1
EXHIBIT 4.5
XXXXXX DRILLING COMPANY
AND
SUBSIDIARY GUARANTORS
$150,000,000
9-3/4% SENIOR NOTES DUE 2006, SERIES C
_________________
INDENTURE
Dated as of March 11 , 1998
Chase Bank of Texas, National Association
Trustee
_________________
2
CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06;7.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06;11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.03;11.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.21
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03;11.04;11.05
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05;11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.12
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . 1
SECTION 1.01 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02 OTHER DEFINITIONS . . . . . . . . . . . . . . . . . . . . . 18
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT . . . . . 18
SECTION 1.04 RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . . . . 19
ARTICLE 2 THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.01 FORM AND DATING . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.02 EXECUTION AND AUTHENTICATION . . . . . . . . . . . . . . . . 20
SECTION 2.03 REGISTRAR AND PAYING AGENT . . . . . . . . . . . . . . . . . 20
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST . . . . . . . . . . . . 21
SECTION 2.05 HOLDER LISTS . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.06 TRANSFER AND EXCHANGE . . . . . . . . . . . . . . . . . . . 21
SECTION 2.07 REPLACEMENT NOTES . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.08 OUTSTANDING NOTES . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.09 TREASURY NOTES . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.10 TEMPORARY NOTES . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.11 CANCELLATION . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.12 DEFAULTED INTEREST . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.13 CUSIP NUMBERS . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 3 REDEMPTION AND PREPAYMENT . . . . . . . . . . . . . . . . . 28
SECTION 3.01 NOTICES TO TRUSTEE . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED . . . . . . . . . . . . . 28
SECTION 3.03 NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION . . . . . . . . . . . . . . . 29
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE . . . . . . . . . . . . . . . . 29
SECTION 3.06 NOTES REDEEMED IN PART . . . . . . . . . . . . . . . . . . . 30
SECTION 3.07 OPTIONAL REDEMPTION . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.08 MANDATORY REDEMPTION . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.09 OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS . . . . 30
ARTICLE 4 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.01 PAYMENT OF NOTES . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY . . . . . . . . . . . . . . 33
SECTION 4.03 REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.04 COMPLIANCE CERTIFICATE . . . . . . . . . . . . . . . . . . . 34
SECTION 4.05 TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.06 STAY, EXTENSION AND USURY LAWS . . . . . . . . . . . . . . . 34
SECTION 4.07 RESTRICTED PAYMENTS . . . . . . . . . . . . . . . . . . . . 35
SECTION 4.08 DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES . . . . . . . . . . . . . . . . . . . 36
SECTION 4.09 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED EQUITY 37
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SECTION 4.10 ASSET SALES . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.11 TRANSACTIONS WITH AFFILIATES . . . . . . . . . . . . . . . . 39
SECTION 4.12 LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.13 ISSUANCES AND SALES OF CAPITAL STOCK OF
WHOLLY OWNED SUBSIDIARIES . . . . . . . . . . . . . . . . . 40
SECTION 4.14 SALE-AND-LEASEBACK TRANSACTIONS . . . . . . . . . . . . . . 40
SECTION 4.15 OFFER TO REPURCHASE UPON CHANGE OF CONTROL . . . . . . . . . 41
SECTION 4.16 BUSINESS ACTIVITIES . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 5 SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.01 MERGER, CONSOLIDATION, OR SALE OF ASSETS . . . . . . . . . . 42
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED. . . . . . . . . . . . . . 42
ARTICLE 6 DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . 43
SECTION 6.01 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.02 ACCELERATION . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.03 OTHER REMEDIES . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.04 WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . . . 45
SECTION 6.05 CONTROL BY MAJORITY . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.06 LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT. . . . . . . . 45
SECTION 6.08 COLLECTION SUIT BY TRUSTEE . . . . . . . . . . . . . . . . . 46
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . . . . . 46
SECTION 6.10 PRIORITIES . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.11 UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . . . . 47
ARTICLE 7 TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.01 DUTIES OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.02 RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . 48
SECTION 7.04 TRUSTEE'S DISCLAIMER . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.05 NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . . . 49
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES . . . . . . . . . 49
SECTION 7.07 COMPENSATION AND INDEMNITY . . . . . . . . . . . . . . . . . 49
SECTION 7.08 REPLACEMENT OF TRUSTEE . . . . . . . . . . . . . . . . . . . 50
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC . . . . . . . . . . . . . . 51
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION . . . . . . . . . . . . . . . 51
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY . . . 51
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . 51
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE . . 51
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE . . . . . . . . . . . . . . . 51
SECTION 8.03 COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE . . . . . . . . . 52
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO
BE HELD IN TRUST; OTHER MISCELLANEOUS
PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . 53
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SECTION 8.06 REPAYMENT TO THE COMPANY . . . . . . . . . . . . . . . . . . 54
SECTION 8.07 REINSTATEMENT . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER . . . . . . . . . . . . . . 55
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES . . . . . . . . . . . . 55
SECTION 9.02 WITH CONSENT OF HOLDERS OF NOTES . . . . . . . . . . . . . . 55
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT . . . . . . . . . . . . 57
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS . . . . . . . . . . . . . 57
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES . . . . . . . . . . . . . . 57
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC . . . . . . . . . . . . . . 57
ARTICLE 10 SUBSIDIARY GUARANTEES . . . . . . . . . . . . . . . . . . . 58
SECTION 10.01 SUBSIDIARY GUARANTEES . . . . . . . . . . . . . . . . . . . 58
SECTION 10.02 ADDITIONAL SUBSIDIARY GUARANTEES . . . . . . . . . . . . . . 59
SECTION 10.03 LIMITATION OF SUBSIDIARY GUARANTORS' LIABILITY . . . . . . . 59
SECTION 10.04 SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON
CERTAIN TERMS . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.05 RELEASES OF SUBSIDIARY GUARANTORS . . . . . . . . . . . . . 61
SECTION 10.06 "TRUSTEE" TO INCLUDE PAYING AGENT . . . . . . . . . . . . . 61
SECTION 10.07 CONTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.08 EXECUTION OF SUBSIDIARY GUARANTEES . . . . . . . . . . . . . 62
ARTICLE 11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.01 TRUST INDENTURE ACT CONTROLS . . . . . . . . . . . . . . . . 62
SECTION 11.02 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS
OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT . . . . . 64
SECTION 11.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION . . . . . . . 64
SECTION 11.06 RULES BY TRUSTEE AND AGENTS . . . . . . . . . . . . . . . . 65
SECTION 11.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS . . . . . . . . . . . . . . . . . 65
SECTION 11.08 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 11.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS . . . . . . . 65
SECTION 11.10 SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 11.11 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 11.12 COUNTERPART ORIGINALS . . . . . . . . . . . . . . . . . . . 65
SECTION 11.13 TABLE OF CONTENTS, HEADINGS, ETC . . . . . . . . . . . . . . 66
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INDENTURE dated as of March 11, 1998 by and among Xxxxxx Drilling
Company, a Delaware corporation (the "Company"), the Subsidiary Guarantors (as
defined herein) and Chase Bank of Texas, National Association, as trustee (the
"Trustee").
The Company, the Subsidiary Guarantors and the Trustee agree as
follows for the benefit of one another and for the equal and ratable benefit of
the Holders of the 9-3/4% Senior Notes due 2006, Series C of the Company (the
"Series C Notes") and the 9-3/4% Senior Notes due 2006, Series D of the Company
to be issued to Holders pursuant to an Exchange Offer (the "Series D Notes"
and, together with the Series C Notes , the "Notes"), without preference of one
series of Notes over the other:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01 DEFINITIONS.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Acquired Indebtedness" means, with respect to any specified
Person, (i) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Subsidiary of such
specified Person, including, without limitation, Indebtedness incurred
in connection with, or in contemplation of, such other Person merging
with or into or becoming a Subsidiary of such specified Person, and
(ii) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"Additional Series D Notes" means any Exchange Notes issued in
exchange for Series A/B Notes pursuant to the initial Exchange Offer.
"Affiliate" of any specified Person means any other 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
that beneficial ownership of 10% or more of the voting securities of a
Person shall be deemed to be control.
"Attributable Indebtedness" in respect of a sale-and-leaseback
transaction means, at the time of determination, the present value
(discounted at the rate of interest implicit in such transaction,
determined in accordance with GAAP) of the obligation of the lessee
for net rental payments during the remaining term of the lease
included in such sale-and-leaseback transaction (including any period
for which such lease has been extended or may, at the option of the
lessor, be extended). As used in the preceding sentence, the "net
rental payments" under any lease for any such period shall mean the
sum of rental and other payments required to be paid with respect to
such period by the lessee thereunder, excluding any amounts required
to be paid by such lessee on account of maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges. In the
case of any lease that is terminable by the lessee upon payment of
penalty, such net rental payment shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under
such lease subsequent to the first date upon which it may be so
terminated.
"Bankruptcy Custodian" means any receiver, trustee, assignee,
liquidator or similar officer under any Bankruptcy Law.
7
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the
Company, or any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in
respect of a capital lease that would at such time be required to be
capitalized on a balance sheet in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation,
corporate stock; (ii) in the case of an association or business
entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock; (iii) in the case
of a partnership, partnership interests (whether general or limited),
(iv) in the case of a limited liability corporation or similar entity,
any membership or other similar interests therein; and (v) any other
interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (i) any evidence of Indebtedness with
a maturity of 365 days or less issued or directly and fully guaranteed
or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof); (ii)
demand and time deposits and certificates of deposit or acceptances
with a maturity of 365 days or less of any financial institution that
is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500 million; (iii)
commercial paper with a maturity of 270 days or less issued by a
corporation that is not an Affiliate of the Company and is organized
under the laws of any state of the United States or the District of
Columbia and rated at least A-2 by Standard and Poor's or at least P-2
by Xxxxx'x; (iv) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause
(i) above entered into with any commercial bank meeting the
specifications of clause (ii) above; (v) overnight bank deposits and
bankers' acceptances at any commercial bank meeting the qualifications
specified in clause (ii) above; (vi) deposits available for withdrawal
on demand with any commercial bank not meeting the qualifications
specified in clause (ii) above, provided all such deposits do not
exceed $5 million in the aggregate at any one time; (vii) demand and
time deposits and certificates of deposit with any commercial bank
organized in the United States not meeting the qualifications
specified in clause (ii) above, provided that such deposits and
certificates support bond, letter of credit and other similar types of
obligations incurred in the ordinary course of business: and (viii)
investments in money market or other mutual funds substantially all of
whose assets comprise securities of the types described in clauses (i)
through (v) above, including those for which the Trustee, or any
Affiliate thereof, receives compensation with respect to such
investment.
"Change of Control" means the occurrence of any of the
following: (i) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or
a series of related transactions, of all or substantially all of the
assets of the Company and its Restricted Subsidiaries taken as a whole
to any "person" (as such term is used in Section 13(d)(3) of the
Exchange Act); (ii) the Company consolidates with or merges into
another Person or any Person consolidates with, or merges into, the
Company, in any such event pursuant to a transaction in which the
outstanding voting stock of the Company is changed into or exchanged
for cash, securities or other property, other than any such
transaction where (a) the outstanding voting stock of the Company is
changed into or exchanged for voting stock of the surviving or
resulting Person that is Qualified
2
8
Capital Stock and (b) the holders of the voting stock of the Company
immediately prior to such transaction own, directly or indirectly, not
less than a majority of the voting stock of the surviving or resulting
Person immediately after such transaction; (iii) the adoption of a plan
relating to the liquidation or dissolution of the Company; (iv) the
consummation of any transaction (including, without limitation, any
merger or consolidation) the result of which is that any "person" (as
defined above) becomes the "beneficial owner" (as such term is defined
in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or
indirectly, of more than 50% of the voting stock of the Company or (v)
the first day on which a majority of the members of the Board of
Directors of the Company are not Continuing Directors. For purposes of
this definition, any transfer of an equity interest of an entity that
was formed for the purpose of acquiring voting stock of the Company
will be deemed to be a transfer of such portion of such voting stock as
corresponds to the portion of the equity of such entity that has been
so transferred.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" or "SEC" means the Securities and Exchange
Commission.
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period
plus (i) an amount equal to any extraordinary loss plus any net loss
realized in connection with an Asset Sale (to the extent such losses
were deducted in computing such Consolidated Net Income), plus (ii)
provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, to the extent that such
provision for taxes was included in computing such Consolidated Net
Income, plus (iii) consolidated net interest expense of such Person
and its Restricted Subsidiaries for such period, whether paid or
accrued and whether or not capitalized (including, without limitation,
amortization of original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable
Indebtedness, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance
financings, and net payments (if any) pursuant to Interest Rate
Protection Obligations), to the extent that any such expense was
deducted in computing such Consolidated Net Income, plus (iv)
depreciation, amortization (including amortization of goodwill, debt
issue costs and other intangibles but excluding amortization of
prepaid cash expenses that were paid in a prior period) and other non-
cash charges (including any provision for the reduction in the
carrying value of assets recorded in accordance with GAAP but
excluding any such non-cash charge to the extent that it represents an
accrual of or reserve for cash charges in any future period or
amortization of a prepaid cash expense that was paid in a prior
period) of such Person and its Restricted Subsidiaries for such period
to the extent that such depreciation, amortization and other non-cash
charges were deducted in computing such Consolidated Net Income, minus
(v) any non-cash items increasing the Consolidated Net Income of such
Person and its Restricted Subsidiaries during such period (excluding
any such items that represent the reversal of any accrual of, or cash
reserve for, anticipated cash charges in any prior period commencing
subsequent to the Series A/B Issue Date), in each case, on a
consolidated basis and determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes on the income
or profits of, and the depreciation and amortization and other
non-cash charges of, a Restricted Subsidiary of the referent Person
shall be added to Consolidated Net Income to compute Consolidated Cash
Flow only to the extent (and in same proportion) that the Net Income
of such Restricted Subsidiary was included in calculating the
Consolidated Net Income of such Person and only if a corresponding
amount would be permitted at the date of determination to be
dividended to the Company by such Restricted Subsidiary without prior
governmental approval (that has not been obtained), and without direct
or indirect restriction pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders,
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statutes, rules and governmental regulations applicable to that
Restricted Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP; provided that (i) the Net Income
(but not loss) of any Person that is not a Restricted Subsidiary or
that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Restricted
Subsidiary thereof that is a Subsidiary Guarantor; (ii) the Net Income
of any Restricted Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the
terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders; (iii) the Net Income of any
Person acquired in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded; and (iv) the
cumulative effect of a change in accounting principles shall be
excluded.
"Consolidated Net Worth" means, with respect to any Person as
of any date, the sum of (i) the consolidated equity of the common
stockholders of such Person and its consolidated Restricted
Subsidiaries as of such date plus (ii) the respective amounts reported
on such Person's balance sheet as of such date with respect to any
series of preferred stock (other than Disqualified Stock) that by its
terms is not entitled to the payment of dividends unless such
dividends may be declared and paid only out of net earnings in respect
of the year of such declaration and payment, but only to the extent of
any cash received by such Person upon issuance of such preferred
stock, less (x) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of tangible assets of a
going concern business made within 12 months after the acquisition of
such business) subsequent to the Series A/B Issue Date in the book
value of any asset owned by such Person or a consolidated Restricted
Subsidiary of such Person, (y) all investments as of such date in
unconsolidated Subsidiaries and in Persons that are not Subsidiaries
(except, in each case, Permitted Investments), and (z) all unamortized
debt discount and expense and unamortized deferred charges as of such
date, all of the foregoing determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company who (i) was a
member of such Board of Directors on the Issue Date or (ii) was
nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of
such Board at the time of such nomination or election.
"Convertible Preferred Stock" means the Series D Convertible
Preferred Stock of the Company.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 11.02 hereof or such other
address as to which the Trustee may give notice to the Company.
"Currency Hedge Obligations" means, at any time as to any
Person, the obligations of such Person at such time that were incurred
in the ordinary course of business pursuant to any foreign currency
exchange agreement, option or futures 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.
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"Custodian" or "Note Custodian" means the Trustee, as
custodian with respect to the Notes in global form, or any successor
entity thereto.
"Default" means any event that is, or with the passage of time
or the giving of notice or both would be, an Event of Default.
"Definitive Notes" means Notes that are in the form of the
Notes attached hereto as Exhibit A, that do not include the
information called for by footnotes 1 and 2 thereof.
"Depository" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in
Section 2.03 hereof as the Depository with respect to the Notes, until
a successor shall have been appointed and become such pursuant to the
applicable provision of this Indenture, and, thereafter, "Depository"
shall mean or include such successor.
"Disinterested Director" means, with respect to any
transaction or series of transactions in respect of which the Board of
Directors of the Company is required to deliver a resolution of the
Board of Directors under this Indenture, a member of the Board of
Directors of the Company who does not have any material direct or
indirect financial interest (other than an interest arising solely
from the beneficial ownership of Capital Stock of the Company) in or
with respect to such transaction or series of transactions.
"Disqualified Stock" means the Convertible Preferred Stock and
any other Capital Stock that, by its terms (or by the terms of any
security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the Holder thereof, in whole
or in part, on or prior to the date on which the Notes mature.
"Drilling Business" means (i) the drilling for oil, gas or
other hydrocarbons, whether offshore or onshore, and whether as an
agent or principal, and (ii) any business relating to or arising from
drilling for oil, gas or other hydrocarbons, including, without
limitation, the rental of drill pipe, tools or other equipment.
"Eligible Institution" means a commercial banking institution
that has combined capital and surplus of not less than $500 million or
its equivalent in foreign currency, whose debt (or the debt of whose
holding company) is rated "A" (or higher) according to Standard and
Poor's or "A2" (or higher) by Xxxxx'x at the time as of which any
investment or rollover therein is made.
"Employee Stock Repurchases" means purchases by the Company of
any of its Capital Stock from employees for the purpose of permitting
such employees to pay personal income tax obligations with the
proceeds, provided that the aggregate amount of all such purchases
shall not exceed $500,000 during any fiscal year of the Company.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any
debt security that is convertible into, or exchangeable for, Capital
Stock).
"Event of Loss" means, with respect to any drilling rig or
similar or related property or asset of the Company or any Restricted
Subsidiary, (i) any damage to such drilling rig or similar or related
property or asset that results in an insurance settlement with respect
thereto on the basis of a total loss or a constructive or compromised
total loss or (ii) the confiscation, condemnation or requisition of
title to such drilling rig or similar or related property or asset by
any government or instrumentality or
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agency thereof. An Event of Loss shall be deemed to occur as of the
date of the insurance settlement, confiscation, condemnation or
requisition of title, as applicable.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the Company's 9-3/4% Senior Notes due
2006, Series D issued in exchange for the Series C Notes pursuant to
an Exchange Offer and shall also include any Additional Series D
Notes.
"Exchange Offer" means the offer that may be made by the
Company pursuant to a Registration Rights Agreement to exchange Series
D Notes for Series C Notes and, in the case of the initial Exchange
Offer, Series A/B Notes.
"Executive Officer" means, for any Person, the managing
general partner, the chief financial officer, chief operating officer
or chief executive officer of such Person.
