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PETROLEUM GEO-SERVICES ASA,
AS ISSUER,
EACH OF THE GUARANTORS NAMED HEREIN
and
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
Dated as of ________ ___, 2003
to
Indenture dated as of ________ ___, 2003
$___,000,000 10% Senior Notes due 2010
and
$___,000,000 8% Senior Notes due 2006
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS.......................................................2
SECTION 1.1. Terms Defined in the Original Indenture.........................2
SECTION 1.2. Certain Definitions.............................................2
ARTICLE II. THE NOTES........................................................6
SECTION 2.1. Form and Dating.................................................6
SECTION 2.2. Title and Amount................................................6
SECTION 2.3. Place of Payment................................................6
SECTION 2.4. No Additional Amounts...........................................7
SECTION 2.5. Default Interest................................................7
SECTION 2.6. Guarantee.......................................................7
ARTICLE III. redemption......................................................7
SECTION 3.1. Optional Redemption.............................................7
ARTICLE IV. ADDITIONAL COVENANTS.............................................7
SECTION 4.1. Negative Pledge.................................................7
SECTION 4.2. Term Loan Facility Amendments...................................9
SECTION 4.3. Delivery of Information.........................................9
SECTION 4.4. Payment Currency...............................................10
SECTION 4.5. Offer to Purchase Upon a Change of Control.....................10
SECTION 4.6. Transactions with Affiliates...................................13
SECTION 4.7. Change of Business.............................................14
SECTION 4.8. Insurance......................................................14
SECTION 4.9. Ranking........................................................14
SECTION 4.10. Group and PGS Subsidiary Indebtedness.........................14
SECTION 4.11. Project Finance...............................................15
SECTION 4.12. Environmental Laws............................................15
SECTION 4.13. Payment of Dividends by the Company...........................15
SECTION 4.14. Asset Dispositions............................................16
SECTION 4.15. Major Proceeds................................................17
SECTION 4.16. Rating by Rating Agencies.....................................18
ARTICLE V. ADDITIONAL EVENTS OF DEFAULT.....................................19
SECTION 5.1. Additional Events of Default...................................19
SECTION 5.2. Change to Events of Default in Original Indenture..............20
ARTICLE VI. MISCELLANEOUS PROVISIONS........................................20
SECTION 6.1. Table of Contents, Headings, etc...............................20
(i)
SECTION 6.2. Counterpart Originals..........................................20
SECTION 6.3. Governing Law..................................................20
SECTION 6.4. The Trustee....................................................20
(ii)
FIRST SUPPLEMENTAL INDENTURE dated as of ____ ___, 2003
between Petroleum Geo-Services ASA, a Norwegian public limited liability company
(the "Company"), the Guarantors named on the signature page hereof (the
"Guarantors") and Law Debenture Trust Company of New York, as trustee (the
"Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company and each Guarantor has executed and
delivered to the Trustee an indenture, dated as of ______ __, 2003 (the
"Original Indenture" and as supplemented by this First Supplemental Indenture,
the "Indenture"), providing for the issuance by the Company from time to time of
its unsecured debentures, notes or other evidences of indebtedness (the
"Securities"), issuable in one or more series;
WHEREAS, in connection with the restructuring of the Company's
debt obligations and recapitalization as contemplated in that Plan of
Reorganization for the Company filed in In re Petroleum Geo-Services ASA as
debtor, U.S. Bankruptcy Court, Southern District of New York, case no 03-14786
(BRL) (the "Restructuring"), the Company has duly authorized and desires to
cause to be issued pursuant to the Original Indenture two series of Securities,
one series to be designated the "10% Senior Notes due 2010" (the "Notes due
2010") and the other series to be designated the "8% Senior Notes due 2006" (the
"Notes due 2006" and, together with the Notes due 2010, the "Notes");
WHEREAS, the Company desires to cause the issuance of the
Notes pursuant to Section 2.01 of the Original Indenture, which section permits
the execution of indentures supplemental thereto to establish the terms of
Securities of any series;
WHEREAS, Section 9.01 of the Original Indenture permits the
execution of supplemental indentures without the consent of any Holder (as
defined therein) (i) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (Section 9.01(6)), (ii) to add
any additional Events of Default with respect to all or any series of Securities
(Section 9.01(7)), (iii) to change or eliminate any provision of the Original
Indenture with respect to Securities of any series when there is no Security of
such series outstanding (Section 9.01(8)) and (iv) to establish the form or
terms of Securities of any series (Section 9.01(9));
WHEREAS, pursuant to Section 9.01 of the Original Indenture
the Company has requested that the Trustee join in the execution of this First
Supplemental Indenture to establish the form and terms of the Notes;
WHEREAS, all things necessary have been done to make the
Notes, when executed by the Company and authenticated and delivered hereunder
and duly issued by the Company, the valid obligations of the Company, and to
make this First Supplemental Indenture a valid agreement of the Company and the
Guarantors, in accordance with their and its terms.
NOW, THEREFORE, the Company, the Guarantors and the Trustee
hereby agree that the following provisions shall supplement the Original
Indenture:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Terms Defined in the Original Indenture.
Each capitalized term used but not defined in this First
Supplemental Indenture shall have the meaning assigned to such term in the
Original Indenture.
SECTION 1.2. Certain Definitions.
The following definitions are hereby added to, or, in the case
of the definitions of the term "Redemption Price" and "Subsidiary", substituted
in lieu of, the definition contained in Section 1.01 of the Original Indenture,
but only with respect to each series of the Notes:
"Acting in Concert" means acting together pursuant to an
agreement or understanding (whether formal or informal).
"Adjusted Total Debt" means, at any time, Total Debt:
(a) less any Financial Indebtedness under the Bonding Facility
and the Working Capital Facility at that time;
(b) less any scheduled repayments of Financial Indebtedness
which fall due substantially concurrent with such time; and
(c) plus any Financial Indebtedness which is scheduled to be
incurred substantially concurrent with such time.
"Affiliate Transaction" has the meaning assigned to that term
in Section 4.6.
"Bonding Facility" means a facility or facilities made, or to
be made, available for the issuance of Bonds by banks or financial institutions
on behalf of members of the Group in an aggregate principal amount which does
not exceed US$40,000,000 (or its equivalent in any other currency or
currencies).
"Bonds" means guarantees, bonds (being bid bonds, performance
bonds or other bonds), indemnities, letters of credit, documentary credits and
other equivalent instruments issued or to be issued in connection with the
trading activities of the Group.
"Change of Control" means any Person or group of Persons
Acting in Concert gaining Control of the Company.
"Change of Control Date" has the meaning assigned to that term
in Section 4.5.
"Consolidated Net Income" means, for any period, the
consolidated net income of the Company for such period as determined by
reference to the Company's consolidated financial statements delivered pursuant
to Section 4.3.
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"Control" means any person or group of persons Acting in
Concert (whether directly or indirectly) becoming the beneficial owner of the
Voting Stock of the Company carrying the right to exercise a minimum of 51% of
the votes capable of being cast in general meetings of the Company.
"Dangerous Substance" means any radioactive emissions, noise,
any natural or artificial substance (whether in the form of a solid, liquid, gas
or vapor) the generation, transportation, storage, treatment, use or disposal of
which (whether alone or in combination with any other substance) including
(without limitation) any controlled, special, hazardous, toxic, radioactive or
dangerous substance or waste, gives rise to a material risk of causing harm to
man or any other living organism or damage to the Environment.
"Deemed Amendments" shall have the meaning set forth in
Section 4.2.
"EBITDA" means, at any time, the Consolidated Net Income for
the period of four fiscal quarters ending on the last day of the period for
which the most recent financial statements of the Group delivered under Section
4.3 relate (the "Measurement Period") but before taking into account (a)
Interest Expense, (b) Tax, (c) any fees, costs and expenses payable during that
Measurement Period under, or in relation to, the Restructuring, (d) any other
non-cash charges which are, or are in connection with, exceptional or
extraordinary items; and after adding back all amounts provided for depreciation
and amortization during that Measurement Period and including:
(i) the earnings before interest and other finance
charges, Tax, depreciation and amortization of a Subsidiary or
business or the net earnings of an asset acquired by any
member of the Group during the relevant Measurement Period for
the part of that Measurement Period when it was not a
Subsidiary of that member of the Group and/or the business or
asset was not owned by that member of the Group (if any); and
(ii) any earnings attributable
to minority interests,
but excluding the earnings before interest and other finance charges, Tax,
depreciation and amortization attributable to any member of the Group or to any
business or assets sold during that Measurement Period and, for the avoidance of
doubt, calculated before any investment in the Multi-Client Libraries.
