EXHIBIT 4.2
[CONFORMED]
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PRIDE PETROLEUM SERVICES, INC.
and
THE CHASE MANHATTAN BANK
Trustee.
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FIRST SUPPLEMENTAL INDENTURE
Dated as of May 1, 1997
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Supplementing the Indenture
dated as of
May 1, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE ONE SUPPLEMENT OF THE ORIGINAL INDENTURE........................... 1
SECTION 1.1. SUPPLEMENT TO ARTICLE ONE OF THE ORIGINAL INDENTURE...... 1
SECTION 1.3. SUPPLEMENT TO ARTICLE FIVE OF THE ORIGINAL INDENTURE..... 17
SECTION 1.4. SUPPLEMENT TO ARTICLE EIGHT OF THE ORIGINAL INDENTURE.... 18
SECTION 1.5. SUPPLEMENT TO ARTICLE NINE OF THE ORIGINAL INDENTURE..... 19
SECTION 1.6. SUPPLEMENT TO ARTICLE TEN OF THE ORIGINAL INDENTURE...... 20
SECTION 1.7. SUPPLEMENT TO ARTICLE ELEVEN OF THE ORIGINAL INDENTURE... 28
SECTION 1.8. NEW ARTICLE FOURTEEN..................................... 29
SECTION 1.9. EFFECT OF ARTICLE ONE.................................... 34
ARTICLE TWO THE NOTES...................................................... 34
ARTICLE THREE REPRESENTATIONS OF THE COMPANY............................... 34
SECTION 3.1. AUTHORITY OF THE COMPANY................................. 34
SECTION 3.2. TRUTH OF RECITALS AND STATEMENTS......................... 34
ARTICLE FOUR CONCERNING THE TRUSTEE........................................ 35
SECTION 4.1. ACCEPTANCE OF TRUSTS..................................... 35
SECTION 4.2. NO RESPONSIBILITY OF TRUSTEE FOR RECITALS, ETC........... 35
ARTICLE FIVE MISCELLANEOUS PROVISIONS...................................... 35
SECTION 5.1. RELATION TO THIS INDENTURE............................... 35
SECTION 5.2. MEANING OF TERMS......................................... 35
SECTION 5.3. COUNTERPARTS OF SUPPLEMENTAL INDENTURE................... 35
SECTION 5.4. GOVERNING LAW............................................ 35
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of May 1, 1997, between Pride
Petroleum Services, Inc., a Louisiana corporation (the "Company"), and The Chase
Manhattan Bank, as Trustee (the "Trustee") under the Original Indenture referred
to below,
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness (the
"Securities"), which are to be issued in one or more series; and the Company has
heretofore made, executed and delivered to the Trustee its Indenture of even
date herewith (the "Original Indenture") pursuant to which the Securities are
issuable;
WHEREAS, Sections 201 and 901 of the Original Indenture provide that the
form or terms of any series of Securities may be established in an Indenture
supplemental thereto, and the Company desires to establish in this First
Supplemental Indenture both the form and terms of a series of Securities
designated as its 9 3/8% Senior Notes due 2007 (the "Notes");
WHEREAS, Section 901 of the Original Indenture further provides that under
certain conditions the Company 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 purposes, INTER ALIA, of adding to the
covenants of the Company for the benefit of the Holders of all or any series of
Securities, and adding any additional Events of Default, and the Company desires
by means of this First Supplemental Indenture to add to its covenants for the
sole benefit of the Holders of the Notes and to add certain additional Events of
Default, also solely for the benefit of such Holders; and
WHEREAS, all things necessary to authorize the execution and delivery of
this First Supplemental Indenture, to establish the Notes as provided for in
this First Supplemental Indenture, and to make the Original Indenture, as
supplemented by this First Supplemental Indenture (the Original Indenture, as so
supplemented by this Supplemental Indenture, being sometimes referred to herein
as the "Indenture"), a valid agreement of the Company, in accordance with its
terms, have been done;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH
that for and in consideration of the premises and the purchase of the Notes by
the Holders, the Company and the Trustee mutually covenant and agree, solely for
the equal and proportionate benefit of the respective Holders from time to time
of the Notes, as follows:
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ARTICLE ONE
SUPPLEMENT OF THE ORIGINAL INDENTURE
SECTION 1.1. SUPPLEMENT TO ARTICLE ONE OF THE ORIGINAL INDENTURE. Section
101 of the Original Indenture is supplemented or superseded with respect to the
Notes, in the case of definitional paragraphs that may be inconsistent, by
inserting therein, in alphabetical order, the following definitional paragraphs:
"Adjusted Net Assets" of a Subsidiary Guarantor at any date shall mean the
amount by which the Fair Value of the properties and assets of such Subsidiary
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under its Subsidiary Guarantee, of such Subsidiary Guarantor at such
date.
"Affiliate" of any specified Person means another Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED, HOWEVER,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control.
"Asset Sale" means any direct or indirect sale, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger or
consolidation or by means of a Sale and Lease-Back Transaction other than a Sale
and Lease-Back Transaction that results in the creation or incurrence of (a) a
Capital Lease Obligation of the Company or any Subsidiary or (b) a lease of
newly constructed assets, which lease is treated as an operating lease in
accordance with GAAP and entered into within 180 days of completion of
construction) by the Company or any Subsidiary to any Person other than the
Company or a Wholly Owned Subsidiary, in one transaction, or a series of related
transactions, of (i) any Capital Stock of any Subsidiary (except for directors'
qualifying shares or certain minority interests sold to other Persons solely due
to local law requirements that there be more than one stockholder, but which are
not in excess of what is required for such purpose) or (ii) any other Property
or assets of the Company or any Subsidiary, other than (A) sales of drill-string
components and obsolete or worn out equipment in the ordinary course of business
or other assets that, in the Company's reasonable judgment, are no longer used
or useful in the conduct of the business of the Company and its Subsidiaries,
(B) any drilling contract, charter (bareboat or otherwise) or other lease of
Property or other asset entered into by the Company or any Subsidiary in the
ordinary course of business, other than any Bargain Purchase Contract, (C) a
Restricted Payment or Permitted Investment permitted under Section 1009 hereof,
(D) a Change of Control, (E) a consolidation, merger or the disposition of all
or substantially all of the assets of the Company in compliance with Section 801
hereof, (F) any trade or exchange by the Company or any Subsidiary
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of one or more drilling rigs for one or more other drilling rigs of like kind
owned or held by another Person, PROVIDED that (x) the Fair Value of the rig or
rigs traded or exchanged by the Company or such Subsidiary (including cash or
cash equivalents to be delivered by the Company or such Subsidiary) is
reasonably equivalent to the Fair Value of the drilling rig or rigs (together
with cash or cash equivalents to be received by the Company or such Subsidiary)
as determined by written appraisal by a nationally (or industry) recognized
investment banking firm or appraisal firm and (y) such exchange is approved by a
majority of the disinterested directors of the Company and (G) any transfers
that, but for this clause (G), would be Asset Sales, if (y) the Company elects
to designate such transfers as not constituting Asset Sales and (z) after giving
effect to such transfers, the aggregate Fair Market Value of the Property or
assets transferred in such transaction or any such series of related
transactions so designated by the Company does not exceed $500,000. An Asset
Sale shall include the requisition of title to, seizure of or forfeiture of any
Property or assets, or any actual or constructive total loss or an agreed or
compromised total loss of any Property or assets.
"Attributable Indebtedness" in respect of a Sale and Lease-Back
Transaction means, at any date of determination, the present value (discounted
at the interest rate borne by the Notes, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease (or to the first date on which the lessee is permitted to terminate such
lease without the payment of a penalty) included in such Sale and Lease-Back
Transaction (including any period for which such lease has been extended).
"Average Life" means, as of any date, with respect to any debt security,
the quotient obtained by dividing (i) the sum of the products of (x) the number
of years from such date to the date of each scheduled principal payment
(including any sinking fund or mandatory redemption payment requirements) of
such debt security multiplied in each case by (y) the amount of such principal
payment by (ii) the sum of all such principal payments.
"Bargain Purchase Contract" means a drilling contract, charter (bareboat
or otherwise) or lease that provides for acquisition of Property by the other
party to such agreement during or at the end of the term thereof for less than
Fair Market Value thereof at the time such right to acquire such Property is
granted.
"Capital Lease Obligation" means, at any time as to any Person with
respect to any Property leased by such Person as lessee, the amount of the
liability with respect to such lease that would be required at such time to be
capitalized and accounted for as a capital lease on the balance sheet of such
Person prepared in accordance with GAAP.
"Capital Stock" in any Person means any and all shares, interests,
partnership interests, participations or other equivalents in the equity
interest (however designated) in such Person and any rights (other than debt
securities convertible into an equity interest), warrants or options to acquire
an equity interest in such Person.
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"Cash Proceeds" means, with respect to any Asset Sale by any Person, the
aggregate consideration received for such Asset Sale by such Person in the form
of cash or cash equivalents (including any amounts of insurance or other
proceeds received in connection with an Asset Sale of the type described in the
last sentence of the definition thereof), including payments in respect of
deferred payment obligations when received in the form of cash or cash
equivalents (except to the extent that such obligations are financed or sold
with recourse to such Person or any subsidiary thereof). For purposes of this
definition, "cash or cash equivalents" shall be deemed to include, for a period
not to exceed 12 months from the related Asset Sale, noncash consideration
received with respect to an Asset Sale to the extent that such noncash
consideration consists of (i) publicly traded debt securities of a Person, which
securities are rated as "BBB-" or higher by Standard & Poor's Ratings Services
("S&P") and "Baa3" or higher by Xxxxx'x Investors Service, Inc. ("Moody's"), or
(ii) other Indebtedness of a Person if (x) the lowest rated long-term, unsecured
debt obligation issued by such Person is rated "BBB-" or higher by S&P and
"Baa3" or higher by Moody's or (y) in the case of other Indebtedness, the
payment of such other Indebtedness is secured by an irrevocable letter of credit
issued by a commercial bank having capital and surplus in excess of $100 million
and long-term unsecured debt obligations rated at least "A-" by S&P and "A3" by
Moody's.
"Change of Control" means (i) a determination by the Company that any
Person or group (as defined in Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended ("Exchange Act")) has become the direct or
indirect beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
more than 50% of the Voting Stock of the Company; (ii) the Company is merged
with or into or consolidated with another corporation and, immediately after
giving effect to the merger or consolidation, less than 50% of the outstanding
voting securities entitled to vote generally in the election of directors or
persons who serve similar functions of the surviving or resulting entity are
then beneficially owned (within the meaning of Rule 13d-3 of the Exchange Act)
in the aggregate by (x) the stockholders of the Company immediately prior to
such merger or consolidation, or (y) if the record date has been set to
determine the stockholders of the Company entitled to vote on such merger or
consolidation, the stockholders of the Company as of such record date; (iii) the
Company, either individually or in conjunction with one or more Subsidiaries,
sells, conveys, transfers or leases, or the Subsidiaries sell, convey, transfer
or lease, all or substantially all of the assets of the Company and the
Subsidiaries, taken as a whole (either in one transaction or a series of related
transactions), including Capital Stock of the Subsidiaries, to any Person (other
than a Wholly Owned Subsidiary); (iv) the liquidation or dissolution of the
Company; or (v) the first day on which a majority of the individuals who
constitute the Board of Directors are not Continuing Directors.
"Consolidated Current Liabilities" of any Person means, as of any date,
the total liabilities (including tax and other proper accruals) of such Person
and its subsidiaries (other than Non-Recourse Subsidiaries) on a consolidated
basis at such date which may properly be classified as current liabilities in
accordance with GAAP.
