ENSCO INTERNATIONAL INCORPORATED, ENSCO INTERNATIONAL PLC, PARENT GUARANTOR AND DEUTSCHE BANK TRUST COMPANY AMERICAS, TRUSTEE SECOND SUPPLEMENTAL INDENTURE DATED AS OF DECEMBER 22, 2009 TO INDENTURE DATED AS OF NOVEMBER 20, 1997
Exhibit 4.1
ENSCO INTERNATIONAL INCORPORATED,
ENSCO INTERNATIONAL PLC,
PARENT GUARANTOR
PARENT GUARANTOR
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
TRUSTEE
TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF
DECEMBER
22, 2009
TO
DATED AS OF
NOVEMBER 20, 1997
This Second Supplemental Indenture, dated as of
December 22, 2009, is entered into by and
among ENSCO International Incorporated, a Delaware corporation (the “Company”), having its
principal office at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000-0000, Ensco
International plc, as guarantor, (“Parent Guarantor”), an English public limited company, having
its principal office at ENSCO House, Badentoy Avenue, Badentoy Industrial Estate, Aberdeen, AB12
4YB, Scotland, United Kingdom and Deutsche Bank Trust Company Americas, as Trustee (the “Trustee”),
having its principal office at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS OF THE COMPANY
The Company has executed and delivered to the Trustee an indenture, dated as of November 20, 1997
(the “Original Indenture”), as supplemented by the First Supplemental Indenture dated as of
November 20, 1997 (the “First Supplemental Indenture,” and together with the Original Indenture,
the “Indenture”), providing for the issuance from time to time of the Company’s unsecured
debentures, notes or other evidences of indebtedness (herein called the “Securities”), issuable in
one or more series as provided in the Indenture. All capitalized terms used herein that are defined
in the Indenture shall have the meanings assigned thereto in the Indenture unless otherwise defined
herein.
Section 902 of the Indenture permits the execution of supplemental indentures with the consent of
the Holders of a majority in principal amount of the Outstanding Securities of all series affected
by such supplemental indenture to add any provisions to or change in any manner or eliminate
any of
the provisions of the Indenture or modify in any manner the rights of the Holders of Securities of
such series under the Indenture, subject to limitations.
Pursuant to the foregoing authority, the Company proposes in and by this Second Supplemental
Indenture to supplement and amend the Indenture.
All things necessary to make this Second 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
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE 1
TABLE OF CONTENTS
Section 101. The Table of Contents of the Indenture is hereby amended by adding the following new
definitions in alphabetical order to the list of definitions in Section 101:
Guarantee
Guaranteed Obligations
Parent Guarantor
Section 102. The Table of Contents of the Indenture is hereby amended by adding the following new
article:
ARTICLE FOURTEEN
PARENT GUARANTOR
SECTION 1401. GUARANTEE
SECTION 1402. LIMITATION ON LIABILITY
SECTION 1403. SUCCESSORS AND ASSIGNS
SECTION 1404. NO WAIVER
SECTION 1405. MODIFICATION
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ARTICLE 2
FIRST PARAGRAPH
Section 201. The first paragraph of the Indenture is hereby amended and restated in its entirety
as follows:
THIS Indenture, dated as of November 20, 1997, by and among ENSCO International
Incorporated, a corporation duly organized and existing under the laws of the State of
Delaware (herein called the “Company”), having its principal office at 000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000-0000, Ensco International plc, as guarantor, a
public limited company duly organized and existing under the laws of England and Wales
(herein called the “Parent Guarantor”), and Deutsche Bank Trust Company Americas, a New
York banking corporation, as Trustee (herein called the “Trustee”), the office of the
Trustee at which at the date hereof its corporate trust business is principally
administered being 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
ARTICLE 3
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
OF GENERAL APPLICATION
Section 301. The definition of “Officers’ Certificate” in Section 101 in Article One of the
Indenture is hereby amended and restated in its entirety as follows:
“Officers’ Certificate” means a certificate signed by the Chairman of the Board, the
President or a Vice President, and by the Treasurer, the Controller, the Secretary or an
Assistant Treasurer, Assistant Controller or Assistant Secretary, of the Company or the
Parent Guarantor, as applicable, and delivered to the Trustee, which certificate shall be
in compliance with Section 103 hereof.
Section 302. The definition of “Opinion of Counsel” in Section 101 in Article One of the Indenture
is hereby amended and restated in its entirety as follows:
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for or an
employee of the Company or the Parent Guarantor, as applicable, rendered, if applicable, in
accordance with Section 314(c) of the Trust Indenture Act, which opinion shall be
reasonably acceptable to the Trustee and in compliance with Section 103 hereof.