"Environment" means all, or any of, (i) the air (including,
without limitation, the air within buildings and the air within other natural or
man-made structures above or below ground), (ii) water (including, without
limitation, ground and surface water) and (iii) land (including, without
limitation, surface and sub-surface soil).
"Environmental Law" means all applicable laws (including,
without limitation, common law), regulations, directing codes of practice,
circulars, guidance notices and the like having the force of law concerning
pollution of the Environment or the generation, transportation, storage,
treatment or disposal of Dangerous Substances but excluding any such laws,
regulations, directing codes of practice guidance notices or the like which have
as their primary purpose the securing of the health or safety of persons at
work.
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"Environmental License" means any permit, license,
authorization, consent or other approval required by any Environmental Law.
"Global Notes" shall have the meaning set forth in Section
2.1.
"Interest Expense" means, in relation to any period, the
aggregate amount of interest and any other finance charges (whether or not paid
or payable) accrued by the Group in that period in respect of Financial
Indebtedness determined in accordance with GAAP.
"Lien" means, with respect to any property or asset, any
mortgage, lien, pledge, charge, assignment by way of security, hypothecation or
other security interest securing any obligation of any Person or any other
agreement or arrangement having a similar effect.
"Major Proceeds" has the meaning ascribed to such term in the
Term Loan Facility.
"Material Adverse Effect" means a material adverse effect on
the consolidated financial condition or business of the Group taken as a whole
or the ability of the Company to perform its payment obligations or any other
material obligations under the Indenture or the validity or enforceability of
the Indenture.
"Modification" has the meaning ascribed to such term in
Section 4.2.
"Moody's" means Moody's Investor's Service,
Inc. and its successors.
"Multi-Client Libraries" means libraries of seismic data which
have been acquired for licensing to multiple clients.
"Notes" shall have the meaning set forth in the recitals
hereof.
"Obligor" means, individually and
collectively, the Company and each Guarantor.
"Offer Amount" has the meaning assigned to that term in
Section 4.5.
"Offer Period" has the meaning assigned to that term in
Section 4.5.
"Original Indenture" shall have the meaning set forth in the
recitals hereof.
"PGS Subsidiary" means any Subsidiary of the Company other
than a Project Company.
"Project" means the acquisition, creation, construction,
improvement or development of an asset where the indebtedness incurred to
finance the whole or part thereof is owed by a Project Company solely on a
limited recourse basis to the applicable Project Company (where such Project
Company is formed solely or principally for the purpose of the relevant Project)
and/or to such asset (or any derivative asset thereof).
"Purchase Date" has the meaning assigned to that term in
Section 4.5.
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"Purchase Offer" has the meaning assigned to that term in
Section 4.5.
"Redemption Price" means, with respect to any Note to be
redeemed, the price as set forth in paragraph 4 of the Notes.
"Restructuring" has the meaning assigned to that term in the
recitals hereof.
"Sale and Leaseback Type Transactions" has
the meaning assigned to that term in Section 4.1
"S&P" means Standard & Poor's Rating
Services, a division of The XxXxxx-Xxxx Company, Inc., and
its successors.
"Subsidiary" means an entity from time to time of which a
Person directly or indirectly owns or controls shares representing more than 50%
of the Voting Stock or, by agreement or otherwise, has direct or indirect
control. For the purposes of this definition, "control" means the power to
direct the management and the policies of the entity whether through the
ownership of voting capital, by contract or otherwise.
"Tax" means any tax, levy, impost, duty or other charge or
withholding of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay by an Obligor in paying any of
the same).
"Term Loans" means the loans extended to the Company pursuant
to the Term Loan Facility.
"Total Debt" means, at any time, the aggregate outstanding
principal, capital or nominal amount of the Financial Indebtedness of the
members of the Group at that time but excluding:
(a) any repayments of Financial Indebtedness which are made at
that time with the proceeds of Financial Indebtedness incurred at that time; and
(b) for the avoidance of doubt, any Project Finance
Indebtedness outstanding at that time.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled, without regard to the occurrence of any
contingency, to vote in the election of directors, managers or trustees thereof.
"Working Capital Facility" means a facility or facilities
made, or to be made, available to members of the Group to finance the Group's
working capital requirements which in aggregate principal amount does not exceed
US$70,000,000 (or its equivalent in any other currency or currencies).
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ARTICLE II.
THE NOTES
SECTION 2.1. Form and Dating.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A to this First Supplemental
Indenture, which is hereby incorporated into this Indenture. The terms and
provisions contained in the Notes of each series shall constitute, and are
hereby expressly made, a part of this First Supplemental Indenture and to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this First Supplemental Indenture, expressly agree to such terms and
provisions and to be bound thereby.
The Notes of each series will initially be issued in permanent
global form, substantially in the form of Exhibit A attached hereto (the "Global
Notes"). Each Global Note of a series shall represent such of the outstanding
Notes of that series as shall be specified therein and shall provide that it
shall represent the aggregate amount of outstanding Notes of that series from
time to time endorsed thereon and that the aggregate amount of outstanding Notes
of that series represented thereby may from time to time be reduced to reflect
exchanges and redemptions. Any endorsement of a Global Note of a series to
reflect the amount, or any decrease in the amount, of outstanding Notes of that
series represented thereby shall be made by the Trustee in accordance with
written instructions or such other written form of instructions as is customary
for the Depositary, from the Depositary or its nominee on behalf of any Person
having a beneficial interest in the Global Note of that series.
The Company initially appoints The Depository Trust Company
and the Trustee to act as Depositary and Security Custodian, respectively, with
respect to the Global Notes.
SECTION 2.2. Title and Amount.
The Notes due 2010 shall be entitled the "10% Senior Notes due
2010," and the Notes due 2006 shall be entitled the "8% Senior Notes due 2006."
The Trustee shall authenticate and deliver Notes due 2010 for original issue in
the aggregate principal amount of $___,000,000, and the Trustee shall
authenticate and deliver Notes due 2006 for original issue in the aggregate
principal amount of $___,000,000, in each case upon a Company Order for the
authentication and delivery of such series of Notes and satisfaction of Sections
2.01 and 2.04 of the Indenture. Such order shall specify the amount of the Notes
of each series to be authenticated, the date on which the original issue of
Notes of each series is to be authenticated and the name or names of the initial
Holder or Holders. The aggregate principal amount of Notes due 2010 that may be
authenticated and delivered under the Indenture may not exceed $___,000,000, and
the aggregate principal amount of Notes due 2006 that may be authenticated and
delivered under the Indenture may not exceed $___,000,000 (except for Notes of a
series authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes of that series pursuant to Section
2.08, 2.09, 2.12, 2.17, 3.07 or 9.05 of the Indenture).
SECTION 2.3. Place of Payment.
The Place of Payment for the Notes shall be in the Borough of
Manhattan, The City of New York.
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SECTION 2.4. No Additional Amounts.
No Additional Amounts shall be payable with respect to the
Notes.
SECTION 2.5. Default Interest.
Notwithstanding Section 2.14 of the Original Indenture, if the
Company defaults in a payment of interest on the Notes, the Company shall pay
the defaulted interest plus, to the extent lawful, interest on the defaulted
interest, in each case at an annual rate equal to the non-default rate provided
in the Notes plus, upon the expiration of any applicable cure period, 2%.
SECTION 2.6. Guarantee.
The Notes issued hereunder are entitled to the benefits of the
Guarantee under Article X of the Original Indenture and any other covenants and
undertakings of the Guarantors under the Original Indenture.
ARTICLE III.
REDEMPTION
SECTION 3.1. Optional Redemption.
