Independence Contract Drilling, Inc. as the Company and issuer, THE GUARANTORS PARTY HERETO, as Guarantors, and as Trustee FIRST SUPPLEMENTAL INDENTURE Dated as of July 21, 2022 Floating Rate Convertible Senior Secured PIK Toggle Notes due 2026
Independence Contract Drilling, Inc.
as the Company and issuer,
THE GUARANTORS PARTY HERETO,
as Guarantors,
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
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________________________________
Dated as of July 21, 2022
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Floating Rate Convertible Senior Secured PIK Toggle Notes due 2026
This FIRST SUPPLEMENTAL INDENTURE, dated as of July 21, 2022 (this “First Supplemental Indenture”), is by and among Independence Contract Drilling, Inc., a Delaware corporation, as issuer (the “Company”), the Guarantor named on the signature page hereto, and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee (in such capacity, the “Trustee”).
WHEREAS, the Company, the Guarantor and the Trustee have executed and delivered an indenture, dated as of March 18, 2022 (as amended, supplemented or otherwise modified prior to the date hereof, the “Indenture”), providing for the issuance of Floating Rate Convertible Senior Secured PIK Toggle Notes due 2026 (the “Notes”);
WHEREAS, on March 18, 2022, the Issuer issued $157,500,000 aggregate principal amount of Notes under the Indenture (the “Initial Notes”);
WHEREAS, the Indenture provides for “Shareholder Approval” as defined therein;
WHEREAS, the Company has received stockholder approval at its 2022 Annual Meeting of Stockholders held on Wednesday June 8, 2022 of each of (a) the “Share Issuance Proposal” and (b) the “Charter Amendment Proposal,” each as set forth and defined in the Company’s definitive proxy statement filed with the SEC effective on April 22, 2022 for its 2022 Annual Meeting of Stockholders (the “Proxy Statement”);
WHEREAS, the Indenture provides for a “CapEx Adjustment” as defined therein;
WHEREAS, Section 3.39 of the Indenture contains limitations on Capital Expenditures based on the CapEx Adjustment;
WHEREAS, Section 9.02 of the Indenture provides for the amendment and supplement of the Indenture with the consent of each affected Holder with respect to the matters set forth therein, and the Holders of all of the outstanding Notes have consented to the execution and delivery of this Supplemental Indenture; and
WHEREAS, pursuant to Section 9.06 of the Indenture, the Trustee is authorized to execute and deliver this First Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Guarantor, and the Trustee mutually covenant and agree as follows:
“Notwithstanding the foregoing, approval by the Company’s stockholders at its 2022 Annual Meeting of Stockholders held on June 8, 2022 of each of (a) the “Share Issuance Proposal” and (b) the “Charter Amendment Proposal,” each as set forth and defined in the Company’s definitive proxy statement filed with the SEC effective on April 22, 2022 for its 2022 Annual Meeting of Stockholders, shall constitute Shareholder Approval under this Indenture with respect to the Share Issuance Proposal and Charter Amendment Proposal.”
“CapEx Adjustment” means, with respect to any fiscal year, an amount equal to (a) an additional amount of $500,000 for each Rig above an aggregate of 17 Rigs that the Company operates during such fiscal year, plus (b) an amount equal to costs incurred to reactivate any Rig, so long as (i) the Company has a signed contract with a customer with respect to each such Rig of at least one (1) year duration providing for early termination payments consistent with past practice equal to at least the expected margin on the contract, (ii) the expected margin on such Rig contract will be equal to or exceed the reactivation Capital Expenditures subject to this CapEx Adjustment in clause (b), and (iii) the reactivation Capital Expenditures, Rig contract and the expected margin calculation are approved by the Board of Directors and (c) an amount equal to such other Capital Expenditures specifically approved by written or electronic consent by both (i) the Required Holders (which approval may, for the avoidance of doubt, be provided by the Required Holders in their sole discretion for an amount of Capital Expenditures to be committed or made by the Company or a Subsidiary of the Company within ninety (90) days after the date of such consent) and (ii) the Board of Directors of the Company.
Section 3.39Limitation on Capital Expenditures
The Company will not make or commit to make, or permit any Subsidiary to make or commit to make, any Capital Expenditures for any fiscal year of the Company ending with the last day of any fiscal year set forth below to exceed the amount set forth below opposite such fiscal year of the Company without the approval of the Required Holders:
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Capital Expenditures | |
|---|---|
the sum of $15,000,000.00 and the relevant CapEx Adjustment | |
the sum of $15,000,000.00 and the relevant CapEx Adjustment |
Notwithstanding the foregoing, the Company and its Subsidiaries may make additional Capital Expenditures in any Fiscal Year to the extent that such additional Capital Expenditures are funded entirely with the proceeds of a Qualified Common Stock Offering of the Company. For the purposes of calculating Capital Expenditures for any fiscal year, a Capital Expenditure will be deemed to have occurred during the fiscal year in which such Capital Expenditure is actually made, or, if earlier, the fiscal year in which the commitment for such Capital Expenditure was entered into; provided, however, that in no event shall a commitment for, and the actual making of, a particular Capital Expenditure be double counted for the purposes of calculating Capital Expenditures.
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[Signature pages follow.]
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SIGNATURES
IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be duly executed, all as of the date first above written.
| | |
| By: | /s/ Xxxxxx X. Xxxxxx |
| | Name:Xxxxxx X. Choyce Title:Executive Vice President, Chief Financial Officer, Treasurer and Secretary |
| | |
| | Guarantor |
| | Sidewinder Drilling, LLC, as Guarantor |
| By: | /s/ Xxxxxx X. Xxxxxx |
| | Title:Executive Vice President, Chief Financial Officer, Treasurer and Secretary |
[Signature Page to ICD First Supplemental Indenture]
TRUSTEE:
U.S. Bank Trust Company, National Association, as Trustee
By:/s/ Xxxxxxxxx Hoyos__________________________
Name: Xxxxxxxxx Xxxxx
Title: Vice President