Section 303. The definition of “Subsidiary” in Section 101 in Article One of the Indenture is
hereby amended and restated in its entirety as follows:
“Subsidiary” means, as to any Person, a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or the Parent Guarantor, or
by one or more other Subsidiaries, or by the Company or the Parent Guarantor and one or
more other Subsidiaries. For the purposes of this definition, “voting stock” means stock
that ordinarily has voting power for the election of directors, whether at all times or
only so long as no senior class of stock has such voting power by reason of any
contingency.
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Section 304. Section 101 in Article One of the Indenture is hereby amended by adding the following
new defined terms in alphabetical order as follows:
“Guarantee” has the meaning specified in Section 1401(4).
“Guaranteed Obligations” has the meaning specified in Section 1401(1).
“Parent Guarantor” has the meaning specified in the first paragraph of this Indenture,
until a successor Person shall have become such pursuant to the applicable provisions of
the Indenture, and thereafter “Parent Guarantor” shall mean such successor Person.
Section 305. Section 103 in Article One of the Indenture is hereby amended to add the phrase “or
the Parent Guarantor, as applicable,” after each reference therein to the “Company”.
Section 306. Section 104 in Article One of the Indenture is hereby amended to add the phrase “or
the Parent Guarantor, as applicable,” after each reference therein to the “Company”.
ARTICLE 4
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 401. Section 801 in Article Eight of the Indenture is hereby amended and restated in its
entirety, solely to include the Parent Guarantor, as follows:
Neither the Company nor the Parent Guarantor shall consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets substantially as an
entirety to any Person and neither the Company nor the Parent Guarantor shall permit any
person to consolidate with or merge into the Company or the Parent Guarantor or convey,
transfer or lease its properties and assets substantially as an entirety to the Company or
the Parent Guarantor unless:
(1) the Person formed by such consolidation or into which the Company or the
Parent Guarantor is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company or the Parent Guarantor
substantially as an entirety shall be a corporation, partnership or trust and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of (and premium, if any) and interest (including all Additional
Amounts, if any) on all the Securities and the performance of every covenant of
this Indenture on the part of the Company or the Parent Guarantor, as applicable,
to be performed or observed;
(2) immediately after giving effect to such transaction, no Default or Event
of Default shall have happened and be continuing; and
(3) the Company or the Parent Guarantor, as applicable, has delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such supplemental
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indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
ARTICLE 5
SUPPLEMENTAL INDENTURES
Section 501. The first paragraph of Section 901 and numbered paragraphs (1) and (2) in Article Nine
of the Indenture are hereby amended and restated in their entirety, solely to include the Parent
Guarantor, as follows:
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, the Parent Guarantor, when authorized by its board resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or the Parent
Guarantor, as applicable, and the assumption by any such successor of the covenants
of the Company or the Parent Guarantor, as applicable, herein and in the
Securities;
(2) to add to the covenants of the Company and/or the Parent Guarantor for the
benefit of the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series), to
convey, transfer, assign, mortgage or pledge any property to or with the Trustee or
otherwise secure any series of the Securities or to surrender any right or power
herein conferred upon the Company or the Parent Guarantor;
Section 502. The first paragraph of Section 902 in Article Nine of the Indenture is hereby amended
and restated in its entirety, solely to include the Parent Guarantor, as follows:
With the consent of the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by such supplemental indenture (acting as one class), by
Act of said Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, the Parent Guarantor, when authorized by its board resolution and
the Trustee may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of Securities of
such series under this Indenture; PROVIDED, HOWEVER, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected thereby,
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ARTICLE 6
COVENANTS
Section 601. The first paragraph of Section 1008 in Article Ten of the Indenture is hereby amended
and restated in its entirety, solely to include the Parent Guarantor, as follows:
Neither the Company nor the Parent Guarantor shall create, assume or suffer to exist
any Lien on any Restricted Property to secure any debt of the Company, the Parent
Guarantor, any Subsidiary or any other Person, or permit any Subsidiary so to do, without
making effective provision whereby the Securities then outstanding and having the benefit
of this Section shall be secured by a Lien equally and ratably with such debt for so long
as such debt shall be so secured, except that the foregoing shall not prevent the
Company, the Parent Guarantor or any Subsidiary from creating, assuming or suffering to
exist Liens of the following character:
Section 602. Numbered paragraphs (1) to (14) of Section 1008 in Article 10 of the Indenture are
hereby amended to add the phrase “, the Parent Guarantor” after each reference therein to the
“Company”.