There shall be no sinking fund for the retirement of Notes of
either series. The Company, at its option, may redeem the Notes of each series
in accordance with the provisions of paragraph 4 of the Notes of that series and
Article III of the Original Indenture.
ARTICLE IV.
ADDITIONAL COVENANTS
The following covenants are hereby added to the covenants of
the Company for the benefit of the Holders of each series of the Notes, and such
covenants are expressly being included solely for the benefit of such series:
SECTION 4.1. Negative Pledge.
(a) No Obligor shall (and the Company shall ensure that no
Material Subsidiary will) create or permit to subsist any Lien over any of its
assets.
(b) No Obligor shall (and the Company shall ensure that no
Material Subsidiary will) (i) sell, transfer or otherwise dispose of any of its
assets on terms whereby they are or may be leased to or re-acquired or acquired
by an Obligor or any other member of the Group or any of its related entities,
or (ii) sell, transfer or otherwise dispose of any of its receivables on
recourse terms, except for the discounting of bills or notes in the ordinary
course of trading, in each case in circumstances where the arrangement or
transaction is entered into primarily as a method of raising Financial
Indebtedness or of financing the acquisition of an asset. The arrangements and
transactions referred to in this paragraph (b) are "Sale and Leaseback Type
Transactions" for the purposes of this First Supplemental Indenture.
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(c) Paragraphs (a) and (b) above do not apply to any Lien or
Sale and Leaseback Type Transactions:
(i) existing on the Issue Date or, in the case of a
Subsidiary which becomes a Material Subsidiary after the date
of this Indenture, existing as at the date that that
Subsidiary becomes a Material Subsidiary; provided that, in
each case, the principal amount secured thereby is not
subsequently increased;
(ii) created over or in respect of an asset to secure
Financial Indebtedness incurred to finance the acquisition of
that asset provided that the Financial Indebtedness so secured
does not exceed 100% of the total acquisition costs of that
asset and the Lien or Sale and Leaseback Type Transaction is
limited to that asset;
(iii) existing on or in respect of the assets of an
entity at the time it becomes a Material Subsidiary after the
Issue Date, but only if (A) the Lien was not created in
contemplation of the company becoming a Material Subsidiary
and (B) the principal amount secured by the Lien is not
increased after it becomes a Material Subsidiary;
(iv) existing on or in respect of assets at the time
they are acquired by a Material Subsidiary, but only if (A)
the Lien was existing at the time of the acquisition, (B) the
Lien was not created in contemplation of the acquisition and
(C) the principal amount secured by the Lien is not increased
after the acquisition;
(v) securing or in respect of any Financial
Indebtedness incurred by any Subsidiaries pursuant to Section
4.10;
(vi) created over any U.S. industrial revenue and/or
similar type of bond or other security;
(vii) on capital stock, debt securities or other
securities of a Person that is not a PGS Subsidiary;
(viii) any lien arising by operation of law and in
the ordinary course of trading and not as a result of any
default or omission by any member of the Group;
(ix) relating to accounts receivable of the Company
or any of the PGS Subsidiaries that have been sold, assigned
or otherwise transferred to a person other than the Company or
a PGS Subsidiary in connection with Financial Indebtedness of
the type described in paragraph (d) of the definition of
"Financial Indebtedness", provided that the amount secured by
that Lien does not exceed 10% of the consolidated total assets
of the Group (calculated by reference to the then latest
audited consolidated financial statements of the Group);
(x) securing the Working Capital Facility or the
Bonding Facility;
(xi) created pursuant to applications or
reimbursement agreements pertaining to commercial letters of
credit obtained in the ordinary course of business;
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(xii) any retention of title arising in a supplier's
standard conditions of supply in respect of goods acquired by
a Material Subsidiary in the ordinary course of business;
(xiii) any right of set-off on credit balances of a
Material Subsidiary where the same arises in the ordinary
course of banking arrangements for the purpose of netting
debit and credit balances; or
(xiv) created on or in respect of the assets the
subject of a Lien or Sale and Leaseback Type Transactions
permitted under paragraphs (i) to (xiii) above to secure any
refinancing of the amount thereby secured provided that the
principal amount secured by any such Lien or Sale and
Leaseback Type Transaction may not be increased and the
maturity of each amount secured may not be extended beyond the
maturity date provided for in the original documentation in
relation to such refinanced amount.
SECTION 4.2. Term Loan Facility Amendments.
(a) The Company shall provide the Trustee with prior written
notice of any amendment, supplement, restatement or any other modification to
the Term Loan Facility (the "Modification") which provides any lender under the
Term Loan Facility with the direct or indirect benefit of any guarantee,
preference, financial reporting requirements, representation, warranty, covenant
or event of default (howsoever described) under the terms of the Term Loan
Facility which is not provided to the Holders under the Indenture.
(b) Within 90 days of delivery of the notice referred to in clause (a) above,
the Company shall provide to the Trustee a supplemental indenture amending the
terms of the Indenture such that the relevant terms of the Indenture shall be
the same as the amended terms of the Term Loan Facility as modified by the
Modification (the "Deemed Amendments").
(c) Clause (b) above does not apply to the Repeating Representations (as defined
in the Term Loan Facility), Clause 19.5 (Change of GAAP), Clause 20.1
(Authorizations), Clause 21.3 (Misrepresentation), Clause 21.8 (Ownership of
Obligors), Clause 21.10 (Unlawfulness), Clause 21.11 (Repudiation) and Clause
27.9 (Change of Currency)of the Term Loan Facility.
(d) The Obligors agree to take whatever action the holders of __% of the
outstanding Notes may reasonably require to give effect to the terms of this
Section 4.2, including, without limitation, the execution of a supplemental
indenture reflecting the terms of the Deemed Amendments.
SECTION 4.3. ....Delivery of Information.
(a) Financial Statements. The Company shall file with the Trustee (i) as soon as
the same become available, but in any event within 180 days after the end of
each of its fiscal years, its audited consolidated financial statements for that
fiscal year, and (ii) as soon as the same become available, but in any event
within 60 days after the end of each of the first three financial quarters of
each of its fiscal years, the unaudited consolidated financial statements of the
Group for that financial quarter, in each case together with a certificate
signed by an Officer
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of the Company certifying that no Default is continuing (or if a Default is
continuing, specifying the Default and the steps, if any, being taken to remedy
it) setting out a calculation of the ratio of Adjusted Total Debt to EBITDA as
at the date to which such financial statements have been prepared. Each set of
financial statements delivered by the Company hereunder shall be prepared in
accordance with GAAP and shall be certified by an Officer of the Company as
fairly representing its consolidated financial condition and operations as at
the end of and for the period in relation to which those financial statements
were prepared.
(b) Other Information. The Company shall file with the Trustee
(i) copies of all documents delivered by the Company to its shareholders (or any
class thereof) or its creditors generally promptly after such delivery, (ii)
copies of all public filings made by the Company with the SEC (other than
filings which relate solely to the ownership of securities of the Company) or
the Oslo Stock Exchange.
SECTION 4.4. Payment Currency.
All payments due under the Notes shall be made in Dollars. To
the fullest extent permitted by applicable law, the obligation of the Company in
respect of any amount due under the Notes shall, notwithstanding any payment in
any other currency (whether pursuant to a judgment or otherwise), be discharged
only to the extent of the amount in Dollars that the party entitled to receive
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and costs of exchange) in
the city of receipt on the Business Day immediately following the day on which
such party receives such payment. If the amount in Dollars that may be so
purchased for any reason falls short of the amount originally due, the Company
shall pay such additional amounts, in Dollars, as may be necessary to compensate
for the shortfall. Any obligation of the Company not discharged by such
additional payment shall, to the fullest extent permitted by applicable law, be
due as a separate and independent obligation and, until discharged as provided
herein, shall continue in full force and effect. The provisions of the last
paragraph of Section 6.10 of the Original Indenture shall not apply to the
Notes.
SECTION 4.5. Offer to Purchase Upon a Change of Control.