"Consolidated Interest Coverage Ratio" means as of the date of the
transaction giving rise to the need to calculate the Consolidated Interest
Coverage Ratio (the "Transaction Date"), the ratio
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of (i) the aggregate amount of EBITDA of the Company for the latest four fiscal
quarters for which financial information in respect thereof is available
immediately prior to the applicable Transaction Date (the "Determination
Period") to (ii) the aggregate Consolidated Interest Expense of the Company that
is anticipated to accrue during a period consisting of the fiscal quarter in
which the Transaction Date occurs and the three fiscal quarters immediately
subsequent thereto (based upon the pro forma amount and maturity of, and
interest payments in respect of, Indebtedness of the Company and its
consolidated Subsidiaries expected by the Company to be outstanding on the
Transaction Date and reasonably anticipated by the Company to be outstanding
from time to time during such period), assuming for the purposes of this
measurement the continuation of market interest rates prevailing on the
Transaction Date and base interest rates in respect of floating interest rate
obligations equal to the base interest rates on such obligations in effect as of
the Transaction Date, PROVIDED that if the Company or any of its consolidated
Subsidiaries (other than Non-Recourse Subsidiaries) is a party to any Interest
Swap Obligation which would have the effect of changing the interest rate on any
Indebtedness of the Company or any of its consolidated Subsidiaries (other than
Non-Recourse Subsidiaries) for such four-quarter period (or a portion thereof),
the resulting rate shall be used for such four-quarter period or portion
thereof; PROVIDED, HOWEVER, that any Consolidated Interest Expense of the
Company with respect to Indebtedness incurred or retired by the Company or any
of its Subsidiaries (other than Non-Recourse Subsidiaries) during the fiscal
quarter in which the Transaction Date occurscurred or retired on the first day
of the fiscal quarter in which the Transaction Date occurs; PROVIDED, FURTHER,
that if the transaction giving rise to the need to calculate the Consolidated
Interest Coverage Ratio would have the effect of increasing or decreasing EBITDA
in the future and if such increase or decrease is readily quantifiable and is
directly attributable to such transaction, EBITDA shall be calculated on a pro
forma basis as if such transaction had occurred on the first day of the four
fiscal quarters referred to in clause (i) of this definition, and if, during the
same four fiscal quarters, (x) the Company or any of its consolidated
Subsidiaries (other than Non-Recourse Subsidiaries) shall have engaged in any
Asset Sale, EBITDA for such period shall be reduced by an amount equal to the
EBITDA (if positive), or increased by an amount equal to the EBITDA (if
negative), directly attributable to the assets which are the subject of such
Asset Sale for such period calculated on a pro forma basis as if such Asset Sale
and any related retirement of Indebtedness had occurred on the first day of such
period or (y) after the Issue Date, the Company or any of its consolidated
Subsidiaries (other than Non-Recourse Subsidiaries) shall have acquired any
material assets other than in the ordinary course of business, EBITDA and
Consolidated Interest Expense (if Indebtedness is incurred or assumed in
connection with such acquisition) shall be calculated on a pro forma basis as if
such acquisition and related financing had occurred on the first day of such
period.
"Consolidated Interest Expense" means, with respect to any Person for any
period, without duplication, (A) the sum of (i) the aggregate amount of cash and
noncash interest expense (including capitalized interest) of such Person and its
subsidiaries (other than Non-Recourse Subsidiaries) for such period as
determined on a consolidated basis in accordance with GAAP in respect of
Indebtedness (including, without limitation, (v) any amortization of debt
discount, (w) net costs associated with Interest Swap Obligations (including any
amortization of discounts), (x) the interest portion of any deferred payment
obligation, (y) all accrued interest and (z) all commissions,
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discounts and other fees and charges owed with respect to letters of credit,
bankers acceptances or similar facilities paid or accrued, or scheduled to be
paid or accrued, during such period other than in respect of Non-Recourse
Indebtedness); (ii) dividends on preferred stock of such Person (and preferred
stock of its subsidiaries (other than Non-Recourse Subsidiaries) if paid to a
Person other than such Person or its subsidiaries) declared and payable in cash;
(iii) the portion of any rental obligation of such Person or its subsidiaries
(other than Non-Recourse Subsidiaries) in respect of any Capital Lease
Obligation allocable to interest expense in accordance with GAAP; (iv) the
portion of any rental obligation of such Person or its subsidiaries (other than
Non-Recourse Subsidiaries) in respect of any Sale and Lease-Back Transaction
allocable to interest expense (determined as if such were treated as a Capital
Lease Obligation); and (v) to the extent any debt of any other Person is
guaranteed by such Person or any of its subsidiaries (other than Non-Recourse
Subsidiaries), (A) the aggregate amount of interest paid, accrued or scheduled
to be paid or accrued, by such other Person during such period attributable to
any such debt, LESS (B) to the extent included in (A) above, amortization or
writeoff of deferred financing costs of such Person and its subsidiaries during
such period and any charge related or any premium or penion with redeeming or
retiring any Indebtedness of such Person and its subsidiaries prior to its
stated maturity; in the case of both (A) and (B) above, after elimination of
intercompany accounts among such Person and its subsidiaries and as determined
in accordance with GAAP.
"Consolidated Net Income" of any Person means, for any period, the
aggregate net income (or net loss, as the case may be) of such Person and its
subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP, PROVIDED that there shall be excluded therefrom, without duplication,
(i) any net income of any Non-Recourse Subsidiary, except that the Company's or
any Subsidiary's equity in the net income of such Non-Recourse Subsidiary for
such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash or cash equivalents actually distributed by such
Non-Recourse Subsidiary during such period to the Company or such subsidiary as
a dividend or other distribution, (ii) gains and losses from Asset Sales or
reserves relating thereto, (iii) items classified as extraordinary (other than
the tax benefit, if any, of the utilization of net operating loss carryforwards
or alternative minimum tax credits), (iv) the net income of any Person acquired
by such specified Person (other than a Non-Recourse Subsidiary) or any of its
subsidiaries in a pooling-of-interests transaction for any period prior to the
date of such acquisition, (v) any gain or loss, net of taxes, realized on the
termination of any employee pension benefit plan, and (vi) the net income of any
subsidiary of such specified Person to the extent that the transfer to that
Person of that income is not at the time permitted, directly or indirectly, by
any means (including by dividend, distribution, advance or loan or otherwise),
by operation of the terms of its charter or any agreement with a Person other
than with such specified Person, instrument held by a Person other than by such
specified Person, judgment, decree, order, statute, law, rule or governmental
regulations applicable to such subsidiary or its stockholders, except for any
dividends or distributions actually paid by such subsidiary to such Person.
"Consolidated Net Tangible Assets" of any Person means, as of any date,
Consolidated Tangible Assets of such Person at such date, after deducting
therefrom (without duplication of deductions) all Consolidated Current
Liabilities of such Person at such date.
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"Consolidated Net Worth" of any Person means, as of any date, the sum of
the Capital Stock and additional paid-in capital plus retained earnings (or
minus accumulated deficit) of such Person and its subsidiaries on a consolidated
basis at such date, each item determined in accordance with GAAP, less amounts
attributable to Redeemable Stock of such Person or any of its subsidiaries.
"Consolidated Tangible Assets" of any Person means, as of any date, the
consolidated assets of such Person and its subsidiaries (other than Non-Recourse
Subsidiaries) at such date, after eliminating intercompany items and after
deducting from such total (i) the net book value of all assets that would be
classified as intangibles under GAAP (including, without limitation, goodwill,
organizational expenses, trademarks, trade names, copyrights, patents, licenses
and any rights in any thereof) and (ii) any prepaid expenses, deferred charges
and unamortized debt discount and expense, each such item determined in
accordance with GAAP.
"Continuing Director" means an individual who (i) is a member of the Board
of Directors of the Company and (ii) either (A) was a member of the Board of
Directors of the Company on the Issue Date or (B) whose nomination for election
or election to the Board of Directors of the Company was approved by vote of at
least 662/3% of the directors then still in office who were either directors on
the Issue Date or whose election or nomination for election was previously so
approved.
"Currency Hedge Obligations" means, at any time as to any Person, the
obligations of such Person at such time which were incurred in the ordinary
course of business pursuant to any foreign currency exchange agreement, option
or future contract or other similar agreement or arrangement designed to protect
against or manage such Person's or any of its subsidiaries' exposure to
fluctuations in foreign currency exchange rates.
"Determination Period" has the meaning specified under clause (i) of the
definition of "Consolidated Interest Coverage Ratio."
"EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such person, for such period, plus to the extent
reflected in the income statement of such Person for such period from which
Consolidated Net Income is determined, without duplication, (i) Consolidated
Interest Expense, (ii) income tax expense, (iii) depreciation expense, (iv)
amortization expense, (v) any charge related to any premium or penalty paid in
connection with redeeming or retiring any Indebtedness prior to its stated
maturity, and (vi) any other non-cash charges.
"Fair Market Value" means, with respect to consideration received or to be
received pursuant to any transaction by any Person, the fair market value of
such consideration as determined in good faith by the Board of Directors of the
Company.
"Fair Value" means, with respect to any asset or Property, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under undue
pressure or compulsion to complete the transaction.
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"Funded Indebtedness" means all Indebtedness incurred under any revolving
credit, letter of credit or working capital facility that matures by its terms,
or that is renewable at the option of any obligor therein to a date more than
one year after the date on which such Indebtedness is originally incurred.
"GAAP" means, at any date, United States generally accepted accounting
principles, consistently applied, as set forth in the opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants
("AICPA") and statements of the Financial Accounting Standards Board, or in such
other statements by such other entity as may be designated by the AICPA, that
are applicable to the circumstances as of the date of determination; PROVIDED,
HOWEVER, that all calculations made for purposes of determining compliance with
the provisions set forth in Article 10 hereof shall utilize GAAP in effect at
the Issue Date.
"Indebtedness" as applied to any Person means, at any time, without
duplication, (i) any obligation of such Person, contingent or otherwise, for
borrowed money; (ii) any obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments; (iii) any obligation of such
Person for all or any part of the purchase price of Property or for the cost of
Property constructed or of improvements thereto (including any obligation under
or in connection with any letter of credit related thereto), other than accounts
payable included in current liabilities incurred in respect of Property and
services purchased in the ordinary course of business; (iv) any obligation of
such Person upon which interest charges are customarily paid (other than
accounts payable incurred in the ordinary course of business); (v) any
obligation of such Person under conditional sale or other title retention
agreements relating to purchased Property; (vi) any obligation of such Person
issued or assumed as the deferred purchase price of Property (other than
accounts payable incurred in the ordinary course of business); (vii) any Capital
Lease Obligation; (viii) any obligation of any other Person secured by (or for
which the obligee thereof has an existing right, contingent or otherwise, to be
secured by) any Lien on Property owned or acquired, whether or not any
obligation secured thereby has been assumed, by such Person; (ix) any obligation
of such Person in respect of any letter of credit supporting any obligation of
any other Person; (x) the maximum fixed repurchase price of any Redeemable Stock
of such Person (or if such Person is a subsidiary, any preferred stock of such
Person); (xi) any Interest Swap Obligation or Currency Hedge Obligation of such
Person; and (xii) any obligation which is in economic effect a guarantee,
regardless of its characterization (other than an endorsement in the ordinary
course of business), with respect to any Indebtedness of another Person, to the
extent guaranteed. ing sentence, the maximum fixed repurchase price of any
Redeemable Stock or subsidiary preferred stock that does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Redeemable Stock or subsidiary preferred stock as if such Redeemable Stock or
subsidiary preferred stock were repurchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture; PROVIDED,
HOWEVER, that if such Redeemable Stock or subsidiary preferred stock is not then
permitted to be repurchased, the repurchase price shall be the book value of
such Redeemable Stock or subsidiary preferred stock. The amount of Indebtedness
of any Person at any date shall be (x) the outstanding book value at such date
of all unconditional obligations as described above and (y) the maximum
liability of any such contingent obligation at such date.
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"Interest Swap Obligations" means, with respect to any Person, the
obligation of such Person pursuant to any interest rate swap agreement, interest
rate cap, collar or floor agreement or other similar agreement or arrangement
designed to protect against or manage such Person's or any of its subsidiaries'
exposure to fluctuations in interest rates.
"Investment" means with respect to any Person, any investment in another
Person, whether by means of a share purchase, capital contribution, loan,
advance (other than advances to employees for moving and travel expenses,
drawing accounts and similar expenditures or prepayments or deposits in the
ordinary course of business) or similar credit extension constituting
Indebtedness of such other Person and any guarantee of Indebtedness of any other
Person; PROVIDED, HOWEVER, that the term "Investment" shall not include any
transaction involving the purchase or other acquisition (including by way of
merger) of Property (including Capital Stock) by the Company or any Subsidiary
in exchange for Capital Stock (other than Redeemable Stock) of the Company. The
amount of any Person's Investment shall be the original cost of such Investment
to such Person, PLUS the cost of all additions thereto paid by such Person, and
MINUS the amount of any portion of such Investment repaid to such Person in cash
as a repayment of principal or a return of capital, as the case may be, but
without any other adjustments for increases or decreases in value, or writeups,
writedowns or writeoffs with respect to such Investment in determining the
amount of any investment involving a transfer of any Property other than cash,
such Property shall be valued at its Fair Value at the time of such transfer as
determined in good faith by the board of directors (or comparable body) of the
Person making such transfer.
"Issue Date" means the date on which the Notes are first authenticated and
delivered under this Indenture.
"Lien" means any mortgage, pledge, hypothecation, charge, assignment,
deposit arrangement, encumbrance, security interest, lien (statutory or other),
or preference, priority or other security or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
agreement to give or xxxxx x Xxxx or any lease, conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"Limited Recourse Indebtedness" means (i) Indebtedness with respect to the
two drilling/workover barge rigs owned by the Company's Venezuelan Subsidiary as
in effect on the date of this Indenture (the "Venezuelan Barge Financing") and
(ii) Indebtedness incurred to finance the purchase, acquisition, renovation or
construction of capital assets and related items (including interest added to
principal), or refinancings thereof, (a) in respect of which the recourse of the
holder of such Indebtedness is effectively limited to such capital assets and
related items or (b) in which the recourse and security are similar to (or more
favorable to the Company and its Subsidiaries than) the Venezuelan Barge
Financing.