"Exempt Foreign Subsidiary" means (i) any Restricted
Subsidiary engaged in the Drilling Business exclusively outside the
United States of America, irrespective of its jurisdiction of
incorporation and (ii) any other Restricted Subsidiary whose assets
(excluding any cash and Cash Equivalents) consist exclusively of
Capital Stock or Indebtedness of one or more Restricted Subsidiaries
described in clause (i) of this definition, that, in any case, is so
designated by the Company in an Officer's Certificate delivered to the
Trustee and (a) is not a guarantor or, and has not granted any Lien to
secure, the Senior Credit Facility or any other Indebtedness of the
Company or any Restricted Subsidiary other than another Exempt Foreign
Subsidiary and (b) does not have total assets that, when aggregated
with the total assets of any other Exempt Foreign Subsidiary, exceed
10% of the Company's consolidated total assets, as determined in
accordance with GAAP, as reflected on the Company's most recent
quarterly or annual balance sheet. The Company may revoke the
designation of any Exempt Foreign Subsidiary by notice to the Trustee.
"Existing Indebtedness" means up to $8 million in aggregate
principal amount of Indebtedness of the Company and its Subsidiaries
(other than Indebtedness under the Senior Credit Facility) in
existence on the Series A/B Issue Date, until such amounts are repaid.
"Fair Market Value" means, with respect to any asset or
Investment, the fair market value of such asset or Investment at the
time of the event requiring such determination, and, with respect to
any assets or Investment in excess of $5 million (other than cash or
Cash Equivalents) as determined by a reputable appraisal firm that is,
in the reasonable judgment of the Board of Directors, qualified to
perform the task for which such firm has been engaged and independent
with respect to the Company.
"Fixed Charges" means, with respect to any Person for any
period, the sum of (i) the consolidated interest expense (net of any
interest income) of such Person and its Restricted Subsidiaries for
such period, whether paid or accrued (excluding amortization of debt
issuance costs and including, without limitation, amortization of
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, imputed
interest with respect to Attributable Indebtedness, commissions,
discounts and other fees and charges incurred in respect of letter of
credit or bankers' acceptance financings, and net payments (if any)
pursuant to Interest Rate Protection Obligations); (ii) the
consolidated interest expense of such Person and its Restricted
Subsidiaries that was capitalized during such period; (iii) any
interest expense on Indebtedness of another Person that is guaranteed
by such Person or one of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its Restricted Subsidiaries
(whether or not such guarantee or Lien is called upon);
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and (iv) the product of (A) all cash dividend payments (and non-cash
dividend payments in the case of a Person that is a Restricted
Subsidiary) on any series of preferred stock of such Person, to the
extent such preferred stock is owned by Persons other than such Person
or its Restricted Subsidiaries, times (A) a fraction, the numerator of
which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such
Person, expressed as a decimal, in each case, on a consolidated basis
and in accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person
for any period, the ratio of the Consolidated Cash Flow of such Person
and its Restricted Subsidiaries for such period to the Fixed Charges
of such Person for such period. In the event that the Company or any
of its Restricted Subsidiaries incurs, assumes, guarantees or redeems
any Indebtedness (other than revolving credit borrowings) or issues
preferred stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated but prior to the
date on which the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, guarantee or redemption of Indebtedness, or
such issuance or redemption of preferred stock, as if the same had
occurred at the beginning of the applicable four-quarter reference
period. In addition, for purposes of making the computation referred
to above, (i) acquisitions of businesses that have been made by the
referent Person or any of its Restricted Subsidiaries, including
through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent
to such reference period and on or prior to the Calculation Date shall
be deemed to have occurred on the first day of the four-quarter
reference period; (ii) the Consolidated Cash Flow attributable to
discontinued operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Calculation Date,
shall be excluded; and (iii) the Fixed Charges attributable to
discontinued operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Calculation Date,
shall be excluded, but only to the extent that the obligations giving
rise to such Fixed Charges will not be obligations of the referent
Person or any of its Restricted Subsidiaries following the Calculation
Date.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which
are in effect from time to time.
"Global Note" means a Note that contains the paragraph
referred to in footnote 1 and the additional schedule referred to in
footnote 2 to the form of the Note attached hereto as Exhibit A.
"Government Securities" means securities that are (a) direct
obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (b) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of
which is unconditionally guaranteed as a full faith and credit
obligation of the United States of America, which, in either case, are
not callable or redeemable as the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act), as custodian with respect
to any such Government Security or a specific payment of principal of
or interest on any such Government Security held by such custodian for
the account of the holder of such 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
Government Security or the specific payment of principal of or
interest on the Government Security evidenced by such depository
receipt.
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The term "guarantee" means, as applied to any obligation, (i)
a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in
any manner, of any part or all of such obligation and (ii) an
agreement, direct or indirect, contingent or otherwise, the practical
effect of which is to assure in any way the payment or performance (or
payment of damages in the event of non-performance) of all or any part
of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down under letters of credit. When used as a
verb, "guarantee" has a corresponding meaning.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in respect of
borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in
respect thereof) or banker's acceptances or representing Capital Lease
Obligations or the balance deferred and unpaid of the purchase price
of any property or representing any obligations in respect of Currency
Hedge Obligations or Interest Rate Protection Obligations, except any
such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than
letters of credit, Currency Hedge Obligations and Interest Rate
Protection Obligations) would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP, as well as all
indebtedness of others secured by a Lien on any asset of such Person
(whether or not such indebtedness is assumed by such Person) and, to
the extent not otherwise included, the guarantee by such Person of any
Indebtedness of any other Person.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Independent Appraiser" means an investment banking firm of
national standing with non-investment grade debt underwriting
experience or any third party appraiser of national standing;
provided, however, that such firm or appraiser is not an Affiliate of
the Company.
"Interest Rate Protection Obligations" means the obligations
of any Person pursuant to any arrangement with any other Person
whereby, directly or indirectly, such Person is entitled to receive
from time to time periodic payments calculated by applying either a
floating or a fixed rate of interest on a stated notional amount in
exchange for periodic payments made by such Person calculated by
applying a fixed or a floating rate of interest on the same notional
amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements or arrangements designed
to protect against or manage such Person's or any of its Subsidiaries'
exposure to fluctuations in interest rates.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in
the forms of direct or indirect loans (including guarantees of
Indebtedness or other obligations), advances or capital contributions
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or
other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance
with GAAP; provided that the following shall not constitute
Investments: (i) an acquisition of assets, Equity Interests or other
securities by the Company for consideration consisting of common
equity securities of the Company, (ii) extensions of trade credit or
other advances to customers on commercially reasonable terms in
accordance with normal trade practices or otherwise in the ordinary
course of business, (iii) Interest Rate Protection Obligations and
Currency Hedge Obligations, but only to the extent that the same
constitute Permitted Indebtedness, and (iv) endorsements of negotiable
instruments and documents in the ordinary course of business. If the
Company or any Subsidiary of
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the Company sells or otherwise disposes of any Equity Interests of any
direct or indirect Subsidiary of the Company such that, after giving
effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Company, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the
fair market value of the Equity Interests of such Subsidiary not sold
or disposed of.
"Issue Date" means the date on which the Series C Notes were
first issued under this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of Houston, Texas or the City of New
York or at a place of payment are authorized by law, regulation or
executive order to remain closed. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on
the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or
other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and
any filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction
other than a precautionary financing statement respecting a lease not
intended as a security agreement).
"Liquidated Damages" means all liquidated damages then owing
pursuant to Section 5 of the initial Registration Rights Agreement or
any similar provision of any subsequent Registration Rights Agreement.
"Moody's" means Xxxxx'x Investors Service, Inc. and any
successor to the rating agency business thereof.
"Net Equity Proceeds" means (i) in the case of any sale by the
Company of Qualified Capital Stock of the Company, the aggregate net
proceeds received by the Company, after payment of expenses,
commissions and the like incurred in connection therewith, whether
such proceeds are in cash or in other property (valued as determined
reasonably and in good faith by the Board of Directors of the Company,
as evidenced by a written resolution of said Board of Directors, at
the fair market value thereof at the time of receipt) and (ii) in the
case of any exchange, exercise, conversion or surrender of any
outstanding Indebtedness of the Company or any Restricted Subsidiary
for or into shares of Qualified Capital Stock of the Company, the
amount of such Indebtedness (or, if such Indebtedness was issued at an
amount less than the stated principal amount thereof, the accrued
amount thereof as determined in accordance with GAAP) as reflected in
the consolidated financial statements of the Company prepared in
accordance with GAAP as of the most recent date next preceding the
date of such exchange, exercise, conversion or surrender (plus any
additional amount required to be paid by the holders of such
Indebtedness to the Company or to any Wholly Owned Restricted
Subsidiary of the Company upon such exchange, exercise, conversion or
surrender and less any and all payments made to the holders of such
Indebtedness, and all other expenses incurred by the Company in
connection therewith), in the case of each of clauses (i) and (ii) to
the extent consummated after the Series A/B Issue Date.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends, excluding,
however, (i) any gain (but not loss), other than any gains associated
with
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reimbursements for lost or damaged rental tools in the ordinary course
of business, together with any related provision for taxes on such
gain (but not loss), realized in connection with (a) any Asset Sale
(including, without limitation, dispositions pursuant to sale and
leaseback transactions) or other sale of assets or (b) the disposition
of any securities by such Person or any of its Restricted Subsidiaries
or the extinguishment of any Indebtedness of such Person or any of its
Restricted Subsidiaries; (ii) any extraordinary or nonrecurring gain
(but not loss), together with any related provision for taxes on such
extraordinary or nonrecurring gain (but not loss); and (iii) any
interest income, together with any related provision for taxes on such
interest income.
"Net Proceeds" means the aggregate cash proceeds received by
the Company or any of its Restricted Subsidiaries in respect of any
Asset Sale (including, without limitation, any cash received upon the
sale or other disposition of any non-cash consideration received in
any Asset Sale), net of the direct costs relating to such Asset Sale
(including, without limitation, legal, accounting and investment
banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result
thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to be
applied to the repayment of Indebtedness (other than Indebtedness
under the Senior Credit Facility) secured by a Lien on the asset or
assets that were the subject of such Asset Sale, amounts required to
be paid to any Person (other than the Company or any Restricted
Subsidiary) owning a beneficial interest in the asset or assets that
were the subject of such Asset Sale, and any reserve for adjustment in
respect of the sale price of such asset or assets established in
accordance with GAAP.
"Non-Recourse Indebtedness" means Indebtedness (i) as to which
neither the Company nor any of its Restricted Subsidiaries (A)
provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness), (B) is
directly or indirectly liable (as a Subsidiary Guarantor or
otherwise), or (C) constitutes the lender; (ii) no default with
respect to which (including any rights that the holders thereof may
have to take enforcement action against an Unrestricted Subsidiary)
would permit (upon notice, lapse of time or both) any holder of any
other Indebtedness of the Company or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated
maturity; and (iii) as to which the lenders have been notified in
writing that they will not have any recourse to the stock or assets of
the Company or any of its Restricted Subsidiaries.
"Non-Recourse Purchase Money Indebtedness" means Indebtedness
or that portion of Indebtedness of the Company or any Restricted
Subsidiary incurred in connection with the acquisition by the Company
or such Restricted Subsidiary, subsequent to the Series A/B Issue
Date, of any property or assets and as to which (i) the holders of
such Indebtedness agree that they will look solely to the property or
assets so acquired (or, in the case of the acquisition of all of the
outstanding Capital Stock of a Person, the underlying properties and
assets of such Person at the time of such acquisition, including
proceeds thereof) and securing such Indebtedness for payment on or in
respect of such Indebtedness, and neither the Company nor any
Restricted Subsidiary (a) provides credit support, including any
undertaking, agreement or instrument which would constitute
Indebtedness or (b) is directly or indirectly liable for such
Indebtedness, and (ii) no default with respect to such Indebtedness
would permit (after notice or passage of time or both), according to
the terms thereof, any holder of any Indebtedness of the Company or a
Restricted Subsidiary to declare a default on such Indebtedness or
cause the payment thereof to be accelerated or payable prior to its
stated maturity; and, provided, however, that any portion of the
purchase price of such property or assets that is not financed through
the incurrence of such Indebtedness, shall be deemed to be a
"Restricted Investment" under this Indenture, and shall only be
permitted to be expended by the Company or any Restricted Subsidiary
to the extent that the Company would be permitted to make a Restricted
Payment in such amount under the terms of Section 4.07 hereof.
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"Note Custodian" means the Trustee, as custodian with respect
to the Notes in global form, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Offering" means the offering of the Original Notes by the
Company pursuant to the Offering Circular.
"Offering Circular" means the Offering Circular of the
Company, dated March 5, 1998, with respect to the Original Notes.
"Officer" means, with respect to any Person, the President,
Chief Financial Officer, Treasurer or any Vice President of such
Person.
"Officers' Certificate" means a certificate signed by two
Officers, at least one of whom shall be the principal executive
officer, principal accounting officer or principal financial officer
of the Company, that meets the requirements of Section 11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the requirements
of Section 11.05 hereof. The counsel may be an employee of or counsel
to the Company.
"Permitted Indebtedness" means any of the following:
(i) Indebtedness (and any guarantee thereof) under the
Revolving Credit Facility in an aggregate principal amount at any one
time outstanding not to exceed the greater of (A) $50 million, less
any amounts derived from Asset Sales and applied to the permanent
reduction of the Indebtedness thereunder as contemplated by Section
4.10 hereof or (B) the sum of (1) 80% of the Company's Eligible
Accounts Receivable (as defined for purposes of the Revolving Credit
Facility) and (2) 50% of the rig materials and supplies of the Company
and its Restricted Subsidiaries determined in accordance with GAAP
(the "Maximum Bank Facility Amount"), and any renewals, amendments,
extensions, supplements, modifications, deferrals, refinancing or
replacements (each, for purposes of this clause (i), a "refinancing")
thereof, including any successive refinancing thereof, so long as the
aggregate principal amount of any such new Indebtedness, together with
the aggregate principal amount of all other Indebtedness outstanding
pursuant to this clause (i), shall not at any one time exceed the
Maximum Bank Facility Amount;
(ii) Indebtedness under the Series A/B Notes, the Original
Notes, and the Exchange Notes;
(iii) Indebtedness under the Term Credit Facility, any
Existing Indebtedness, and any Indebtedness under Letters of Credit
existing on the Series A/B Issue Date;
(iv) Indebtedness under Interest Rate Protection
Obligations, provided that (A) such Interest Rate Protection
Obligations are related to payment obligations on Permitted
Indebtedness or Indebtedness otherwise permitted by the initial
paragraph of Section 4.09 hereof, and (B) the notional principal
amount of such Interest Rate Protection Obligations does not exceed
the principal amount of such Indebtedness to which such Interest Rate
Protection Obligations relate;
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(v) Indebtedness under Currency Hedge Obligations,
provided that (A) such Currency Hedge Obligations are related to
payment obligations on Permitted Indebtedness or Indebtedness
otherwise permitted by the initial paragraph of Section 4.09 hereof or
to the foreign currency cash flows reasonably expected to be generated
by the Company and its Restricted Subsidiaries, and (B) the notional
principal amount of such Currency Hedge Obligations does not exceed
the principal amount of such Indebtedness and the amount of such
foreign currency cash flows to which such Currency Hedge Obligations
relate;
(vi) the Subsidiary Guarantees of the Series A/B Notes,
the Original Notes, any additional Series C Notes subsequently issued,
but only to the extent that the Indebtedness represented by such
additional Series C Notes is otherwise permitted under this Indenture,
and the Exchange Notes (and any assumption of the obligations
guaranteed thereby);
(vii) Indebtedness of the Company to a Wholly Owned
Restricted Subsidiary and Indebtedness of any Restricted Subsidiary of
the Company to the Company or a Wholly Owned Restricted Subsidiary,
provided, however, that upon any subsequent issuance or transfer of
any Capital Stock or any other event which results in any such Wholly
Owned Restricted Subsidiary ceasing to be a Wholly Owned Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness
(except to the Company or a Wholly Owned Restricted Subsidiary), such
Indebtedness shall be deemed, in each case, to be incurred and shall
be treated as an incurrence for purposes of the initial paragraph of
Section 4.09 hereof at the time the Wholly Owned Restricted Subsidiary
in question ceased to be a Wholly Owned Restricted Subsidiary or the
time such subsequent transfer occurred;
(viii) Indebtedness in respect of bid, performance or surety
bonds issued for the account of the Company or any Restricted
Subsidiary thereof in the ordinary course of business, including
guarantees or obligations of the Company or any Restricted Subsidiary
thereof with respect to letters of credit supporting such bid,
performance or surety obligations (in each case other than for an
obligation for money borrowed);
(ix) the incurrence by the Company or its Restricted
Subsidiaries of Non-Recourse Purchase Money Indebtedness;
(x) any Permitted Refinancing Indebtedness incurred by
the Company or a Restricted Subsidiary of any Indebtedness incurred
pursuant to clause (ii) or (iii) of this definition, including any
successive refinancing by the Company or such Restricted Subsidiary;
and
(xi) any additional Indebtedness in an aggregate principal
amount not in excess of $30 million at any one time outstanding and
any guarantee thereof.
"Permitted Investments" means any of the following: (i)
Investments in Cash Equivalents; (ii) Investments in the Company or
any of its Wholly Owned Restricted Subsidiaries; (iii) Investments by
the Company or any of its Restricted Subsidiaries in another Person,
if as a result of such Investment (A) such other Person becomes a
Wholly Owned Restricted Subsidiary or (B) such other Person is merged
or consolidated with or into, or transfers or conveys all or
substantially all of its properties and assets to, the Company or a
Wholly Owned Restricted Subsidiary; (iv) Investments permitted under
Section 4.10 hereof; (v) Investments made in the ordinary course of
business in prepaid expenses, lease, utility, workers' compensation,
performance and other similar deposits; (vi) Investments in stock,
obligations or securities received in settlement of debts owing to the
Company or any Restricted 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 Restricted
Subsidiary, in each case as to debt owing to the Company or any
Restricted Subsidiary that arose in
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the ordinary course of business of the Company or any such Restricted
Subsidiary, provided that any stocks, obligations or securities
received in settlement of debts that arose in the ordinary 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; and (vii) other Investments in joint
ventures, corporations, limited liability companies or partnerships
formed with or organized by third Persons, which joint ventures,
corporations, limited liability companies or partnerships engage in
the Drilling Business and are not Unrestricted Subsidiaries at the
time of such Investment, provided such investments do not, in the
aggregate, exceed $12 million.
