitted
Indebtedness") that would then be outstanding would exceed 50% of the
Adjusted Maximum Credit Amount (plus interest and fees), unless in each
case the incurrence of such Indebtedness which would be in excess of
50% of the Adjusted Maximum Credit Amount would satisfy the
requirements of subclauses (x), (y) and (z) of clause (a) of Section
10.12 hereof (it being understood that in connection with any
repayments of principal under such credit facilities, the Restricted
Subsidiaries may designate in their discretion the application of such
repayments to either Indebtedness incurred for the foregoing purposes
or to other Indebtedness incurred under such facilities);"
SECTION 2 Trustee Disclaimer. The Trustee has accepted the
amendment of the Indenture effected by this Supplemental Indenture and agrees to
execute the trust created by the Indenture as hereby amended, but only upon the
terms and conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the
Trustee, and without limiting the generality of the foregoing, the Trustee shall
not be responsible in any manner whatsoever for or with respect to any of the
recitals or statements contained herein, all of which recitals or statements are
made solely by the Company and the Subsidiary Guarantor, or for or with respect
to (a) the validity or sufficiency of this Supplemental Indenture or any of the
terms or provisions hereof, (b) the proper authorization hereof by the Company
and the Subsidiary Guarantor by corporate action or otherwise, (c) the due
execution hereof by the Company and the Subsidiary Guarantor, (d) the
consequences (direct or indirect and whether deliberate or inadvertent) of any
amendment herein provided for, and the Trustee makes no representation with
respect to any
HOU04:37727.2
such matters and (e) the validity or sufficiency of the Solicitation or the
consent solicitation materials or procedure in connection therewith.
SECTION 3 Governing Law. This Supplemental Indenture shall be
governed by the laws of the State of New York.
SECTION 4 Counterparts. This Supplemental Indenture may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
ISSUER:
XXXXXX & XXXXX, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and
General Counsel
SUBSIDIARY GUARANTOR:
XXXXXX & XXXXX, INC.,
a Louisiana corporation
By: /s/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and
General Counsel
TRUSTEE:
FLEET NATIONAL BANK
(formerly known as Shawmut Bank
Connecticut, National Association)
By: /s/ XXXXXXXXX X. XXXXXX
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