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"Maturity" means the date on which the principal of a Note becomes due and
payable as provided therein or in this Indenture, whether at the Stated Maturity
or by declaration of acceleration or otherwise.
"Net Available Proceeds" means, (a) as to any Asset Sale (other than a
Bargain Purchase Contract), the Cash Proceeds therefrom, net of all legal and
title expenses, commissions and other fees and expenses incurred, and all
Federal, state, provincial, foreign, recording and local taxes payable as a
consequence of such Asset Sale, net of all payment made to any Person other than
the Company or a Subsidiary on any Indebtedness which is secured by such assets,
in accordance with the terms of any Lien upon or with respect to such assets, or
which must by its terms, or in order to obtain a necessary consent to such Asset
Sale, or by applicable law, be repaid out of the proceeds from such Asset Sale
and, as for any Asset Sale by a Subsidiary, net of the equity interest in such
Cash Proceeds of any holder of Capital Stock of such Subsidiary (other than the
Company or any other Subsidiary) and (b) as to any Bargain Purchase Contract, an
amount equal to (i) that portion of the rental or other payment stream arising
under a Bargain Purchase Contract that represents an amount in excess of the
Fair Market Value of the rental or other payments with respect to the pertinent
Property or other asset and (ii) the Cash Proceeds from the sale of such
Property or other asset, net of the amounts set forth in clause (a) above, in
each case as and when received.
"Non-Recourse Indebtedness" means Indebtedness or that portion of
Indebtedness of a Non-Recourse Subsidiary as to which (a) neither the Company
nor any other Subsidiary (other than a Non-Recourse Subsidiary) (i) provides
credit support including any undertaking, agreement or instrument which would
constitute Indebtedness or (ii) is directly or indirectly liable for such
Indebtedness and (b) no default with respect to such Indebtedness (including any
rights which the holders thereof may have to take enforcement action against a
Non-Recourse Subsidiary) would permit (upon notice, lapse of time or both) any
holder of any other Indebtedness of the Company or its Subsidiaries to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.
"Non-Recourse Subsidiary" means (i) any Subsidiary of the Company that at
the time of determination will be designated a Non-Recourse Subsidiary by the
Board of Directors of the Company as provided below and (ii) any Subsidiary of a
Non-Recourse Subsidiary. The Board of Directors of the Company may designate any
Subsidiary of the Company as a Non-Recourse Subsidiary so long as (a) neither
the Company nor any Subsidiary is directly or indirectly liable pursuant to the
terms of any Indebtedness of such Subsidiary; (b) no default with respect to any
Indebtedness of such Subsidiary would permit (upon notice, lapse of time or
otherwise) any holder of any other Indebtedness of the Company or any Subsidiary
to declare a default on such other Indebtedness or cause the payment thereof to
be accelerated or payable prior to its stated maturity; (c) neither the Company
nor any Subsidiary has made an Investment in such Subsidiary unless such
Investment was made pursuant to, and in accordance with, Section 1009 hereof
(other than Investments of the type described in clause (i) of the definition of
"Permitted Investments"); and (d) such designation shall not result in the
creation or imposition of any Lien on any Property of the Company or any
Subsidiary (other than any Permitted Lien or any Lien the creation or imposition
- 10 -
of which shall have been in compliance with Section 1015 hereof); PROVIDED,
HOWEVER, that with respect to clause (a), the Company or a Subsidiary may be
liable for Indebtedness of a Non-Recourse Subsidiary if (x) such liability
constituted a Permitted Investment or a Restricted Payment permitted by Section
1009 hereof, in each case at the time of incurrence, or (y) the liability would
be a Permitted Investment at the time of designation of such Subsidiary as a
Non-Recourse Subsidiary. Any such designation by the Board of Directors of the
Company shall be evidenced to the Trustee by filing a Board Resolution with the
Trustee giving effect to such designation. The Board of Directors of the Company
may designate any Non-Recourse Subsidiary as a Subsidiary if, immediately
aftesignation, (i) no Default or Event of Default shall have occurred and be
continuing, (ii) the Company could incur $1.00 of additional Indebtedness (not
including the incurrence of Permitted Indebtedness) under the first paragraph of
Section 1010 hereof and (iii) if any Property of the Company or any of its
Subsidiaries would upon such designation become subject to any Lien (other than
a Permitted Lien), the creation or imposition of such Lien shall have been in
compliance with Section 1015 hereof.
"Notes" means the 9 3/8% Senior Notes due 2007.
"Permitted Indebtedness" means (a) Indebtedness of the Company under the
Notes; (b) Indebtedness (and any guarantee or pledge thereof) under one or more
bank revolving credit facilities in an aggregate principal amount at any one
time outstanding not to exceed the greater of (A) $100 million and (B) an amount
equal to 10% of Consolidated Net Tangible Assets determined as of the date of
the incurrence of such Indebtedness (plus interest and fees under such
facilities), less any amounts derived from Asset Sales and applied to the
permanent reduction of Indebtedness thereunder (and a permanent reduction of the
related commitment to lend thereunder) as contemplated by Section 1013 hereof;
(c) Indebtedness of the Company or any Subsidiary under Interest Swap
Obligations, PROVIDED that (i) such Interest Swap Obligations are related to
payment obligations on Indebtedness otherwise permitted under the covenants
described in Section 1010 hereof and (ii) the notional principal amount of such
Interest Swap Obligations does not exceed the principal amount of the
Indebtedness to which such Interest Swap Obligations relate; (d) Indebtedness of
the Company or any Subsidiary under Currency Hedge Obligations, PROVIDED that
(i) such Currency Hedge Obligations are related to payment obligations on
Indebtedness otherwise permitted under the covenants described in Section 1010
hereof or to the foreign currency cash flows reasonably expected to be generated
by the Company and the Subsidiaries and (ii) the notional principal amount of
such Currency Hedge Obligations does not exceed the principal amount of the
Indebtedness and the amount of the foreign currency cash flows to which such
Currency Hedge Obligations relate; (e) Indebtedness of the Company or any
Subsidiary outstanding on the Issue Date; (f) the Subsidiary Guarantees of the
Notes (and any assumption of the obligations guaranteed thereby); (g)
Indebtedness of the Company or any Subsidiary in respect of bid performance
bonds, surety bonds, appeal bonds and letters of credit or similar arrangement
issued for the account of the Company or any Subsidiary, in each case in the
ordinary course of business; (h) Indebtedness of the Company to any Wholly Owned
Subsidiary (but only so long as it remains a Wholly Owned Subsidiary); (i)
Indebtedness of any Subsidiary (other than a Non-Recourse Subsidiary) to the
Company or any Wholly Owned Subsidiary (but only so long as it remains a Wholly
Owned
- 11 -
Subsidiary); (j) Indebtedness of the Company in connection with a purchase of
the Notes pursuant to a Change of Control Offer, PROVIDED that the aggregate
principal amount of such Indebtedness does not exceed 101% of the aggregate
principal amount of the Notes purchased pursuant to such Change of Control Offer
plus the related expenses of such purchase; PROVIDED, FURTHER, that such
Indebtedness (A) has an Average Life equal to or greater than the remaining
Average Life of the Notes and (B) does not mature prior to one year following
the Stated Maturity of the Notes; (k) Permitted Refinancing Indebtedness and (I)
Perg Indebtedness. So as to avoid duplication in determining the amount of
Permitted Indebtedness under any clause of this definition, guarantees of, or
obligations in respect of letters of credit supporting, Indebtedness otherwise
included in the determination of such amount shall not also be included.
"Permitted Investments" means (a) certificates of deposit, bankers
acceptances, time deposits, Eurocurrency deposits and similar types of
Investments routinely offered by commercial banks with final maturities of one
year or less issued by commercial banks having capital and surplus in excess of
$100 mullion; (b) commercial paper issued by any corporation, if such commercial
paper has credit ratings of at least A-1 by "S&P" and at least "P-I" by Xxxxx'x;
(c) U.S. Government Obligations with a maturity of four years or less; (d)
repurchase obligations for instruments of the type described in clause (c); (e)
shares of money market mutual or similar funds having assets in excess of $100
million; (f) payroll advances in the ordinary course of business; (g) other
advances and loans to officers and employees of the Company or any Subsidiary,
so long as the aggregate principal amount of such advances and loans does not
exceed $500,000 at any one time outstanding; (h) Investments represented by that
portion of the proceeds from Asset Sales (1) that is not Cash Proceeds or (2)
that is deemed to be Cash Proceeds pursuant to the second sentence of the
definition of Cash Proceeds; (i) Investments made by the Company in its Wholly
Owned Subsidiaries (or any Person that will be a Wholly Owned Subsidiary as a
result of such Investment) or by a Subsidiary in the Company or in one or more
Wholly Owned Subsidiaries (or any Person that will be a Wholly Owned Subsidiary
as a result of such Investment ); (j) Investments in stock, obligations or
securities received in settlement of debts owing to the Company or any
Subsidiary as a result of bankruptcy or insolvency proceedings or upon the
foreclosure, perfection or enforcement of any Lien in favor of the Company or
any Subsidiary, in each case as to debt owing to the Company or any Subsidiary
that arose in the ordinary course of business of the Company or any such
Subsidiary, provided that any stocks, obligations or securities received in
xxxxx course of business (and received other than as a result of bankruptcy or
insolvency proceedings or upon foreclosure, perfection or enforcement of any
Lien) that are, within 30 days of receipt, converted into cash or cash
equivalents shall be treated as having been cash or cash equivalents at the time
received; (k) Investments in any Person (other than the Company or any Wholly
Owned Subsidiary) engaged in construction, ownership or operation of rigs and
related equipment pursuant to the tender of Petrobras for construction and
operation of two dynamically positioned semi-submersible rigs designated
Amethyst 2 and 3 in an aggregate amount not to exceed $35 million at any time
outstanding; and (1) Investments in any Person (other than the Company or any
Wholly Owned Subsidiary) engaged in the construction, ownership or operation of
rigs and related equipment pursuant to Lagoven, S.A.'s Call for Bids No.
96-0-016-4-0 for construction and operations of
- 12 -
"Multipurpose Units" in Venezuela in an aggregate amount not to exceed $15
million at any time outstanding.
"Permitted Liens" means (a) Liens in existence on the Issue Date; (b)
Liens created for the benefit of the Notes; (c) Liens on Property of a Person
existing at the time such Person is merged or consolidated with or into the
Company or a Subsidiary (and not incurred as a result of, or in anticipation of,
such transaction), PROVIDED that such Lien relates solely to such Property and
the proceeds thereof and accessories and upgrades thereto; (d) Liens on Property
existing at the time of the acquisition thereof (and not incurred as a result
of, or in anticipation of, such transaction), PROVIDED that such Liens relate
solely to such Property and the proceeds thereof and accessories and upgrades
thereto; (e) Liens incurred or pledges and deposits made in connection with
worker's compensation, unemployment insurance and other social security
benefits, statutory obligations, bid, surety or appeal bonds, performance bonds
or other obligations of a like nature incurred in the ordinary course of
business; (f) Liens imposed by law or arising by operation of law, including,
without limitation, landlords', mechanics', carriers', warehousemen's,
materialmen's, suppliers' and vendors' Liens and Liens for master's and crew's
wages and other similar maritime Liens, and incurred in the ordinary course of
business; (g) zoning restrictions, easements, licenses, covenants, reservations,
restrictions on the use of real property and defects, irregularities and
deficiencies in title to real property that do not, individually or in the
aggregate, materially affect the ability of the Company or any Subsidiary to
conduct its business presently conducted; (h) Liens for taxes or assessments or
other governmental charges or levies not yet due and payable, or the validity of
which is being contested by the Company or a Subsidiary in good faith
appropriate proceedings upon stay of execution or the enforcement thereof and
for which adequate reserves in accordance with GAAP or odebtedness incurred for
the purpose of financing all or a part of the purchase price or construction
cost of Property (including the cost of upgrading or refurbishing rigs or
drillships) acquired or constructed after the Issue Date, PROVIDED that (1) the
principal amount of Indebtedness secured by such Liens shall not exceed 100% of
the lesser of cost or Fair Market Value of the Property so acquired, upgraded or
constructed plus transaction costs related thereto, (2) such Liens shall not
encumber any other assets or Property of the Company or any Subsidiary (other
than the proceeds thereof and accessions and upgrades thereto) and (3) such
Liens shall attach to such Property within 120 days of the date of the
completion of the construction or acquisition of such Property; (j) Liens
securing Capital Lease Obligations, PROVIDED that such Liens secure Capital
Lease Obligations which, when combined with (1) the outstanding secured
Indebtedness of the Company and it Subsidiaries (other than Indebtedness secured
by Liens described under clauses (b) and (i) hereof) and (2) the aggregate
amount of all other Capital Lease Obligations of the Company and Subsidiaries,
does not exceed 10% of the Company's Consolidated Net Tangible Assets; (k) Liens
to secure any extension, renewal, refinancing or refunding (or successive
extensions, renewals, refinancings or refundings), in whole or in part, of any
Indebtedness secured by Liens referred to in the foregoing clauses (a), (b), (c)
and (d), PROVIDED that such Liens do not extend to any other Property of the
Company or any Subsidiary (other than the proceeds thereof and accessions and
upgrades thereto) and the principal amount of the Indebtedness secured by such
Liens is not increased; (1) any charter or lease of drilling rigs in the
ordinary of course of business; (m) leases or subleases of real property to
other
- 13 -
Persons in the ordinary course of business; (n) Liens securing Non-Recourse
Indebtedness; (o) Liens securing Permitted Indebtedness definitions thereof; (p)
judgment liens not giving rise to an Event of Default so long as any appropriate
legal proceedings which may have been only initiated for the review of such
judgment shall not have been finally terminated or the period within which such
proceeding may be initiated shall not have expired; and (q) rights of set-off of
banks and other Persons.