(a) Upon the occurrence of a Change of Control (the date of
the last event required for a Change of Control to be effected hereinafter
referred to as the "Change of Control Date"), each Holder of the Notes shall
have the right to require the Company to purchase 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 "Purchase Offer") at an offer price in cash equal to
101% of the aggregate principal amount thereof to the date of purchase plus
accrued but unpaid interest, if any, to the date of purchase of such Notes. The
Company shall comply, to the extent applicable, 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 purchase of the Notes as a result of the Change of Control. To the
extent that the provisions of any securities laws or regulations conflict with
the provisions of this covenant, the Company shall comply with the applicable
securities laws and shall not be deemed to have breached its obligations under
this covenant by virtue of such compliance.
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(b) The Change of Control provisions described in this section
shall be applicable notwithstanding any other provisions of this Indenture. The
Company shall not be required to make a Purchase Offer upon the occurrence of a
Change of Control if a third party (a) makes the Purchase Offer in the manner,
at the times and otherwise in compliance with the requirements set forth in this
First Supplemental Indenture applicable to a Purchase Offer made by the Company
and (b) purchases all Notes validly tendered and not withdrawn under such
Purchase Offer.
(c) If the Company shall be required to commence a Purchase
Offer pursuant to this section, the Company shall follow the procedures
specified below.
(i) The Purchase Offer shall remain open for a period
of 20 Business Days following its commencement (the "Offer
Period"). No later than five Business Days after the
termination of the Offer Period (the "Purchase Date"), the
Company shall purchase the principal amount of Notes required
to be purchased pursuant to this section (the "Offer Amount")
or, if less than the Offer Amount has been tendered, all Notes
tendered in response to the Purchase Offer. Payment for any
Notes so purchased shall be made in cash and in the same
manner as interest payments are made.
(ii) If the Purchase Date is on or after an interest
record date and on or before the related Interest Payment
Date, any accrued and unpaid interest shall be paid to the
Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall
be payable to Holders who tender Notes pursuant to the
Purchase Offer.
(iii) Within 30 days following the Change of Control
Date, the Company shall send, by first class mail, a notice of
such event to each of the Holders, with a copy to the Trustee.
The date of delivery to the Holders of the notice shall be the
date of commencement of the Offer Period and the notice shall
contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to the Purchase Offer.
The Purchase Offer shall be made to all Holders. The notice,
which shall govern the terms of the Purchase Offer, shall
state:
(1) that a Change of Control has occurred
and that such Holder has the right to require the Company to
purchase such Holder's Notes at a purchase price in cash equal
to 101% of the aggregate principal amount thereof then
outstanding plus accrued but unpaid interest, if any, to the
date of purchase of such Notes (subject to the right of
Holders of record on the relevant record date to receive
interest on the relevant Interest Payment Date);
(2) the circumstances and relevant facts
regarding such Change of Control;
(3) that the Purchase Offer is being made
pursuant to this Section 4.5 and the length of time the
Purchase Offer shall remain open;
(4) the Offer Amount, the purchase price and
the Purchase Date;
-11-
(5) that any Note not tendered or accepted
for payment shall continue to accrue interest;
(6) that, unless the Company defaults in
making such payment, any Note accepted for payment pursuant to
the Purchase Offer shall cease to accrue interest after the
Purchase Date;
(7) that Holders electing to have a Note
purchased pursuant to any Purchase Offer shall be required to
surrender the Note, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Note duly completed,
or transfer by book-entry transfer, to the Company, a
depository, if appointed by the Company, or a Paying Agent at
the address specified in the notice prior to the expiration of
the Offer Period;
(8) that Holders shall be entitled to
withdraw their election if the Company, the Depository or the
Paying Agent, as the case may be, receives, not later than the
expiration of the Offer Period, a facsimile transmission or
letter setting forth the name of the Holder, the principal
amount of the Notes the Holder delivered for purchase, the
certificate number (in the case of a certificated Note) and a
statement that such Holder is withdrawing his election to have
such Note purchased; and
(9) that Holders whose Notes were purchased
only in part, if any, shall be issued new Notes equal in
principal amount to the unpurchased portion of the Notes
surrendered (or transferred by book-entry transfer).
On or before 10:00 a.m. (New York City time) on each Purchase
Date, the Company shall irrevocably deposit with the Trustee or Paying Agent in
immediately available funds the aggregate purchase price with respect to a
principal amount of Notes equal to the Offer Amount, together with accrued and
unpaid interest thereon (to the extent then required to be paid), to be held for
payment in accordance with the terms of this section. On the Purchase Date, the
Company shall, to the extent lawful,
(i) accept for payment the Notes tendered pursuant to
the Purchase Offer,
(ii) deliver or cause the Paying Agent or Depository,
as the case may be, to deliver to the Trustee Notes so
accepted, and
(iii) deliver to the Trustee an Officers' Certificate
stating that such Notes were accepted for payment by the
Company in accordance with the terms of this section.
The Company, the Depository or the Paying Agent, as the case may be, shall
promptly (but in any case not later than three Business Days after the Purchase
Date) mail or deliver to each tendering Holder an amount equal to the purchase
price of the Notes tendered by such Holder and accepted by the Company for
purchase, plus any accrued and unpaid interest thereon, and the Company shall
promptly issue a new Note, and the Trustee shall authenticate and mail or
deliver such new Note to such Holder, equal in principal amount to any
unpurchased portion of
-12-
such Holder's Notes surrendered. Any Note not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof.
SECTION 4.6. Transactions with Affiliates.
The Company shall not, and shall not permit any of its PGS
Subsidiaries to, enter into any transaction, including, without limitation any
contract, agreement or understanding, with any Affiliate (each of the foregoing,
an "Affiliate Transaction"), unless
(i) such Affiliate Transaction is a bona fide
business transaction reasonably related to the business of the
Company or such PGS Subsidiary and
(ii) such Affiliate Transaction is on terms that are
no less favorable to the Company or such PGS Subsidiary than
those that could have been obtained at the time of such
transaction in a comparable transaction by the Company or such
PGS Subsidiary with an unrelated Person; provided that the
following shall not be deemed Affiliate Transactions:
(a) prepaid expenses and loans or advances
to employees and similar items in the ordinary course of business;
(b) purchases (and sales) of inventory and
services in the ordinary course of business on terms that are customary in the
industry or consistent with past practices;
(c) fees, compensation or employee benefit
arrangements (including any grants of securities under employee benefit or
option plans) paid to, and indemnity provided on behalf of, directors, officers
or employees of the Company or such PGS Subsidiary in the ordinary course
consistent with past practices;
(d) transactions pursuant to agreements in
effect on the Issue Date, including amendments thereto after the Issue Date,
provided that the terms of such amendment are not, in the aggregate, less
favorable to the Company than the terms of such agreement prior to such
amendment;
(e) any employment agreement (including
customary benefits thereunder) entered into by the Company in the ordinary
course of business and consistent with the current market practice or the past
practice of the Company or such PGS Subsidiary;
(f) dividend payments and other
distributions permitted under Section 4.13;
(g) the sale to an Affiliate of the Company
of Common Equity of the Company;
(h) transactions between the Company and its
PGS Subsidiaries or between PGS Subsidiaries of the Company; and
-13-
(i) the transactions contemplated by the
Restructuring.
SECTION 4.7. Change of Business.
The Company shall ensure that the Group shall not
substantially change the general nature of its business, taken as a whole, from
its business as of the Issue Date (it being understood that the Group is engaged
in the oil and oilfield services industry).
SECTION 4.8. Insurance.
Each Obligor shall, and the Company shall cause each of its
PGS Subsidiaries which is not an Obligor to, maintain insurance on and in
relation to its properties and business with reputable underwriters or insurance
companies with respect to the risks, and to the extent, customary for companies
engaged in businesses similar to that of the Obligors. The Obligors shall
fulfill their obligations under this Section 4.8 if they arrange insurance
through a captive insurance company for the Group, on terms customary for
companies engaged in businesses similar to that of the Obligors.
SECTION 4.9. Ranking.
Each Obligor shall cause the Notes to rank at all times at
least pari passu in right of payment with the Term Loan Facility and all other
present and future unsecured and unsubordinated Financial Indebtedness of such
Obligor, except for Financial Indebtedness which ranks senior to the Notes by
operation of law.
SECTION 4.10. Group and PGS Subsidiary Indebtedness.
