EXHIBIT 4.7
XXXXXX INDUSTRIES, INC.,
Issuer
and
XXXXXX INDUSTRIES LTD.,
Guarantor
To
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee
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Supplemental Indenture No. 2
Dated as of June 21, 2002
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6.80% Notes due 2004
SUPPLEMENTAL INDENTURE NO. 2, dated as of June 21, 2002,
between XXXXXX INDUSTRIES, INC., a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company"), XXXXXX
INDUSTRIES LTD., an exempted company duly organized and existing under the laws
of the Islands of Bermuda (herein called the "Guarantor"), and XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association organized under
the laws of the United States of America, as Trustee (herein called the
"Trustee") (this "Supplemental Indenture").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an Indenture dated as of March 1, 1999, as supplemented by
Supplemental Indenture No. 1, dated as of March 1, 1999 (as so supplemented,
herein called the "Indenture");
WHEREAS, the Company is party to an Agreement and Plan of
Merger, dated as of January 2, 2002, by and among the Company, the Guarantor,
Nabors US Holdings Inc., a corporation duly organized and existing under the
laws of the State of Delaware (herein called "US Holdings") and Nabors
Acquisition Corp. VIII, a corporation duly organized and existing under the laws
of the State of Delaware (herein called "NAC8") (such agreement is herein called
the "Merger Agreement");
WHEREAS, US Holdings assigned all of its right, title and
interest, in, to and under the Merger Agreement to Nabors International Finance
Ltd., an exempted company duly organized and existing under the laws of the
Islands of Bermuda, and NAC8 assigned all of its right, title and interest, in,
to and under the Merger Agreement to Nabors Acquisition Corp. IX, a corporation
duly organized and existing under the laws of the State of Delaware (herein
called "NAC9");
WHEREAS, pursuant to the terms and conditions of the Merger
Agreement, NAC9 will merge with and into the Company, with the Company being the
surviving corporation (herein called the "Merger" and the date on which the
Merger becomes effective by filing a Certificate of Merger with the Secretary of
State of the State of Delaware is herein called the "Merger Date");
WHEREAS, as a result of the Merger the Company will be an
indirect, wholly owned subsidiary of the Guarantor;
WHEREAS, the Guarantor desires to issue a guarantee to the
Holders of the Notes as provided in this Supplemental Indenture;
WHEREAS, Section 901 provides that the Company may enter into
one or more supplemental indentures without the written consent of any Holders,
when authorized by a Board Resolution and in form satisfactory to the Trustee to
add to the covenants of the Company for the benefit of the Holders of all or any
series of Securities or to surrender any right or power conferred upon the
Company;
WHEREAS, the respective Board of Directors of the Company and
of the Guarantor (or a duly authorized committee thereof) has duly adopted
resolutions authorizing the Company and the Guarantor, respectively, to execute
and deliver this Supplemental Indenture; and
WHEREAS, all the conditions and requirements necessary to make
this Supplemental Indenture, when duly executed and delivered, a valid and
binding agreement in accordance with its terms for the purposes herein
expressed, have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises provided for herein
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
RELATION TO INDENTURE
SECTION 1.1 RELATION TO INDENTURE.
This Supplemental Indenture constitutes an integral part of the
Indenture.
SECTION 1.2 DEFINITIONS.
For all purposes of this Supplemental Indenture, except as expressly
provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined in this
Supplemental Indenture shall have the respective meanings assigned to them in
the Indenture; and
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(2) All references in this Supplemental Indenture to Articles
and Sections, unless otherwise specified, refer to the corresponding Articles
and Sections of this Supplemental Indenture.
"Guarantor" means Xxxxxx Industries Ltd., an exempted company
duly organized and existing under the laws of the Islands of Bermuda.
"Guarantee" means any of the unconditional and unsubordinated
guarantees by the Guarantor of the due and punctual payment of principal of, and
premium, if any, and interest, if any, on the Notes and all other obligations of
the Company pursuant to this Indenture when and as the same shall become due and
payable, whether at stated maturity, by acceleration, call for redemption, upon
a repurchase date or otherwise in accordance with the terms of the Notes and
this Indenture.