"Permitted Non-Recourse Subsidiary Refinancing Indebtedness" means
Non-Recourse Indebtedness of any Non-Recourse Subsidiary, incurred in exchange
for, or the net proceeds of which are used to renew, extend, refinance, refund
or repurchase outstanding Non-Recourse Indebtedness of such Subsidiary which
outstanding Non-Recourse Indebtedness was incurred in accordance with, or is
otherwise permitted by, the terms of this Indenture.
"Permitted Refinancing Indebtedness" means Indebtedness of the Company,
incurred in exchange for, or the net proceeds of which are used to renew,
extend, refinance, refund or repurchase outstanding Indebtedness of the Company,
which outstanding Indebtedness was incurred in accordance with, or is otherwise
permitted by, the terms of this Indenture (excluding any Permitted
Indebtedness), PROVIDED that (i) if the Indebtedness being renewed, extended,
refinanced, refunded or repurchased is PARI PASSU with or subordinated in right
of payment to the Notes, then such new Indebtedness is PARI PASSU with or
subordinated in right of payment (without regard to its being secured) to, as
the case may be, the Notes at least to the same extent as the Indebtedness being
renewed, extended, refinanced refunded or repurchased, (ii) such new
Indebtedness is scheduled to mature later than the Indebtedness being renewed,
extended, refinanced, refunded or repurchased, (iii) such new Indebtedness has
an Average Life at the time such Indebtedness is incurred that is greater than
the Average Life of the Indebtedness being renewed, extended, refinanced,
refunded or repurchased, and (iv) such new Indebtedness is in an aggregate
principal amount (or, if such Indebtedness is issued at a price less than the
principal amount thereof, the aggregate amount of gross proceeds therefrom is)
not in excess of the aggregate principal amount then outstanding of the
Indebtedness being renewed, extended, refinanced, refunded or repurchased (or if
the Indebtedness being renewed, extended, refinanced, refunded or repurchased
was issued at a price less than the principal amount thereof, then not in excess
of the amount of liability in respect thereof determined in accordance with
GAAP) plus the amount of reasonable fees, expenses and premium, if any, incurred
by the Company or such Subsidiary in connection therewith.
"Permitted Subsidiary Refinancing Indebtedness" means Indebtedness of any
Subsidiary (other than a Non-Recourse Subsidiary) incurred in exchange for, or
the net proceeds of which are used to renew, extend, refinance, refund or
repurchase outstanding Indebtedness of such Subsidiary, which outstanding
Indebtedness was incurred in accordance with, or is otherwise permitted by, the
terms of this Indenture, PROVIDED that (i) such new Indebtedness is scheduled to
mature later than the Indebtedness being renewed, extended, refinanced, refunded
or repurchased, (ii) such new Indebtedness has an Average Life at the time such
Indebtedness is incurred that is greater than the Average Life of the
Indebtedness being renewed, extended, refinanced, refunded or repurchased, and
(iii) such new Indebtedness is in an aggregate principal amount (or, if such
indebtedness is issued at a price less than the principal amount thereof, the
aggregate amount of gross proceeds therefrom is) not in excess of the aggregate
principal amount then outstanding of the Indebtedness being renewed, extended,
refinanced, refunded or repurchased (or if the Indebtedness being renewed,
extended, refinanced, refunded or repurchased was issued at a price less than
the principal amount
- 14 -
thereof, then not in excess of the amount of liability in respect thereof
determined in accordance with GAAP) plus the amount of reasonable fees, expenses
and premium, if any, incurred by the Company or such Subsidiary in connection
therewith.
"Property" means, with respect to any Person, any interest of such Person
in any kind of property or asset, whether real, personal or mixed, or tangible
or intangible, excluding Capital Stock in any other Person.
"Public Equity Offering" means an underwritten public offering of Common
Stock for cash by the Company pursuant to a registration statement that has been
declared effective by the Commission (other than a registration statement on
Form S-8 or any successor form or otherwise relating to equity securities
issuable under any employee benefit plan of the Company).
"Redeemable Stock" means, with respect to any Person, any equity security
that by its terms or otherwise is required to be redeemed, or is redeemable at
the option of the holder thereof, at any time prior to one year following the
Stated Maturity of the Notes or is exchangeable into Indebtedness of such Person
or any of its subsidiaries.
"Related Business" means any business related, ancillary or complementary
to the business of the Company and its Subsidiaries on the Issue Date.
"Replacement Asset" means a Property or asset that, as determined by the
Board of Directors of the Company as evidenced by a Board Resolution, is used or
is useful in a Related Business.
"Restricted Investment" means any Investment other than a Permitted
Investment.
"Restricted Payment" means to (i) declare or pay any dividend on, or make
any distribution in respect of, or purchase, redeem, retire or otherwise acquire
for value any Capital Stock of the Company or any Affiliate of the Company, or
warrants, rights or options to acquire such Capital Stock, other than (x)
dividends payable solely in the Capital Stock (other than Redeemable Stock) of
the Company or such Affiliate, as the case may be, or in warrants, rights or
options to acquire such Capital Stock and (y) dividends or distributions by a
Subsidiary to the Company or to a Wholly Owned Subsidiary; (ii) make any
principal payment on, or redeem, repurchase, defease or otherwise acquire or
retire for value, prior to any scheduled principal payment, scheduled sinking
fund payment or other stated maturity, Indebtedness of the Company or any
Subsidiary which is subordinated in right of payment to the Notes; or (iii) make
any Restricted Investment in any Person.
"Sale and Lease-Back Transaction" means, with respect to any Person, any
direct or indirect arrangement pursuant to which Property is sold or transferred
by such Person or a subsidiary of such Person and is thereafter leased back from
the purchaser or transferee thereof by such Person or one of its subsidiaries.
- 15 -
"Senior Debt" means any Indebtedness incurred by the Company, unless the
instrument under which such Indebtedness is incurred expressly provides that it
is subordinated in right of payment to the Notes, PROVIDED that Senior Debt will
not include (a) any liability for federal, state, local or other taxes owed or
owing, (b) any Indebtedness owing to any Subsidiaries of the Company, (c) any
trade payables or (d) any Indebtedness that is incurred in violation of this
Indenture.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act of 1933, as amended, as such Regulation is in
effect on the date hereof.
"Stated Maturity," when used with respect to a Note or any installment of
interest thereon, means the date specified in such Note as the fixed date on
which the principal of such Note or such installment of interest is due and
payable.
"Subordinated Indebtedness" means any Indebtedness of the Company or any
Subsidiary Guarantor that is subordinated in right of payment to the Notes or
the Subsidiary Guarantees, as the case may be, and does not mature prior to one
year following the Stated Maturity of the Notes.
The term "subsidiary" means, with respect to any Person, (i) any
corporation more than 50% of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person, or by one or more other subsidiaries or
such Person, or by such Person and one or more other subsidiaries of such
Person, (ii) any general partnership, joint venture or similar entity, more than
50% of the outstanding partnership or similar interests of which is owned,
directly or indirectly, by such Person, or by one or more other subsidiaries of
such Person, or by such Person and one or more other subsidiaries of such Person
and (iii) any limited partnership of which such Person or any subsidiary of such
Person is a general partner.
"Subsidiary" means a subsidiary of the Company other than a Non-Recourse
Subsidiary.
"Subsidiary Guarantee" means any guarantee of the Notes by any Subsidiary
Guarantor in accordance with the provisions described under Article Fourteen
hereof.
"Subsidiary Guarantor" means (i) each of the Company's Subsidiaries, if
any, executing this Indenture and (ii) any Person that becomes a successor
guarantor of the Notes in compliance with the provisions described under Article
Fourteen hereof.
"Transaction Date" has the meaning specified within the definition of
"Consolidated Interest Coverage Ratio."
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged; (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation
- 16 -
by the United States of America, which, in either case under clauses (i) or (ii)
above, are not callable or redeemable at the option of the issuer thereof; or
(iii) depository receipts issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligations or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt, PROVIDED that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depository receipt.
"Voting Stock" means, with respect to any Person, securities of any class
or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or at the times that such class of Capital Stock has
voting power by reason of the happening of any contingency) to vote in the
election of members of the board of directors or comparable body of such Person.
"Wholly Owned Subsidiary" means any Subsidiary to the extent (i) all of
the Capital Stock or other ownership interests in such Subsidiary, other than
any director's qualifying shares mandated by applicable law, is owned directly
or indirectly by the Company or (ii) such Subsidiary is organized in a foreign
jurisdiction and is required by the applicable laws and regulations of such
foreign jurisdiction to be partially owned by the government of such foreign
jurisdiction or individual or corporate citizens of such foreign jurisdiction in
order for such Subsidiary to transact business in such foreign jurisdiction,
provided that the Company, directly or indirectly, owns the remaining Capital
Stock or ownership interest in such Subsidiary and, by contract or otherwise,
controls the management and business of such Subsidiary and derives the economic
benefits of ownership of such Subsidiary to substantially the same extent as if
such Subsidiary were a wholly owned Subsidiary.
SECTION 1.2. The Original Indenture is supplemented with respect to the
Notes by inserting the following provision in Article Four:
Section 405. DISCHARGE OF SUBSIDIARY GUARANTEES. The obligations of
each Subsidiary Guarantor with respect to its Subsidiary Guarantee and
under this Indenture shall be discharged automatically to the same extent
as the obligations of the Company with respect to the Notes are discharged
pursuant to this Article Four, and such obligations of each Subsidiary
Guarantor so discharged shall be subject to reinstatement pursuant to
Section 404 in the event that such obligations of the Company shall be
reinstated.
SECTION 1.3. SUPPLEMENT TO ARTICLE FIVE OF THE ORIGINAL INDENTURE. (a)
Section 501 of the Original Indenture is supplemented with respect to the Notes
by adding the following provisions (8)-(14) below:
(8) the Company fails to comply with any of its covenants or
agreements contained in Section 801 hereof or fails to make a Change of
Control Offer in
- 17 -
accordance with Section 1017 hereof or an Asset Sale Offer in accordance
with Section 1013 hereof;
(9) default in the performance or breach of any covenant or
agreement of the Company or any Subsidiary Guarantor contained in the
Notes, any Subsidiary Guarantee or this Indenture (other than a covenant
or agreement a default in performance or breach of which is specifically
dealt with) and continuance of such default or breach for a period of 30
days after written notice thereof has been mailed, by registered or
certified mail, to the Company or such Subsidiary Guarantor by the Trustee
or to the Company and the Trustee by the Holders of at least 25% of the
aggregate principal amount of the outstanding Notes;
(10) Indebtedness of the Company or any Subsidiary (other than
Non-Recourse Indebtedness or Limited Recourse Indebtedness) is not paid
when due within the applicable grace period or is accelerated by the
holders thereof and, in either case, the aggregate principal amount of
such due and unpaid or accelerated Indebtedness exceeds $ 10 million;
(11) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of any Subsidiary (other than a
Non-Recourse Subsidiary) that constitutes a Significant Subsidiary or any
group of Subsidiaries (other than Non-Recourse Subsidiaries) that, taken
together, would constitute a Significant Subsidiary, in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging such Subsidiary or Subsidiaries a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of such Subsidiary
or Subsidiaries under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of such Subsidiary or Subsidiaries or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(12) the commencement by any Subsidiary (other than a Non-Recourse
Subsidiary) that constitutes a Significant Subsidiary or any group of
Subsidiaries (other than Non-Recourse Subsidiaries) that, taken together,
would constitute a Significant Subsidiary, of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case of proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of such Subsidiary or
Subsidiaries in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or
proceeding against such Subsidiary or Subsidiaries, or the filing by such
Subsidiary or Subsidiaries, of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or the
consent by such Subsidiary or Subsidiaries to the filing of such petition
or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of such
Subsidiary or Subsidiaries or of any
- 18 -
substantial part of the property of such Subsidiary or Subsidiaries, or
the making by such Subsidiary or Subsidiaries of an assignment for the
benefit of creditors, or the admission by such Subsidiary or Subsidiaries
in writing of the inability of such Subsidiary or Subsidiaries to pay the
debts of such Subsidiary or Subsidiaries generally as they become due, or
the taking of corporate action by such Subsidiary or Subsidiaries in
furtherance of any such action; or
(13) the entry by a court of competent jurisdiction of one or more
judgments or orders against the Company or any Subsidiary (other than a
Non-Recourse Subsidiary) in an uninsured or unindemnified aggregate amount
in excess of $10 million which remain undischarged or unsatisfied for a
period of 60 consecutive days after the right to appeal them has expired;
or
(14) any Subsidiary Guarantee shall for any reason cease to be, or
be asserted by the Company or any Subsidiary Guarantor, as applicable, not
to be, in full force and effect (except pursuant to the release of any
such Subsidiary Guarantee in accordance with this Indenture).