"Permitted Liens" means the following types of Liens:
(i) Liens existing as of the Series A/B Issue Date;
(ii) Liens ratably securing the Series A/B Notes, the
Notes (including the Exchange Notes) or the Subsidiary Guarantees;
(iii) Liens in favor of the Company;
(iv) Liens securing Indebtedness that constitutes
Permitted Indebtedness pursuant to clause (i) or (iii) of the
definition of "Permitted Indebtedness" included in Section 4.09
hereof;
(v) Liens for taxes, assessments and governmental charges
or claims either (A) not delinquent or (B) contested in good faith by
appropriate proceedings and as to which the Company or its Restricted
Subsidiaries shall have set aside on its books such reserves as may be
required pursuant to GAAP;
(vi) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for
sums not delinquent or being contested in good faith, if such reserve
or other appropriate provision, if any, as shall be required by GAAP
shall have been made in respect thereof;
(vii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to
secure the payment or performance of tenders, statutory or regulatory
obligations, surety and appeal bonds, bids, government contracts and
leases, performance and return of money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed
money);
(viii) judgment Liens not giving rise to an Event of Default
so long as any appropriate legal proceedings which may have been duly
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;
(ix) any interest or title of a lessor under any Capital
Lease Obligation or operating lease;
(x) Liens securing Non-Recourse Purchase Money
Indebtedness and other purchase money Liens; provided, however, that
(i) the related Non-Recourse Purchase Money Indebtedness or other
purchase money Indebtedness shall not be secured by any property or
assets of the Company or any Restricted Subsidiary other than the
property or assets so acquired (or, in the case of the acquisition of
all of the outstanding Capital Stock of a Person, the underlying
properties and assets
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of such Person at the time of such acquisition, including proceeds
thereof) and (ii) the Lien securing any such Indebtedness shall be
created within 90 days of such acquisition;
(xi) Liens securing obligations under or in respect of
either Currency Hedge Obligations or Interest Rate Protection
Obligations;
(xii) Liens upon specific items of inventory or other goods
of any Person securing such Person's obligations in respect of bankers
acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or
other goods;
(xiii) Liens securing reimbursement obligations with respect
to commercial letters of credit that encumber documents and other
property or assets relating to such letters of credit and products and
proceeds thereof;
(xiv) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty
requirements of the Company or any of its Restricted Subsidiaries,
including rights of offset and set-off; and
(xv) Liens on, or related to, properties or assets to
secure all or part of the costs incurred in the ordinary course of
business for the exploration, drilling, development or operation
thereof.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Restricted Subsidiaries issued in exchange
for, or the net proceeds of which are used to extend, refinance,
renew, replace, defease or refund other Indebtedness of the Company or
any of its Restricted Subsidiaries; provided that: (i) the principal
amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount
of reasonable expenses incurred in connection therewith); (ii) such
Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (iii) if the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to,
the Notes on terms at least as favorable to the Holders of Notes as
those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded and (iv)
with respect to any such Indebtedness of the Company being extended,
refinanced, renewed, replaced, defeased or refunded, such Permitted
Refinancing Indebtedness shall not be incurred by any Restricted
Subsidiary.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Public Equity Offering" means an underwritten offer and sale
of common stock of the Company pursuant to a registration statement
that has been declared effective by the Commission pursuant to the
Securities Act (other than a registration statement on Form S-8 or
otherwise relating to equity securities issuable under any employee
benefit plan of the Company).
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Disqualified Stock.
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"Rating Agencies" means Standard and Poor's and Xxxxx'x, or
any successor to the respective rating agency businesses thereof.
"Registration Rights Agreement" means (a) the Registration
Rights Agreement, dated as of the Issue Date, by and among the Company
and the other parties named on the signature pages thereof relating to
the Original Notes, and (b) any similar agreement that the Company and
the Subsidiary Guarantors may enter into in relation to any other
Series C Notes, in each case as such agreement may be amended,
modified or supplemented from time to time.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee
(or any successor group of the Trustee) or any other officer of the
Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Subsidiary" of a Person means any Subsidiary of
the referent Person that is not an Unrestricted Subsidiary.
"Restricted Investment" means (without duplication) (i) the
designation of a Subsidiary as an Unrestricted Subsidiary in the
manner described in the definition of "Unrestricted Subsidiary," (ii)
any Investment other than a Permitted Investment and (iii) any amount
constituting a "Restricted Investment" as contemplated in the
definition of "Non-Recourse Purchase Money Indebtedness."
"Revolving Credit Facility" means the revolving loan facility
under the Senior Credit Facility.
"SEC" or "Commission" means the Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means, collectively, the Revolving
Credit Agreement and the Term Loan Agreement, each dated November 8,
1996, among the Company, ING (U.S.) Capital Corporation ("ING
Capital") and the other lenders identified therein, and ING Capital,
as agent, each as amended, modified, supplemented, extended, restated
or renewed from time to time.
"Series A/B Indenture" means the Indenture dated as of
November 12, 1996 between the Company and Chase Bank of Texas,
National Association (formerly Texas Commerce Bank National
Association), as Trustee, providing for the issuance of the Series A/B
Notes in the aggregate principal amount of $300 million, as such may
be amended and supplemented from time to time.
"Series A/B Issue Date" means November 12, 1996, the date on
which the Series A/B Notes were originally issued under the Series A/B
Indenture.
"Series A/B Notes" means the Company's Series B 9-3/4% Senior
Notes due 2006 issued pursuant to the Series A/B Indenture, as such
may be amended or supplemented from time to time.
"Significant Subsidiary" means any (a) 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, as such
Regulation is in effect on the date hereof or (b) any other Subsidiary
that contributed more than 10% of the Company's Consolidated Cash Flow
for the most recent four fiscal quarters for which financial
statements are available.
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"Standard and Poor's" means Standard and Poor's Ratings Group,
a division of The XxXxxx-Xxxx Companies, Inc., and any successor to
the rating agency business thereof.
"Subordinated Indebtedness" means any Indebtedness of the
Company or a Subsidiary Guarantor that is expressly subordinated in
right of payment to the Notes or the Subsidiary Guarantees, as the
case may be, including, without limitation, the 5 1/2% Convertible
Subordinated Notes due 2004 of the Company.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than
50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (A) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (B) the only general partners of which are such Person
or of one or more Subsidiaries of such Person (or any combination
thereof).
"Subsidiary Guarantors" means each of (i) the Company's
Significant Subsidiaries on the Issue Date (other than an Exempt
Foreign Subsidiary, as designated by the Company) or any other
Restricted Subsidiary that provides a guarantee under the Senior
Credit Facility, (ii) any other Subsidiary that executes a Subsidiary
Guarantee in accordance with Article 10 hereof, and (iii) their
respective successors and assigns, as required under Article 10
hereof.
"Term Credit Facility" means the term loans under the Senior
Credit Facility in an aggregate amount not to exceed $100 million,
less any amounts derived from Asset Sales and applied to the permanent
reduction of Indebtedness thereunder as contemplated by Section 4.10
hereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which this
Indenture is qualified under the TIA, except as provided in Section
9.03 hereof.
"Transfer Restricted Securities" means securities that bear or
are required to bear the legend set forth in Section 2.06(g) hereof.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means any Subsidiary (or any
successor to any of them) that is designated by the Board of Directors
as an Unrestricted Subsidiary pursuant to a resolution of the Board of
Directors; but only to the extent that such Subsidiary (i) has no
Indebtedness other than Non-Recourse Indebtedness; (ii) is not party
to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless the terms
of any such agreement, contract, arrangement or understanding are no
less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates
of the Company; (iii) is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or
indirect obligation (A) to subscribe for additional Equity Interests
or (B) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating
results; and (iv) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company
or any of its Restricted Subsidiaries. Any such designation by the
Board of Directors shall be evidenced to the Trustee by filing with
the Trustee a certified copy of the resolution of the Board of
Directors giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the
foregoing conditions
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and was permitted by Section 4.07 hereof. If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements
as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary of the Company as of such date (and, if such
Indebtedness is not permitted to be incurred as of such date under
Section 4.09 hereof, the Company shall be in default of such Section).
The Board of Directors may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that such
designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness
of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under the Section 4.09
hereof and (ii) no Default or Event of Default would be in existence
following such designation.
"Voting Stock" means, with respect to any specified Person,
Capital Stock with voting power, under ordinary circumstances and
without regard to the occurrence of any contingency, to elect the
directors or other managers or trustees of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i)
the sum of the products obtained by multiplying (A) the amount of each
then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity,
in respect thereof, by (B) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making
of such payment, by (ii) the then outstanding principal amount of such
Indebtedness.
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary to the extent (i) all of the Capital Stock or other
ownership interests in such Restricted Subsidiary, other than any
directors' qualifying shares mandated by applicable law, is owned
directly or indirectly by the Company or (ii) such Restricted
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 Restricted Subsidiary to transact business in such foreign
jurisdiction, provided that the Company, directly or indirectly, owns
the remaining Capital Stock or ownership interests in such Restricted
Subsidiary and, by contract or otherwise, controls the management and
business of such Restricted Subsidiary and derives the economic
benefits of ownership of such Restricted Subsidiary to substantially
the same extent as if such Restricted Subsidiary were a wholly owned
Subsidiary.
"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 directors' 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 interests 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.
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SECTION 1.02 OTHER DEFINITIONS.
Defined in
Term Section
---- -------
"Adjusted Net Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.07
"Affiliate Transaction" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.11
"Asset Sale" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10
"Asset Sale Offer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10
"Asset Sale Offer Payment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.09
"Asset Sale Offer Purchase Date" . . . . . . . . . . . . . . . . . . . . . . . . . . 3.09
"Asset Sale Offer Trigger Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10
"Benefitted Party" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
"Change of Control Offer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.15
"Change of Control Offer Payment" . . . . . . . . . . . . . . . . . . . . . . . . . . 4.15
"Change of Control Payment Date" . . . . . . . . . . . . . . . . . . . . . . . . . . 4.15
"Covenant Defeasance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.03
"DTC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Excess Proceeds" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10
"Funding Guarantor" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.07
"incur" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.09
"Interest Payment Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit A
"Legal Defeasance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.02
"Maximum Bank Facility Amount" . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.09
"Offer Amount" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.09
"Offer Period" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.09
"Original Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Payment Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"refinancing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.09
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Restricted Payments" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.07
"Series A/B Asset Sale Offer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10
"Subsidiary Guarantees" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes and the Subsidiary
Guarantees;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
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"obligor" on the Notes means the Company, any Subsidiary
Guarantor and any successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC
rule under the TIA have the meanings so assigned to them.
SECTION 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the
plural include the singular;
(v) provisions apply to successive events and
transactions; and
(vi) references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement of
successor sections or rules adopted by the Commission from time to
time.
ARTICLE 2
THE NOTES
SECTION 2.01 FORM AND DATING.
The Series C Notes, the notation thereon relating to the
Subsidiary Guarantees and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Series D
Notes, the notation thereon relating to the Subsidiary Guarantees and
the Trustee's certificate of authentication shall be substantially in
the form of Exhibit B hereto. The Notes may have notations, legends
or endorsements required by law, stock exchange rule or usage. Each
Note shall be dated the date of its authentication. The Notes shall
be issued in minimum denominations of $1,000 and integral multiples
thereof.
The Series C Notes and the Series D Notes shall be considered
collectively to be a single class for all purposes of this Indenture,
including, without limitation, waivers, amendments, redemptions and
offers to purchase.
The terms and provisions contained in the form of the Notes
and the notation thereon relating to the Subsidiary Guarantees annexed
hereto as Exhibit A and Exhibit B and the Subsidiary Guarantees shall
constitute, and are hereby expressly made, a part of this Indenture
and the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be
bound thereby.
Notes issued in global form shall be substantially in the form
of Exhibit A or Exhibit B attached hereto, as applicable (including,
in each case, the text referred to in footnotes 1 and 2 thereto).
Notes issued in definitive form shall be substantially in the form of
Exhibit A or Exhibit B attached hereto, as applicable (but without
including the text referred to in footnotes 1 and 2 thereto). Each
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Global Note shall represent such of the outstanding Notes as shall be
specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed
thereon and that the aggregate amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate,
to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount
of outstanding Notes represented thereby shall be made by the Trustee
or the Note Custodian, at the direction of the Trustee, in accordance
with instructions given by the Holder thereof as required by Section
2.06 hereof.
SECTION 2.02 EXECUTION AND AUTHENTICATION.
One Officer shall sign the Notes for the Company by manual or
facsimile signature. If an Officer whose signature is on a Note no
longer holds that office at the time a Note is authenticated, the Note
shall nevertheless be valid. Each Subsidiary Guarantor shall execute
its Subsidiary Guarantee in the manner set forth in Section 10.07.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence
that the Note has been authenticated under this Indenture.
The Trustee shall authenticate (i) the Series C Notes for
original issue on the Issue Date up to the aggregate principal amount
of $150,000,000 (the "Original Notes"), (ii) additional Series C Notes
for original issue from time to time after the Issue Date in such
principal amounts as may be set forth in a written order of the
Company described in this sentence and (iii) the Series D Notes from
time to time for issue only in exchange for a like principal amount of
Series C Notes or Series A/B Notes, in each case upon a written order
of the Company signed by two Officers, which written order shall
specify (a) the amount of Notes to be authenticated and the date of
original issue thereof, (b) whether the Notes are Series C Notes or
Series D Notes, and (c) the amount of Notes to be issued in global
form or definitive form. In the event that the Company delivers a
written order to authenticate additional Series C Notes, as
contemplated in clause (ii) of the preceding sentence, such order
shall be accompanied by an Officer's Certificate and an Opinion of
Counsel confirming that the issuance of such additional Series C Notes
complies with the requirements of Section 4.09 hereof and all other
applicable requirements of this Indenture. The aggregate principal
amount of Notes outstanding at any time may not exceed (x)
$150,000,000, plus (y) the aggregate principal amount of Series D
Notes issued in exchange for a like principal amount of Series A/B
Notes in the Exchange Offer, plus (z) such additional principal
amounts as may be issued and authenticated pursuant to clause (ii) of
this paragraph, except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with the Company or an Affiliate of the
Company.
SECTION 2.03 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Notes may be presented for
payment ("Paying Agent"). The Registrar shall keep a register of each
series of the Notes and of their transfer and exchange. The Company
may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent. The Company
may change any Paying Agent or Registrar without notice to any Holder.
The Company shall notify the Trustee in writing of the
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name and address of any Agent not a party to this Indenture. If the
Company fails to appoint or maintain another entity as Registrar or
Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect
to the Global Notes.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust
for the benefit of Holders or the Trustee all money held by the Paying
Agent for the payment of principal, premium or Liquidated Damages, if
any, or interest on the Notes, and will notify the Trustee of any
default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all
money held by it to the Trustee. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary thereof) shall have no further liability for
the money. If the Company or a Subsidiary thereof acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05 HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the
names and addresses of all Holders and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least seven Business Days before each
interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the
Holders of Notes and the Company shall otherwise comply with TIA
Section 312(a).
SECTION 2.06 TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Definitive Notes. When Definitive
Notes are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Definitive Notes; or
(y) to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met; provided,
however, that the Definitive Notes presented or surrendered for
register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly
executed by such Xxxxxx or by his attorney, duly authorized in
writing; and
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(ii) in the case of a Definitive Note that is a Transfer
Restricted Security, such request shall be accompanied by the
following additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification to that
effect from such Holder (in substantially the form of Exhibit
C hereto); or
(B) if such Transfer Restricted Security is being
transferred to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) in accordance with Rule
144A under the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 or Rule 904 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to that
effect from such Holder (in substantially the form of Exhibit
C hereto); or
(C) if such Transfer Restricted Security is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act, a
certification to that effect from such Holder (in
substantially the form of Exhibit C hereto) and an Opinion of
Counsel from such Holder or the transferee reasonably
acceptable to the Company and to the Registrar to the effect
that such transfer is in compliance with the Securities Act.
(b) Transfer of a Definitive Note for a Beneficial Interest in a
Global Note. A Definitive Note may not be exchanged for a beneficial interest
in a Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Definitive Note, duly endorsed or accompanied
by appropriate instruments of transfer, in form satisfactory to the Trustee,
together with:
(i) if such Definitive Note is a Transfer Restricted
Security, a certification from the Holder thereof (in substantially
the form of Exhibit C hereto) to the effect that such Definitive Note
is being transferred by such Holder to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Note is a Transfer
Restricted Security, written instructions from the Holder thereof
directing the Trustee to make, or to direct the Note Custodian to
make, an endorsement on the Global Note to reflect an increase in the
aggregate principal amount of the Notes represented by the Global
Note,
in which case the Trustee shall cancel such Definitive Note in
accordance with Section 2.11 hereof and cause, or direct the Note
Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Note Custodian, the
aggregate principal amount of Notes represented by the Global Note to
be increased accordingly. If no Global Notes are then outstanding,
the Company shall issue and, upon receipt of an authentication order
in accordance with Section 2.02 hereof, the Trustee shall
authenticate, a new Global Note in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depository, in accordance with this Indenture and the procedures of
the Depository therefor, which shall include restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act.
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(d) Transfer of a Beneficial Interest in a Global Note
for a Definitive Note.
(i) Any Person having a beneficial interest in a Global
Note may upon request exchange such beneficial interest for a
Definitive Note. Upon receipt by the Trustee of written instructions
or such other form of instructions as is customary for the Depository,
from the Depository or its nominee on behalf of any Person having a
beneficial interest in a Global Note, and, in the case of a Transfer
Restricted Security, the following additional information and
documents (all of which may be submitted by facsimile):
(A) if such beneficial interest is being
transferred to the Person designated by the Depository as
being the beneficial owner, a certification to that effect
from such Person (in substantially the form of Exhibit C
hereto); or
(B) if such beneficial interest is being
transferred to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) in accordance with Rule
144A under the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 or Rule 904 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to that
effect from the transferor (in substantially the form of
Exhibit C hereto); or
(C) if such beneficial interest is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act, a
certification to that effect from the transferor (in
substantially the form of Exhibit C hereto) and an Opinion of
Counsel from the transferee or transferor reasonably
acceptable to the Company and to the Registrar to the effect
that such transfer is in compliance with the Securities Act,
in which case the Trustee or the Note Custodian, at the direction of
the Trustee, shall, in accordance with the standing instructions and
procedures existing between the Depository and the Note Custodian,
cause the aggregate principal amount of Global Notes to be reduced
accordingly and, following such reduction, the Company shall execute
and the Trustee shall authenticate and deliver to the transferee a
Definitive Note in the appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.06(d) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Definitive Notes to the Persons in whose names such
Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.06), a Global Note may
not be transferred as a whole except 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 Xxxxxxxxxx or a nominee of such successor Depository.
(f) Authentication of Definitive Notes in Absence of Depository.
If at any time:
(i) the Depository for the Notes notifies the Company
that the Depository is unwilling or unable to continue as Depository
for the Global Notes and a successor Depository for the Global Notes
is not appointed by the Company within 90 days after delivery of such
notice; or
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(ii) the Company, at its discretion, notifies the Trustee
in writing that it elects to cause the issuance of Definitive Notes
under this Indenture,
then the Company shall execute, and the Trustee shall authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to
the principal amount of the Global Notes in exchange for such Global
Notes.
(g) Legends.
(i) Except as permitted by the following paragraphs (ii)
and (iii), each Note certificate evidencing Global Notes and
Definitive Notes (and all Notes issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the
following form:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION
5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE NOTE EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT
THE SELLER MAY BE RELYING ON THE EXEMPTION PROVIDED BY RULE
144A UNDER THE SECURITIES ACT. THE HOLDER OF THE NOTE
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A)
SUCH NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (1) (a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL IF THE ISSUER SO REQUESTS), (2) TO THE ISSUER OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE NOTE
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or pursuant
to an effective registration statement under the Securities Act:
(A) in the case of any Transfer Restricted
Security that is a Definitive Note, the Registrar shall permit
the Holder thereof to exchange such Transfer Restricted
Security for a Definitive Note that does not bear the legend
set forth in (i) above and rescind any restriction on the
transfer of such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted
Security represented by a Global Note, such Transfer
Restricted Security shall not be required to bear the legend
set forth in (i)
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above, but shall continue to be subject to the provisions of
Section 2.06(c) hereof; provided, however, that with respect
to any request for an exchange of a Transfer Restricted
Security that is represented by a Global Note for a Definitive
Note that does not bear the legend set forth in (i) above,
which request is made in reliance upon Rule 144, the Holder
thereof shall certify in writing to the Registrar that such
request is being made pursuant to Rule 144 (such certification
to be substantially in the form of Exhibit C hereto).