SECTION 1.3 AMENDMENT OF DEFINITIONS IN THE INDENTURE.
The following definitions in the Indenture are hereby amended by
deleting such definitions in their entirety and substituting in place thereof
the following:
"Board of Directors" means either (i) the board of directors
of the Company or the Guarantor, as applicable, the executive committee
of such board of directors or any other duly authorized committee of
directors and/or officers appointed by such board of directors or
executive committee, or (ii) one or more duly authorized officers of
the Company or the Guarantor, as applicable, to whom the board of
directors of the Company or the Guarantor, as applicable, or a
committee thereof has delegated the authority to act with respect to
the matters contemplated by this Indenture.
"Board Resolution" means (i) a copy of a resolution certified
by the Corporate Secretary or an Assistant Corporate Secretary of the
Company or the Guarantor, as applicable, to have been duly adopted by
the board of directors of the Company or a committee thereof and to be
in full force and effect on the date of such certification or (ii) a
certificate signed by the duly authorized officer or officers of the
Company or the Guarantor, as applicable, to whom the board of directors
of the Company or the Guarantor, as applicable, or a duly authorized
committee thereof has delegated its authority (as described in the
definition of Board of Directors), and in each case, delivered to the
Trustee.
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"Officer's Certificate" means a certificate signed by (i) any
two of the following individuals: the Chairman, a Vice Chairman, the
President or a Vice President, or (ii) by one of the foregoing
individuals and by any other Vice President, the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the
Corporate Secretary or an Assistant Corporate Secretary of the Company
or the Guarantor, as applicable, or any other individual authorized by
the Board of Directors of the Company or the Guarantor, as applicable,
for such purpose (as specified in a Board Resolution of the Company or
the Guarantor, as applicable), and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section
1004 shall be the principal executive, financial or accounting officer
of the Company or the Guarantor, as applicable.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel to the Company or the Guarantor, as
applicable, or who may be other counsel reasonably satisfactory to the
Trustee.
ARTICLE TWO
REPORTS BY GUARANTOR
SECTION 2.1 REPORTS. Section 704 of the Indenture is hereby amended by
deleting it in its entirety and substituting in place thereof the following:
Section 704. Reports by the Company and the Guarantor. Each of
the Company and the Guarantor shall file with the Trustee and
the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as
may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act. Any
information, documents or reports required to be filed by each
of the Company and the Guarantor with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is so required to be
filed with the Commission.
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ARTICLE THREE
CERTIFICATE OF COMPLIANCE
SECTION 3.1 STATEMENT BY OFFICERS AS TO COMPLIANCE. Section 1004 of the
Indenture is hereby amended by deleting it in its entirety and substituting in
place thereof the following:
Section 1004. Statement by Officers as to Compliance. The
Company and the Guarantor will each deliver to the Trustee
within 120 days after the end of each fiscal year of the
Company and the Guarantor ending after the date hereof, a
certificate signed by the Company's or the Guarantor's, as
applicable, principal executive officer, principal financial
officer or principal accounting officer stating to the best
knowledge of the signer thereof whether or not the Company or
the Guarantor, as applicable, has complied during such
immediately preceding fiscal year with and is in compliance
with all terms, conditions and covenants of this Indenture
(without regard to any period of grace or requirement of
notice provided hereunder) and if the signer has obtained any
knowledge of any continuing default by the Company or the
Guarantor, as applicable, in the performance, observation or
fulfillment of any such term, condition or covenant,
specifying each such default and the nature thereof.
ARTICLE FOUR
GUARANTEE
SECTION 4.1 GUARANTEE. The Indenture is hereby amended by adding a new
Article Sixteen as follows:
Section 1601. Guarantee. The Guarantor hereby irrevocably and
unconditionally Guarantees to each Holder of a Note authenticated and
delivered by the Trustee that: (i) the principal of, premium, if any,
and interest, if any, on the Notes will be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest, if any, and premium,
if any, on the Notes, if any, to the extent lawful, and all other
obligations of the Company to the Holders or the Trustee under this
Indenture and the Notes will be promptly paid in full, all in
accordance with the terms of this Indenture and the Notes; and (ii) in
case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that the Notes will be promptly paid in full
when due in accordance with the terms of such extension or renewal,
whether at stated maturity, by acceleration or otherwise.