(b) The second sentence of Section 502 of the Original Indenture is
superseded with respect to the Notes by the following provision:
If an Event of Default described in clause (5), (6), (11) or (12) of
Section 501 shall occur, the principal amount of the Notes IPSO FACTO
shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
SECTION 1.4. SUPPLEMENT TO ARTICLE EIGHT OF THE ORIGINAL INDENTURE.
Section 801 of the Original Indenture is superseded with respect to the Notes by
the following provisions:
Section 801. The Company will not, in any transaction or series of
transactions, consolidate with or merge into any other Person (other than
a merger of a Subsidiary into the Company in which the Company is the
continuing corporation), or sell, convey, assign, transfer, lease or
otherwise dispose of all or substantially all of the Property and assets
of the Company and the Subsidiaries, taken as a whole, to any Person,
unless
(i) either (a) the Company shall be the continuing corporation
or (b) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged, or the Person
which acquires, by sale, assignment, conveyance, transfer, lease or
other disposition, all or substantially all of the Property and
assets of the Company and the Subsidiaries, taken as a whole (such
corporation or Person, the "Surviving Entity"), shall be a
corporation organized and validly existing under the laws of the
United States of America, any political subdivision thereof or any
state thereof or the District of Columbia, and shall expressly
assume, by a supplemental Indenture, the due and punctual payment of
the principal of (and premium, if any) and interest on all the Notes
and the performance of the Company's covenants and obligations under
this Indenture;
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(ii) immediately after giving effect to such transaction or
series of transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to be incurred
in connection with or in respect of such transaction or series of
transactions), no Event of Default or Default shall have occurred
and be continuing or would result therefrom;
(iii) immediately after giving effect to such transaction or
series of transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to be incurred
in connection with or in respect of such transaction or series of
transactions), the Company (or the Surviving Entity if the Company
is not continuing) shall have a Consolidated Net Worth equal to or
greater than the Consolidated Net Worth of the Company immediately
prior to such transactions;
(iv) immediately after giving effect to any such transaction
or series of transactions on a pro forma basis as if such
transaction or series of transactions had occurred on the first day
of the Determination Period, the Company (or the Surviving Entity if
the Company is not continuing) would be permitted to incur $1.00 of
additional Indebtedness pursuant to the tests described in the first
sentence under the caption Section 1010 hereof; and
(v) the Company 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 indenture comply with this Article
and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 1.5. SUPPLEMENT TO ARTICLE NINE OF THE ORIGINAL INDENTURE.
(a) Section 901 of the Original Indenture is supplemented with respect to
the Notes by inserting the following provisions at the end of Section 901:
(9) to provide for uncertificated Notes in addition to or in place
of certificated Notes; or
(10) to add or, except as provided in Article IV or Section 1404,
release any Subsidiary Guarantor pursuant to the terms of this Indenture,
PROVIDED that such actions will not adversely affect the interests of the
Holders in any material respect.
(b) Section 902 of the Original Indenture is supplemented with respect to
the Notes by inserting the following provisions:
(4) modify the obligations of the Company to make a Change of
Control Offer pursuant to Section 1017 hereof or an Asset Sale Offer
pursuant to Section 1013 hereof; or
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(5) subordinate in right of payment, or otherwise subordinate, the
Notes to any other Indebtedness.
SECTION 1.6. SUPPLEMENT TO ARTICLE TEN OF THE ORIGINAL INDENTURE. Article
10 of the Original Indenture is supplemented with respect to the Notes by
inserting the following sections at the end thereof:
Section 1008. TRANSACTIONS WITH AFFILIATES. Subsequent to the Issue
Date, the Company will not, and will not permit any Subsidiary to,
directly or indirectly, enter into or permit to exist any transaction or
series of related transactions, including, but not limited to, the
purchase, sale or exchange of Property, the making of any Investment, the
giving of any guarantee or the rendering of any service with any Affiliate
of the Company (other than transactions among the Company and any Wholly
Owned Subsidiaries) unless (i) such transaction or series of related
transactions is on terms no less favorable to the Company or such
Subsidiary than those that could be obtained in a comparable arm's length
transaction with a Person that is not such an Affiliate and (ii) (a) with
respect to a transaction or series of related transactions that has a Fair
Market Value in excess of $2 million but less than $5 million, the Company
delivers an Officers' Certificate to the Trustee certifying that such
transaction or series of related transactions complies with clause (i)
above and (b) with respect to a transaction or series of related
transactions that has a Fair Market Value equal to or in excess of $5
million, the transaction or series of related transactions is approved by
a majority of the Board of Directors of the Company (including a majority
of the disinterested directors), which approval is set forth in a Board
Resolution certifying that such transaction or series of transactions
complies with clause (i) above. The foregoing provisions shall not be
applicable to (i) reasonable compensation, indemnification and other
benefits paid or made available to an officer, director or employee of the
Company or a Subsidiary for services rendered in such person's capacity as
an officer, director or employee (including reimbursement or advancement
of reasonable out-of-pocket expenses and provisions of directors' and
officers' liability insurance) or (ii) the making of any Restricted
Payment otherwise permitted by this Indenture.
Section 1009. LIMITATION ON RESTRICTED PAYMENTS. The Company will
not, and will not permit any Subsidiary (other than Non-Recourse
Subsidiaries) to, make any Restricted Payment, unless at the time of and
after giving effect to the proposed Restricted Payment (a) no Default
shall have occurred and be continuing (or would result therefrom), (b) the
Company could incur at least $1.00 of additional Indebtedness under the
tests described in the first sentence under Section 1010 hereof and (c)
the aggregate amount of all Restricted Payments declared or made on or
after the Issue Date by the Company or any Subsidiary (other than
Non-Recourse Subsidiaries) shall not exceed the sum of (i) 50% (or if such
Consolidated Net Income shall be a deficit, minus 100% of such deficit) of
the aggregate Consolidated
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Net Income accrued during the period beginning on the first day of the
fiscal quarter in which the Issue Date falls and ending on the last day of
the fiscal quarter ending immediately prior to the date of such proposed
Restricted Payment, plus (ii) an amount equal to the aggregate net cash
proceeds received by the Company, subsequent to the Issue Date, from the
issuance or sale (other than to a Subsidiary) of shares of its Capital
Stock (excluding Redeemable Stock and the net proceeds from the Common
Stock Offering), but including Capital Stock issued upon the exercise of
options, warrants or rights to purchase Capital Stock (other than
Redeemable Stock) of the Company) and the liability (expressed as a
positive number) in accordance with GAAP in respect of any Indebtedness of
the Company or carrying value of Redeemable Stock, which has been
converted into, exchanged for or satisfied by the issuance of shares of
Capital Stock (other than Redeemable Stock) of the Company, subsequent to
the Issue Date plus (iii) to the extent not otherwise included in
Consolidated Net Income, the net reduction in Investments in Non-Recourse
Subsidiaries resulting from dividends, repayments of loans or advances, or
otets, in each case to the Company or a Subsidiary after the Issue Date
from any Non-Recourse Subsidiary or from the redesignation of a
Non-Recourse Subsidiary as a Subsidiary (valued in each case as provided
in the definition of Investment), not to exceed in the case of any
Non-Recourse Subsidiary the total amount of Investments (other than
Permitted Investments) in such Non-Recourse Subsidiary made by the Company
and its Subsidiaries in such Non-Recourse Subsidiary after the Issue Date,
plus (iv) $50 million minus the sum of Investments described in clauses
(k) and (1) under the definition of "Permitted Investments," but in no
event to exceed $10 million.
The foregoing provisions will not prevent (A) the payment of any
dividend on Capital Stock of any class within 60 days after the date of
its declaration if at the date of declaration such payment would be
permitted by this Indenture; (B) any repurchase or redemption of Capital
Stock or Subordinated Indebtedness of the Company made by exchange for
Capital Stock of the Company (other than Redeemable Stock), or out of the
net cash proceeds from the substantially concurrent issuance or sale
(other than to a Subsidiary) of Capital Stock of the Company (other than
Redeemable Stock), PROVIDED that the net cash proceeds from such sale are
excluded from computations under clause (c)(ii) above to the extent such
proceeds are applied to purchase or redeem such Capital Stock or
Subordinated Indebtedness; and (C) any repurchase or redemption of
Subordinated Indebtedness of the Company solely in exchange for, or out of
the net cash proceeds from the substantially concurrent sale of, new
Subordinated Indebtedness of the Company, so long as such Subordinated
Indebtedness (x) is subordinated to the Notes at least to the same extent
as the Subordinated Indebtedness so exchanged, purchased or redeemed, (y)
has a stated maturity later than the stated maturity of the Subordinated
Indebtedness so exchanged, purchased or redeemed and (z) has an Average
Life at the time incurred that is greater than the remaining Average Life
of the Subordinated Indebtedness so
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exchanged, purchased or redeemed. Restricted Payments permitted to be made
as described in the preceding sentence will be excluded in calculating the
amount of Restricted Payments thereafter, except such Restricted Payments
made as described in clause (A), which will be included in calculating the
amount of Restricted Payments thereafter.
Section 1010. LIMITATION ON INDEBTEDNESS. The Company will not, and
will not permit any Subsidiary to, directly or indirectly, create, incur,
assume, suffer to exist, guarantee or otherwise become liable, with
respect to the payment of (collectively, "incur"), any Indebtedness (other
than Non-Recourse Indebtedness), unless after giving pro forma effect to
the incurrence of such Indebtedness, the Consolidated Interest Coverage
Ratio for the Determination Period preceding the Transaction Date is at
least 2.5 to 1.0. Notwithstanding the foregoing, the Company or any
Subsidiary may incur Permitted Indebtedness. Any Indebtedness of a Person
existing at the time such Person became a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by
such Subsidiary at the time it becomes a Subsidiary.
Section 1011. LIMITATION ON SUBSIDIARY INDEBTEDNESS AND PREFERRED
STOCK. The Company will not permit any Subsidiary to incur, directly or
indirectly, any Indebtedness (other than Indebtedness of Non-Recourse
Subsidiaries) or issue any preferred stock except:
(a) Indebtedness or preferred stock issued to and held by the
Company or a Wholly Owned Subsidiary, so long as any transfer of
such Indebtedness or preferred stock to a Person other than the
Company or a Wholly Owned Subsidiary will be deemed to constitute
the issuance of such Indebtedness or preferred stock by the issuer
thereof;
(b) Indebtedness or preferred stock of a Subsidiary issued and
outstanding prior to the date on which such Subsidiary was acquired
by the Company (other than Indebtedness or preferred stock issued in
connection with or in anticipation of such acquisition);
(c) Indebtedness or preferred stock outstanding on the Issue
Date;
(d) Indebtedness described in clauses (b), (c), (d), (f) and
(g) under the definition of "Permitted Indebtedness";
(e) Permitted Subsidiary Refinancing Indebtedness of such
Subsidiary;
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(f) Preferred stock issued in exchange for, or the proceeds of
which are used to refinance, repurchase or redeem, Indebtedness or
preferred stock described in clauses (b) and (c) of this paragraph
(the Retired Indebtedness or Stock), PROVIDED that the preferred
stock so issued has (i) a liquidation value not in excess of the
principal amount or liquidation value of the Retired Indebtedness or
Stock plus related expenses for redemption and issuance and (ii) a
redemption date later than the stated maturity or redemption date
(if any) of the Retired Indebtedness or Stock;
(g) Indebtedness of a Subsidiary which represents the
assumption by such Subsidiary of Indebtedness of another Subsidiary
(other than Non-Recourse Indebtedness) in connection with a merger
of such Subsidiaries, PROVIDED that no Subsidiary or any successor
(by way of merger) thereto existing on the Issue Date shall assume
or otherwise become responsible for any Indebtedness of an entity
which is not a Subsidiary on the Issue Date, except to the extent
that a Subsidiary would be permitted to incur such Indebtedness
under tills paragraph; and
(h) Indebtedness of any Subsidiary, which when taken together
with all other Indebtedness of the Subsidiaries (except Indebtedness
incurred pursuant to clauses (a), (b) and (d) of this covenant),
does not exceed at any one time outstanding the greater of (i) $230
million and (ii) 15% of Consolidated Net Tangible Assets determined
as of the date of incurrence of such Indebtedness.