(iii) Notwithstanding the foregoing, upon consummation of
an Exchange Offer, the Company shall issue and the Trustee shall
authenticate Series D Notes in exchange for Series C Notes and, in the
case of the initial Exchange Offer, Series A/B Notes accepted for
exchange in the Exchange Offer, which Series D Notes shall not bear
the legend set forth in (i) above, and the Registrar shall rescind any
restriction on the transfer of such Notes, in each case unless the
Holder of such Series C Notes is either (A) a broker-dealer, (B) a
Person participating in the distribution of the Series C Notes or (C)
a Person who is an affiliate (as defined in Rule 144A) of the Company.
(h) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in Global Notes have been exchanged for Definitive
Notes, redeemed, repurchased or canceled, all Global Notes shall be returned to
or retained and canceled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for Definitive Notes, redeemed, repurchased or canceled, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note, by the
Trustee or the Note Custodian, at the direction of the Trustee, to reflect such
reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate
Definitive Notes and Global Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 3.07, 3.09, 4.10, 4.15 and
9.05 hereto).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(iv) All Definitive Notes and Global Notes issued upon any
registration of transfer or exchange of Definitive Notes or Global
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Definitive Notes or Global Notes surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required:
(A) to issue, to register the transfer of or to
exchange Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close
of business on the day of selection; or
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(B) to register the transfer of or to exchange
any Note so selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in
part; or
(C) to register the transfer of or to exchange a
Note between a record date and the next succeeding interest
payment date.
(j) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the Person
in whose name any Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such Notes, and
neither the Trustee, any Agent nor the Company shall be affected by notice to
the contrary.
SECTION 2.07 REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the
Company, and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and
the Trustee shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company,
the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company may charge
for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued
hereunder.
SECTION 2.08 OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest in
a Global Note effected by the Trustee in accordance with the
provisions hereof, and those described in this Section as not
outstanding. Except as set forth in Section 2.09 hereof, a Note does
not cease to be outstanding because the Company, any of the Subsidiary
Guarantors or any Affiliate of the Company or any of the Subsidiary
Guarantors holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona fide
purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity
date, money sufficient to pay Notes payable on that date, then on and
after that date such Notes shall be deemed to be no longer outstanding
and shall cease to accrue interest.
SECTION 2.09 TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company, any of the Subsidiary Guarantors or any
Affiliate of the Company or any of the Subsidiary Guarantors, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected
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in relying on any such direction, waiver or consent, only Notes that
the Trustee actually knows are so owned shall be so disregarded.
SECTION 2.10 TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon a
written order of the Company signed by two Officers thereof.
Temporary Notes shall be substantially in the form of definitive Notes
but may have variations that the Company considers appropriate for
temporary Notes and as shall be reasonably acceptable to the Trustee.
Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
SECTION 2.11 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Notes surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall destroy such canceled Notes.
The Trustee shall provide a certificate of destruction to the Company
from time to time, at the written request of the Company. The Company
may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation. If the Company or any
Subsidiary Guarantor shall acquire any of the Notes, such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness
represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section
2.11.
SECTION 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, in each
case at the rate provided in the Notes and in Section 4.01 hereof.
The Company shall notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each Note and the date of
the proposed payment. The Company shall fix or cause to be fixed each
such special record date and payment date, provided that no such
special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the
special record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company)
shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such
interest to be paid.
SECTION 2.13 CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use CUSIP
numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the Notes,
and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the
Trustee of any change in the CUSIP numbers.
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ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01 NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the
Trustee, at least 30 days but not more than 60 days before a
redemption date, an Officers' Certificate setting forth (i) the clause
of this Indenture pursuant to which the redemption shall occur, (ii)
the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed among the Holders of
the Notes in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed
or, if the Notes are not so listed, on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and
appropriate; provided that no Notes of $1,000 or less will be redeemed
in part. In the event that less than all of the Notes are to be
redeemed by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to be
redeemed. Notes and portions of Notes selected shall be in amounts of
$1,000 or whole multiples of $1,000; except that if all of the Notes
of a Holder are to be redeemed, the entire outstanding amount of Notes
held by such Holder, even if not a multiple of $1,000, shall be
redeemed. Except as provided in the preceding sentence, provisions of
this Indenture that apply to Notes called for redemption also apply to
portions of Notes called for redemption.
The provisions of the two preceding paragraphs of this Section
3.02 shall not apply with respect to any redemption affecting only a
Global Note, whether such Global Note is to be redeemed in whole or in
part. In case of any such redemption in part, the unredeemed portion
of the principal amount of the Global Note shall be in an authorized
denomination.
SECTION 3.03 NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30
days but not more than 60 days before a redemption date, the Company
shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its
registered address. Failure to receive such notice or any defect in
the notice to any such Holder shall not affect the validity of the
proceedings for the redemption of any other Notes or portion thereof.
The notice shall identify the Notes to be redeemed (including
CUSIP number) and shall state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or
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Notes in principal amount equal to the unredeemed portion shall be
issued upon cancellation of the original Note;
(iv) the name and address of the Paying Agent;
(v) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(vi) that, unless the Company's defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(vii) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(viii) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
If any of the Notes to be redeemed is in the form of a Global
Note, then the Company shall modify such notice to the extent
necessary to accord with the procedures of the Depository applicable
to redemption.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided,
however, that the Company shall have delivered to the Trustee, at
least 45 days (unless the Trustee and the Company agree to a shorter
period) prior to the redemption date, an Officers' Certificate
requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding
paragraph.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and
payable on the redemption date at the redemption price. A notice of
redemption may not be conditional.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company
shall deposit with the Trustee or with the Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 2.04 hereof) money sufficient to pay the
redemption price of and accrued interest and Liquidated Damages, if
any, on all Notes to be redeemed on that date. The Trustee or the
Paying Agent shall promptly return to the Company any money deposited
with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued interest
on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to
accrue on the Notes or the portions of Notes called for redemption.
If a Note is redeemed on or after an interest record date but on or
prior to the related interest payment date, then any accrued and
unpaid interest and Liquidated Damages, if any, shall be paid to the
Person in whose name such Note was registered at the close of business
on such record date. If any Note called for redemption shall not be
so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest shall be paid
on the unpaid principal, from the redemption date until such principal
is paid, and to the extent lawful on any
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interest not paid on such unpaid principal, in each case at the rate
provided in the Note and in Section 4.01 hereof.
SECTION 3.06 NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the
expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
SECTION 3.07 OPTIONAL REDEMPTION.
(a) The Notes will not be redeemable at the Company's
option prior to November 15, 2001. 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 and Liquidated Damages
thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on November 15, of the years indicated
below:
YEAR PERCENTAGE
2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104.875%
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.250%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.625%
2004 and thereafter . . . . . . . . . . . . . . . . . . . . . . . . . . 100.000%
(b) Notwithstanding the foregoing, at any time on or
prior to November 15, 1999, the Company may redeem up to 35% of the
aggregate principal amount of Notes originally issued (but
disregarding, for this purpose, any Exchange Notes other than
Additional Series D Notes) at a redemption price of 109.75% of the
principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages thereon to the redemption date, with the net
proceeds of a Public Equity Offering; provided that at least 65% of
the aggregate principal amount of the Notes originally issued (but
disregarding, for this purpose, any Exchange Notes other than
Additional Series D Notes) remains outstanding immediately after the
occurrence of such redemption; and, provided, further, that such
redemption shall occur within 60 days of the date of the closing of
such Public Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be
made pursuant to the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08 MANDATORY REDEMPTION.
Except as set forth under Sections 4.10 and 4.15 hereof, the
Company shall not be required to make mandatory redemption payments or
sinking fund payments with respect to the Notes.
SECTION 3.09 OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
(a) In the event that, pursuant to Section 4.10 hereof, the
Company shall be required to commence an Asset Sale Offer, it shall follow the
procedures specified below.
(i) The Asset Sale Offer shall be made to all Holders and
shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period
is required by applicable law (the "Offer Period").
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(ii) If the Asset Sale Offer Purchase Date is on or after
an interest record date and on or before the related interest payment
date, any accrued and unpaid interest and Liquidated Damages thereon,
if any, 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
Asset Sale Offer.
(iii) Within 10 days following any Asset Sale Offer Trigger
Date, the Company shall send, by first class mail, a notice to each of
the Holders at such Holder's registered address, with a copy to the
Trustee. The notice, which shall govern the terms of the Asset Sale
Offer, shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Asset Sale Offer,
and shall state:
(A) that the Asset Sale Offer Trigger Date has
occurred pursuant to Section 4.10 hereof and that the Company
is offering to purchase the maximum principal of Notes that
may be purchased out of the Excess Proceeds (the "Offer
Amount") at an offer price in cash in an amount equal to
100.0% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to
date of purchase, which shall be a Business Day (the "Asset
Sale Offer Purchase Date") that is not earlier than 30 days
nor later than 60 days from the date such notice is mailed;
(B) the amount of accrued and unpaid interest, if
any, and unpaid Liquidated Damages, if any, as of the Asset
Sale Offer Purchase Date;
(C) that any Note subject to the Asset Sale Offer
not tendered shall continue to accrue interest;
(D) that, unless the Company defaults in the
payment of the purchase price for the Notes payable pursuant
to the Asset Sale Offer, any such Notes accepted for payment
pursuant to the Asset Sale Offer shall cease to accrue
interest, after the Asset Sale Offer Purchase Date;
(E) that Holders electing to have a Note
purchased pursuant to an Asset Sale Offer may only elect to
have all of such Note purchased and may not elect to have only
a portion of such Note purchased;
(F) that Holders electing to have a Note
purchased pursuant to any Asset Sale Offer shall be required
to surrender the Note, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Note completed
to the Company or a Paying Agent at the address specified in
the notice at least three days before the Purchase Date;
(G) that Holders shall be entitled to withdraw
their election if the Company 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 Note the
Holder delivered for purchase and a statement that such Xxxxxx
is withdrawing his election to have such Note purchased;
(H) that, if the aggregate principal amount of
Notes surrendered by Holders exceeds the Offer Amount or less
than all of the Notes tendered pursuant to the Asset Sale
Offer are accepted for payment by the Company for any reason
consistent with this Indenture, the Trustee shall select the
Notes to be purchased in compliance with the requirements of
the principal national securities exchange, if any, on which
the Notes are listed or, if the Notes
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are not so listed, on a pro rata basis, by lot or by such
method as the Trustee deems fair and appropriate; provided
that Notes accepted for payment in part will only be purchased
in integral multiples of $1,000; and
(I) that Holders whose Notes were purchased only
in part shall be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered.
If any of the Notes subject to an Asset Sale Offer is in the
form of a Global Note, then the Company shall modify such notice to
the extent necessary to accord with the procedures of the Depository
applicable to repurchases.
(b) On the Asset Sale Offer Purchase Date, the Company shall: (i)
accept for payment the maximum principal amount of Notes or portions thereof
tendered pursuant to the Asset Sale Offer that can be purchased out of the
Excess Proceeds; (ii) deposit with the Paying Agent the aggregate purchase
price of all Notes or portions thereof accepted for payment; and (iii) deliver
or cause to be delivered to the Trustee all Notes tendered pursuant to the
Asset Sale Offer. The Company or the Paying Agent, as the case may be, shall
promptly mail to each Holder of Notes or portions thereof accepted for payment
an amount equal to the purchase price for such Notes and the Trustee shall
promptly authenticate and mail to any such Holder of Notes accepted for payment
in part a new Note equal in principal amount to any unpurchased portion of the
Notes, and any Note not accepted for payment in whole or in part shall be
promptly returned to the Holder of such Note. The Company shall announce the
results of the Asset Sale Offer to Holders of the Notes on or as soon as
practicable after the Asset Sale Offer Purchase Date. The Company shall comply
with the requirements of Rule 14e-1 under the Exchange Act, and any other
securities laws or regulations, if applicable, in connection with any Asset
Sale Offer.
(c) Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the
manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent,
if other than the Company or a Subsidiary thereof, holds as of 10:00
a.m. Eastern Time one Business Day prior to the due date money
deposited by the Company in immediately available funds and designated
for and sufficient to pay all principal, premium, if any, and interest
then due. The Company shall pay all Liquidated Damages, if any, in
the same manner on the dates and in the amounts set forth in the
Registration Rights Agreement.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to 1.0% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall
pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest and Liquidated
Damages (without regard to any applicable grace period) at the same
rate to the extent lawful.
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SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the
Trustee or an affiliate of the Trustee, Registrar or co-registrar)
where Notes may be presented for payment, surrendered for registration
of transfer or for exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office
or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance
with Section 2.03 hereof.
SECTION 4.03 REPORTS.
(a) Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, the Company shall furnish to
the Holders of Notes (i) all quarterly and annual financial information that
would be required to be contained in a filing with the Commission on Forms 10-Q
and 10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the consolidated financial condition and results of
operations of the Company and, with respect to the annual information only, a
report thereon by the Company's certified independent accountants and (ii) all
information that would be required to be contained in a filing with the
Commission on Form 8-K if the Company were required to file such Forms. In
addition, whether or not required by the rules and regulations of the
Commission, the Company shall file a copy of all such information and reports
with the Commission for public availability (unless the Commission will not
accept such a filing) and make such information available to securities
analysts and prospective investors upon request. The Company shall at all
times comply with TIA Section 314(a).
(b) For so long as any Transfer Restricted Securities remain
outstanding, the Company shall furnish to all Holders and prospective
purchasers of the Notes designated by the Holders of Transfer Restricted
Securities, promptly upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company'
compliance with any of the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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SECTION 4.04 COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained
in this Indenture and is not in default in the performance or observance of any
of the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred and is continuing, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by
a written statement of the Company' independent public accountants (who shall
be a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes
to take with respect thereto.
SECTION 4.05 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 4.06 STAY, EXTENSION AND USURY LAWS.
The Company 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 the Company (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.
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SECTION 4.07 RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly: (i) declare or
pay any dividend or make any other payment or distribution on account
of the Company's or any of its Restricted Subsidiaries' Equity
Interests (including, without limitation, any payment in connection
with any merger or consolidation involving the Company) or to the
direct or indirect holders of the Company's Equity Interests in their
capacity as such (other than dividends or distributions payable in
Equity Interests (other than Disqualified Stock) of the Company or
dividends or distributions payable to the Company or any Wholly Owned
Restricted Subsidiary of the Company); (ii) purchase, redeem or
otherwise acquire or retire for value any Equity Interests of the
Company or any Affiliate of the Company (other than (A) any such
Equity Interests owned by the Company or any Wholly Owned Restricted
Subsidiary of the Company that is a Subsidiary Guarantor and (B)
Employee Stock Repurchases); (iii) make any principal payment on, or
purchase, redeem, defease or otherwise acquire or retire for value any
Subordinated Indebtedness, except in accordance with the mandatory
redemption or repayment provisions set forth in the original
documentation governing such Indebtedness; or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses
(i) through (iv) above being collectively referred to as "Restricted
Payments"), unless, at the time of and after giving effect to such
Restricted Payment:
(a) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the applicable
four-quarter period, have been permitted to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant
to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate
of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the Series A/B Issue Date (excluding
Restricted Payments permitted by clauses (y) and (z) the next
succeeding paragraph is less than the sum of (i) 50% of the
Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter
commencing after the Series A/B Issue Date to the end of the Company's
most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment (or,
if such Consolidated Net Income for such period is a deficit, less
100% of such deficit), plus (ii) 100% of the aggregate Net Equity
Proceeds (A) received by the Company from the issue or sale,
subsequent to the Series A/B Issue Date, of Qualified Capital Stock of
the Company or (B) of any other Equity Interests or debt securities of
the Company that have been issued subsequent to the Series A/B Issue
Date and that have been converted into such Qualified Capital Stock
(other than any Qualified Capital Stock sold to a Restricted
Subsidiary of the Company or issued upon conversion of the Convertible
Preferred Stock), plus (iii) to the extent not otherwise included in
Consolidated Net Income, the net reduction in Investments in
Unrestricted Subsidiaries resulting from dividends, repayments of
loans or advances, or other transfers of assets, in each case to the
Company or a Restricted Subsidiary after the Series A/B Issue Date
from any Unrestricted Subsidiary or from the redesignation of an
Unrestricted Subsidiary as a Restricted Subsidiary (valued as provided
below), plus (iv) $15 million.
The foregoing provisions shall not prohibit any of the
following: (x) the payment of any dividend within 60 days after the
date of declaration thereof, if at said date of declaration such
payment would have complied with the provisions of this Indenture; (y)
the redemption, repurchase, retirement or other acquisition of any
Equity Interests of the Company in exchange for, or out of the
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Net Equity Proceeds of, the substantially concurrent sale (other than
to a Restricted Subsidiary of the Company) of Qualified Capital Stock
of the Company (other than any Disqualified Stock); provided that the
amount of any such Net Equity Proceeds that are utilized for any such
redemption, repurchase, retirement or other acquisition shall be
excluded from clause (c)(ii) of the preceding paragraph and (z) the
defeasance, redemption or repurchase of Subordinated Indebtedness with
the net cash proceeds from an incurrence of Permitted Refinancing
Indebtedness or the substantially concurrent sale (other than to a
Restricted Subsidiary of the Company) of Qualified Capital Stock of
the Company; provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement or
other acquisition shall be excluded from clause (c)(ii) of the
preceding paragraph.
For purposes of the foregoing provisions, the amount of any
Restricted Payment (other than cash) shall be the fair market value
(evidenced by a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee) on the date of the
Restricted Payment of the asset(s) proposed to be transferred by the
Company or such Restricted Subsidiary, as the case may be, pursuant to
the Restricted Payment. Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an
Officers' Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations
required by this Section 4.07 were computed, which calculations may be
based upon the Company's latest available financial statements.
The Board of Directors may designate any Restricted Subsidiary
to be an Unrestricted Subsidiary if such designation would be
permitted by the provisions of this Section 4.07 and if such
Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary. For purposes of making such determination,
all outstanding Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid in cash prior to such
designation) in the Restricted Subsidiary so designated will be deemed
to be Restricted Payments at the time of such designation and will
reduce the amount available for Restricted Payments under the
paragraph (c) of this Section 4.07. All such outstanding Investments
will be deemed to constitute Investments in an amount equal to the
Fair Market Value of such Investments at the time of such designation.