(a) The Company shall ensure that no member of the Group
incurs any Financial Indebtedness after the Issue Date if after giving effect to
the incurrence thereof the ratio of Adjusted Total Debt to EBITDA is equal to or
greater than 3.75 to 1.
(b) The Company shall ensure that no PGS Subsidiary shall
incur (or have owing by it or otherwise be liable for) any Financial
Indebtedness other than Financial Indebtedness:
(i) existing at the Issue Date;
(ii) owed by a PGS Subsidiary of the Company which is
not an Obligor to any other PGS Subsidiary of the Company
which is an Obligor;
(iii) owed by an Obligor to any other Obligor;
(iv) under the Notes or the Term Loan Facility;
(v) under the Working Capital Facility or the Bonding
Facility; or
(vi) incurred to refinance any of the Financial
Indebtedness set out in paragraphs (i) to (v) above provided
that except with the prior written consent of the
-14-
Trustee, as directed by holders of a majority of the
outstanding principal of the Notes, the principal
amount of such Financial Indebtedness may not be
increased,
and any other Financial Indebtedness not included in paragraphs (i) to (vi)
above which does not, at any time, exceed 10% of Total Debt.
(c) The Company shall ensure that at no time will
Total Debt exceed US$1,500,000,000 (or its equivalent in any
other currency or currencies).
SECTION 4.11. Project Finance.
Each Obligor shall not, and the Company shall cause each of
the PGS Subsidiaries which is not an Obligor not to, invest in or extend any
loans or any other form of credit or grant any guarantee or indemnity to, or for
the benefit of, any Project Company or a Project or otherwise voluntarily assume
any liability, whether actual or contingent, in respect of any obligation of any
Project Company or Project; provided that such investment, loans, credit
guarantee, indemnity or other liability shall be permitted in an amount not to
exceed the sum of:
(i) the proceeds from any issuance of equity
securities made by the Company after Issue Date (which, for
the avoidance of doubt, shall not include the securities of
the Company issued in connection with the Restructuring); plus
(ii) 50% of the accumulated Consolidated Net Income
of the Group on an after tax basis for each fiscal year
beginning with the fiscal year ended December 31, 2004 less
any dividends declared by the Company during the period of
accumulation; plus
(iii) until the earlier of (a) the third anniversary
of the Issue Date, or (b) repayment in full of the Senior
Notes due 2006, US$100,000,000 and after and including that
date, an amount of US$200,000,000 in aggregate.
SECTION 4.12. Environmental Laws.
Each Obligor shall, and the Company shall cause each Material
Subsidiary to:
(a) obtain all requisite material Environmental Licenses and
(i) comply in all material respects with such Environmental Licenses and (ii)
comply in all material respects with all other applicable Environmental Laws, in
each case to the extent a failure to do so could reasonably be expected
individually or in the aggregate to have a Material Adverse Effect; and
(b) promptly upon receipt of the same, notify the Trustee of,
and comply with the requirements of, any claim, or notice served on it by any
relevant authority or court in respect of any breach or alleged breach of or
corrective or remedial obligation or liability under any Environmental Law
which, if substantiated, would reasonably be expected to have a Material Adverse
Effect.
SECTION 4.13. Payment of Dividends by the Company.
-15-
(a) The Company shall not:
(i) declare, recommend, make or pay any dividends or
other distributions or similar payments (including by way of
redemption, repurchase, defeasance, retirement, return or
repayment) (whether in cash or in kind) on or in respect of
its shares or share capital (or any class of its share
capital) to any of its shareholders (in their capacity as
shareholders); or
(ii) pay or allow any member of the Group to pay any
management, advisory or other similar fee to or to the order
of the shareholders of the Company (in their capacity as
shareholders),
in each case, until the earlier of (i) the third anniversary of the Issue Date
and (ii) repayment in full of the Senior Notes Due 2006 issued pursuant to this
First Supplemental Indenture.
Thereafter, the Company may declare and pay dividends and
other distributions to its shareholders provided that such dividends
and distributions can be made in compliance with the laws of Norway and
do not exceed the sum of:
(i) the proceeds from any issuance of equity securities made
by the Company after the Issue Date (which, for the avoidance of doubt,
shall not include the securities of the Company issued pursuant to the
Restructuring), plus
(ii) 50% of the accumulated Consolidated Net Income of the
Group for each fiscal year beginning with the fiscal year ended
December 31, 2004 on an after-Tax basis, plus
(iii) depreciation and amortization expense, less
(iv) any dividends or distributions made or declared by the
Company during the period of accumulation.
(b) For the avoidance of doubt, paragraph (a) above shall not
restrict (i) wholly-owned Subsidiaries of the Company declaring or paying
dividends or other distributions to their shareholders or (ii) those certain
underwriting arrangements made (or to be made) in respect of securities of the
Company issued under the Plan.
SECTION 4.14. Asset Dispositions.
The Company shall not, and shall not permit any of its PGS
Subsidiaries to, directly or indirectly enter into a single transaction or a
series of transactions, whether related or not and whether voluntarily or
involuntarily, to sell, lease, convey, transfer or otherwise dispose of any
assets (an "Asset Disposition"), except Asset Dispositions:
(a) made for consideration consisting of cash or cash
equivalents or the assumption of Financial Indebtedness of the Company or any
PGS Subsidiary in an aggregate amount equal to the fair market value (evidenced
by an Officers' Certificate and a Board Resolution delivered to the Trustee) and
on an arm's length basis;
-16-
(b) made to a Material Subsidiary of the Company or to the
Company;
(c) made in good faith in the ordinary course of business
(including any transfer, conveyance, sale, lease or other disposition of
equipment that is obsolete or no longer used by or useful to the Company);
(d) constituting a permitted investment in a Project Company
or a Project under Section 4.11 or a dividend or other distribution permitted
under Section 4.13;
(e) constituting a sale of all or substantially all of the
assets of the Company or a Guarantor permitted and made in accordance with
Section 5.01 and Section 5.02 of the Original Indenture or a Sale and Leaseback
Type Transaction permitted under Section 4.1 hereof;
(f) not permitted by clauses (a) through (e) above, not to
exceed $100,000,000, in the aggregate, since the Issue Date; or
(g) approved in writing by the Trustee at the direction of the
Holders of a majority in principal amount of the then outstanding Securities;
provided further, that if the proceeds of such transaction or series of
transactions are deemed to be Major Proceeds, then such proceeds will be applied
in accordance with Section 4.16.
SECTION 4.15. Major Proceeds.
The Company shall apply all Major Proceeds, at its sole
discretion, either:
(a) to be reinvested in the Group within 12 months of receipt
thereof; or
(b) if not so reinvested, within 12 months, to:
(i) purchase participations in the Term Loans;
(ii) purchase Notes in the open market in accordance
with Section 3.08 of the Original Indenture;
(iii) commence an offer for the purchase of Notes as
set forth in Section 4.15(c) hereof;
(iv) make voluntary prepayments of the Term Loans;
provided that such prepayments may not exceed a proportion of
such Major Proceeds which is equal to the proportion which the
Term Loans bear to the aggregate of (x) the Term Loans and (y)
the face value of the Notes; or
(v) both commence an offer for the purchase of the
Notes as set forth in Section 4.15(c) hereof and make
voluntary prepayments of the Term Loans where
-17-
(1) the proportion of such Major Proceeds to be used
to fund such offer is equal to the proportion which the Notes
bear to the aggregate of (i) the Loans and (ii) the face value
of the Notes; and
(2) the proportion of such Major Proceeds to be used
to voluntarily prepay Term Loans is equal to the proportion
which the Term Loans bear to the aggregate of (i) the Term
Loans and (ii) the face value of the Senior Notes,
(c) If the Company elects to use the Major Proceeds to
commence an offer for the purchase of the Notes, such offer shall be made, to
the extent of the amount of Major Proceeds available for such offer after taking
into account Section 7.5 of the Term Loan Facility which requires repayment of
debt outstanding under that facility, at a price in cash equal to 100% of the
aggregate principal amount thereof to the date of purchase plus accrued but
unpaid interest, if any, to the date of purchase on such Notes. Within 30
Business Days of such election (or such longer period as may be required to
obtain the consent to such offer under the Term Loan Facility), the Company
shall mail a notice to each Holder describing the transaction or transactions
that resulted in the receipt of the Major Proceeds and offering to purchase
Notes on the date specified in such notice, which notice shall substantially
follow the procedures set forth above in Section 4.5(c) with the exception that
(i) the Purchase Offer shall be for the offer price described in the first
sentence of this Section 4.15(c), (ii) the notice shall state that the Purchase
Offer is being made pursuant to this Section 4.15 and (iii) if the aggregate
principal amount of Notes surrendered by Holders exceeds the Offer Amount, the
Company shall select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only Notes in
denominations of $1,000, or integral multiples thereof, shall be purchased). The
Company shall comply, to the extent applicable, 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 purchase of the Notes pursuant to this Section 4.15. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this covenant, the Company shall comply with the applicable
securities laws and shall not be deemed to have breached its obligations under
this covenant by virtue thereof.
