EXHIBIT 4.4
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NABORS HOLDING COMPANY
AND
THE GUARANTORS NAMED HEREIN
SERIES A AND SERIES B
8 5/8% SENIOR SUBORDINATED NOTES DUE 2008
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FOURTH SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 21, 2002
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HSBC BANK USA,
TRUSTEE
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This FOURTH SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture"), dated as of June 21, 2002 is among Xxxxxx Holding Company, a
Delaware corporation, as issuer (the "Company"), Xxxxxx Industries, Inc., a
Delaware corporation, as guarantor (the "Parent Guarantor"), Xxxxxx Industries
Ltd., a Bermuda exempted company, as guarantor (the "New Guarantor"), and HSBC
Bank USA, as trustee (the "Trustee").
RECITALS
WHEREAS, the Company, and the Trustee entered into an
Indenture, dated as of March 31, 1998 (as supplemented by each of the three
supplemental indentures thereto, including one relating to the guarantee of the
Company's obligations thereunder by the Parent Guarantor, the "Indenture"),
pursuant to which the Company has originally issued $150,000,000 in principal
amount of 8 5/8% Senior Subordinated Notes due 2008 (the "Notes"); and
WHEREAS, the Parent Guarantor is party to an Agreement and
Plan of Merger, dated as of January 2, 2002, by and among the Company, the New
Guarantor, Nabors US Holdings Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein called "US Holdings") and Nabors
Acquisition Corp. VIII, a corporation duly organized and existing under the laws
of the State of Delaware (herein called "NAC8") (such agreement is herein called
the "Merger Agreement");
WHEREAS, US Holdings assigned all of its right, title and
interest, in, to and under the Merger Agreement to Nabors International Finance
Ltd., an exempted company duly organized and existing under the laws of the
Islands of Bermuda, and NAC8 assigned all of its right, title and interest, in,
to and under the Merger Agreement to Nabors Acquisition Corp. IX, a corporation
duly organized and existing under the laws of the State of Delaware (herein
called "NAC9");
WHEREAS, pursuant to the terms and conditions of the Merger
Agreement, NAC9 will merge with and into Parent Guarantor, with Parent Guarantor
being the surviving corporation (herein called the "Merger" and the date on
which the Merger becomes effective by filing a Certificate of Merger with the
Secretary of State of the State of Delaware is herein called the "Merger Date");
WHEREAS, as a result of the Merger the Parent Company will be
an indirect, wholly owned subsidiary of the New Guarantor;
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WHEREAS, the New Guarantor desires to issue a guarantee to the
Holders of the Notes as provided in this Supplemental Indenture;
WHEREAS, Section 9.01(iv) provides that the Company, the
Parent Guarantor and the Trustee may amend or supplement the Indenture or the
Notes without the consent of any Holders to make any change that would provide
any additional rights or benefits to the Holders;
WHEREAS, the respective Board of Directors of the Company, the
Parent Guarantor and of the New Guarantor (or a duly authorized committee
thereof) has duly adopted resolutions authorizing the Company, the Parent
Guarantor and the New Guarantor, respectively, to execute and deliver this
Supplemental Indenture; and
WHEREAS, all acts and things prescribed by the Indenture, by
law and by the charter and the bylaws (or comparable constituent documents) of
the Company, of the Parent Guarantor, of the New Guarantor and of the Trustee
necessary to make this Supplemental Indenture a valid instrument legally binding
on the Company, the Parent Guarantor, the New Guarantor and the Trustee, in
accordance with its terms, have been duly done and performed;
NOW, THEREFORE, to comply with the provisions of the Indenture
and in consideration of the above premises, the Company, the Parent Guarantor,
the New Guarantor and the Trustee covenant and agree for the equal and
proportionate benefit of the respective Holders of the Notes as follows:
ARTICLE ONE
RELATION TO INDENTURE
SECTION 1.1 RELATION TO INDENTURE.
This Supplemental Indenture constitutes an integral part of the
Indenture.
SECTION 1.2 DEFINITIONS.
For all purposes of this Supplemental Indenture, except as expressly
provided for or unless the context otherwise requires:
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(1) Capitalized terms used but not defined in this
Supplemental Indenture shall have the respective meanings assigned to them in
the Indenture; and
(2) All references in this Supplemental Indenture to Articles
and Sections, unless otherwise specified, refer to the corresponding Articles
and Sections of this Supplemental Indenture.
SECTION 1.3 AMENDMENT OF DEFINITIONS IN THE INDENTURE.