SECTION 4.08 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any Restricted Subsidiary to (i)(a)
pay dividends or make any other distributions to the Company or any of
its Restricted Subsidiaries (1) on its Capital Stock or (2) with
respect to any other interest or participation in, or measured by, its
profits, or (b) pay any indebtedness owed to the Company or any of its
Restricted Subsidiaries; (ii) make loans or advances to the Company or
any of its Restricted Subsidiaries; or (iii) transfer any of its
properties or assets to the Company or any of its Restricted
Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of (r) Existing Indebtedness as in effect on the
Series A/B Issue Date, (s) the Senior Credit Facility as in effect as
of the Issue Date, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
refinancings thereof, provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacement or refinancings are no more restrictive with respect to
such dividend and other payment restrictions than those contained in
the Senior Credit Facility as in effect on the Series A/B Issue Date,
(t) this Indenture, the Series A/B Indenture, the Notes, and the
Series A/B Notes, (u) applicable law, (v) any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company or
any of its Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent such Indebtedness was incurred in
connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the
case
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of Indebtedness, such Indebtedness was permitted by the terms of the
Series A/B Indenture and this Indenture to be incurred, (w) by reason
of customary non-assignment provisions in leases entered into in the
ordinary course of business and customary provisions in other
agreements that restrict assignment of such agreements or rights
thereunder, (x) customary restrictions contained in asset sale
agreements limiting the transfer of such assets pending the closing of
such sale, (y) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature
described in clause (iii) above on the property so acquired, or (z)
Permitted Refinancing Indebtedness with respect to any indebtedness
referred to in clauses (r), (t) and (v) above, provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained
in the agreements governing the Indebtedness being refinanced.
SECTION 4.09 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED EQUITY.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
continentally or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Indebtedness but excluding any Permitted
Indebtedness) and that the Company will not issue any Disqualified Stock and
will not permit any of its Restricted Subsidiaries to issue any shares of
preferred stock; provided, however, that the Company may incur Indebtedness
(including Acquired Indebtedness) or issue shares of Disqualified Stock, and
any Restricted Subsidiary may incur Indebtedness (including Acquired
Indebtedness), if the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is issued would
have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred, or the Disqualified Stock had been issued, as
the case may be, at the beginning of such four-quarter period.
(b) The Company shall not , and shall not permit any Subsidiary
Guarantor to, directly or indirectly, in any event incur any Indebtedness that
by its terms (or by the terms of any agreement governing such Indebtedness) is
subordinated to any other Indebtedness of the Company or such Subsidiary
Guarantor, as the case may be, unless such Indebtedness is also by its terms
(or by the terms of any agreement governing such Indebtedness) made expressly
subordinate to the Notes or the Subsidiary Guarantee of such Subsidiary
Guarantor, as the case may be, to the same extent and in the same manner as
such Indebtedness is subordinated pursuant to subordination provisions that are
most favorable to the holders of any other Indebtedness of the Company or such
Subsidiary Guarantor, as the case may be.
SECTION 4.10 ASSET SALES.
The Company shall not, and shall not permit any Restricted
Subsidiary to, sell, issue, convey, transfer, lease or otherwise
dispose of, to any Person other than the Company or any of its
Restricted Subsidiaries (including, without limitation, by means of a
sale-and-leaseback transaction or a merger or consolidation)
(collectively, for purposes of this Section 4.10, a "transfer"),
directly or indirectly, in one or a series of related transactions,
(a) any Capital Stock of any Restricted Subsidiary held by the Company
or any other Restricted Subsidiary, (b) all or substantially all of
the properties and assets of any division or line of business of the
Company or any of its Restricted Subsidiaries, (c) any Event of Loss
or (d) any other properties or assets of the Company or any of its
Restricted Subsidiaries other than transfers of cash, Cash
Equivalents, accounts receivable, or properties or assets in the
ordinary course of business; provided that the sale, lease, conveyance
or other disposition of all or substantially all of the properties or
assets of the Company and its Restricted Subsidiaries, taken as a
whole, shall be governed by Sections 4.15 and/or 5.01 and not by the
provisions of this Section 4.10 (each of the
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foregoing, an "Asset Sale"), unless (i) the Company (or the Restricted
Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value (evidenced by
a resolution of the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee) of the assets or Equity
Interests issued or sold or otherwise disposed of and (ii) at least
75% of the consideration therefor received by the Company or such
Restricted Subsidiary is in the form of cash or Cash Equivalents;
provided that the amount of (x) any liabilities (as shown on the
Company's or such Restricted Subsidiary's most recent balance sheet)
of the Company or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are Subordinated Indebtedness or
otherwise by their terms subordinated to the Notes or the Subsidiary
Guarantees) that are assumed by the transferee of any such assets
pursuant to a customary novation agreement that releases the Company
or such Restricted Subsidiary from further liability and (y) any notes
or other obligations received by the Company or any such Restricted
Subsidiary from such transferee that are converted by the Company or
such Restricted Subsidiary into cash within 180 days of closing such
Asset Sale (to the extent of the cash received) shall be deemed to be
cash for purposes of this clause (ii).
Notwithstanding the foregoing, any of the following shall, not
be deemed an "Asset Sale": (i) any transfer of properties or assets
to an Unrestricted Subsidiary, if such transfer is permitted under
Section 4.07 hereof; (ii) sales of damaged, worn-out or obsolete
equipment or assets that, in the Company's reasonable judgment, are
either (A) no longer used or (B) no longer useful in the business of
the Company or its Restricted Subsidiaries; (iii) any lease of any
property entered into in the ordinary course of business and with
respect to which the Company or any Restricted Subsidiary is the
lessor, except any such lease that provides for the acquisition of
such property by the lessee during or at the end of the term thereof
for an amount that is less than the fair market value thereof at the
time the right to acquire such property is granted; (iv) any trade or
exchange by the Company or any Restricted Subsidiary of one or more
drilling rigs for one or more other drilling rigs owned or held by
another Person, provided that (A) the Fair Market Value of the
drilling rig or rigs traded or exchanged by the Company or such
Restricted Subsidiary (including any cash or Cash Equivalents to be
delivered by the Company or such Restricted Subsidiary) is reasonably
equivalent to the Fair Market Value of the drilling rig or rigs
(together with any cash or Cash Equivalents) to be received by the
Company or such Restricted Subsidiary and (B) such exchange is
approved by a majority of the Disinterested Directors of the Company;
(v) any transfer by the Company or any Restricted Subsidiary to its
customers of drill pipe, tools and associated drilling equipment
utilized in connection with a drilling contract for the employment of
a drilling rig in the ordinary course of business and consistent with
past practice; and (vi) any transfers that, but for this clause (vi),
would be Asset Sales, if (A) the Company elects to designate such
transfers as not constituting Asset Sales and (B) after giving effect
to such transfers, the aggregate Fair Market Value of the properties
or assets transferred in such transaction or any such series of
related transactions so designated by the Company does not exceed
$500,000.
Within 365 days after the receipt of any Net Proceeds from any
Asset Sale, the Company may (i) apply all or any of the Net Proceeds
therefrom to repay Indebtedness (other than Subordinated Indebtedness)
of the Company or any Restricted Subsidiary, provided, in each case,
that the related loan commitment of any revolving credit facility or
other borrowing (if any) is thereby permanently reduced by the amount
of such Indebtedness so repaid, or (ii) invest all or any part of the
Net Proceeds thereof in properties and other capital assets that
replace the properties or other capital assets that were the subject
of such Asset Sale or in other properties or other capital assets that
will be used in the business of the Company and its Restricted
Subsidiaries. Pending the final application of any such Net Proceeds,
the Company may temporarily reduce borrowings under any revolving
credit facility or otherwise invest such Net Proceeds in any manner
that is not prohibited by this Indenture. Any Net Proceeds from Asset
Sales that are not applied or invested as provided in the first
sentence of this paragraph shall be deemed to constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds equals or
exceeds $15 million (the date of such occurrence being called the
"Asset Sale Offer
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Trigger Date"), the Company shall (i) make an offer to purchase
("Series A/B Asset Sale Offer") the Series A/B Notes, if any are then
outstanding, at a price equal to 100% of the principal amount of the
Series A/B Notes, plus accrued and unpaid interest to the date of
purchase and (ii) in the event that any Excess Proceeds are not
applied to a Series A/B Asset Sale Offer, to make an offer to all
Holders of Notes (an "Asset Sale Offer") to purchase the maximum
principal amount of Notes that may be purchased out of any Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the
principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages thereon to the date of purchase, in accordance with
the procedures set forth in Section 3.09 hereof. 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. Upon completion of
such Asset Sale Offer, the amount of Excess Proceeds shall be deeded
to be reset at zero.
The Company shall not permit any Restricted Subsidiary to
enter into or suffer to exist any agreement (other than the Series A/B
Indenture) that would place any restriction of any kind (other than
pursuant to law or regulation) on the ability of the Company to make
an Asset Sale Offer following any Asset Sale. The Company shall
comply with Rule 14e-1 under the Exchange Act, and any other
securities laws and regulations thereunder, if applicable, in the
event that an Asset Sale occurs and the Company is required to
purchase Notes pursuant to this Section 4.10.
SECTION 4.11 TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, (a) sell, lease, transfer or otherwise
dispose of any of its properties, assets or securities to, (b)
purchase or lease any property, assets or securities from, (c) make
any Investment in, or (d) enter into or suffer to exist any other
transaction or series of related transactions with, or for the benefit
of, any Affiliate of the Company unless (i) such transaction or series
of transactions is on terms that are no less favorable to the Company
or such Restricted Subsidiary, as the case may be, than those that
would be available in a comparable arm's length transaction with an
unrelated third party, (ii) with respect to any one transaction or
series of related transactions involving aggregate payments in excess
of $1 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 (iii) with respect to
a transaction or series of related transactions involving payments in
excess of $5 million, the Company delivers an Officers' Certificate to
the Trustee certifying that (A) such transaction or series of related
transactions complies with clause (i) above and (B) such transaction
or series of related transactions has been approved by a majority of
the Disinterested Directors of the Company; provided, however, that
the foregoing restriction shall not apply to (u) any arrangements in
effect on the Series A/B Issue Date, (v) transactions between or among
the Company and its Wholly Owned Restricted Subsidiaries, (w) loans or
advances to officers, directors and employees of the Company or any
Restricted Subsidiary made in the ordinary course of business and
consistent with past practices of the Company and its Restricted
Subsidiaries in an aggregate amount not to exceed $1 million
outstanding at any one time, (x) indemnities of officers, directors
and employees of the Company or any Restricted Subsidiary permitted by
bylaw or statutory provisions, (y) the payment of reasonable and
customary regular fees to directors of the Company or any of its
Restricted Subsidiaries who are not employees of the Company or any
Affiliate and (z) the Company's employee compensation and other
benefit arrangements.
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SECTION 4.12 LIENS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume, affirm
or suffer to exist or become effective any Lien of any kind, except
for Permitted Liens, upon any of their respective property or assets,
whether now owned or acquired after the Issue Date, or any income,
profits or proceeds therefrom, to secure (i) any Indebtedness of the
Company or such Restricted Subsidiary (if it is not also a Subsidiary
Guarantor), unless prior to, or contemporaneously therewith, the Notes
are equally and ratably secured, or (ii) any Indebtedness of any
Subsidiary Guarantor, unless prior to, or contemporaneously therewith,
the Subsidiary Guarantees are equally and ratably secured; provided,
however, that if such Indebtedness is expressly subordinated to the
Notes or the Subsidiary Guarantees, the Lien securing such
Indebtedness will be subordinated and junior to the Lien securing the
Notes or the Subsidiary Guarantees, as the case may be, with the same
relative priority as such Indebtedness has with respect to the Notes
or the Subsidiary Guarantees. The foregoing covenant shall not apply
to any Lien securing Acquired Indebtedness, provided that any such
Lien extends only to the property or assets that were subject to such
Lien prior to the related acquisition by the Company or such
Restricted Subsidiary and was not created, incurred or assumed in
contemplation of such transaction.
SECTION 4.13 ISSUANCES AND SALES OF CAPITAL STOCK OF WHOLLY OWNED
SUBSIDIARIES.
The Company (i) shall not, and shall not permit any Wholly
Owned Restricted Subsidiary of the Company to, transfer, convey, sell,
or otherwise dispose of any Capital Stock of any Wholly Owned
Restricted Subsidiary of the Company to any Person (other than the
Company or a Wholly Owned Restricted Subsidiary of the Company),
unless (A) such transfer, conveyance, sale, or other disposition is of
all the Capital Stock of such Wholly Owned Restricted Subsidiary and
(B) the cash Net Proceeds from such transfer, conveyance, sale, or
other disposition are applied in accordance with Section 4.10 hereof,
and (ii) will not permit any Wholly Owned Restricted Subsidiary of the
Company to issue any of its Equity Interests to any Person other than
to the Company or a Wholly Owned Restricted Subsidiary of the Company;
except, in the case of both clauses (i) and (ii) above, with respect
to dispositions or issuances by a Wholly Owned Restricted Subsidiary
of the Company as contemplated in clauses (i) and (ii) of the
definition of "Wholly Owned Restricted Subsidiary" included in Section
1.01 hereof.
SECTION 4.14 SALE-AND-LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into any sale-and-leaseback
transaction; provided that the Company or any Restricted Subsidiary,
as applicable, may enter into a sale-and-leaseback transaction if (i)
the Company could have (A) incurred Indebtedness in an amount equal to
the Attributable Indebtedness relating to such sale-and-leaseback
transaction pursuant to the Fixed Charge Coverage Ratio test set forth
in the first paragraph of Section 4.09 hereof and (B) incurred a Lien
to secure such Indebtedness pursuant to Section 4.12 hereof; (ii) the
gross cash proceeds of such sale-and-leaseback transaction are at
least equal to the fair market value (as determined in good faith by
the Board of Directors and set forth in an Officers' Certificate
delivered to the Trustee) of the property that is the subject of such
sale-and- leaseback transaction; and (iii) the transfer of assets in
such sale- and-leaseback transaction is permitted by, and the Company
applies the proceeds of such transaction in compliance with, Section
4.10 hereof.
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SECTION 4.15 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 on a
Business Day (the "Change of Control Payment Date") not more than 60 nor less
than 30 days following such Change of Control, 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 and
Liquidated Damages 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 each Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Notes pursuant to
the procedures required by this Section 4.15 and described in such notice. 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. The Change of Control Offer shall be
required to 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.
(b) On 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
otherwise 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.
(c) The Change of Control provisions described above shall be
applicable whether or not any other provisions of this Indenture are
applicable.
(d) 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 this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.
SECTION 4.16 BUSINESS ACTIVITIES.
The Company shall not, and will not permit any Restricted
Subsidiary to, engage in any business other than (i) the Drilling
Business, (ii) such other businesses as the Company or its Restricted
Subsidiaries are engaged in on the Series A/B Issue Date and (iii)
such other business activities as are reasonably related or incidental
thereto.
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ARTICLE 5
SUCCESSORS
SECTION 5.01 MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into
(whether or not the Company is the surviving corporation), or sell,
assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to another Person unless (i) the Company is the
surviving corporation or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation organized or existing under the
laws of the United States, any state thereof or the District of
Columbia; (ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or the Person to
which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of the
Company under the Notes and this Indenture pursuant to a supplemental
Indenture in a form reasonably satisfactory to the Trustee; (iii)
except in the case of a merger of the Company with or into a Wholly
Owned Subsidiary of the Company, immediately after such transaction no
Default or Event of Default exists; and (iv) except in the case of a
merger of the Company with or into a Wholly Owned Subsidiary of the
Company, the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, lease, conveyance or other disposition
shall have been made (A) will have Consolidated Net Worth immediately
after the transaction equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction and (B)
will, at the time of such transaction and after giving pro forma
effect thereto as if such transaction had occurred at the beginning of
the applicable four-quarter period, be permitted to incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to the Fixed Charge Coverage Ratio test set forth in the
first paragraph of Section 4.09 hereof.
In connection with any consolidation, merger or transfer
contemplated by this provision, the Company shall deliver, or cause to
be delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger or transfer
and the supplemental indenture in respect thereto comply with this
provision and that all conditions precedent in this Indenture provided
for relating to such transaction or transactions have been complied
with.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or
substantially all of the properties or assets of the Company in
accordance with Section 5.01 hereof, the Person formed by such
consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that
from and after the date of such consolidation, merger, sale, lease,
conveyance or other disposition, the provisions of this Indenture
referring to "the Company" shall refer instead to such Person and not
to the Company), and may exercise every right and power of the Company
under this Indenture with the same effect as if such Person had been
named as the Company herein; provided, however, that the Company shall
not be relieved from the obligation to pay the principal of, premium,
if any, and interest on the Notes except in the case of a sale of all
or substantially all of the Company's properties or assets that meets
the requirements of Section 5.01 hereof.
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(i) the Company defaults for 30 days in the payment when
due of interest on, or Liquidated Damages with respect to, the Notes;
(ii) the Company defaults in payment when due of the
principal of or premium, if any, on the Notes;
(iii) the Company fails to comply with the provisions of
Section 4.10, 4.15 or 5.01 hereof;
(iv) the Company fails for 45 days after notice to comply
with any of its other agreements in this Indenture or the Notes;
(v) the Company or any of its Restricted Subsidiaries
defaults under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee now exists, or is created after the Issue
Date, which default (A) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the
date of such default (a "Payment Default") or (B) results in the
acceleration of such Indebtedness prior to its express maturity and,
in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which
there has been a Payment Default or the maturity of which has been so
accelerated, aggregates $7.5 million or more;
(vi) a final judgment or final judgments for the payment
of money are entered by a court or courts of competent jurisdiction
against the Company or any of its Subsidiaries and such judgment or
judgments remain unpaid and undischarged for a period (during which
execution shall not be effectively stayed) of 60 consecutive days,
provided that the aggregate of all such unpaid and undischarged
judgments exceeds $10 million;
(vii) 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 Subsidiary Guarantee in accordance with this
Indenture);
(viii) the Company or any of its Restricted Subsidiaries
that constitutes a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant
Subsidiary, pursuant to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Bankruptcy
Custodian of it or for all or substantially all of its
property,
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(D) makes a general assignment for the benefit of
its creditors, or
(E) generally is not paying its debts as they
become due; or
(ix) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief, in an involuntary case,
against the Company or any of its Restricted Subsidiaries that
constitutes a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute
a Significant Subsidiary;
(B) appoints a Bankruptcy Custodian of the
Company or any of its Restricted Subsidiaries that constitutes
a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a
Significant Subsidiary, for all or substantially all of the
property of the Company or any of such Restricted
Subsidiaries; or
(C) orders the liquidation of the Company or any
of its Restricted Subsidiaries that constitutes a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, for all
or substantially all of the property of the Company or any of
such Restricted Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days.
SECTION 6.02 ACCELERATION.
If any Event of Default (other than an Event of Default
specified in clause (viii) or (ix) of Section 6.01 hereof with respect
to the Company or any of its Restricted Subsidiaries that constitutes
a Significant Subsidiary or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary) occurs and
is continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately. Upon any such declaration,
the Notes shall become due and payable immediately. Notwithstanding
the foregoing, if an Event of Default specified in clause (viii) or
(ix) of Section 6.01 hereof occurs with respect to the Company or any
of its Restricted Subsidiaries that constitutes a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, all outstanding
Notes shall be due and payable immediately without further action or
notice.