Section 1012. LIMITATIONS ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES. The Company will not, and will not
permit any Subsidiary (other than a Non-Recourse Subsidiary) to, directly
or indirectly, create, enter into any agreement with any Person or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind which by its terms restricts the
ability of any Subsidiary (other than a Non-Recourse Subsidiary) to (a)
pay dividends, in cash or otherwise, or make any other distributions on
its Capital Stock to the Company or any Subsidiary (other than a
Non-Recourse Subsidiary), (b) pay any Indebtedness owed to the Company or
any Subsidiary (other than a Non-Recourse Subsidiary), (c) make loans or
advances to the Company or any Subsidiary (other than a Non-Recourse
Subsidiary) or (d) transfer any of its Property or assets to the Company
or any Subsidiary (other than a Non-Recourse Subsidiary) except any
encumbrance or restriction contained in any agreement or instrument:
(i) existing on the Issue Date;
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(ii) relating to any Property or asset acquired after the
Issue Date, so long as such encumbrance or restriction relates only
to the Property or asset so acquired;
(iii) relating to any Indebtedness of any Subsidiary at the
date on which such Subsidiary was acquired by the Company or any
Subsidiary (other than Indebtedness incurred in anticipation of such
acquisition);
(iv) effecting a refinancing of Indebtedness issued pursuant
to an agreement referred to in the foregoing clauses (i) through
(iii), so long as the encumbrances and restrictions contained in any
such refinancing agreement are no more restrictive than the
encumbrances and restrictions contained in such agreements;
(v) which constitute customary provisions restricting
subletting or assignment of any lease of the Company or any
Subsidiary or provisions in agreements that restrict the assignment
of such agreement or any rights hereunder; and
(vi) which constitute restrictions on the sale or other
disposition of any Property securing Indebtedness as a result of a
Permitted Lien on such Property.
Section 1013. LIMITATION ON ASSET SALES. The Company will not engage
in, and will not permit any Subsidiary to engage in, any Asset Sale unless
(a) except in the case of (i) an Asset Sale resulting from the requisition
of tide to, seizure or forfeiture of any Property or assets or any actual
or constructive total loss or an agreed or compromised total loss or (ii)
a Bargain Purchase Contract, the Company or such Subsidiary, as the case
may be, receives consideration at the time of such Asset Sale at least
equal to the Fair Market Value of the Property; (b) except in the case of
an Asset Sale described in clause (a), at least 75% of such consideration
consists of Cash Proceeds (or the assumption of Indebtedness of the
Company or such Subsidiary relating to the Capital Stock or Property that
was the subject of such Asset Sale and the release of the Company or such
Subsidiary from Indebtedness); (c) after giving effect to such Asset Sale,
the total non-cash consideration held by the Company from all such Asset
Sales does not exceed $10 million, and (d) the Company delivers to the
Trustee an Officers' Certificate, which Officers' Certificate shall be
conclusive, certifying that such Asset Sale complies with clauses (a), (b)
and (c); PROVIDED, HOWEVER, that the requirement set forth in clause (b)
shall not apply to an Asset Sale in which the Company exchanges (a
"Permitted Exchange") assets for assets that constitute Replacement
Assets. The Company or such Subsidiary, as the case may be, may apply the
Net Available Proceeds from each Asset Sale (x) to the acquisition of one
or more Replacement Assets, or (y) to repurchase or repay Senior
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Debt (with a permanent reduction of availability in the case of revolving
credit borrowings); PROVIDED, HOWEVER, that such acquisition or such
repurchase or repayment shall be made within 365 days after the
consummation of the relevant Asset Sale.
Any Net Available Proceeds from any Asset Sale that are not used to
so acquire Replacement Assets or to repurchase or repay Senior Debt within
365 days after consummation of the relevant Asset Sale constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $10
million, the Company shall, or at any time after receipt of Excess
Proceeds, the Company may, at its option, make a pro rata offer (an "Asset
Sale Offer") to purchase from all Holders an aggregate principal amount of
Notes equal to the Excess Proceeds, at a price in cash equal to 100% of
the outstanding principal amount thereof plus accrued interest, if any, to
the purchase date, in accordance with the procedures set forth in this
Indenture. Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset to zero and the Company may use any remaining
amount for general corporate purposes.
The Company will comply with any applicable tender offer rules
(including, without limitation, any applicable requirements of Rule 14e-1
under the Exchange Act) in the event that an Asset Sale Offer is required
under the circumstances described herein.
Section 1014. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS. The
Company will not, and will not permit any Subsidiary to, directly or
indirectly, enter into, assume, guarantee or otherwise become liable with
respect to any Sale and Lease-Back Transaction (other than a Sale and
Lease-Back Transaction between NonRecourse Subsidiaries) unless (i) the
proceeds from such Sale and Lease-Back Transaction are at least equal to
the Fair Market Value of such Property being transferred and (ii) the
Company or such Subsidiary would have been permitted to enter into such
transaction under the tests described under Sections 1010, 1011 and 1015
hereof.
Section 1015. LIMITATION ON LIENS. The Company will not, and will
not permit any Subsidiary to, directly or indirectly, create, affirm,
incur, assume or suffer to exist any Liens on or with respect to any
Property of the Company or such Subsidiary or any interest therein or any
income or profits therefrom, whether owned at the Issue Date or thereafter
acquired, without effectively providing that the Notes shall be secured
equally and ratably with (or prior to) the Indebtedness so secured, other
than Permitted Liens.
Section 1016. LIMITATION ON NON-GUARANTOR SUBSIDIARIES. The Company
will not permit any Subsidiary that is not a Subsidiary Guarantor to
guarantee the
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payment of any Indebtedness of the Company unless: (i)(A) such Subsidiary
simultaneously executes and delivers a supplemental Indenture to this
Indenture providing for a Subsidiary Guarantee of the Notes by such
Subsidiary and (B), with respect to any guarantee of Subordinated
Indebtedness by a Subsidiary, any such guarantee shall be subordinated to
such Subsidiary's Subsidiary Guarantee at least to the same extent as such
Subordinated Indebtedness is subordinated to the Notes; (ii) such
Subsidiary waives, and agrees not in any manner whatsoever to exercise any
right or claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the
Company or any other Subsidiary as a result of any payment by such
Subsidiary under its Subsidiary Guarantee until such time as the
obligations guaranteed thereby are paid in full; and (iii) such Subsidiary
shall deliver to the Trustee an opinion of independent legal counsel to
the effect that such Subsidiary Guarantee has been duly executed and
authorized and constitutes a valid, binding and enforceable obligation of
such Subsidiary, except insofar as enforcement thereof may be limited by
bankruptcy, insolvency or similar laws (including, without limitation, all
laws relating to fraudulent transfers) and except insofar as enforcement
thereof is subject to general principles of equity; PROVIDED that this
covenant shall not be applicable to any guarantee of any Subsidiary that
(x) existed at the time such Person became a Subsidiary of the Company and
(y) was not incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary of the Company. Further, a pledge of assets
to secure any Indebtedness for which the pledgor is not otherwise liable
shall not be considered a guarantee.
Section 1017. OFFER TO REPURCHASE UPON CHANGE OF CONTROL. (a) Upon
the occurrence of a Change of Control, each Holder of Notes shall have the
right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to
the offer described below (the "Change of Control Offer") at an offer
price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest, if any, thereon to the date of purchase (the
"Change of Control Payment"). Within 30 days following any Change of
Control, the Company shall mail a notice to the Trustee and each Holder
stating: (1) that the Change of Control Offer is being made pursuant to
this Section 1017 and that all Notes tendered shall be accepted for
payment; (2) the purchase price and the purchase date described below (the
"Change of Control Payment Date"); (3) that any Note not tendered shall
continue to accrue interest; (4) that, unless the Company defaults in the
payment of the Change of Control Payment, all Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest, if
any, after the Change of Control Payment Date; (5) that Holders electing
to have any Notes purchased pursuant to a Change of Control Offer shall be
required to surrender the Notes, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Notes completed, to the Paying
Agent at the address specified in the notice prior to the close of
business on the fifth Business Day preceding the
- 27 -
Change of Control Payment Date; (6) that Holders shall be entitled to
withdraw their election if the Paying Agent receives, not later than the
close of business on the second Business Day preceding the Change of
Control Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes
delivered for purchase, and a statement that such Holder is withdrawing
his election to have the Notes purchased; and (7) that Holders whose Notes
are being purchased only in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered,
which unpurchased portion must be equal to $1,000 in principal amount or
an integral multiple thereof. If any of the Notes subject to a Change of
Control Offer is in the form of a Global Certificate, then such notice
shall be modified in form but not substance to the extent appropriate to
accord with the procedures of the Depository applicable to repurchases.
The Change of Control Offer shall remain open for at least 20 Business
Days and until the close of business on the fifth Business Day prior to
the Change of Control Payment Date. The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent such laws and regulations
are applicable in connection with the repurchase of the Notes as a result
of a Change of Control.
(b) On a date that is no earlier than 30 days nor later than 60 days
from the date that the Company mails or causes to be mailed notice of the
Change of Control to the Holders (the "Change of Control Payment Date"),
the Company shall, to the extent lawful, (i) accept for payment all Notes
or portions thereof properly tendered pursuant to the Change of Control
Offer, (ii) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions thereof so tendered
and (iii) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail or deliver to each Holder of
Notes so tendered the Change of Control Payment for such Notes, and the
Trustee shall promptly authenticate and mail (or cause to be transferred
by book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided that each
such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. The Company shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
The Change of Control provisions described above shall be applicable
whether or not any other provisions of this Indenture are applicable.
The Company shall not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in
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this Section 1017 and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.
Section 1018. REPORTS. The Company and any Subsidiary Guarantors
shall file with the Commission, to the extent such filings are accepted by
the Commission and whether or not the Company has a class of securities
registered under the Exchange Act, the annual reports, quarterly reports
and other documents that the Company and the Subsidiary Guarantors would
be required to file if the Company were subject to Section 13 or 15 of the
Exchange Act, in each case on or before the dates on which such reports
and other documents would have been required to have been filed with the
Commission if the Company had been subject to Section 13 or 15 of the
Exchange Act, beginning with the Company's fiscal year ended December 31,
1997. The Company shall also (i) file with the Trustee (with exhibits),
and provide to each Holder of Notes (without exhibits), without cost to
such Holder, copies of such reports and documents within 15 days after the
date on which the Company files such reports and documents with the
Commission or the date on which the Company would be required to file such
reports and documents if the Company were so required and (ii) if filing
such reports and documents with the Commission is not accepted by the
Commission or is prohibited under the Exchange Act, supply at the
Company's cost copies of such reports and documents (including any
exhibits thereto) to any Holder of Notes promptly upon written request.
The Company shall at all times comply with Trust Indenture Act ss. 314(a).
Section 1019. TAXES. The Company shall pay, and shall cause each of
its Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested in good
faith and by appropriate proceedings or where the failure to effect such
payment is not adverse in any material respect to the Holders of the
Notes.
Section 1020. STAY, EXTENSION AND USURY LAWS. Each of the Company
and the Subsidiary Guarantors covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture;
and each of the Company and the Subsidiary Guarantors (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 1.7. SUPPLEMENT TO ARTICLE ELEVEN OF THE ORIGINAL INDENTURE.
Article Eleven of the Original Indenture is supplemented with respect to the
Notes by inserting the following section at the end thereof:
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Section 1109. OPTIONAL REDEMPTION. The Notes will not be redeemable
at the option of the Company prior to May 1, 2002. On or after such date,
the Notes will be redeemable at the option of the Company, in whole at any
time or in part from time to time, at the following prices (expressed in
percentages of the principal amount), if redeemed during the 12 months
beginning May 1 of the years indicated below, in each case together with
interest accrued to the redemption date (subject to the right of Holders
of record on the relevant record date to receive interest due on the
relevant interest payment date):
YEAR PERCENTAGE
2002................................ 104.688%
2003................................ 103.125%
2004................................ 101.563%
2005 and thereafter................. 100.000%
(b) If fewer than all the Notes are redeemed, selection for
redemption will be made by the Trustee, by lot or by any other means the
Trustee determines to be fair and appropriate.
(c) Notwithstanding the foregoing, at any time on or prior to May 1,
2000, the Company may redeem up to an aggregate of $108,333,000 principal
amount of Notes at a redemption price of 109.375% of the principal amount
thereof, plus accrued and unpaid interest thereon to the redemption date,
with the net proceeds of a Public Equity Offering (other than the Common
Stock offering concurrently with the date of original issuance of the
Notes), PROVIDED that at least $216,667,000 in aggregate principal amount
of Notes remain outstanding immediately after the occurrence of such
redemption and PROVIDED, FURTHER, that such redemption occurs within 60
days of the date of the closing of such Public Equity Offering.