The following definitions in the Indenture are hereby amended by
deleting such definitions in their entirety and substituting in place thereof
the following:
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary of the Company, the Parent Guarantor or the New Guarantor, as
applicable, duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"GUARANTOR" means each of the Parent Guarantor and the New Guarantor
and any and all references to "the Guarantor", "a Guarantor" or "any Guarantor"
shall refer to each of the Parent Guarantor and the New Guarantor.
"OFFICERS" means any of the following of any Guarantor or the Company,
as applicable: the Chairman of the Board, the Chief Executive Officer, the Chief
Financial Officer, the President, any Vice President, the Treasurer or the
Secretary.
"OPINION OF COUNSEL" means a written opinion from legal counsel (such
counsel may be an employee of or counsel to the Company or any Guarantor) that
complies with the requirements of this Indenture.
"SENIOR INDEBTEDNESS" means all Indebtedness and other Obligations
specified below payable directly or indirectly by any Guarantor, as the case may
be, whether outstanding on the Issue Date, as of the date of the Fourth
Supplemental Indenture hereto or thereafter created, incurred or assumed by any
Guarantor: (i) the principal of and interest on and all other Indebtedness and
Obligations related to the Credit Agreement (including, without limitation, all
loans, letters of credit and unpaid drawings with respect thereto and other
extensions of credit under the Credit Agreement, and all expenses, fees,
reimbursements, indemnities and other amounts owing pursuant to the Credit
Agreement), (ii) amounts payable in respect of any Hedging Obligations, (iii) in
addition to the amounts described in (i) and (ii), all Indebtedness that is not
expressly pari passu with, or subordinated to, the Notes or a Note Guarantee, as
the case may be, (iv) all Capitalized Lease Obligations, (v) all Refinancing
Indebtedness permitted under this Indenture. Notwithstanding anything to the
contrary in the foregoing, Senior Indebtedness will not include (a) any
Indebtedness which by the express terms of the agreement or instrument creating,
evidencing or governing the same is junior or subordinate in right of payment to
any item of Senior Indebtedness, (b) any trade payable arising from the purchase
of goods or materials or for services obtained in the ordinary course of
business, (c) Indebtedness incurred (but only to the extent incurred) in
violation of this Indenture as in effect at the time of the respective
incurrence, (d) any Indebtedness of any Guarantor or any of
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its Subsidiaries that, when incurred, was without recourse to such Guarantor or
any of its Subsidiaries, (e) any Indebtedness to any employee of any Guarantor
or any of its Subsidiaries or (f) any liability for taxes owed or owing by any
Guarantor or any of its Subsidiaries.
The Indenture is hereby amended by adding the following definition
thereto:
"NEW GUARANTOR" means Xxxxxx Industries Ltd., an exempted company duly
organized and existing under the laws of the Islands of Bermuda.
ARTICLE TWO
REPORTS BY GUARANTOR
Section 2.1 Reports. Section 4.02 of the Indenture is hereby amended by
deleting it in its entirety and substituting in place thereof the following:
Section 4.02. Reports. Whether or not required by the
rules and regulations of the Securities and Exchange
Commission (the "COMMISSION"), so long as any Notes are
outstanding, the New Guarantor will file with the Commission,
to the extent such filings are accepted by the Commission, and
will furnish (within 15 days after such filing) to the Trustee
and the Holders of Notes all quarterly and annual reports and
other information, documents and reports that would be
required to be filed with the Commission pursuant to Section
13 of the Exchange Act (including therein any summary or other
information with respect to the Company as may be required
thereby, taking into account the guarantee by the New
Guarantor) if the New Guarantor was required to file under
such section.
So long as any Notes are outstanding, the Company and
the Parent Guarantor will file with the Commission, to the
extent such filings are required by the Commission, and will
furnish (within 15 days after such filing) to the Trustee and
the Holders of Notes all quarterly and annual reports and
other information, documents and reports that are required to
be filed with the Commission pursuant to Section 13 of the
Exchange Act (including therein any summary or other
information with respect to the Company as may be required
thereby, taking into account the guarantee by the New
Guarantor).
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The Company, the Parent Guarantor and the New
Guarantor will make the foregoing information available to
prospective purchasers of the Notes, securities analysts and
broker-dealers who request it in writing. The Company and each
Guarantor have agreed that, for so long as any Notes remain
outstanding, they will furnish to the Holders and beneficial
Holders of Notes and to prospective purchasers of Notes
designated by the Holders and to broker dealers, upon their
request, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act.