The Holders of a majority in aggregate principal amount of the
then outstanding Notes by written notice to the Trustee may on behalf
of all of the Holders waive any existing Default or Event of Default
acceleration and its consequences if the rescission would not conflict
with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium that has become
due solely because of the acceleration) have been cured or waived.
SECTION 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal,
premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder of a
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Note in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
SECTION 6.04 WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal
amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all of the Notes waive an existing Default or
Event of Default and its consequences hereunder, except a continuing
Default or Event of Default in the payment of interest on, or the
principal of, the Notes (including in connection with an offer to
purchase). Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or impair any right
consequent thereon.
SECTION 6.05 CONTROL BY MAJORITY.
Holders of a majority in aggregate principal amount of the
then outstanding Notes may direct the time, method and place of
conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on it. However,
the Trustee may refuse to follow any direction that conflicts with law
or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability.
SECTION 6.06 LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Note only if:
(i) the Holder of a Note gives to the Trustee written
notice of a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes make a written request to the
Trustee to pursue the remedy;
(iii) such Holder of a Notes or Holders of Notes offer and,
if requested, provide to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense;
(iv) the Trustee does not comply with the request within
60 days after receipt of the request and the offer and, if requested,
the provision of indemnity; and
(v) during such 60-day period the Holders of a majority
in aggregate principal amount of the then outstanding Notes do not
give the Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, premium
and Liquidated Damages, if any, and interest on the Note, on or after
the respective due dates expressed in the Note (including in
connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
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SECTION 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(i) or (ii)
occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust against
the Company for the whole amount of principal of, premium and
Liquidated Damages, if any, and interest remaining unpaid on the Notes
and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and the Holders of the Notes allowed in any
judicial proceedings relative to the Company (or any other obligor
upon the Notes), its creditors or its property and shall be entitled
and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian
in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under
any plan of reorganization or arrangement or otherwise. Nothing
herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, Liquidated Damages, if any, and
interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal,
premium and Liquidated Damages, if any, and interest, respectively;
and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
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The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken
or omitted by it as a Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee,
a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a
suit by Holders of more than 10% in aggregate principal amount of the
then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, in the case of any such certificates or
opinions that by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section 7.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
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Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel of its selection and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company
or any Affiliate of the Compete with the same rights it would have if
it were not Trustee. However, in the event that the Trustee acquires
any conflicting interest it must eliminate such conflict within 90
days, apply to the Commission for permission to continue as trustee or
resign. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Notes, it shall not be accountable for the Company's use of the
proceeds from the Notes or any money paid to the Company or upon the
Company's direction under any provision of this Indenture, it shall
not be responsible for the use or application of any money received by
any Paying Agent other than the Trustee, and it shall not be
responsible for any statement
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or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture
other than its certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to Holders of
Notes a notice of the Default or Event of Default within 90 days after
it occurs. Except in the case of a Default or Event of Default in
payment of principal of, premium, if any, or interest on any Notes,
the Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the
notice is in the interests of the Holders of the Notes.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a
brief report dated as of such reporting date that complies with TIA
Section 313(a) (but if no event described in TIA Section 313(a) has
occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA
Section 313(b)(2) and Section 313(b)(1). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the
Commission and each stock exchange on which the Notes are listed in
accordance with TIA Section 313(d). The Company shall promptly
notify the Trustee when the Notes are listed on any stock exchange.
SECTION 7.07 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed between the Company and the Trustee
for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify each of the Trustee and any
predecessor Trustee against any and all losses, liabilities, damages,
claims or expenses, including taxes (other than taxes based on the
income of the Trustee), incurred by it arising out of or in connection
with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this
Indenture against the Company (including this Section 7.07) and
defending itself against any claim (whether asserted by the Company or
any Holder or any other person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be
unreasonably withheld.
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The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust
to pay principal, premium and Liquidated Damages, if any, and interest
on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(f) or (g) hereof occurs,
the expenses and the compensation for the services (including the fees
and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law. The Trustee
shall also be entitled to receive compensation for extraordinary
services in default administration.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
SECTION 7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company.
The Holders of Notes of a majority in aggregate principal amount of
the then outstanding Notes may remove the Trustee by so notifying the
Trustee and the Company in writing. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Bankruptcy Custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly
appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in aggregate principal
amount of the then outstanding Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company, or the Holders of Notes of at least 10% in
aggregate principal amount of the then outstanding Notes may petition
any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to
comply with Section 7.10 hereof, such Holder of a Note may petition
any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon,
the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. The successor Trustee
shall mail a notice of its succession to Holders of the Notes. The
retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for
in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section
7.07 hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to
another corporation, the successor corporation without any further act
shall be the successor Trustee. As soon as practicable, the successor
Trustee shall mail a notice of its succession to the Company and the
Holders of the Notes.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United
States of America or of any state thereof that is authorized under
such laws to exercise corporate trustee power, that is subject to
supervision or examination by federal or state authorities and that
has a combined capital and surplus of at least $50 million as set
forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is
subject to TIA Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who
has resigned or been removed shall be subject to TIA Section 311(a)
to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at
any time, elect to have either Section 8.02 or 8.03 hereof be applied
to all outstanding Notes upon compliance with the conditions set forth
below in this Article 8.
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company and each
Subsidiary Guarantor shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter,
"Legal Defeasance"). For this purpose, Legal Defeasance means that
the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes,
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which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in clauses (i) and (ii) below, and the Company
and each Subsidiary Guarantor shall be deemed to have satisfied all of
its other obligations under such Notes or Subsidiary Guarantee and
this Indenture (and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging the same),
except for the following provisions, which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of
Holders of outstanding Notes to receive solely from the trust fund
described in Section 8.04 hereof, and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and
interest and Liquidated Damages on such Notes when such payments are
due; (ii) the Company's obligations with respect to such Notes under
Article 2 and Section 4.02 hereof; (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith; and (iv) this Article 8. Subject
to compliance with this Article 8, the Company may exercise its option
under this Section 8.02 notwithstanding the prior exercise of its
option under Section 8.03 hereof.
SECTION 8.03 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company shall, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from its obligations under the covenants contained in
Sections 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15
and 4.16 hereof and Article 10 hereof with respect to the outstanding
Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but
shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes shall not be deemed
outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the
Company and any Subsidiary Guarantor may omit to comply with and shall
have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in
any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01 hereof, but, except
as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section
8.03 hereof, subject to the satisfaction of the conditions set forth
in Section 8.04 hereof, Sections 6.01(v) and 6.01(vii) hereof shall
not constitute Events of Default.
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) The Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such amounts
as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest and Liquidated Damages on the outstanding Notes on the stated date for
payment thereof or on the applicable redemption date, as the case may be, and
the Company must specify whether the Notes are being defeased to maturity or to
a particular redemption date;
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(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Indebtedness all or a portion of the
proceeds of which will be used to defease the Notes pursuant to this Article 8
concurrently with such incurrence) or insofar as Section 6.01(viii) or 6.01(ix)
hereof is concerned, at any time in the period ending on the 91st day after the
date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that, as of the date such opinion, (i) the trust funds
will not be subject to rights of holders of Indebtedness other than the Notes
and (ii) assuming no intervening bankruptcy of the Company between the date of
deposit and the 91st day following the deposit (assuming no Holder of Notes is
an insider of the Company) or the day following the end of such other
preference period in effect at the time of such opinion (assuming a Holder of
Notes is an insider of the Company), as applicable, following the deposit, the
trust funds will not be subject to the effects of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally under any applicable United States or state law;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of Notes over any other creditors of the
Company or any Subsidiary Guarantor with the intent of defeating, hindering,
delaying or defrauding creditors of the Company, or any Subsidiary Guarantor or
others; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, which, taken together, state that all
conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively for purposes of
this Section 8.05, the "Trustee") pursuant to Section 8.04 hereof in
respect of the outstanding Notes shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Notes and
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this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee
may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and
interest and Liquidated Damages, but such money need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section 8.04
hereof or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account
of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon
the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof that, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee (which may be the opinion delivered under Section 8.04(a)
hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
SECTION 8.06 REPAYMENT TO THE COMPANY.
Subject to the applicable escheat and abandoned property laws,
any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium,
if any, or interest or Liquidated Damages on any Note and remaining
unclaimed for two years after such principal, and premium, if any, or
interest or Liquidated Damages has become due and payable shall be
paid to the Company on its request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Notes
shall thereafter, as a secured creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published
once, in The New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 8.07 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance
with Section 8.05 hereof by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under
this Indenture and the Notes shall be revived and reinstated as though
no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 8.05 hereof; provided, however,
that, if the Company makes any payment of principal of, premium, if
any, or interest or Liquidated Damages on any Note following the
reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of such Notes to receive such payment from
the money held by the Trustee or Paying Agent.
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES.
(a) Notwithstanding Section 9.02 of this Indenture, the Company,
the Subsidiary Guarantors and the Trustee may amend or supplement this
Indenture or the Notes without the consent of any Holder of a Note:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(iii) to provide for the assumption of the Company's
obligations to the Holders of the Notes pursuant to
Article 5 or Section 10.04(b) hereof;
(iv) to secure the Notes pursuant to the requirements of
Section 4.12 or otherwise;
(v) 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
this Indenture of any such Holder;
(vi) to add any Restricted Subsidiary as an additional
Subsidiary Guarantor as provided in Section 10.02
hereof or to evidence the succession of another
Person to any Subsidiary Guarantor pursuant to
Section 10.04 hereof and the assumption by any such
successor of the covenants and agreements of such
Subsidiary Guarantor contained herein and in the
Subsidiary Guarantee of such Subsidiary Guarantor;
(vii) to release a Subsidiary Guarantor from its
obligations under this Indenture and its Subsidiary
Guarantee pursuant to Section 10.05 hereof; or
(viii) to comply with requirements of the Commission in
order to effect or maintain the qualification of this
Indenture under the TIA.
(b) Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 9.06 hereof, the Trustee shall join with the Company and
the Subsidiary Guarantors in the execution of any amended or supplemental
Indenture authorized or permitted by the terms of this Indenture and to make
any further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into such amended or
supplemental Indenture that affects its own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.02 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company and
the Trustee may amend or supplement this Indenture, the Subsidiary
Guarantors or the Notes with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes) and,
subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on the
Notes, except a payment default resulting from an acceleration that
has been rescinded) or compliance with any provision of this Indenture
or the Notes may be waived with the consent of the
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Holders of a majority in aggregate principal amount of the then
outstanding Notes (including consents obtained in connection with a
purchase of, tender offer or exchange offer for Notes).
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended
or supplemental Indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of
Notes as aforesaid, and upon receipt by the Trustee of the documents
described in Section 9.06 hereof, the Trustee shall join with the
Company and the Subsidiary Guarantors in the execution of such amended
or supplemental Indenture unless such amended or supplemental
Indenture affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental Indenture.
Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding
may waive compliance in a particular instance by the Company and the
Subsidiary Guarantors with any provision of this Indenture or the
Notes. However, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Notes held by a non-
consenting Holder):
(i) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity
of any Note or alter or waive any of the provisions
with respect to the redemption of the Notes (except
as provided below with respect to Sections 3.09, 4.10
and 4.15 hereof);
(iii) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(iv) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the
Notes (except a rescission of acceleration of the
Notes by the Holders of at least a majority in
aggregate principal amount of the then outstanding
Notes and a waiver of the payment default that
resulted from such acceleration);
(v) make any Note payable in money other than that stated
in the Notes;
(vi) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of
Holders of Notes to receive payments of principal of
or premium, if any, or interest on the Notes;
(vii) waive a redemption payment with respect to any Note
(other than a payment required by Section 4.10 or
4.15 hereof);
(viii) alter the ranking of the Notes relative to other
Indebtedness of the Company; or
(ix) make any change in the foregoing amendment and waiver
provisions.
In addition, without the consent of Holders of not less than
66-2/3% in aggregate principal amount of the Notes then outstanding,
no such amendment, supplement or waiver may amend, change or modify
the obligation of the Company to make and consummate a Change of
Control Offer in the event of a Change of Control or make and
consummate an Asset Sale Offer with respect to any Asset Sale or
modify any of the provisions or definitions with respect thereto.
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It shall not be necessary for the consent of the Holders of
Notes under this Section 9.02 to approve the particular form of any
proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders of Notes
affected thereby a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the
validity of any such amended or supplemental Indenture or waiver.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental Indenture that
complies with the TIA as then in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the
Holder of a Note and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Xxxxxx's Note,
even if notation of the consent is not made on any Note. However, any
such Holder of a Note or subsequent Holder of a Note may revoke the
consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated.
The Company in exchange for all Notes may issue and the Trustee shall
authenticate new Notes that reflect the amendment, supplement or
waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement
or waiver.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement
does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Company may not sign an amendment or
supplemental Indenture until its Board of Directors approves it. In
executing any amended or supplemental Indenture, the Trustee shall be
entitled to receive and (subject to Section 7.01 hereof) shall be
fully protected in relying upon, Officers' Certificates and Opinions
of Counsel stating that the execution of such amended or supplemental
Indenture is authorized or permitted by this Indenture.
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ARTICLE 10
SUBSIDIARY GUARANTEES
SECTION 10.01 SUBSIDIARY GUARANTEES.
(a) The Subsidiary Guarantors and each Subsidiary of the Company
that in accordance with Section 10.02 hereof is required to guarantee the
obligations of the Company under the Notes and this Indenture hereby jointly
and severally and unconditionally guarantees, on a senior basis (each such
guarantee being a "Subsidiary Guarantee"), to each Holder of a Note
authenticated and delivered by the Trustee irrespective of the validity or
enforceability of this Indenture, the Notes or the obligations of the Company
under this Indenture or the Notes, that: (i) the principal of, premium, if any,
and interest on the Notes shall be paid in full when due, whether at the
maturity or interest payment or mandatory redemption date, by acceleration,
call for redemption or otherwise, and interest on the overdue principal and
interest, if any, of the Notes and all other obligations of the Company to the
Holders or the Trustee under this Indenture or the Notes shall be promptly paid
in full or performed, all in accordance with the terms of this Indenture and
the Notes; and (ii) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, they shall be paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed for whatever reason, each Subsidiary Guarantor shall be
obligated to pay the same whether or not such failure to pay has become an
Event of Default that could cause acceleration pursuant to Section 6.02 hereof.
Each Subsidiary Guarantor agrees that this is a guarantee of payment not a
guarantee of collection.
(b) Each Subsidiary Guarantor hereby agrees that its obligations
with regard to its Subsidiary Guarantee shall be unconditional, irrespective of
the validity or enforceability of the Notes or the obligations of the Company
under this Indenture, the absence of any action to enforce the same, the
recovery of any judgment against the Company or any other obligor with respect
to this Indenture, the Notes or the obligations of the Company under this
Indenture or the Notes, any action to enforce the same or any other
circumstances (other than complete performance) that might otherwise constitute
a legal or equitable discharge or defense of a Subsidiary Guarantor. Each
Subsidiary Guarantor further, to the extent permitted by law, waives and
relinquishes all claims, rights and remedies accorded by applicable law to
guarantors and agrees not to assert or take advantage of any such claims,
rights or remedies, including but not limited to: (i) any right to require the
Trustee, the Holders or the Company (each, a "Benefitted Party") to proceed
against the Company or any other Person or to proceed against or exhaust any
security held by a Benefitted Party at any time or to pursue any other remedy
in any Benefitted Party's power before proceeding against such Subsidiary
Guarantor; (ii) the defense of the statute of limitations in any action
hereunder or in any action for the collection of any Indebtedness or the
performance of any obligation hereby guaranteed; (iii) any defense that may
arise by reason of the incapacity, lack of authority, death or disability of
any other Person or the failure of a Benefitted Party to file or enforce a
claim against the estate (in administration, bankruptcy or any other
proceeding) of any other Person; (iv) demand, protest and notice of any kind
including but not limited to notice of the existence, creation or incurring of
any new or additional Indebtedness or obligation or of any action or non-action
on the part of such Subsidiary Guarantor, the Company, any Benefitted Party,
any creditor of such Subsidiary Guarantor, the Company or on the part of any
other Person whomsoever in connection with any Indebtedness or Obligations
hereby guaranteed; (v) any defense based upon an election of remedies by a
Benefitted Party, including but not limited to an election to proceed against
such Subsidiary Guarantor for reimbursement; (vi) any defense based upon any
statute or rule of law that provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal; (vii) any defense arising because of a Benefitted Party's election,
in any proceeding instituted under any Bankruptcy Law, of the application of
Section 1111(b)(2) under the Bankruptcy Law; (viii) any defense based on any
borrowing or grant of a security interest under Section 364 under the
Bankruptcy Law; or (ix) any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever. Each Subsidiary Guarantor
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hereby covenants that its Subsidiary Guarantee will not be discharged except by
complete performance of all of the obligations contained in its Subsidiary
Guarantee, the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or any Subsidiary Guarantor, or any
custodian, trustee, or similar official acting in relation to either the
Company or such Subsidiary Guarantor, any amount paid by the Company or such
Subsidiary Guarantor to the Trustee or such Holder, the applicable Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Subsidiary Guarantor agrees that it will not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
(d) Each Subsidiary Guarantor further agrees that, as between such
Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (i) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Section 6.02 hereof for the purposes of this
Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration as to the Company or any other obligor on the
Notes of the obligations guaranteed hereby and (ii) in the event of any
declaration of acceleration of those obligations as provided in Section 6.02
hereof, those obligations (whether or not due and payable) will forthwith
become due and payable by such Subsidiary Guarantor for the purpose of this
Subsidiary Guarantee.
SECTION 10.02 ADDITIONAL SUBSIDIARY GUARANTEES.
(a) If, after the Issue Date, (i) the Company or any of its
Restricted Subsidiaries shall (A) transfer or cause to be transferred, any
assets, businesses, divisions, real property or equipment having a fair market
or book value in excess of $1 million to any Restricted Subsidiary that is not
a Subsidiary Guarantor or (B) make any Investment having an aggregate fair
market or book value in excess of $1 million in any Restricted Subsidiary that
is not a Subsidiary Guarantor, or (ii) any Restricted Subsidiary that is not a
Subsidiary Guarantor (A) shall provide a guarantee under the Senior Credit
Facility or (B) shall own any assets or properties having an aggregate fair
market or book value in excess of $1 million, then the Company shall cause such
Restricted Subsidiary (other than any Exempt Foreign Subsidiary) to execute and
deliver a supplemental indenture to this Indenture agreeing to be bound by its
terms applicable to a Subsidiary Guarantor and providing for a Subsidiary
Guarantee of the Notes by such Restricted Subsidiary, in accordance with the
terms of this Indenture.
(b) The Company shall not permit any of its Restricted
Subsidiaries, other than a Subsidiary Guarantor, directly or indirectly, to (i)
incur, guarantee or secure through the granting of Liens the payment of any
Indebtedness of the Company or (ii) pledge any intercompany notes representing
obligations of any of its Restricted Subsidiaries to secure the payment of any
Indebtedness of the Company, in each case, unless the Company shall cause such
Restricted Subsidiary to execute a Subsidiary Guarantee and deliver an Opinion
of Counsel in advance in accordance with the terms of this Indenture. Further,
if after the Issue Date, the Company shall revoke the designation of any Exempt
Foreign Subsidiary, then the Company shall cause such subsidiary to execute a
Subsidiary Guarantee and deliver an Opinion of Counsel in accordance with the
terms of this Indenture.