SECTION 4.16. Rating by Rating Agencies.
The Company will use its reasonable best efforts to obtain a
rating of the Notes within 90 days from the Issue Date from Xxxxx'x and S&P (or,
if neither Xxxxx'x nor S&P shall be rating such obligations, then from another
nationally recognized rating agency).
SECTION 4.17. Consent for Certain Term Loan Facility Amendments and Waivers.
An amendment or waiver that has the effect of changing or
which relates to (i) the definition of "Major Proceeds" in Section 1.2 (Certain
Definitions) of this Supplemental Indenture, (ii) the rate of or the time for
payment of interest on the Notes, (iii) the principal of, any premium on, or the
Stated Maturity of the Notes or (iv) Section 4.5 (Offer to Purchase Upon a
Change of Control) of this First Supplemental Indenture or section 6 of the
Notes, or this Section 4.17, in each case, shall not be made at any time when
any amount is outstanding under (or in respect of) the Term Loan Facility
without the prior written consent of the Agent (as
-18-
defined in the Term Loan Facility) (acting upon the instructions of the Majority
Lenders (as defined in the Term Loan Facility)). This Section 4.17 is intended
for the benefit of the Finance Parties (as defined in the Term Loan Facility)
and such Finance Parties shall be entitled to rely on and enforce this Section
4.17 as third-party beneficiaries of this First Supplemental Indenture solely
with respect to the provisions hereof.
ARTICLE V.
ADDITIONAL EVENTS OF DEFAULT
SECTION 5.1. Additional Events of Default.
The following Events of Default are hereby added to the Events
of Default with respect to each series of the Notes under Section 6.01 of the
Original Indenture (without regard to any grace periods set forth therein), and
such additional Events of Default apply only to each series of the Notes:
(a) any Financial Indebtedness of the Company or any Material
Subsidiary is not paid when due nor within any applicable grace period (as
originally documented or as subsequently amended where such amendment has not
been made in circumstances where an event of default or potential event of
default (however described) exists in respect thereof);
(b) any Financial Indebtedness of the Company or any Material
Subsidiary is declared to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default (however described);
(c) any Lien over assets securing Financial Indebtedness of
the Company or any Material Subsidiary is enforced;
(d) no Event of Default will occur under this Section 5.1 (a),
(b) or (c) if the aggregate amount of Financial Indebtedness falling within
paragraphs (a) to (c) above is less than US$20,000,000 (or its equivalent in any
other currency or currencies);
(e) a final judgment or order for the payment of money in
excess of $20 million (net of applicable insurance coverage) shall be rendered
against the Company or any Material Subsidiary of the Company and such final
judgment or order shall continue unsatisfied and unstayed for a period of 30
days or unsatisfied for a period of 30 days after the expiration of such stay;
(f) any Obligor fails to comply with the covenants set forth
in Clauses 20.3 through 20.12 of the Term Loan Facility and (i) such failure
constitutes an event of default under the Term Loan Facility which has not been
cured or waived by the appropriate lenders under the Term Loan Facility and (ii)
the agent or any of the lenders under the Term Loan Facility shall have (A)
accelerated the obligations under the Term Loan Facility, (B) commenced
enforcement of their rights and remedies in respect of the obligations under the
Term Loan Facility, or (C) taken any other action against any Obligor to improve
their position as creditors of such Obligor (it being understood that none of a
meeting among lenders to discuss options and alternatives, the mere sending of a
notice of default or reservation of rights or the charging of a customary work
fee shall constitute such an action); or
-19-
(g) any amendment or waiver without the consent of the Holders
of at least a majority of in principal amount of the then outstanding Notes, to
the Term Loan Facility in breach of Clause 33.2(c) thereof.
SECTION 5.2. Change to Events of Default in Original Indenture.
The following Event of Default is hereby substituted in its
entirety for and in lieu of clause (2) of Section 6.01 of the Original Indenture
with respect to the Notes, and the following Event of Default applies only to
the Notes:
(2) there is a default in the payment of (A) the principal of
any Security of that series at its Maturity or (B) premium (if
any) on any Security of that series when the same becomes due
and payable; provided, that if such default is caused by
technical or administrative delays in the transmission of
funds as certified to the Trustee in an Officers' Certificate,
such default continues for a period of 30 days;
ARTICLE VI.
MISCELLANEOUS PROVISIONS
SECTION 6.1. Table of Contents, Headings, etc.
The table of contents and headings of the Articles and
Sections of this First Supplemental Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 6.2. Counterpart Originals.
The parties may sign any number of copies of this First
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 6.3. Governing Law.
THIS FIRST SUPPLEMENTAL INDENTURE AND THE NOTES OF EACH SERIES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 6.4. The Trustee.
The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this First Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
are made solely by the Company and the Guarantors.
-20-
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
PETROLEUM GEO-SERVICES ASA
By:
-------------------------------------
Name: KNUT OVERSJOEN
Title: Senior Vice President and
Chief Financial Officer
By:
-------------------------------------
Name: XXX X. XXXXXX
Title: Senior Vice President Finance
and Treasurer
GUARANTORS:
[MULTI-KLIENT INVEST AS]
By:
-------------------------------------
Name:
Title:
[PERTRA AS]
By:
-------------------------------------
Name:
Title:
[PGS EXPLORATION UK LIMITED]
By:
-------------------------------------
Name:
Title:
[PGS GEOPHYSICAL AS]
By:
-------------------------------------
Name:
Title:
-21-
[PGS SHIPPING (ISLE OF MAN) LIMITED]
By:
-------------------------------------
Name:
Title:
[PETROJARL 4 DA]
By:
-------------------------------------
Name:
Title:
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
as Trustee
By:
-------------------------------------
Name:
Title:
-22-
Exhibit A
[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 Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. The Depository Trust Company ("DTC") shall act as the Depositary
until a successor shall be appointed by the Company and the Registrar. Unless
this certificate is presented by an authorized representative of DTC (55 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx), to the Company 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.]*
[FACE OF NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT OR IN ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION.
PETROLEUM GEO-SERVICES ASA
[10% SENIOR NOTE DUE 2010 CUSIP ________]
[8% SENIOR NOTE DUE 2006 CUSIP ________]
No. ________ $___,000,000
Petroleum Geo-Services ASA, a Norwegian public limited
liability company (the "Company"), which term includes any successor Person
under the Indenture hereinafter referred to), for value received, promises to
pay to _________________ or registered assigns the principal sum of
____________________ Million Dollars [or such lesser amount as indicated in the
Schedule of Exchanges of Definitive Notes],* on ____ 30, [2010] [2006].
Interest Payment Dates: June 30 and December 30
Record Dates: June 15 and December 15
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
------------------
* To be included in Global Note
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
Dated:
PETROLEUM GEO-SERVICES ASA
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
GUARANTORS:
[MULTI-KLIENT INVEST AS]
By:
-------------------------------------
Name:
Title:
[PERTRA AS]
By:
-------------------------------------
Name:
Title:
[PGS EXPLORATION UK LIMITED]
By:
-------------------------------------
Name:
Title:
[PGS GEOPHYSICAL AS]
By:
-------------------------------------
Name:
Title:
[PGS SHIPPING (ISLE OF MAN) LIMITED]
By:
-------------------------------------
Name:
Title:
[PETROJARL 4 DA]
By:
-------------------------------------
Name:
Title:
Certificate of Authentication:
Law Debenture Trust Company of New York
as Trustee, certifies that this is one
of the Notes referred to in the
within-mentioned Indenture.