ARTICLE THREE
CERTIFICATE OF COMPLIANCE
SECTION 3.1 STATEMENT BY OFFICERS AS TO COMPLIANCE. Section 4.03 of the
Indenture is hereby amended by deleting it in its entirety and substituting in
place thereof the following:
Section 4.03. Compliance Certificate. The Company,
the Parent Guarantor and the New Guarantor shall each deliver
to the Trustee, within 120 days after the end of each fiscal
year of the Company, an Officers' Certificate stating that (i)
a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year without regard to any Grace
Period has been made to determine whether the Company, the
Parent Guarantor and the New Guarantor have kept, observed,
performed and fulfilled all of their obligations under this
Indenture and the Notes, (ii) such review was supervised by
the Officers of the Company, the Parent Guarantor and the New
Guarantor signing such certificate, and (iii) to the best
knowledge of each Officer signing such certificate, (a) the
Company, the Parent Guarantor or the New Guarantor, as
applicable, has kept, observed, performed and fulfilled each
and every covenant contained in this Indenture applicable to
such person and such person is not in default in the
performance or observance of any of the terms, provisions and
conditions of this Indenture applicable to such person (or, if
a Default or Event of Default occurred, describing all such
Defaults or Events of Default of which each such Officer may
have knowledge and what action the Company, the Parent
Guarantor and the New Guarantor, as applicable, have taken or
propose to take with respect thereto), and (b) no event has
occurred and remains in existence by
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reason of which payments on account of the principal of, or
premium, if any, or interest (including Special Interest, if
any) on the Notes are prohibited or if such event has
occurred, a description of the event and what action the
Company, the Parent Guarantor and the New Guarantor, as
applicable, are taking with respect thereto.
Each of the Company, the Parent Guarantor and the New
Guarantor will, so long as any of the Notes are outstanding,
deliver to the Trustee, promptly after any Officer of the
Company, the Parent Guarantor or the New Guarantor becomes
aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default and
what action the Company, the Parent Guarantor or the New
Guarantor is taking or proposes to take with respect thereto.
ARTICLE FOUR
GUARANTEE
SECTION 4.1 GUARANTEE.
By execution of this Supplemental Indenture, the New Guarantor hereby
issues and provides for a Note Guarantee on the terms and conditions, and to the
extent, set forth in Section 11.01 of the Indenture. The Note Guarantees of the
Parent Guarantor and the New Guarantor shall be joint and several.
SECTION 4.2 SUBORDINATION OF GUARANTEE.
The New Guarantor's Note Guarantee shall be junior and subordinated in
right of payment to any Senior Indebtedness to the extent provided in Section
11.03 and Article 10 of the Indenture.
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ARTICLE FIVE
MISCELLANEOUS PROVISIONS
SECTION 5.1 RATIFICATION OF INDENTURE.
Except as expressly modified or amended hereby, the Indenture continues
in full force and effect and is in all respects confirmed and preserved.
SECTION 5.2 EFFECTIVENESS.
This Fourth Supplemental Indenture shall be effective as of the date
first written above, provided, however, that the provisions contained in
Articles One, Two, Three and Four hereof shall become effective as of the Merger
Date. In the event that the Merger Agreement is terminated in accordance with
its terms, this Fourth Supplemental Indenture shall automatically become null
and void and the Company, the Parent Guarantor and the Trustee shall continue to
comply with the Indenture. On or promptly following the Merger Date, the New
Guarantor shall furnish to the Trustee an Officers' Certificate certifying that
the Merger has occurred and that Articles One, Two, Three and Four hereof have
become effective.
SECTION 5.3 ADDRESS OF TRUSTEE.
Section 12.02 of the Indenture is hereby amended to provide that the
address of the Trustee is:
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Issuer Services
SECTION 5.4 GOVERNING LAW.
THIS SUPPLEMENTAL INDENTURE AND THE NOTE GUARANTEE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. This Supplemental Indenture is
subject to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
SECTION 5.5 COUNTERPARTS.
This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 5.6 CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided herein, no duties, responsibilities or
liabilities are assumed, or shall be construed to be assumed, by the Trustee by
reason of this Supplemental Indenture. This Supplemental Indenture is executed
and accepted by the Trustee subject to all the terms and conditions set forth in
the Indenture with the same force and effect as if those terms and conditions
were repeated at length herein and made applicable to the Trustee with respect
hereto.
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SECTION 5.7 TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The Trustee shall not be responsible in any manner for or in respect of
the validity or sufficiency of this Supplemental Indenture, or for or in respect
of the recitals contained herein, all of which recitals are made by the Company
and the Guarantor.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed, all as of the date first written
above.
ISSUER:
NABORS HOLDING COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
President
GUARANTORS:
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
President & Chief Operating Officer
XXXXXX INDUSTRIES LTD.
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Vice President--Finance
HSBC BANK USA,
as Trustee
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
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