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EXHIBIT 4.3.3
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CLIFFS DRILLING COMPANY,
SUBSIDIARY GUARANTORS
NAMED HEREIN
and
STATE STREET BANK AND TRUST COMPANY
SUCCESSOR TO FLEET NATIONAL BANK
Trustee
______________
THIRD SUPPLEMENTAL INDENTURE
(SERIES A/B SECURITIES)
Dated as of August 29, 1997
___________
Supplementing and Amending the Indenture
dated as of May 15, 1996
as amended by the First Supplemental Indenture
dated as of July 11, 1996
and the Second Supplemental Indenture
dated as of January 24, 1997
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THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE dated as of August 29, 1997, is
between CLIFFS DRILLING COMPANY, a Delaware corporation (the "Company"), the
SUBSIDIARY GUARANTORS (as defined herein) and STATE STREET BANK AND TRUST
COMPANY, SUCCESSOR TO FLEET NATIONAL BANK, a national banking association (the
"Trustee").
RECITALS OF THE COMPANY
A. The Company has duly authorized the creation of an issue of
10.25% Senior Notes due 2003, Series A (the "Series A Securities") and an issue
of 10.25% Senior Notes due 2003, Series B (the "Series B Securities" and the
Series A Securities and the Series B Securities, as amended or supplemented
from time to time in accordance with the terms of the Indenture (as defined
herein), being herein collectively called the "Securities"), of substantially
the tenor and in the aggregate principal amount set forth in the Indenture.
B. The Company and the Subsidiary Guarantors have heretofore
made, executed and delivered to the Trustee an Indenture dated as of May 15,
1996 (referred to herein as the "Original Indenture") pursuant to which the
Securities are issuable, and a First Supplemental Indenture dated as of July
11, 1996 and a Second Supplemental Indenture dated as of January 24, 1997 (the
Original Indenture as supplemented by the First Supplemental Indenture and the
Second Supplemental Indenture being referred to herein as the "Original
Supplemented Indenture").
C. The Securities are guaranteed by the Subsidiary Guarantors (as
defined in the Indenture) on the terms provided in the Indenture.
D. It is deemed desirable to supplement and amend the Original
Supplemented Indenture to add two Restricted Subsidiaries of the Company as
Subsidiary Guarantors (the Original Supplemented Indenture, as so supplemented
and amended by this Third Supplemental Indenture, being sometimes referred to
herein as the "Indenture").
E. Article IX, Section 9.1 of the Original Indenture provides
that under certain conditions the Company, the Subsidiary Guarantors and
Trustee, may, without the consent of any Holders, from time to time and at any
time, enter into an indenture or indentures supplemental thereto, for the
purpose, inter alia, of adding any Restricted Subsidiary as an additional
Subsidiary Guarantor (subsection (g)).
F. In addition, Article X, Section 10.13 of the Original
Indenture provides that certain Restricted Subsidiaries of the Company shall
become Subsidiary Guarantors by executing and delivering a supplemental
indenture agreeing to be bound by the terms of the Original Indenture.
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G. The Series A Securities were issued on May 23, 1996 under the
Original Indenture, and the Series B Securities were issued in exchange for the
Series A Securities on August 30, 1996.
H. Greenbay Drilling Company Ltd., which was added as a
Subsidiary Guarantor pursuant to the Second Supplemental Indenture, has been
merged with and into the Company.
I. All things necessary to authorize the execution and delivery
of this Third Supplemental Indenture, to effect the modifications of the
Original Supplemented Indenture provided for in this Third Supplemental
Indenture, and to make the Original Supplemented Indenture, as further
supplemented and amended by this Third Supplemental Indenture, a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of
the Securities by the Holders, the Company, the Subsidiary Guarantors and the
Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective Holders from time to time of the Securities as follows:
ARTICLE I
MODIFICATION OF THE ORIGINAL INDENTURE
SECTION 1.1 AMENDMENT OF ARTICLE I OF THE ORIGINAL INDENTURE.