SECTION 1.8. NEW ARTICLE FOURTEEN. The Original Indenture is supplemented
with respect to the Notes by inserting the following Article Fourteen:
ARTICLE FOURTEEN
SUBSIDIARY GUARANTEES
Section 1401. SUBSIDIARY GUARANTEES. Each Subsidiary Guarantor,
jointly and severally, shall unconditionally guarantee to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and
their respective successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the
Company hereunder or thereunder, that: (a) the principal of and premium
and interest on the Notes shall be promptly paid in full when due, whether
at maturity, by acceleration, redemption or otherwise, and interest on the
- 30 -
overdue principal of and interest on premium and interest on the Notes, if
any, if lawful, and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder shall be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in
case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that the same shall 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. Failing payment
when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Subsidiary Guarantors shall be jointly and severally
obligated to pay the same immediately. The Subsidiary Guarantors hereby
agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or
this Indenture, the absence of any action to enforce the same, any waiver
or consent by any Holder with respect to any provisions hereof or thereof,
the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a Subsidiary Guarantor. Each
Subsidiary Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in thef the Company, any right to
require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that this Subsidiary Guarantee shall not
be discharged (other than in accordance with Article Four or Section 1404
of the Indenture) except by complete performance of the obligations
contained in the Notes and this Indenture. If any Holder or the Trustee is
required by any court or otherwise to return to the Company or Subsidiary
Guarantors, or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or Subsidiary
Guarantors, any amount paid by either to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Subsidiary Guarantor further
agrees that, as between the Subsidiary Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article
Five for the purposes of this Subsidiary Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby and (y) in the event of any
declaration of acceleration of such obligations as provided in Article
Five, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Subsidiary Guarantors for the purpose of
this Subsidiary Guarantee. In order to provide for just and equitable
contribution among the Subsidiary Guarantors, in the event any payment or
distribution is made by any Subsidiary Guarantor (a "Funding Subsidiary
Guarantor") under its Subsidiary Guarantee, such Funding Subsidiary
Guarantor 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 (including the Funding Subsidiary Guarantor) for all
payments, damages and expenses incurred by the Funding Subsidiarying the
- 31 -
Company's obligations with respect to the Notes or any other Subsidiary
Guarantor's obligations with respect to any Subsidiary Guarantee. Each
Subsidiary Guarantor agrees that it will not be entitled to exercise any
right of subrogation or contribution in relation to the Holders of Notes
in respect of any obligations guaranteed hereby until payment in full of
all amounts guaranteed under this Section 1401.
Section 1402. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES. To
evidence its Subsidiary Guarantee set forth in Section 1401, each
Subsidiary Guarantor hereby agrees that a notation of such Subsidiary
Guarantee substantially in the form of Exhibit B to the First Supplemental
Indenture shall be endorsed by an Officer of such Subsidiary Guarantor on
each Note thereafter authenticated and delivered by the Trustee, that a
supplement to this Indenture shall be executed on behalf of such
Subsidiary Guarantor by its duly authorized officer in accordance with
Section 1016 hereof and that such Subsidiary Guarantor shall deliver to
the Trustee an Opinion of Counsel that the foregoing have been duly
authorized, executed and delivered by such Subsidiary Guarantor and that
such Subsidiary Guarantor's Subsidiary Guarantee is a valid and legally
binding obligation of such Subsidiary Guarantor, enforceable against such
Subsidiary Guarantor in accordance with its terms, subject to bankruptcy,
insolvency, moratorium, fraudulent conveyance and other law affecting the
rights of creditors generally.
Each Subsidiary Guarantor hereby agrees that its Subsidiary
Guarantee set forth in Section 1401 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
If an Officer whose signature is on a supplement to this Indenture
or on the notation of Subsidiary Guarantee no longer holds that office at
the time the Trustee authenticates the Note on which a notation of
Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder and whether upon original issue, registration of
transfer, exchange or otherwise, shall constitute due delivery of the
Subsidiary Guarantee set forth in this Indenture on behalf of each Person
that is then a Subsidiary Guarantor.
Section 1403. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON
CERTAIN TERMS. No Subsidiary Guarantor may consolidate with or merge with
or into (whether or not such Subsidiary Guarantor is the surviving
Person), another Person whether or not affiliated with such Subsidiary
Guarantor unless:
(a) subject to the provisions of Section 1404 hereof, the
Person formed by or surviving any such consolidation or merger (if
other than such Subsidiary Guarantor) assumes all the obligations of
such Subsidiary
- 32 -
Guarantor, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee in respect of the
Notes, this Indenture and such Subsidiary Guarantor's Subsidiary
Guarantee;
(b) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(c) such transaction does not violate any of Sections 1008,
1009, 1010, 1011, 1012, 1014, 1015, 1016, 1017, 1018, 1019 and 1020.
Notwithstanding the foregoing, no Subsidiary Guarantor shall be
permitted to consolidate with or merge with or into (whether or not such
Subsidiary Guarantor is the surviving Person), another Person pursuant to
the preceding sentence if such consolidation or merger would not be
permitted by Article Eight hereof.
In case of any such consolidation or merger and upon the assumption
by the successor Person, by supplemental indenture, executed and delivered
to the Trustee and satisfactory in form to the Trustee, of the obligations
of the Subsidiary Guarantor in respect of the Notes, this Indenture and
such Subsidiary Guarantor's Subsidiary Guarantee, such successor
corporation shall succeed to and be substituted for the Subsidiary
Guarantor with the same effect as if it had been named herein as a
Subsidiary Guarantor. Such successor Person thereupon may cause to be
signed any or all of the Subsidiary Guarantees to be endorsed upon all of
the Notes issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee. All the Subsidiary Guarantees
so issued shall in all respects have the same legal rank and benefit under
this Indenture as the Subsidiary Guarantees theretofore and thereafter
issued in accordance with the terms of this Indenture as though all of
such Subsidiary Guarantees had been issued at the date of the execution
hereof.
Except as set forth in Articles Eight and Ten hereof, nothing
contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into the
Company, or shall prevent any sale or conveyance of the property of a
Subsidiary Guarantor as an entirety or substantially as an entirety to the
Company.
Section 1404. RELEASES OF SUBSIDIARY GUARANTEES. In the event of a
sale or other disposition of all or substantially all of the assets of any
Subsidiary Guarantor to a Person that is not a Subsidiary or to a
Non-Recourse Subsidiary in a transaction that does not violate any
provisions of this Indenture, by way of merger, consolidation or
otherwise, or a sale or other disposition (including, without limitation,
by foreclosure) of all of the capital stock of any Subsidiary Guarantor,
then such Subsidiary Guarantor (in the event of a sale or other
disposition (including,
- 33 -
without limitation, by foreclosure), by way of such a merger,
consolidation or otherwise, of all of the capital stock of such Subsidiary
Guarantor) or the Person acquiring the property (in the event of a sale or
other disposition of all or substantially all of the assets of such
Subsidiary Guarantor) shall be released and relieved of any obligations
under this Indenture and its Subsidiary Guarantee; PROVIDED that the Net
Available Proceeds of such sale or other disposition are applied in
accordance with Section 1013 hereof. Upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in
accordance with the provisions of this Indenture, including without
limitation Section 1013, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Subsidiary
Guarantor from its obligations under this Indenture and its Subsidiary
Guarantee. In the event of a release or discharge in full of all
obligations of any Subsidiary Guarantor in respect of all of its
guarantees of Indebtedness of the Company (other than the Notes), such
Subsidiary Guarantor shall, upon the written request of the Company, be
released and relieved of any obligation under this Indenture and its
Subsidiary Guarantee. Upon delivery by the Company to the Trustee of an
Officers' Certificate to the effect that such Subsidiary Guarantor has
been released or discharged in full from all of its obligations under all
of its guarantees of Indebtedness of the Company, the Trustee shall
execute any documents reasonably required in ore of such Subsidiary
Guarantor from its obligations under this Indenture and its Subsidiary
Guarantee.
Any Subsidiary Guarantor not released from its obligations under its
Subsidiary Guarantee shall remain liable for the full amount of principal
of and premium and interest on the Notes and for the other obligations of
any Subsidiary Guarantor under this Indenture.
Any Subsidiary Guarantor that is designated a Non-Recourse
Subsidiary in accordance with the terms of this Indenture shall be
released from and relieved of its obligations under this Indenture and its
Subsidiary Guarantee. Any Non-Recourse Subsidiary that ceases to be a
Non-Recourse Subsidiary shall thereupon execute a supplement to this
Indenture in accordance with the terms of this Indenture.
Section 1405. LIMITATION ON SUBSIDIARY GUARANTOR LIABILITY. For
purposes hereof, each Subsidiary Guarantor's liability shall be that
amount from time to time equal to the aggregate liability of such
Subsidiary Guarantor thereunder, but shall be limited to the lesser of (i)
the aggregate amount of the obligations of the Company under the Notes and
this Indenture and (ii) the amount, if any, which would not have (A)
rendered such Subsidiary Guarantor "insolvent" (as such term is defined in
the federal Bankruptcy Law and in the Debtor and Creditor Law of the State
of New York) or (B) left it with unreasonably small capital at the time
its Subsidiary Guarantee of the Notes was entered into, after giving
effect to the incurrence of
- 34 -
existing Indebtedness immediately prior to such time; provided that, it
shall be a presumption in any lawsuit or other proceeding in which such
Subsidiary Guarantor is a party that the amount guaranteed pursuant to its
Subsidiary Guarantee is the amount set forth in clause (i) above unless
any creditor, or representative of creditors of such Subsidiary Guarantor,
or debtor in possession or trustee in bankruptcy of such Subsidiary
Guarantor, otherwise proves in such a lawsuit that the aggregate liability
of such Subsidiary Guarantor is limited to the amount set forth in clause
(ii). In making any determination as to the solvency or sufficiency of
capital of a Subsidiary Guarantor in accordance with the previous
sentence, the right of such Subsidiary Guarantor to contribution from
other Subsidiary Guarantors and any other rights such Subsidiary Guarantor
may have, contractual or otherwise, shall be taken into account.
Section 1406. "TRUSTEE" TO INCLUDE PAYING AGENT. In case at any time
any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this
Article Fourteen shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent
within its meaning as fully and for all intents and purposes as if such
Paying Agent were named in this Article Fourteen in place of the Trustee.
SECTION 1.9. EFFECT OF ARTICLE ONE. The supplements to the Original
Indenture set forth in Article One of this First Supplemental Indenture affect
only the provisions of the Original Indenture as such provisions relate to the
Notes, the series of Securities comprised of the Notes and the rights, remedies
and obligations of the Company, the Subsidiary Guarantors, the Holders of Notes,
the Trustee and other Persons set forth in the Original Indenture as such
rights, remedies and obligations relate to the Notes. Unless otherwise expressly
set forth in a subsequent supplement to the Original Indenture, as supplemented
hereby, the supplements to the Original Indenture contained in Article One of
this First Supplemental Indenture relate only to the series of Securities
comprised of the Notes.
ARTICLE TWO
THE NOTES
The Notes shall be issued in the form of one or more permanent global
Notes substantially in the form set forth on Exhibit A hereof, duly executed by
the Company and authenticated by the Trustee as provided in the Indenture. The
terms of the Notes set forth on Exhibit A hereto are incorporated by reference
herein as if set forth herein in their entirety.
- 35 -
ARTICLE THREE
REPRESENTATIONS OF THE COMPANY
SECTION 3.1. AUTHORITY OF THE COMPANY. The Company is duly authorized to
execute and deliver this First Supplemental Indenture, and all corporate action
on its part required for the execution and delivery of this Supplemental
Indenture has been duly and effectively taken.
SECTION 3.2. TRUTH OF RECITALS AND STATEMENTS. The Company warrants that
the recitals of fact and statements contained in this First Supplemental
Indenture are true and correct, and that the recitals of fact and statements
contained in all certificates and other documents furnished thereunder will be
true and correct.
ARTICLE FOUR
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 Indenture and in this First Supplemental Indenture, to
all of which the Company and the respective Holders of the Notes at any time
hereafter outstanding agree by their acceptance thereof.
SECTION 4.2. NO RESPONSIBILITY OF TRUSTEE FOR RECITALS, ETC. The recitals
and statements contained in this First 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 First Supplemental
Indenture, except that the Trustee is duly authorized to execute and deliver
this First Supplemental Indenture.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
SECTION 5.1. RELATION TO THIS INDENTURE. The provisions of this First
Supplemental Indenture shall become effective immediately upon the execution and
delivery hereof. This First Supplemental Indenture and all the terms and
provisions herein contained shall form a part of the Original Indenture as fully
and with the same effect as if all such terms and provisions had been set forth
in the Original Indenture; PROVIDED, HOWEVER, such terms and provisions shall be
so included in this First Supplemental Indenture solely for the benefit of the
Company, the Subsidiary Guarantors, the Trustee and the Holders of the Notes.
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 by this First Supplemental Indenture, and the Original
Indenture and this First Supplemental Indenture shall be read, taken and
construed together as one instrument.
- 36 -
SECTION 5.2. MEANING OF TERMS. Any term used in this First Supplemental
Indenture which 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 SUPPLEMENTAL INDENTURE. This First
Supplemental Indenture may be executed in several counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
instruments.