By:
-----------------------------------
Authorized Signatory
[REVERSE OF NOTE]
PETROLEUM GEO-SERVICES ASA
[10% SENIOR NOTE DUE 2010]
[8% SENIOR NOTE DUE 2006]
This Note is one of a duly authorized issue of [10% Senior
Notes due 2010] [8% Senior Notes due 2006] (the "Notes") of Petroleum
Geo-Services ASA, a Norwegian public limited liability company (the "Company").
The Company issued the Notes under an Indenture dated as of _____ ___, 2003 (the
"Original Indenture") between the Company, the Guarantors and the Trustee, as
supplemented by the First Supplemental Indenture thereto dated as of ____ __,
2003 (the "Supplemental Indenture" and the Original Indenture as so
supplemented, the "Indenture") between the Company, the Guarantors 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 (Sections) 77aaa-77bbbb) (the "TIA"), as in effect on the
date of execution of the Indenture. The Notes are subject to all such terms, and
Holders are referred to the Indenture and the TIA for a statement of such terms
and for the definitions of capitalized terms used but not defined herein. The
Notes are unsecured general obligations of the Company limited to [PRINCIPAL
AMOUNT OF SENIOR NOTES DUE 2010] [PRINCIPAL AMOUNT OF SENIOR NOTES DUE 2006] in
aggregate principal amount. The Original Indenture provides for the issuance of
other series of debt securities (including the Notes, the "Debt Securities")
thereunder.
1. Interest. The Company promises to pay interest on the
principal amount of this Note at [10%][8%] per annum from its Issue Date until
maturity. The Company will pay interest semiannually on June 30 and December 30
of each year (each an "Interest Payment Date"), and at maturity, or if any such
day is not a Business Day, on the next succeeding Business Day. Interest on the
Notes will accrue from the most recent Interest Payment Date on which interest
has been paid or, if no interest has been paid, from the Issue Date for the
Notes; provided that if there is no existing Default in the payment of interest,
and if this Note is authenticated between June 15 or December 15 next preceding
each Interest Payment Date (each, a "Record Date") and such Interest Payment
Date, interest shall accrue from such next succeeding Interest Payment Date;
provided further, that the first Interest Payment Date shall be ________ __,
____. Upon the expiration of any cure period, the Company shall pay interest on
overdue principal and premium (if any) from time to time on demand at a default
rate equal to 2% per annum in excess of the interest rate then in effect; it
shall pay interest on overdue installments of interest (without regard to any
applicable grace periods) from time to time to Holders as of a special record
date set by the Trustee on instructions from the Company at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the
Notes (except defaulted interest) to the Persons who are registered Holders of
Notes at the close of business on the Record Date next preceding the Interest
Payment Date, even if such Notes are canceled after such Record Date and on or
before such Interest Payment Date, or in the case of interest payable at
maturity, to the Persons to whom principal is paid at maturity. The Holder must
surrender this Note to a Paying Agent to collect principal payments. The Company
will pay the principal of
and premium (if any) and interest on the Notes in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. The Company, however, may pay such amounts (i) by wire transfer
with respect to Notes held in book-entry form or (ii) by check payable in such
money mailed to a Holder's registered address with respect to any Notes.
3. Ranking. The Notes are senior unsecured obligations of the
Company and rank pari passu with all other unsecured and unsubordinated
indebtedness of the Company.
4. Optional Redemption.
[FOR NOTES DUE 2010:] [The Notes shall not be redeemable at the Company's option
prior to [FOUR YEAR ANNIVERSARY DATE OF CONSUMMATION]. Thereafter, the Notes
shall be redeemable at the option of the Company, in whole or in part, at any
time 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, if any, to the applicable redemption date, if
redeemed during the twelve-month period beginning on [DAY AND MONTH OF
CONSUMMATION (OR FIRST DAY OF MONTH OF CONSUMMATION)] of the years indicated
below:
YEAR PERCENTAGE
2007 105.00%
2008 103.33%
2009 101.67%]
[FOR NOTES DUE 2006:] [The Notes shall be redeemable at the option
of the Company, in whole or in part, at any time 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, if any, to
the applicable redemption date, if redeemed during the twelve-month period
beginning on [DAY AND MONTH OF CONSUMMATION (OR FIRST DAY OF MONTH OF
CONSUMMATION)] of the years indicated below:
YEAR PERCENTAGE
2003 103.00%
2004 102.00%
2005 101.00%]
5. Guarantee.
The Notes are entitled to the benefits of the Guarantee under
Article X of the Original Indenture and any other covenants and undertakings of
the Guarantors under the Indenture.
6. Purchase at Option of Holder.
(a) If there shall at any time or times occur a Change of
Control (the date of the last event required for a Change of Control to be
effected hereinafter referred to as the "Change of Control Date"), then the
Company shall make an offer to purchase (the "Purchase Offer"), all Notes then
outstanding at an offer price in cash equal to 101% of the principal amount
thereof outstanding, plus accrued and unpaid interest, if any, to the date of
purchase of the Notes. Within 30 days following the Change of Control Date, the
Company shall notify the Holders in writing, with a copy to the Trustee, of the
occurrence of a Change of Control and that the Company is making a Purchase
Offer. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Purchase Offer, pursuant to
the procedures required by the Indenture and shall otherwise comply with the
requirements of Section 4.5 of the Supplemental Indenture. The Purchase Offer
shall remain open for a period of at least 20 Business Days following its
commencement (the "Offer Period") and the Company shall consummate the purchase
of all Notes tendered pursuant to the Purchase Offer and not withdrawn prior to
the expiration of the Offer Period not later than five Business Days after the
termination of the Offer Period.
(b) Pursuant to Section 4.5 of the Supplemental Indenture,
Holders of Notes that are the subject of a Purchase Offer will receive a
Purchase Offer from the Company upon commencement of any Offer Period and may
elect to have such Notes purchased by completing the form titled "Option of
Holder to Elect Purchase" appearing below.
(c) If at any time or times the Company elects to use Major
Proceeds to commence a tender offer in respect of the Notes, such offer shall be
made, to the extent of the amount of Major Proceeds available after taking into
account the provisions of the Term Loan Facility that require repayment of Term
Loans, at an offer price in cash equal to 100% of the principal amount thereof
outstanding, plus accrued and unpaid interest, if any, to the date of purchase
of the Notes. The procedures for purchase of the Notes shall be substantially
identical to the procedures for Purchase Offers described above relating to a
Change of Control, except as otherwise set forth in Section 4.16 of the
Supplemental Indenture; provided that no Holder shall be required to tender the
Notes in connection with such offer.
7. Paying Agent and Registrar. Initially, Law Debenture Trust
Company of New York (the "Trustee"), the Trustee under the Indenture, will act
as Principal Paying Agent and Registrar. The Company may change any Principal
Paying Agent, Registrar, co-registrar or additional paying agent without notice
to any Holder. The Company may act in any such capacity.
8. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged 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 to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar shall not be required to exchange or register the
transfer of any Notes during the period between a record date and the
corresponding Interest Payment Date, nor shall the Registrar be required to
register the transfer or exchange of (a) any Note selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part, or (b) any Note during the period beginning 15 days before the mailing of
notice of redemption of Notes to be redeemed and ending at the close of business
on the date of mailing.
9. Persons Deemed Owners. The registered Holder of a Note
identified in the registry maintained by the Registrar shall be treated as its
owner for all purposes.