Section 1.1 of the Original Supplemented Indenture is amended by changing the
definition of "Subsidiary Guarantor" to read as follows:
"'Subsidiary Guarantor' means (i) Southwestern Offshore
Corporation (f/k/a Cliffs Drilling Asset Acquisition Company), a
Delaware corporation, (ii) Cliffs Drilling Merger Company, a Delaware
corporation, (iii) Cliffs Drilling International, Inc., a Delaware
corporation, (iv) Cliffs Oil and Gas Company, a Delaware corporation,
(v) DRL, Inc., a Delaware corporation, (vi) Cliffs Drilling Trinidad
Ltd., a company organized under the laws of Trinidad and Tobago, (vii)
West Indies Drilling Joint Venture, a joint venture partnership
organized under the laws of Trinidad and Tobago, and (viii) each of
the Company's other Restricted Subsidiaries, if any, executing a
supplemental indenture in compliance with the provisions of Section
10.13(a) hereof and (ix) any Person that becomes a successor guarantor
of the Securities in compliance with the provisions of Section 13.2
hereof."
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ARTICLE II
ADDITIONAL SUBSIDIARY GUARANTOR
SECTION 2.1 ADDITION OF SUBSIDIARY GUARANTORS. Cliffs Drilling
Trinidad Ltd., a company organized under the laws of Trinidad and Tobago and a
wholly-owned subsidiary of the Company, and West Indies Drilling Joint Venture,
a joint venture partnership organized under the laws of Trinidad and Tobago, by
execution of this Third Supplemental Indenture each hereby agree to be bound by
the terms of the Indenture as a Subsidiary Guarantor.
SECTION 2.2 SUBSIDIARY GUARANTEE OF THE SECURITIES. Exhibit A,
attached hereto and incorporated herein by reference, sets forth the form of
Subsidiary Guarantee from the Original Indenture to which Cliffs Drilling
Trinidad Ltd. and West Indies Drilling Joint Venture agree to be bound by
execution and delivery of this Third Supplemental Indenture.
ARTICLE III
PARTICULAR REPRESENTATIONS
AND COVENANTS OF THE COMPANY
SECTION 3.1 AUTHORITY OF THE COMPANY. The Company is duly
authorized by a resolution of the Board of Directors to execute and deliver this
Third Supplemental Indenture, and all corporate action on its part required for
the execution and delivery of this Third Supplemental Indenture has been duly
and effectively taken.
SECTION 3.2 AUTHORITY OF THE SUBSIDIARY GUARANTORS. Each of the
Subsidiary Guarantors is duly authorized by a resolution of its respective
Board of Directors to execute and deliver this Third Supplemental Indenture,
and all corporate action on the part of each required for the execution and
delivery of this Third Supplemental Indenture has been duly and effectively
taken.
SECTION 3.3 TRUTH OF RECITALS AND STATEMENTS. The Company
warrants that the recitals of fact and statements contained in this Third
Supplemental Indenture are true and correct, and that the recitals of fact and
statements contained in all certificates and other documents furnished
hereunder will be true and correct.
ARTICLE IV
CONCERNING THE TRUSTEE
SECTION 4.1 ACCEPTANCE OF TRUSTS. The Trustee accepts the trusts
hereunder and agrees to perform the same, but only upon the terms and
conditions set forth in the Original Supplemented Indenture and in this Third
Supplemental Indenture, to all of which the Company,
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Subsidiary Guarantors and the respective Holders of Securities at any time
hereafter outstanding agree by their acceptance thereof.
SECTION 4.2 RESPONSIBILITY OF TRUSTEE FOR RECITALS, ETC. The
recitals and statements contained in this Third Supplemental Indenture shall be
taken as the recitals and statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Third Supplemental
Indenture, except that the Trustee is duly authorized to execute and deliver
this Third Supplemental Indenture.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1 RELATION TO THE INDENTURE. The provisions of this
Third Supplemental Indenture shall become effective immediately upon the
execution and delivery hereof. This Third Supplemental Indenture and all the
terms and provisions herein contained shall form a part of the Indenture as
fully and with the same effect as if all such terms and provisions had been set
forth in the Original Indenture. The Original Indenture is hereby ratified and
confirmed and shall remain and continue in full force and effect in accordance
with the terms and provisions thereof, as supplemented and amended by the First
Supplemental Indenture, the Second Supplemental Indenture and this Third
Supplemental Indenture; and the Original Indenture, the First Supplemental
Indenture, the Second Supplemental Indenture and this Third Supplemental
Indenture shall be read, taken and construed together as one instrument.