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The Guarantor hereby further agrees that its obligations under
this Indenture and the Notes shall be unconditional, regardless of the
validity, legality or enforceability of this Indenture or the Notes,
the absence of any action to enforce this Indenture or the Notes, any
waiver or consent by any Holder with respect to any provisions of this
Indenture or the Notes, any modification or amendment of, or supplement
of, this Indenture or the Notes. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest, notice and all demands
whatsoever and covenants that its Guarantee will not be discharged
except by complete performance by the Company of its obligations under
the Indenture.
Upon making any payment with respect to the Company hereunder,
the Guarantor shall be subrogated to the rights of the payee against
the Company with respect to such payment; provided that the Guarantor
shall not enforce any payment by way of subrogation or contribution
until all obligations of the Company under this Indenture have been
paid in full.
Section 1602. Release of Guarantee. Notwithstanding anything
in this Article Sixteen to the contrary, concurrently with the payment
in full of (i) the principal of, premium, if any, and interest, if any,
on the Notes; and (ii) all other obligations of the Company under this
Indenture, the Guarantor shall be released from and relieved of its
obligations under this Article Sixteen. Upon the delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion of
Counsel to the effect that the transaction giving rise to the release
of this Guarantee was made by the Company in accordance with the
provisions of this Indenture and the Notes, the Trustee shall execute
any documents reasonably required in order to evidence the release of
the Guarantor from its obligations under this Guarantee. If any of the
obligations to pay the principal of, premium, if any, and interest, if
any, on the Notes and all other obligations of the Company are revived
and reinstated after the termination of this Guarantee, then all of the
obligations of the Guarantor under this Guarantee shall be revived and
reinstated as if this Guarantee had not been terminated until such time
as the principal of, premium, if any, and interest, if any, on the
Notes and all other obligations of the Company under the Indenture are
paid in full, and the Guarantor shall enter into an amendment to this
Guarantee, reasonably satisfactory to the Trustee, evidencing such
revival and reinstatement.
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ARTICLE FIVE
MISCELLANEOUS PROVISIONS
SECTION 5.1 RATIFICATION OF INDENTURE.
Except as expressly modified or amended hereby, the Indenture continues
in full force and effect and is in all respects confirmed and preserved.
SECTION 5.2 EFFECTIVENESS.
This Supplemental Indenture No. 2 shall be effective as of the date
first written above, provided, however, that the provisions contained in
Articles One, Two, Three and Four hereof shall become effective as of the Merger
Date. In the event that the Merger Agreement is terminated in accordance with
its terms, this Supplemental Indenture shall automatically become null and void
and the Company and the Trustee shall continue to comply with the Indenture. On
or promptly following the Merger Date, the Company shall furnish to the Trustee
an Officer's Certificate certifying that the Merger has occurred and that
Articles One, Two, Three and Four hereof have become effective.
SECTION 5.3 GOVERNING LAW.
THIS SUPPLEMENTAL INDENTURE AND THE NOTE GUARANTEE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. This Supplemental Indenture is
subject to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
SECTION 5.4 COUNTERPARTS.
This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 5.5 CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided herein, no duties, responsibilities or
liabilities are assumed, or shall be construed to be assumed, by the Trustee by
reason of this
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Supplemental Indenture. This Supplemental Indenture is executed and accepted by
the Trustee subject to all the terms and conditions set forth in the Indenture
with the same force and effect as if those terms and conditions were repeated at
length herein and made applicable to the Trustee with respect hereto.
SECTION 5.6 TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The Trustee shall not be responsible in any manner for or in respect of
the validity or sufficiency of this Supplemental Indenture, or for or in respect
of the recitals contained herein, all of which recitals are made by the Company
and the Guarantor.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have cause this Supplemental
Indenture No. 2 to be duly executed as of the first day and year first written
above.
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
President and Chief Operating Officer
XXXXXX INDUSTRIES LTD.
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Vice President - Finance
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
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