SECTION 5.4. GOVERNING LAW. This First Supplemental Indenture and the
Notes shall be governed by and construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, Pride Petroleum Services, Inc. has caused this First
Supplemental Indenture to be executed in its corporate name by a duly authorized
officer and The Chase Manhattan Bank has caused this Supplemental Indenture to
be executed in its corporate name by a duly authorized officer, all as of the
date first above written.
PRIDE PETROLEUM SERVICES, INC.
By: /s/ XXXX X. XXXXXX
Name: XXXX X. XXXXXX
Title: VICE PRESIDENT
THE CHASE MANHATTAN BANK
By: /s/ X. XXXXXXXXX
Name: X. XXXXXXXXX
Title: VICE PRESIDENT
- 37 -
EXHIBIT A
(FACE OF NOTE)
9 3/8% Senior Notes due 2007
CUSIP Number ____________
No. $325,000,000
PRIDE PETROLEUM SERVICES, INC.
promises to pay to
or registered assigns,
the principal sum of
Dollars on May 1, 2007.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
[SEAL]
ATTEST: PRIDE PETROLEUM SERVICES, INC.
By: By:
Name: Name:
Title: Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture:
The Chase Manhattan Bank,
as Trustee
By:
Authorized Officer
A-1
Dated: May 7, 1997
A-2
(BACK OF NOTE)
9 3/8% Senior Note due 2007
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. (a) Pride Petroleum Services, Inc., a Louisiana corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at the rate of 9 3/8% per annum, which interest shall be payable in cash
semi-annually in arrears on May 1 and November 1, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "Interest Payment
Date"); PROVIDED that the first Interest Payment Date shall be November 1, 1997.
Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of original
issuance. Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months.
2. METHOD OF PAYMENT. On each Interest Payment Date the Company will pay
interest to the Person who is the Holder of record of this Note as of the close
of business on the April 15 or October 15 immediately preceding such Interest
Payment Date, even if this Note is canceled after such record date and on or
before such Interest Payment Date. Principal, premium, if any, and interest, if
any, on this Note will be payable at the office or agency of the Company
maintained for such purpose within the City and State of New York. Such payment
shall be in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, The Chase Manhattan Bank, the
Trustee under the Indenture, will act as Registrar and Paying Agent. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company, any Subsidiary Guarantor or any other of its Subsidiaries may act in
any such capacity.
A-3
4. INDENTURE. The Company issued the Notes under an Indenture dated as of
May 1, 1997, as supplemented by a First Supplemental Indenture of even date
(collectively, the "Indenture") between the Company and the Trustee. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code xx.xx. 77aaa-77bbbb). The Notes are subject to all such terms, and Holders
are referred to the Indenture and such Act for a statement of such terms. The
Notes are general unsecured obligations of the Company limited in an aggregate
principal amount to $325,000,000 and will mature on May 1, 2007.
5. OPTIONAL REDEMPTION. (a) The Notes are not redeemable at the Company's
option prior to May 1, 2002. Thereafter, the Notes will be subject to redemption
at the option of the Company, in whole or in part, upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest thereon to
the applicable redemption date (subject to the right of the Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date), if redeemed during the twelve-month period beginning on May 1 of
the years indicated below:
YEAR PERCENTAGE
2002....................................................104.688%
2003....................................................103.125%
2004....................................................101.563%
2005 and thereafter.....................................100.000%
(b) Notwithstanding clause (a) of this Paragraph 5, prior to May 1, 2000,
the Company may, at its option, on any one or more occasions, redeem up to
$108,333,000 in aggregate principal amount of Notes at a redemption price equal
to 109.375% of the principal amount thereof, plus accrued and unpaid interest
thereon to the redemption date, with the net proceeds of a Public Equity
Offering (other than the Common Stock offering concurrently with the date of
original issuance of the Notes); PROVIDED that at least $200.0 million in
aggregate principal amount of Notes must remain outstanding immediately after
the occurrence of such redemption; and provided, further, that any such
redemption shall occur within 60 days of the date of the closing of such Public
Equity Offering.
6. MANDATORY REDEMPTION. Except as set forth in paragraph 7 below, the
Company shall not be required to make mandatory redemption payments with respect
to the Notes.
7. REPURCHASE AT OPTION OF HOLDER. (a) Upon the occurrence of a Change of
Control, each Holder of Notes shall have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
such Holder's Notes pursuant to the offer described below (the "Change of
Control Offer") at an offer price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest thereon, if any, to
the date of purchase (the "Change of Control Payment"). Within 30 days following
any Change of Control, the Company will mail a notice to each Holder and the
Trustee describing the transaction or transactions that constitute
A-4
the Change of Control and offering to repurchase Notes pursuant to the
procedures required by the Indenture and described in such notice. The Company
will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Notes as a
result of a Change of Control.
(b) If the Company or a Subsidiary consummates any Asset Sales permitted
by the Indenture, when the aggregate amount of Excess Proceeds exceeds $10.0
million, the Company shall make an Asset Sale Offer to purchase the maximum
principal amount of Notes to which the Asset Sale Offer applies that may be
purchased out of the Excess Proceeds, at an offer price in cash in an amount
equal to 100% of the outstanding principal amount thereof plus accrued and
unpaid interest thereon to the date of purchase, in accordance with the
procedures set forth in Section 1013 of the Indenture. To the extent that the
aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Notes
surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes te aggregate principal amount (or accreted value,
as applicable) thereof surrendered in such Asset Sale Offer. Upon the completion
of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes initially issued are in
the form of a permanent Global Certificate, except as provided in this
Indenture. Under certain circumstances described in the Indenture, Notes may
also be issued in the form of permanent certificated Notes in registered form
without coupons in minimum denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered as provided in the Indenture.
The Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Company need not register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, it need not register the transfer of any Notes for
a period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
A-5
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes. Without
notice to or consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's or any Subsidiary
Guarantor's obligations to Holders of the Notes in case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder, or to comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act, to secure the Notes or to add or
release any Subsidiary Guarantor pursuant to the terms of the Indenture;
PROVIDED that such actions will not adversely affect the interests of the
Holders in any material respect.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest on the Notes; (ii) default in payment
when due of the principal of or premium, if any, on the Notes; (iii) failure by
the Company to comply with the provisions of Sections 801, 1013 and 1017 of the
Indenture; (iv) failure by the Company or any Subsidiary Guarantor for 30 days
after notice from the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding to comply with any of its other
agreements in the Indeson cease to be, or be asserted by the Company or any
Subsidiary Guarantor, as applicable, not to be, in full force and effect (except
pursuant to the release of any such Subsidiary Guarantee in accordance with the
Indenture); (vi) failure by the Company or any of its Subsidiaries (other than
Non-Recourse Subsidiaries) to pay Indebtedness of the Company or any Subsidiary
(other than Non-Recourse Indebtedness or Limited Recourse Indebtedness) when due
within the applicable grace period, which Indebtedness exceeds $10 million;
(vii) the entry of a judgment in an uninsured or underdemnified aggregate amount
in excess of $10.0 million, which judgment is not paid or discharged for a
period of 60 days; and (viii) certain events of bankruptcy or insolvency with
respect to the Company or any of its Subsidiaries (other than NonRecourse
Subsidiaries) that constitute a Significant Subsidiary or any group of
Subsidiaries (other than Non-Recourse Subsidiaries) that, taken together, would
constitute a Significant Subsidiary. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, with respect to the
Company, any Subsidiary (other than a Non-Recourse Subsidiary) that constitutes
a Significant Subsidiary or any group of Subsidiaries (other than NonRecourse
Subsidiaries) that, taken together, would constitute a Significant Subsidiary,
all outstanding Notes will become due and payable without further action or
notice. Holders of the Notes may not enforce the Indenture or the Notes except
as provided in the Indenture. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the then outstanding Notes may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes
A-6
notice of any continuing Default or Event of Default (except a Default or Event
of Default relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences under the Indenture except a
continuing Default or Event of Default in the payment of interest on, or the
principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is
required, upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Indenture contains certain
limitations on the rights of the Trustee, should it become a creditor of the
Company, to obtain payment of claims in certain cases, or to realize on certain
property received in respect of any such claim as security or otherwise. The
Trustee will be permitted to engage in other transactions; however, if it
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the Commission for permission to continue or resign.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company, as sucompany under the Notes or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes, by accepting a Note, waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
15. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
18. SINKING FUND; ADDITIONAL AMOUNTS. There shall not be any sinking fund
with respect to the Notes. The Company shall not be obligated to pay Additional
Amounts with respect to the Notes.
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The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Pride Petroleum Services, Inc.
0000 Xxxx Xxxx Xxxx.
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telephone No. (000) 000-0000
Telecopier No. (000) 000-0000
Attention: Xxxxxx Xxxxxxx
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
--------------------------------------------------------------------------------
(Insert assignee's Social Security or tax I.D. No.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date:______________
Your Signature:
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee: /*/
------------------------
/*/ Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 1013 or 1017 of the Indenture, check the box below:
[ ] Section 1013 [ ] Section 1017
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 1013 or Section 1017 of the Indenture, state the
amount you elect to have purchased:
$
Date: Your Signature:
(Sign exactly as your name appears on
the Note)
Tax Identification No.:
Signature Guarantee: /*/
---------------------
/*/ Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A-10
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTE
The following exchanges of a part of this Global Certificate for
Definitive Notes have been made:
Principal Amount of
Amount of decrease Amount of increase this Global Signature of
in principal Amount in Principal Amount Certificate following authorized officer of
of this Global of this Global such decrease (or Trustee or Note
DATE OF EXCHANGE Certificate Certificate increase) Custodian
--------------------------------------------------------------------------------------------------------
A-11
EXHIBIT B
FORM OF SUBSIDIARY GUARANTEE
Each of the Subsidiary Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of the Indenture, the Notes or the
obligations of the Company thereunder, that: (a) the principal of and premium
and interest on the Notes shall be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on premium and interest on the Notes, if any, if
lawful, and all other obligations of the Company to the Holders or the Trustee
thereunder shall be promptly paid in full or performed, all in accordance with
the terms thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same shall 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.
Failing payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and
severally obligated to pay the same immediately.
The obligations of the Subsidiary Guarantors to the Holders of Notes and
to the Trustee pursuant to this Subsidiary Guarantee are expressly set forth in
Article 14 of the Indenture, and reference is hereby made to such Article for
the precise terms of this Subsidiary Guarantee. The terms of Article 14 of the
Indenture are incorporated herein by reference.
This is a continuing Subsidiary Guarantee and shall remain in full force
and effect and shall be binding upon each Subsidiary Guarantor and its
respective successors and assigns to the extent set forth in the Indenture until
full and final payment of all of the Company's obligations under the
Notes and the Indenture and shall inure to the benefit of the Trusteeors and
assigns and, in the event of any transfer or assignment of rights by any Holder
of Notes or the Trustee, 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. Notwithstanding the
foregoing, the Subsidiary Guarantees may be discharged in accordance with
Article IV of the Indenture and any Subsidiary Guarantor that satisfies the
provisions of Section 14.04 of the Indenture shall be released of its
obligations hereunder. This is a Subsidiary Guarantee of payment and not a
guarantee of collection.
This Subsidiary Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Note upon which this Subsidiary
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
For purposes hereof, each Subsidiary Guarantor's liability will be that
amount from time to time equal to the aggregate liability of such Subsidiary
Guarantor hereunder, but shall be limited to the lesser of (i) the aggregate
amount of the Obligations of the Company under the Notes and the
B-1
Indenture and (ii) the amount, if any, which would not have (A) rendered such
Subsidiary Guarantor "insolvent" (as such term is defined in the federal
Bankruptcy Law and in the Debtor and Creditor Law of the State of New York) or
(B) left it with unreasonably small capital at the time its Subsidiary Guarantee
of the Notes was entered into, after giving effect to the incurrence of existing
Indebtedness immediately prior to such time; provided that, it shall be a
presumption in any lawsuit or other proceeding in which such Subsidiary
Guarantor is a party that the amount guaranteed pursuant to its Subsidiary
Guarantee is the amount set forth in clause (i) above unless any creditor, or
representative of creditors of such Subsidiary Guarantor, or debtor in
possession or trustetor, otherwise proves in such a lawsuit that the aggregate
liability of such Subsidiary Guarantor is limited to the amount set forth in
clause (ii). The Indenture provides that, in making any determination as to the
solvency or sufficiency of capital of a Subsidiary Guarantor in accordance with
the previous sentence, the right of such Subsidiary Guarantor to contribution
from other Subsidiary Guarantors and any other rights such Subsidiary Guarantor
may have, contractual or otherwise, shall be taken into account.
Capitalized terms used herein have the same meanings given in that certain
Indenture dated as of May 1, 1997 between Pride Petroleum Services, Inc. and The
Chase Manhattan Bank, as Trustee, as supplemented by the First Supplemental
Indenture dated as of May 1, 1997 between Pride Petroleum Services, Inc. and The
Chase Manhattan Bank, as Trustee, unless otherwise indicated.
[Name of Subsidiary Guarantor]
By:
Name:
Title:
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