SECTION 5.2 MEANING OF TERMS. Any capitalized term used in this
Third Supplemental Indenture and not defined herein that is defined in the
Original Indenture shall have the meaning specified in the Original Indenture,
unless the context shall otherwise require.
SECTION 5.3 COUNTERPARTS OF THIRD SUPPLEMENTAL INDENTURE. This
Third Supplemental Indenture may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one instrument.
SECTION 5.4 GOVERNING LAW. This Third Supplemental Indenture
shall be governed by and construed in accordance with the laws of the State of
New York.
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IN WITNESS WHEREOF, the parties hereto have cause this Third
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
Company: CLIFFS DRILLING COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Vice President - Finance
Subsidiary Guarantors: CLIFFS DRILLING MERGER COMPANY
CLIFFS DRILLING INTERNATIONAL, INC.
CLIFFS OIL AND GAS COMPANY
SOUTHWESTERN OFFSHORE CORPORATION
(f/k/a Cliffs Drilling Asset Acquisition
Company)
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Vice President - Finance
DRL, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Vice President
CLIFFS DRILLING TRINIDAD LTD.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Director
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WEST INDIES DRILLING JOINT VENTURE
By: CLIFFS DRILLING TRINIDAD LTD.,
Partner and Firm Manager
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Director
Trustee: STATE STREET BANK AND TRUST COMPANY,
SUCCESSOR TO FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Assistant Vice President
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EXHIBIT A
FORM OF SUBSIDIARY GUARANTEE
Subject to the limitations set forth in the Indenture, the initial
Subsidiary Guarantors and, if any, all additional Subsidiary Guarantors (as
defined in the Indenture referred to in the Series ____ Security upon which
this notation is endorsed and each being hereinafter referred to as a
"Subsidiary Guarantor," which term includes any additional or successor
Subsidiary Guarantor under the Indenture) have, jointly and severally,
unconditionally guaranteed (a) the due and punctual payment of the principal
(and premium, if any) of and interest on the Securities, whether at maturity,
acceleration, redemption or otherwise, (b) the due and punctual payment of
interest on the overdue principal of and interest on the Securities, if any, to
the extent lawful, (c) the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee, all in accordance
with the terms set forth in the Indenture, and (d) in case of any extension of
time of payment or renewal of any Securities or any of such other obligations,
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at Stated Maturity, by
acceleration or otherwise.
The obligations of each Subsidiary Guarantor are limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor
under its Subsidiary Guarantee or pursuant to its contribution obligations
under the Indenture, result in the obligations of such Subsidiary Guarantor
under the Subsidiary Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law. Each Subsidiary Guarantor that
makes a payment or distribution under a Subsidiary Guarantee shall be entitled
to a contribution from each other Subsidiary Guarantor in a pro rata amount
based on the Adjusted Net Assets of each Subsidiary Guarantor.
No stockholder, officer, director, employee, incorporator or Affiliate
as such, past, present or future, of any Subsidiary Guarantor shall have any
personal liability under its Subsidiary Guarantee by reason of his or its
status as such stockholder, officer, director, employee, incorporator or
Affiliate, or any liability for any obligations of any Subsidiary Guarantor
under the Securities or the Indenture or for any claim based on, in respect of,
or by reason of such obligations or their creation.
Any Subsidiary Guarantor may be released from its Subsidiary Guarantee
upon the terms and subject to the conditions provided in the Indenture.
All terms used in this notation of Subsidiary Guarantee which are
defined in the Indenture referred to in this Series ____ Security upon which
this notation of Subsidiary Guarantees is endorsed shall have the meanings
assigned to them in such Indenture.
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The Subsidiary Guarantees shall be binding upon the Subsidiary
Guarantors and shall inure to the benefit of the Trustee and the Holders and,
in the event of any transfer or assignment of rights by any Holder or the
Trustee respecting the Series _____ Security upon which the foregoing
Subsidiary Guarantees are noted, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof and in the
Indenture.
The Subsidiary Guarantees shall not be valid or obligatory for any
purpose until the certificate of authentication on the Series ____ Security
upon which the foregoing Subsidiary Guarantees are noted shall have been
executed by the Trustee under the Indenture by the manual signature of one of
its authorized signatories.