Section 603. Section 1009 in Article Ten of the Indenture is hereby amended and restated in its
entirety, solely to include the Parent Guarantor, as follows:
Neither the Company nor the Parent Guarantor shall enter into any Sale and Leaseback
Transaction covering any Restricted Property, nor permit any Subsidiary to do so, unless:
(1) the Company, the Parent Guarantor or such Subsidiary would be entitled to
incur debt, in a principal amount at least equal to the Value of such Sale and
Leaseback Transaction, which is secured by Liens on the property to be leased
(without equally and ratably securing the outstanding Securities) because such
Liens would be of such character that no violation of the provisions of Section
1008 would result,
(2) after the date on which the Securities are originally issued and within
a period commencing nine months prior to the effective date of such Sale and
Leaseback Transaction and ending nine months after such effective date, the
Company, the Parent Guarantor or such Subsidiary shall have expended for Restricted
Property (at fair market value as determined by the Board of Directors of the
Company or the board of directors of the Parent Guarantor) used or to be used in
the ordinary course of business of the Company and its subsidiaries or the Parent
Guarantor and its Subsidiaries, as applicable, an amount equal to all or a portion
of the Value of such Sale and Leaseback Transaction and the Company or the Parent
Guarantor, as applicable, shall have elected to designate such amount as a credit
against such Sale and Leaseback Transaction (with any such amount not being so
designated to be applied as set forth in clause (3) below or as otherwise
permitted), or
(3) the Company or the Parent Guarantor during the nine months immediately
following the effective date of such Sale and Leaseback Transaction shall have
applied to the acquisition of Restricted Property or the voluntary
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retirement of
Funded Debt (whether by redemption, defeasance, repurchase, or otherwise) an amount
equal to the Value of such Sale and Leaseback Transaction (in either case adjusted
to reflect the remaining term of the lease and any amount expended by the Company
or the Parent Guarantor, as applicable, for Restricted Property as set forth in
clause (2) above).
ARTICLE 7
PARENT GUARANTOR
Section 701. Article Fourteen of the Indenture is hereby added as follows:
ARTICLE FOURTEEN
PARENT GUARANTOR
SECTION 1401. GUARANTEE
(1) Except as otherwise set forth in a supplemental indenture establishing a series of
Securities and subject to the provisions of this Article Fourteen, the Parent Guarantor
hereby unconditionally and irrevocably guarantees, as a primary obligor and not merely as a
surety, to each Holder and to the Trustee and its successors and assigns (a) the full and
punctual payment of principal of and interest on and liquidated damages in respect of the
Securities when due, whether on the Stated Maturity, by acceleration, by redemption or
otherwise, and all other monetary obligations of the Company under this Indenture
(including all obligations of the Company to the Trustee under this Indenture) and the
Securities and (b) the full and punctual performance within applicable grace periods of all
other obligations of the Company whether for expenses, indemnification or otherwise under
this Indenture and the Securities (all the foregoing being hereinafter collectively called
the “Guaranteed Obligations”). The Parent Guarantor further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice or further
assent from the Parent Guarantor, and that the Parent Guarantor shall remain bound under
this Article Fourteen notwithstanding any extension or renewal of any Guaranteed
Obligation.
(2) The Parent Guarantor waives (to the extent that it may lawfully do so) (a)
presentation to, demand of, payment from and protest to the Company of any of the
Guaranteed Obligations, (b) notice of protest for nonpayment and (c) notice of any default
under Securities of any series or the Guaranteed Obligations. The obligations of the Parent
Guarantor hereunder shall not be affected by (i) the failure of any Holder or the Trustee
to assert any claim or demand or to enforce any right or remedy against the Company or any
other Person under this Indenture, the Securities of any series or any other agreement or
otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver,
amendment or modification of any of the terms or provisions of this Indenture, the
Securities of any series or any other agreement relating to this Indenture or the
Securities; (iv) the release of any security held by any Holder or the Trustee for the
Guaranteed Obligations or any of them; (v) the failure of any Holder or the Trustee to
exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
(vi) any change in the ownership of the Parent Guarantor.
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(3) The Parent Guarantor hereby waives (to the extent that it may lawfully do so) (a)
any right to which it may be entitled to have the assets of the Company first be used and
depleted as payment of the Company’s or such Parent Guarantor’s obligations hereunder prior
to any amounts being claimed from or paid by the Parent Guarantor hereunder and (b) any
right to which it may be entitled to require that the Company be sued prior to an action
being initiated against the Parent Guarantor.