10. Amendments and Waivers. Subject to certain exceptions and
limitations, (a) the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes, (b) the Indenture may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding Debt
Securities of all series affected by such amendment or supplement (acting as one
class), and (c) compliance by the Company with any provision of the Indenture
with respect to the Notes (other than any continuing Default or Event of Default
in the payment of the principal of or premium (if any) or interest on the Notes)
may be waived by the Holders of at least a majority in principal amount of the
Notes then outstanding in accordance with the terms of the Indenture. Without
the consent of any Holder, the Company, the Guarantors and the Trustee may amend
or supplement the Notes or the Indenture with respect to the Notes (i) to cure
any ambiguity, omission, defect or inconsistency; (ii) to provide for the
assumption of the obligations of the Company under the Indenture to Holders in
the case of the merger, consolidation or sale, lease, conveyance, transfer or
other disposition of all or substantially all of the assets of the Company;
(iii) to provide for uncertificated Notes in addition to or in place of
certificated Notes, or to provide for the issuance of bearer Notes (with or
without coupons); (iv) to provide any security for, to add any guarantees of or
to provide additional Obligors on, the Notes; (v) to comply with any requirement
in order to effect or maintain the qualification of the Indenture under the TIA;
(vi) to add to the covenants of the Company or any Guarantor for the benefit of
the Holders of Notes, or to surrender any right or power conferred upon the
Company or any Guarantor pursuant to the Indenture; (vii) to add any additional
Events of Default with respect to the Notes; (viii) to change or eliminate any
of the provisions of the Indenture, provided that any such change or elimination
shall become effective only when there is no outstanding Debt Security of any
series created prior to the execution of such amendment or supplemental
indenture that is adversely affected in any material respect by such change in
or elimination of such provision; (ix) to supplement any of the provisions of
the Indenture to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of the Notes; provided, however, that any such action
shall not, as evidenced by an Officers' Certificate, delivered to the Trustee,
adversely affect the interest of the Holders of Notes or any other series of
Debt Securities in any material respect; or (x) to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee with respect to the
Notes and to add to or change any of the provisions of the Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
thereunder by more than one Trustee, pursuant to the requirements of the
Indenture.
The right of any Holder to participate in any consent required
or sought pursuant to any provision of the Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of record
of any Notes with respect to which such consent is required or sought as of a
date identified by the Trustee in a notice furnished to Holders in accordance
with the terms of the Indenture.
Without the consent of each Holder affected, the Company may
not (i) reduce the percentage or principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver of or under the Indenture or the
Notes; (ii) reduce the rate of or change the time for payment of interest,
including default interest, on any Note; (iii) reduce the principal of or
premium on, or change the Stated Maturity of, any Note; (iv) reduce the premium,
if-any, payable upon the redemption of any Note or change the time at which any
Note may or shall be redeemed; (v) change the coin or currency or currencies in
which any Note or any premium or interest thereon is payable; (vi) impair the
right to institute suit for the enforcement of any payment of principal of or
premium (if any) or interest on any Note; (vii) make any change in the
percentage of principal amount of Notes necessary to waive compliance with
certain provisions of the Indenture or (viii) waive a continuing Default or
Event of Default in the payment of principal of or premium (if any) or interest
on the Notes; or (ix) change the definition of Notes deemed outstanding pursuant
to Section 2.10 of the Original Indenture.
A supplemental indenture that changes or eliminates any
covenant or other provision of the Indenture that has expressly been included
solely for the benefit of one or more particular series of Debt Securities, or
that modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under the Indenture of the Holders of Debt Securities of any other
series.
11. Defaults and Remedies. Events of Default are defined in
the Indenture (the provisions of which, notwithstanding any inconsistency with
the below, shall govern the determination of the occurrence of a Default or
Event of Default and the remedies available to Holders of Notes upon the
occurrence of an Event of Default) and generally include: (i) default for 30
days in payment of any interest on the Notes; (ii) default in any payment of
principal of or premium (if any) on the Notes at maturity; provided that if such
default is caused by technical or administrative delays in the transmission of
funds (as certified to the Trustee in the Officers' Certificate), such default
continues for a period of 30 days; (iii) default by the Company or any Guarantor
in compliance with any of its other covenants or agreements in, or provisions
of, the Notes or in the Indenture which shall not have been remedied within 90
days after written notice by the Trustee or by the holders of at least 25% in
principal amount of the Notes then outstanding (or, in the event that other Debt
Securities issued under the Indenture are also affected by the default, then 25%
in principal amount of the outstanding Debt Securities so affected); (iv) any
Financial Indebtedness (other than the Notes) of the Company or any Material
Subsidiary having an outstanding principal amount of $20 million or more,
individually or in the aggregate is accelerated or not paid when due or any Lien
securing such Financial Indebtedness is enforced; (v) a judgment or order for
the payment of money in excess of $20 million (net of applicable insurance
coverage) having been rendered against the Company or any Material Subsidiary of
the Company and such judgment or order shall continue unsatisfied and unstayed
for a period of 30 days or unsatisfied for a period of 30 days after the
expiration of such stay; (vi) subject to certain conditions, the failure by the
Company and the Guarantors to comply with certain covenants in the Term Loan
Facility, if such failure constitutes an event of default under the Term Loan
Facility which has not been cured or waived; and (vii) certain events involving
bankruptcy, insolvency or reorganization of the Company or any Material
Subsidiary. If an Event of Default with respect to the Notes occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare the principal of and interest on the
Notes to be immediately due and payable, except that in the case of an Event of
Default arising from certain events of bankruptcy, insolvency or reorganization
of the Company or any Material Subsidiary, all outstanding Debt Securities under
the Indenture become due and payable immediately without further action or
notice. The amount due and payable upon the acceleration of any Note is equal to
100% of the principal amount thereof plus accrued interest to the date of
payment. Holders may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee may require indemnity reasonably satisfactory to
it before it enforces the Indenture or the Notes. Subject to certain
limitations, Holders of a majority in 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 notice of any continuing default (except a default in
payment of principal or interest) if it determines that withholding notice is in
their interests. The Company must furnish an annual compliance certificate to
the Trustee.
12. Discharge Prior to Maturity. The Indenture with respect to
the Notes shall be discharged and canceled upon the payment of all of the Notes
and shall be discharged except for certain obligations upon the irrevocable
deposit with the Trustee of funds or U.S. Government Obligations sufficient for
such payment.
13. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
14. No Recourse Against Others. A director, officer, employee
or stockholder, as such, of the Company or any Guarantor shall not have any
liability for any obligations of the Company or such Guarantor, as the case may
be, 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 by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
15. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. 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 as a convenience to the Holders
of the Notes. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed thereon.
17. 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).
The Company will furnish to any Holder, upon written request
and without charge, a copy of the Indenture. Request may be made to:
Petroleum Geo-Services ASA
Xxxxxxxxxxx 0
X-0000 Xxxxxxx
Xxxxxx
Attention: General
Counsel and Chief
Financial Officer
or to
Petroleum Geo-Services ASA
000 Xxxxxxx 0 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Treasurer
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we)
assign and transfer this Security to
-------------------------------------------
(Insert assignee's social security or tax I.D. number)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
as 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
Guaranty Medallion Program)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to the Change of Control provisions of Section 4.5 of the
Supplemental Indenture, check the following box. [ ]
If you want to elect to have only part of the Note purchased
by the Company pursuant to the Change of Control provisions of Section 4.5 of
the Supplemental 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.*
o Signature must be guaranteed by an eligible guarantor institution within
the meaning of Securities and Exchange Commission Rule 17Ad-15 (including
banks, stock brokers, savings and loan associations, national securities
exchanges, registered securities associations, clearing agencies and credit
unions) with membership or participation in an approved signature guarantee
medallion program if this Note is to be delivered other than to, and in the
name of, the registered holder.
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES*
The following exchanges of a part of this Global Note for Definitive Notes have
been made:
PRINCIPAL AMOUNT
AMOUNT OF AMOUNT OF OF THIS GLOBAL SIGNATURE OF
DECREASE IN INCREASE IN NOTE FOLLOWING AUTHORIZED OFFICER
PRINCIPAL AMOUNT PRINCIPAL AMOUNT SUCH DECREASE OF TRUSTEE OR
DATE OF EXCHANGE OF THIS GLOBAL NOTE OF THIS GLOBAL NOTE (OR INCREASE) SECURITY CUSTODIAN
---------------- ------------------- ------------------- ------------- ------------------
-----------------
* To be included in Global Note.