SECTION 10.03 LIMITATION OF SUBSIDIARY GUARANTORS' LIABILITY.
(a) Each Subsidiary Guarantor and by its acceptance hereof, each
beneficiary hereof, hereby confirm that it is its intention that the Subsidiary
Guarantee by such Subsidiary Guarantor not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law to the extent applicable to any of the Subsidiary Guarantees. To
effectuate the foregoing intention, each such person hereby irrevocably agrees
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that the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee under this Article 10 shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Subsidiary Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Subsidiary Guarantor in respect of
the obligations of such other Subsidiary Guarantor under its Subsidiary
Guarantee or pursuant to its contribution obligations under the Indenture,
result in the obligations of such Subsidiary Guarantor under the Subsidiary
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law.
(b) For purposes of such limitations and the applicable fraudulent
conveyance laws, any indebtedness of a Subsidiary Guarantor incurred from time
to time pursuant to the Senior Credit Facility and secured by a perfected Lien
on the assets of such Subsidiary Guarantor (assuming, for purposes of such
determination, that the incurrence of any such indebtedness and the granting of
any such security interest did not violate any such fraudulent conveyance laws)
shall be deemed, to the extent of the value of the assets subject to such Lien,
to have been incurred prior to the incurrence by such Subsidiary Guarantor of
liability under its Subsidiary Guarantee.
(c) Each beneficiary under the Subsidiary Guarantees, by accepting
the benefits hereof, confirms its intention that, in the event of a bankruptcy,
reorganization or other similar proceeding of the Company or any Subsidiary
Guarantor in which concurrent claims are made upon such Subsidiary Guarantor
hereunder, to the extent such claims will not be fully satisfied, each such
claimant with a valid claim against the Company shall be entitled to a ratable
share of all payments by such Subsidiary Guarantor in respect of such
concurrent claims.
SECTION 10.04 SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) No Subsidiary Guarantor may consolidate with or merge with or
into (whether or not such Subsidiary Guarantor is the surviving Person),
another Person (other than the Company or another Subsidiary Guarantor),
whether or not affiliated with such Subsidiary Guarantor, unless (i) subject to
the provisions of the following paragraph, the Person formed by or surviving
any such consolidation or merger (if other than such Subsidiary Guarantor)
shall execute and deliver a supplemental indenture to this Indenture agreeing
to be bound by its terms applicable to a Subsidiary Guarantor and providing for
a Subsidiary Guarantee of the Notes by such Person, in accordance with the
terms of this Indenture; (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists; (iii) such Subsidiary
Guarantor, or any Person formed by or surviving any such consolidation or
merger, would have Consolidated Net Worth (immediately after giving effect to
such transaction), equal to or greater than the Consolidated Net Worth of such
Subsidiary Guarantor immediately preceding the transaction; (iv) the Company
would be permitted by virtue of the Company's pro forma Fixed Charge Coverage
Ratio, immediately after giving effect to such transaction, to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 4.09 hereof; and (v) such transaction does not
violate any of the covenants contained in Articles 4 and 5 hereof..
(b) Notwithstanding the foregoing, (i) a Subsidiary Guarantor may
consolidate with or merge with or into the Company, provided that the surviving
corporation (if other than the Company) shall expressly assume by supplemental
indenture complying with the requirements of this Indenture, the due and
punctual payment of the principal of, premium, if any, and interest on all of
the Notes, and the due and punctual performance and observance of all the
covenants and conditions of this Indenture to be performed by the Company; and
(ii) a Subsidiary Guarantor may consolidate with or merge with or into any
other Subsidiary Guarantor.
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SECTION 10.05 RELEASES OF SUBSIDIARY GUARANTORS.
In the event of (i) the designation of any Subsidiary
Guarantor as an Unrestricted Subsidiary or (ii) a sale or other
disposition of all or substantially all of the properties or assets of
any Subsidiary Guarantor to a third party or an Unrestricted
Subsidiary, by way of merger, consolidation or otherwise, or a sale or
other disposition of all of the capital stock of any Subsidiary
Guarantor, in either case, in a transaction or manner that does not
violate any of the covenants or other provision of this Indenture,
then such Subsidiary Guarantor (in the event of such a designation or
a sale or other disposition, 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) will be released from and relieved of any
obligations under this Indenture and its Subsidiary Guarantee,
provided that any Net Proceeds of such sale or other disposition are
applied in accordance with Section 4.10 hereof and provided, further,
however, that any such termination shall occur only to the extent that
all obligations of such Subsidiary Guarantor under all of its
guarantees of, and under all of its pledges of assets or other
security interests that secure, any other Indebtedness of the Company
or its Restricted Subsidiaries shall also terminate upon such release,
sale or disposition.
SECTION 10.06 "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 10 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 10 in place of the Trustee.
SECTION 10.07 CONTRIBUTION.
In order to provide for just and equitable contribution among
the Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se,
that in the event any payment or distribution is made by any
Subsidiary Guarantor (a "Funding Guarantor") under a Subsidiary
Guarantee, such Funding Guarantor shall be entitled to a contribution
from all other Subsidiary Guarantors in a pro rata amount based on the
Adjusted Net Assets (as defined below) of each Subsidiary Guarantor
(including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the
Company's obligations with respect to the Notes or any other
Subsidiary Guarantor's obligations with respect to such Subsidiary
Guarantee. "Adjusted Net Assets" of such Subsidiary Guarantor at any
date shall mean the lesser of the amount by which (x) the fair value
of the property of such Subsidiary Guarantor exceeds the total amount
of liabilities, including, without limitation, contingent liabilities,
but excluding liabilities under the Subsidiary Guarantee of such
Subsidiary Guarantor at such date and (y) the present fair salable
value of the assets of such Subsidiary Guarantor at such date exceeds
the amount that will be required to pay the probable liability of such
Subsidiary Guarantor on its debts (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date and
after giving effect to any collection from any subsidiary of such
Subsidiary Guarantor in respect of the obligations of such subsidiary
under the Subsidiary Guarantees), excluding debt in respect of the
Subsidiary Guarantees, as they become absolute and matured.
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SECTION 10.08 EXECUTION OF SUBSIDIARY GUARANTEES.
To evidence its guarantee to each Holder of Notes, each of the
Subsidiary Guarantors hereby agree to execute its Subsidiary Guarantee
in substantially the form of Exhibit A recited to be endorsed on each
Note ordered to be authenticated and delivered by the Trustee. Each
Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set
forth in Section 10.01 hereof shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee. Each such Subsidiary Guarantee shall be signed
on behalf of each Subsidiary Guarantor by one Officer of such
Subsidiary Guarantor who shall have been duly authorized by all
requisite corporate actions, and the delivery of such Note by the
Trustee, after the authentication thereof hereunder, shall constitute
due delivery of such Subsidiary Guarantee on behalf of such Subsidiary
Guarantor. Such signatures upon the Subsidiary Guarantee may be by
manual or facsimile signature of such Officer and may be imprinted or
otherwise reproduced on the Subsidiary Guarantee, and in case any such
Officer who shall have signed the Subsidiary Guarantee shall cease to
be such Officer before the Note on which such Subsidiary Guarantee is
endorsed shall have been authenticated and delivered by the Trustee or
disposed of by the Company, such Note nevertheless may be
authenticated and delivered or disposed of as though the person who
signed the Subsidiary Guarantee had not ceased to be such officer of
the Subsidiary Guarantor.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed
duties shall control.
SECTION 11.02 NOTICES.
Any notice or communication by the Company, any of the
Subsidiary Guarantors or the Trustee to any of the others is duly
given if in writing and delivered in person or mailed by first class
mail (registered or certified, return receipt requested), telecopier
or overnight air courier guaranteeing next-day delivery, to such
other's address:
If to the Company:
Xxxxxx Drilling Company
Xxxxxx Building
0 Xxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
X. Xxxx Xxxxx, Esq. and
C. Xxxxxxx Xxxxxxxxxx
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000-6760
Telecopier No.: (000) 000-0000
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If to any Subsidiary Guarantor:
c/o Parker Drilling Company
Xxxxxx Building
0 Xxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
X. Xxxx Xxxxx, Esq. and
C. Xxxxxxx Xxxxxxxxxx
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000-6760
Telecopier No.: (000) 000-0000
If to the Trustee:
For payment, registration, transfer, exchange and
tender of Notes:
By hand:
Chase Bank of Texas, National Association
One Main Place
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000 or (000) 000-0000
Attention: Registered Bond Events
By mail:
Chase Bank of Texas, National Association
P.O. Box 2320
Dallas, Texas 75221-2320
Attention: Registered Bond Events
For all other communications relating to the Notes:
Chase Bank of Texas, National Association
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Global Trust Services
The Company, any of the Subsidiary Guarantors or the Trustee,
by notice to the others, may designate additional or different
addresses for subsequent notices or communications.
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All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after
being deposited in the United States mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; the next Business Day after
timely delivery to the courier, if sent for overnight delivery by a
courier guaranteeing next-day delivery; and the second Business Day
after timely delivery to the courier, if sent for second-day delivery
by a courier guaranteeing second-day delivery.
Any notice or communication to a Holder shall be mailed by
first class U.S. mail to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the
TIA. Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 11.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Notes. The Company, the Subsidiary Guarantors, the Trustee, the
Registrar and anyone else shall have the protection of TIA Section
312(c).
SECTION 11.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, such requesting entity shall
furnish to the Trustee:
(i) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 11.05 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if
any, provided for in this Indenture relating to the proposed action
have been satisfied; and
(ii) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 11.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been satisfied.
SECTION 11.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Section 314(a)(4)) shall comply
with the provisions of TIA Section 314(e) and shall include:
(i) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(iii) a statement that, in the opinion of such Person, he
or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been satisfied; and
(iv) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
SECTION 11.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 11.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Subsidiary
Guarantor, as such, shall have any liability for any obligations of
the Company or such Subsidiary Guarantor under the Notes, this
Indenture or the Subsidiary Guarantees, as the case may be, 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 issuance of the Notes and the Subsidiary Guarantees.
SECTION 11.08 GOVERNING LAW.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY
GUARANTEES.
SECTION 11.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries
or of any other Person. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
SECTION 11.10 SUCCESSORS.
All agreements of the Company or any Subsidiary Guarantor in
this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.11 SEVERABILITY.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 11.12 COUNTERPART ORIGINALS.
The parties hereto may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
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SECTION 11.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of
the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part of this
Indenture and shall in no way modify or restrict any of the terms or
provisions hereof.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Indenture as
of the date first written above.
XXXXXX DRILLING COMPANY
By: /s/ XXXXX X. XXXXX
---------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President of Finance
and Chief Financial Officer
SUBSIDIARY GUARANTORS:
Xxxxxx Drilling Company of Oklahoma Incorporated
Xxxxxx Drilling Company Limited (Nevada)
Xxxxxx Drilling Company Limited (Oklahoma)
Choctaw International Rig Corp.
Xxxxxx Drilling Company of New Guinea, Inc.
Xxxxxx Drilling Company North America, Inc.
Xxxxx Systems Engineering, Inc.
DGH, Inc.
Xxxxxx Drilling Company International Limited
Mallard Bay Drilling, LLC
Parcan Limited
Xxxxxx Technology, LLC
Xxxxxx Technology, Inc.
Xxxxxx Drilling U.S.A. Ltd.
Hercules Offshore Corporation
Hercules Rig Corp.
Xxxxxx Drilling Offshore Company
By: /s/ I.E. XXXXXXX, XX.
---------------------------------------------------
Name: I.E. Xxxxxxx, Xx.
(for each of the above-listed Subsidiary
Guarantors)
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Quail Tools, LLP
By: /s/ XXXXX X. XXXXX
---------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
(for the above listed Xxxxxxxxxx Xxxxxxxxx)
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION,
as Trustee
By: /s/ XXXXXX XXXXX
--------------------------
Authorized Signatory
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EXHIBIT A
[FORM OF SERIES C NOTE]
9-3/4% Senior Notes due 2006, Series C
XXXXXX DRILLING COMPANY
promises to pay to
or registered assigns,
the principal sum of
Dollars on November 15, 2006
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
XXXXXX DRILLING COMPANY
By:
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President of Finance
and Chief Financial Officer
Trustee's Certificate of Authentication:
Dated: March 11, 1998
This is one of the Notes referred to in the
within-mentioned Indenture:
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------
Authorized Signatory
A-1
75
(Xxxxxx Drilling Company)
9-3/4% Senior Notes due 2006, Series C
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 (00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) ("DTC"), 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.(1)
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE NOTE
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.
THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER
THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)
(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN OF RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL IF THE ISSUER SO REQUESTS), (2) TO THE ISSUER OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THE NOTE EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
--------------------
(1) This paragraph should be included only in the Note if issued in global
form.
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1. Interest. Xxxxxx Drilling Company, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
9-3/4% per annum from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of original issuance hereof until
maturity and shall pay the Liquidated Damages payable pursuant to Section 5 of
the Registration Rights Agreement referred to below. The Company shall pay
interest and Liquidated Damages semi-annually on May 15 and November 15 of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day (each, an "Interest Payment Date"). Interest on the Notes shall accrue from
the most recent date to which interest has been paid or, if no interest has
been paid, from the date of issuance; provided that the first Interest Payment
Date shall be May 15, 1998. The Company shall pay interest (including post-
petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is 1%
per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest and Liquidated Damages (without regard to
any applicable grace periods) from time to time on demand at the same rate to
the extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. If this Note is exchanged for a Series D Note (as
defined in the Indenture) pursuant to the Registration Rights Agreement, dated
March 11, 1998 (the "Registration Rights Agreement"), among the Company, the
Subsidiary Guarantors and the parties named on the signature pages thereof,
then accrued but unpaid interest on this Note shall be paid on the first
Interest Payment Date for such Series D Note.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Notes at the close of business on the May 1 or November 1
next preceding the Interest Payment Date, even if such Notes are canceled after
such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
The Notes will be payable as to principal, premium, interest and Liquidated
Damages at the office or agency of the Company maintained for such purpose
within or without the City and State of New York, or, at the option of the
Company, payment of interest and Liquidated Damages may be made by check mailed
to the Holders at their addresses set forth in the register of Holders, and
provided that payment by wire transfer of immediately available funds will be
required with respect to principal of and interest, premium and Liquidated
Damages on, all Global Notes and all other Notes the Holders of which shall
have provided written wire transfer instructions to the Company or the Paying
Agent at least 10 Business Days prior to the applicable payment date. 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, Chase Bank of Texas, National
Association., the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. Indenture and Subsidiary Guarantees. The Company issued the Notes
under an Indenture dated as of March 11, 1998 (the "Indenture") among the
Company, the Subsidiary 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 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 obligations of the Company limited to (x) $150 million in aggregate
principal amount in the case of Notes issued on the Issue Date, plus (y) an
additional amount, not to exceed $300 million, equal to the principal amount of
Series A/B Notes exchanged for Notes pursuant to the initial Exchange Offer,
plus (z) such additional principal amount of Notes as the Company may issue
from time to time in accordance with the requirements of the Indenture.
Payment on each Note is guaranteed on a senior basis, jointly and severally, by
the Subsidiary Guarantors pursuant to Article 10 of the Indenture.
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5. Optional Redemption.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Company shall not have the option to redeem the Notes prior to November 15,
2001. Thereafter, the Company shall have the option to redeem the Notes, in
whole or in part, upon not less than 30 nor more than 60 days' written notice,
at the redemption prices (expressed as percentages of principal amount) set
forth below, plus accrued and unpaid interest and Liquidated Damages thereon,
if any, to the applicable redemption date, if redeemed during the twelve-month
period beginning on November 15 of each of the years indicated below:
YEAR PERCENTAGE
---- ----------
2001 104.875%
2002 103.250%
2003 101.625%
2004 and thereafter 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
paragraph 5, at any time on or prior to November 15, 1999, the Company may
redeem up to 35% of the aggregate principal amount of Notes originally issued
(but disregarding, for this purpose, any Exchange Notes other than Additional
Series D Notes) at a redemption price of 109.75% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages thereon to the
redemption date, with the net proceeds of a Public Equity Offering; provided
that at least 65% of the aggregate principal amount of the Notes originally
issued (but disregarding, for this purpose, any Exchange Notes other than
Additional Series D Notes) remains outstanding immediately after the occurrence
of such redemption; and, provided, further, that such redemption shall occur
within 60 days of the date of the closing of such Public Equity Offering
6. Mandatory Redemption. The Company shall not be required to
make mandatory redemption payments or sinking fund payments with respect to the
Notes.
7. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be required
to make an offer (a "Change of Control Offer") to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder's Notes at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and any unpaid interest and Liquidated Damages thereon, if any, to the
Change of Control Payment Date (as hereinafter defined) (the "Change of Control
Payment"). Within 30 days of the occurrence of a Change of Control, the
Company shall notify the Trustee in writing of such proposed occurrence and
shall make a Change of Control Offer. Within 50 days following the occurrence
of a Change of Control, the Company shall mail a notice to each Holder setting
forth the procedures governing the Change of Control Offer as required by the
Indenture.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales, within 10 days following each Asset Sale Trigger Date, (i) the
Company shall commence an offer to all Holders of Series A/B Notes (the "Series
A/B Asset Sale Offer") pursuant to Section 4.10 of the Indenture to purchase
the maximum principal amount of Series A/B Notes that may be purchased out of
the Excess Proceeds at an offer price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest to the purchase date
and (ii) in the event that any Excess Proceeds are not applied to a Series A/B
Asset Sale Offer, the Company shall commence an offer to all Holders of Notes
(an "Asset Sale Offer") pursuant to Section 3.09 of the Indenture to purchase
the maximum principal amount of Notes that may be purchased out of any Excess
Proceeds at an offer price in cash in an amount equal to 100% of the principal
amount thereof plus any accrued and unpaid interest and Liquidated Damages
thereon, if any, to the Asset Sale Offer Purchase Date, in
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accordance with the procedures set forth in 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 (or such Subsidiary) may use such excess
for general corporate purposes. Holders of Notes that are the subject of an
offer to purchase will receive an Asset Sale Offer, from the Company prior to
any related purchase date and may elect to have such Notes purchased by
completing the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes.
8. Notice of Redemption. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before a 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 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 the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or 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 exchange or 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.
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 the 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 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, to secure the Notes, to add or release any Subsidiary Guarantor
pursuant to the terms of the Indenture or to comply with the requirements of
the Commission in order to effect or maintain the qualification of the
Indenture under the TIA.