(4) The Parent Guarantor further agrees that its guarantee pursuant to this Article
Fourteen (the “Guarantee”) herein constitutes a guarantee of payment, performance and
compliance when due (and not a guarantee of collection) and waives (to the extent that it
may lawfully do so) any right to require that any resort be had by any Holder or the
Trustee to any security held for payment of the Guaranteed Obligations.
(5) Except as expressly set forth in Article Four and Section 1402, the obligations of
the Parent Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any defense of setoff,
counterclaim, recoupment or termination whatsoever or by reason of the invalidity,
illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of the Parent Guarantor herein shall not
be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee
to assert any claim or demand or to enforce any remedy under this Indenture, the Securities
of any series or any other agreement relating to this Indenture or the Securities, by any
waiver or modification of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the obligations, or by any other act or thing or omission
or delay to do any other act or thing which may or might in any manner or to any extent
vary the risk of the Parent Guarantor or would otherwise operate as a discharge of the
Parent Guarantor as a matter of law or equity.
(6) The Parent Guarantor agrees that its Guarantee shall remain in full force and
effect until payment in full of all the Guaranteed Obligations. The Parent Guarantor
further agrees that its Guarantee herein shall continue to be effective or be reinstated,
as the case may be, if at any time payment, or any part thereof, of principal of or
interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any
Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(7) In furtherance of the foregoing and not in limitation of any other right which any
Holder or the Trustee has at law or in equity against the Parent Guarantor by virtue
hereof, upon the failure of the Company to pay the principal of or interest on any
Guaranteed Obligation when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed
Obligation, the Parent Guarantor hereby promises to and shall, upon receipt of written
demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the
Trustee an amount equal to the sum of (a) the unpaid principal amount of such Guaranteed
Obligations, (b) accrued and unpaid interest on such Guaranteed Obligations (but only to
the extent not prohibited by law) and (c) all other monetary obligations of the Company to
the Holders and the Trustee.
(8) The Parent Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed
hereby until payment in full of all Guaranteed Obligations. The Parent
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Guarantor further
agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other
hand, (a) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated
as provided in Article Five for the purposes of any Guarantee herein, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of the
Guaranteed Obligations guaranteed hereby, and (b) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article Five, such Guaranteed
Obligations (whether or not due and payable) shall forthwith become due and payable by the
Parent Guarantor for the purposes of this Section 1401.
(9) The Parent Guarantor also agrees to pay any and all costs and expenses (including
reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing
any rights under this Section 1401.
SECTION 1402 LIMITATION ON LIABILITY
Any term or provision of this Indenture to the contrary notwithstanding, the maximum,
aggregate amount of the Guaranteed Obligations guaranteed hereunder by the Parent Guarantor
shall not exceed the maximum amount that can be hereby guaranteed without rendering this
Indenture, as it relates to the Parent Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
SECTION 1403 SUCCESSORS AND ASSIGNS
This Article Fourteen shall be binding upon the Parent Guarantor and its successors
and assigns and shall inure to the benefit of the successors and assigns of the Trustee and
the Holders and, in the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges conferred upon that party in this Indenture and in the
Securities of any series shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Indenture
SECTION 1404 NO WAIVER
Neither a failure nor a delay on the part of either the Trustee or the Holders in
exercising any right, power or privilege under this Article Fourteen shall operate as a
waiver thereof, nor shall a single or partial exercise thereof preclude any other or
further exercise of any right, power or privilege. The rights, remedies and benefits of the
Trustee and the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article Fourteen at
law, in equity, by statute or otherwise.
SECTION 1405 MODIFICATION
No modification, amendment or waiver of any provision of this Article Fourteen, nor
the consent to any departure by the Parent Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Trustee and the Parent
Guarantor, and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice to or demand on the Parent Guarantor in any
case shall entitle the Parent Guarantor to any other or further notice or demand in the
same, similar or other circumstances.
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* * *
This instrument 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly
executed as of the day and year first above written.
ENSCO INTERNATIONAL INCORPORATED
| By: | /s/ Xxxxx X. Xxxxx III | |||
| Name: | Xxxxx X. Xxxxx III | |||
| Title: | Senior Vice President — Chief Financial Officer | |||
| ENSCO INTERNATIONAL PLC, Parent Guarantor |
||||
| By: | /s/ Xxxxx X. Xxxxx III | |||
| Name: | Xxxxx X. Xxxxx III | |||
| Title: | Senior Vice President — Chief Financial Officer | |||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, Trustee |
||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Assistant Vice President | |||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Vice President | |||
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