12. Defaults and Remedies. Events of Default include: (i) default
for 30 days in the payment when due of interest on, or Liquidated Damages with
respect to, the Notes; (ii) default in payment when due of principal of or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon redemption (including in connection with an offer to purchase)
or otherwise, (iii) failure by the Company to comply with Section 4.10, 4.15 or
5.01 of the Indenture; (iv) failure by the Company for 45 days after notice to
the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding to comply with certain other
agreements in the Indenture or the Notes; (v) default under certain other
agreements relating to Indebtedness of the Company, which default (A) is caused
by a failure to pay principal of or premium, if any, or interest on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (B) results
in the acceleration of such Indebtedness prior to its express maturity and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has
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been a Payment Default or the maturity of which has been so accelerated,
aggregates $7.5 million or more; (vi) certain final judgments for the payment
of money that remain undischarged for a period of 60 days; (vii) any Subsidiary
Guarantee shall for any reason cease to be, or be asserted by the Company or
any Restricted Subsidiary that is a Guarantor, as applicable, not to be, in
full force and effect (except pursuant to the release of any Subsidiary
Guarantee in accordance with the Indenture); and (viii) certain events of
bankruptcy or insolvency with respect to the Company or any of its Restricted
Subsidiaries that constitutes a Significant Subsidiary or any group of
Restricted 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 aggregate 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
Restricted Subsidiary that constitutes a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. 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 of the Notes 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 the 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 the Trustee.
14. No Recourse Against Others. No past, present or future
director, officer, employee, incorporation, stockholder of the Company or any
Subsidiary Guarantor, as such, shall have any liability for any obligations of
the Company or such Subsidiary Guarantor under the Notes, the Indenture or the
Subsidiary Guarantees, as the case may be, 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 and the
Subsidiary Guarantees.
15. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee.
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. Additional Rights of Holders of Transfer Restricted
Securities. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Transferred Restricted Securities shall have all the
rights set forth in the Registration Rights Agreement dated as of March 11,
1998, among the Company and the parties named on the signature pages thereof
(the "Registration Rights Agreement").
18. 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
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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.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Xxxxxx Drilling Company
0 Xxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Treasurer
[intentionally left blank]
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[FORM OF NOTATION ON NOTE RELATING TO SUBSIDIARY GUARANTEES]
Each of the Subsidiary Guarantors under the Indenture (the
"Indenture") referred to in the Note upon which this notation is endorsed, has
unconditionally guaranteed the obligations of the Company under the Notes and
the Indenture, jointly and severally (each such guarantee being a "Subsidiary
Guarantee"), to each Holder of a Note authenticated and delivered by the
Trustee irrespective of the validity or enforceability of the Indenture, the
Notes or the obligations of the Company under the Indenture or the Notes, that:
(i) the principal of, premium, if any, and interest on the Notes of every
series issued hereunder shall be paid in full when due, whether at the maturity
or interest payment or mandatory redemption date, by acceleration, call for
redemption or otherwise, and interest on the overdue principal and interest, if
any, of the Notes and all other obligations of the Company to the Holders or
the Trustee under the Indenture or the Notes shall be promptly paid in full or
performed, all in accordance with the terms of the Indenture and the Notes; and
(ii) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, they shall be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at maturity, by
acceleration or otherwise. Failing payment when due of any amount so
guaranteed for whatever reason, each Subsidiary Guarantor shall be obligated to
pay the same whether or not such failure to pay has become an Event of Default
that could cause acceleration pursuant to Section 6.02 of the Indenture. Each
Subsidiary Guarantor agrees that this is a guarantee of payment, not a
guarantee of collection. Capitalized terms used herein have the meanings
assigned to them in the Indenture unless otherwise indicated, and the
obligations of the Subsidiary Guarantors pursuant to the Subsidiary Guarantees
are subject to the terms of the Indenture, to which reference is hereby made
for the precise terms thereof. The obligations of each Subsidiary Guarantor to
the Holders of Notes and to the Trustee pursuant to the Subsidiary Guarantee
and the Indenture are expressly set forth, and are senior unsecured obligations
of each such Subsidiary Guarantor to the extent and in the manner provided, in
Article 10 of the Indenture, and may be released or limited under certain
circumstances. Reference is hereby made to such Indenture for the precise
terms of the Subsidiary Guarantee therein made.
The Subsidiary Guarantees shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note on which the
Subsidiary Guarantees are noted shall have been executed by the Trustee under
the Indenture by the manual signature of one of its authorized officers.
By each of the following, and any other Subsidiary Guarantor as may be
added or substituted from time to time, as Subsidiary Guarantors:
[signature page follows]
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SUBSIDIARY GUARANTORS:
XXXXXX DRILLING COMPANY OF OKLAHOMA INCORPORATED
XXXXXX DRILLING COMPANY LIMITED (NEVADA)
XXXXXX DRILLING COMPANY LIMITED (OKLAHOMA)
CHOCTAW INTERNATIONAL RIG CORP.
XXXXXX DRILLING COMPANY OF NEW GUINEA, INC.
XXXXXX DRILLING COMPANY NORTH AMERICA, INC.
XXXXX SYSTEMS ENGINEERING, INC.
DGH, INC.
XXXXXX DRILLING COMPANY INTERNATIONAL LIMITED
MALLARD BAY DRILLING, LLC
PARCAN LIMITED
XXXXXX TECHNOLOGY, LLC
XXXXXX TECHNOLOGY, INC.
XXXXXX DRILLING U.S.A. LTD.
HERCULES OFFSHORE CORPORATION
HERCULES RIG CORP.
XXXXXX DRILLING OFFSHORE COMPANY
By:
---------------------------------------------------
Name: I.E. Xxxxxxx, Xx.
(for each of the above-listed Subsidiary
Guarantors)
QUAIL TOOLS, LLP
By:
---------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
(for the above listed Subsidiary Guarantor)
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________
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.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state
the amount you elect to have purchased: $___________
Date:________________
Your Signature:__________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee.
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SCHEDULE OF EXCHANGES FOR DEFINITIVE NOTES(1)
The following exchanges of a part of this Global Note for Definitive Notes
have been made:
Amount of Principal Amount of Signature of
decrease in this Global Note authorized
Principal Amount Amount of increase in following such signatory of
Date of Exchange of this Global Principal Amount of decrease (or Trustee or Note
Note this Global Note increase) Custodian
---------------- ---------------- --------------------- ------------------- ---------------
---------------
(1) This should be included only in the Note if issued in global form.
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EXHIBIT B
[FORM OF SERIES D NOTE]
9-3/4% Senior Notes due 2006, Series D
CUSIP: __________
No. ____ $__________________
XXXXXX DRILLING COMPANY
promises to pay to ____________________________
or registered assigns,
the principal sum of _________________________
Dollars on November 15, 2006
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
XXXXXX DRILLING COMPANY
By:______________________________________
Name:
Title:
Dated: _______________________
Trustee's Certificate of Authentication:
This is one of the
Notes referred to in the
within-mentioned Indenture:
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as Trustee
By:_________________________________
Authorized Signatory
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[intentionally left blank]
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(Xxxxxx Drilling Company)
9-3/4% Senior Notes due 2006, Series D
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 (00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) ("DTC"), 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.(1)
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest. Xxxxxx Drilling Company, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
9-3/4% per annum from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of original issuance hereof until
maturity. The Company shall pay interest semi-annually on May 15 and November
15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an "Interest Payment Date"). Interest on the
Notes shall accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from the date of issuance; provided that the
first Interest Payment Date shall be _______________. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the May 1 or November 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest. The Notes will be payable as to
principal, premium and interest at the office or agency of the Company
maintained for such purpose within or without the City and State of New York,
or, at the option of the Company, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest premium on, all Global
Notes and all other Notes the Holders of which shall have provided written wire
transfer instructions to the Company or the Paying Agent at least 10 Business
Days prior to the applicable payment date. 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, Chase Bank of Texas, National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying
-----------------------
(1) This paragraph should be included only in the Note if issued in global
form.
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Agent or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
4. Indenture and Subsidiary Guarantees. The Company issued the Notes
under an Indenture dated as of March 11, 1998 (the "Indenture") among the
Company, the Subsidiary 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 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 obligations of the Company limited to (x) $150 million in aggregate
principal amount in the case of Notes issued on the Issue Date, plus (y) an
additional amount, not to exceed $300 million, equal to the principal amount of
Series A/B Notes exchanged for Notes pursuant to the initial Exchange Offer,
plus (z) such additional principal amount of Notes as the Company may issue
from time to time in accordance with the requirements of the Indenture.
Payment on each Note is guaranteed on a senior basis, jointly and severally, by
the Subsidiary Guarantors pursuant to Article 10 of the Indenture.
5. Optional Redemption.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Company shall not have the option to redeem the Notes prior to November 15,
2001. Thereafter, the Company shall have the option to redeem the Notes, in
whole or in part, upon not less than 30 nor more than 60 days' written notice,
at the redemption prices (expressed as percentages of principal amount) set
forth below, plus accrued and unpaid interest thereon, if any, to the
applicable redemption date, if redeemed during the twelve-month period
beginning on November 15 of each of the years indicated below:
YEAR PERCENTAGE
---- ----------
2001 104.875%
2002 103.250%
2003 101.625%
2004 and thereafter 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
paragraph 5, at any time on or prior to November 15, 1999, the Company may
redeem up to 35% of the aggregate principal amount of Notes originally issued
(but disregarding, for this purpose, any Exchange Notes other than Additional
Series D Notes) at a redemption price of 109.75% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages thereon to the
redemption date, with the net proceeds of a Public Equity Offering; provided
that at least 65% of the aggregate principal amount of the Notes originally
issued (but disregarding, for this purpose, any Exchange Notes other than
Additional Series D Notes) remains outstanding immediately after the occurrence
of such redemption; and, provided, further, that such redemption shall occur
within 60 days of the date of the closing of such Public Equity Offering.
6. Mandatory Redemption. The Company shall not be required to
make mandatory redemption payments or sinking fund payments with respect to the
Notes.
7. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be required
to make an offer (a "Change of Control Offer") to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder's Notes at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and any unpaid interest thereon, if any, to the Change of Control
Payment Date (as hereinafter defined) (the "Change of Control Payment").
Within 30 days of the occurrence of a Change of Control, the Company shall
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notify the Trustee in writing of such proposed occurrence and shall make a
Change of Control Offer. Within 50 days following the occurrence of a Change
of Control, the Company shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the Indenture.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales, within 10 days following each Asset Sale Trigger Date, (i) the
Company shall commence an offer to all Holders of Series A/B Notes (the "Series
A/B Asset Sale Offer") pursuant to Section 4.10 of the Indenture to purchase
the maximum principal amount of Series A/B Notes that may be purchased out of
the Excess Proceeds at an offer price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest to the purchase date
and (ii) in the event that any Excess Proceeds are not applied to a Series A/B
Asset Sale Offer, the Company shall commence an offer to all Holders of Notes
(an "Asset Sale Offer") pursuant to Section 3.09 of the Indenture to purchase
the maximum principal amount of Notes that may be purchased out of any Excess
Proceeds at an offer price in cash in an amount equal to 100% of the principal
amount thereof plus any accrued and unpaid interest and Liquidated Damages
thereon, if any, to the Asset Sale Offer Purchase Date, in accordance with the
procedures set forth in 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 (or such Subsidiary) may use such excess for general
corporate purposes. Holders of Notes that are the subject of an offer to
purchase will receive an Asset Sale Offer, from the Company prior to any
related purchase date and may elect to have such Notes purchased by completing
the form entitled "Option of Holder to Elect Purchase" on the reverse of the
Notes.
8. Notice of Redemption. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before a 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 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 the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or 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 exchange or 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.
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 the 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 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, to secure the Notes, to add or release any Subsidiary Guarantor
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pursuant to the terms of the Indenture or to comply with the requirements of
the Commission in order to effect or maintain the qualification of the
Indenture under the TIA.
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 principal of or premium, if any, on the Notes when the same
becomes due and payable at maturity, upon redemption (including in connection
with an offer to purchase) or otherwise, (iii) failure by the Company to comply
with Section 4.10, 4.15 or 5.01 of the Indenture; (iv) failure by the Company
for 45 days after notice to the Company by the Trustee or the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding to comply
with certain other agreements in the Indenture or the Notes; (v) default under
certain other agreements relating to Indebtedness of the Company, which default
(A) is caused by a failure to pay principal of or premium, if any, or interest
on such Indebtedness prior to the expiration of the grace period provided in
such Indebtedness on the date of such default (a "Payment Default") or (B)
results in the acceleration of such Indebtedness prior to its express maturity
and, in each case, the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness under which there has been
a Payment Default or the maturity of which has been so accelerated, aggregates
$7.5 million or more; (vi) certain final judgments for the payment of money
that remain undischarged for a period of 60 days; (vii) any Subsidiary
Guarantee shall for any reason cease to be, or be asserted by the Company or
any Restricted Subsidiary that is a Guarantor, as applicable, not to be, in
full force and effect (except pursuant to the release of any Subsidiary
Guarantee in accordance with the Indenture); and (viii) certain events of
bankruptcy or insolvency with respect to the Company or any of its Restricted
Subsidiaries that constitutes a Significant Subsidiary or any group of
Restricted 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 aggregate 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
Restricted Subsidiary that constitutes a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. 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 of the Notes 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 the 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 the Trustee.
14. No Recourse Against Others. No past, present or future
director, officer, employee, incorporation, stockholder of the Company or any
Subsidiary Guarantor, as such, shall have any liability for any obligations of
the Company or such Subsidiary Guarantor under the Notes, the Indenture or the
Subsidiary Guarantees, as the case may be, 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 and the
Subsidiary Guarantees.
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15. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee.
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.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Xxxxxx Drilling Company
0 Xxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Treasurer
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[intentionally left blank]
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[FORM OF NOTATION ON NOTE RELATING TO SUBSIDIARY GUARANTEES]
Each of the Subsidiary Guarantors under the Indenture (the
"Indenture") referred to in the Note upon which this notation is endorsed, has
unconditionally guaranteed the obligations of the Company under the Notes and
the Indenture, jointly and severally (each such guarantee being a "Subsidiary
Guarantee"), to each Holder of a Note authenticated and delivered by the
Trustee irrespective of the validity or enforceability of the Indenture, the
Notes or the obligations of the Company under the Indenture or the Notes, that:
(i) the principal of, premium, if any, and interest on the Notes of every
series issued hereunder shall be paid in full when due, whether at the maturity
or interest payment or mandatory redemption date, by acceleration, call for
redemption or otherwise, and interest on the overdue principal and interest, if
any, of the Notes and all other obligations of the Company to the Holders or
the Trustee under the Indenture or the Notes shall be promptly paid in full or
performed, all in accordance with the terms of the Indenture and the Notes; and
(ii) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, they shall be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at maturity, by
acceleration or otherwise. Failing payment when due of any amount so
guaranteed for whatever reason, each Subsidiary Guarantor shall be obligated to
pay the same whether or not such failure to pay has become an Event of Default
that could cause acceleration pursuant to Section 6.02 of the Indenture. Each
Subsidiary Guarantor agrees that this is a guarantee of payment, not a
guarantee of collection. Capitalized terms used herein have the meanings
assigned to them in the Indenture unless otherwise indicated, and the
obligations of the Subsidiary Guarantors pursuant to the Subsidiary Guarantees
are subject to the terms of the Indenture, to which reference is hereby made
for the precise terms thereof. The obligations of each Subsidiary Guarantor to
the Holders of Notes and to the Trustee pursuant to the Subsidiary Guarantee
and the Indenture are expressly set forth, and are senior unsecured obligations
of each such Subsidiary Guarantor to the extent and in the manner provided, in
Article 10 of the Indenture, and may be released or limited under certain
circumstances. Reference is hereby made to such Indenture for the precise
terms of the Subsidiary Guarantee therein made.
The Subsidiary Guarantees shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note on which the
Subsidiary Guarantees are noted shall have been executed by the Trustee under
the Indenture by the manual signature of one of its authorized officers.
By each of the following, and any other Subsidiary Guarantor as may be
added or substituted from time to time, as Subsidiary Guarantors:
[signature page follows]
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SUBSIDIARY GUARANTORS:
XXXXXX DRILLING COMPANY OF OKLAHOMA
INCORPORATED
XXXXXX DRILLING COMPANY LIMITED (NEVADA)
XXXXXX DRILLING COMPANY LIMITED (OKLAHOMA)
CHOCTAW INTERNATIONAL RIG CORP.
XXXXXX DRILLING COMPANY OF NEW GUINEA, INC.
XXXXXX DRILLING COMPANY NORTH AMERICA, INC.
XXXXX SYSTEMS ENGINEERING, INC.
DGH, INC.
XXXXXX DRILLING COMPANY INTERNATIONAL LIMITED
MALLARD BAY DRILLING, LLC
PARCAN LIMITED
XXXXXX TECHNOLOGY, LLC
XXXXXX TECHNOLOGY, INC.
XXXXXX DRILLING U.S.A. LTD.
HERCULES OFFSHORE CORPORATION
HERCULES RIG CORP.
XXXXXX DRILLING OFFSHORE COMPANY
By: _______________________________________
Name: I.E. Xxxxxxx, Xx.
(for each of the above-listed
Subsidiary Guarantors)
QUAIL TOOLS, LLP
By:_______________________________________
Name: Xxxxx X. Xxxxx
(for the above listed Subsidiary
Guarantor)
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[intentionally left blank]
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________________________________
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.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state
the amount you elect to have purchased: $___________
Date:______________________________
Your Signature:_____________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee.
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SCHEDULE OF EXCHANGES FOR DEFINITIVE NOTES(1)
The following exchanges of a part of this Global Note for Definitive Notes
have been made:
Amount of Principal Amount of Signature of
decrease in this Global Note authorized
Principal Amount Amount of increase in following such signatory of
Date of Exchange of this Global Principal Amount of decrease (or Trustee or Note
Note this Global Note increase) Custodian
---------------- ---------------- --------------------- ------------------- ---------------
---------------
(1) This should be included only in the Note if issued in global form.
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EXHIBIT C
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF NOTES
Re: 9-3/4% Senior Notes due 2006, Series C of Xxxxxx Drilling Company.
This Certificate relates to $_____ principal amount of Notes held in *
________ book-entry or *_______ definitive form by ________________ (the
"Transferor").
The Transferor*:
[ ] has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Note held by or on behalf of the
Depository a Note or Notes in definitive, registered form of
authorized denominations in an aggregate principal amount equal to its
beneficial interest in such Global Note (or the portion thereof
indicated above); or
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Note or Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that Transferor is familiar with the
Indenture relating to the above captioned Notes and as provided in
Section 2.06 of such Indenture, the transfer of this Note does not
require registration under the Securities Act (as defined below)
because:*
[ ] Such Note is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 2.06(a)(ii)(A) or Section
2.06(d)(i)(A) of the Indenture).
[ ] Such Note is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act")) in reliance on Rule 144A (in satisfaction of
Section 2.06(a)(ii)(B), Section 2.06(b)(i) or Section 2.06(d)(i) (B)
of the Indenture) or pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act (in satisfaction of
Section 2.06(a)(ii)(B) or Section 2.06(d)(i)(B) of the Indenture.)
[ ] Such Note is being transferred in accordance with Rule 144 under the
Securities Act, or pursuant to an effective registration statement
under the Securities Act (in satisfaction of Section 2.06(a)(ii)(B) or
Section 2.06(d)(i)(B) of the Indenture).
[ ] Such Note is being transferred in reliance on and in compliance with an
exemption from the registration requirements of the Securities Act,
other than Rule 144A, 144 or Rule 904 under the Securities Act. An
Opinion of Counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate (in
satisfaction of Section 2.06(a)(ii)(C) or Section 2.06(d)(i)(C) of the
Indenture).
_____________________________
[INSERT NAME OF TRANSFEROR]
Date:__________________________ By:__________________________
*Check applicable box.
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