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EXHIBIT 4.4
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XXXXXX DRILLING COMPANY
and Subsidiary Guarantors
9 3/4% SENIOR NOTES DUE 2006
THIRD SUPPLEMENTAL INDENTURE
Dated as of March 13, 1998
Supplementing the Indenture dated as of November 12, 1996
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee
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THIRD SUPPLEMENTAL INDENTURE
This Third Supplemental Indenture dated and effective as of March 13, 1998
(the "Third Supplemental Indenture") is made and entered into by and among
Xxxxxx Drilling Company, a Delaware corporation (the "Company"), Xxxxxx
Drilling Offshore Company, a Delaware corporation and a wholly owned subsidiary
of the Company ("Xxxxxx Offshore"), and Hercules Offshore Corporation, a Texas
corporation, and Hercules Rig Corp., a Texas corporation, which are wholly-
owned indirectly by the Company, ("Hercules Companies" together with Xxxxxx
Offshore the "New Guarantors"), and Texas Commerce Bank National Association, a
national banking association, as Trustee (the "Trustee").
RECITALS OF THE COMPANY AND THE NEW GUARANTORS
WHEREAS, the Company, the Subsidiary Guarantors and the Trustee have
executed and delivered an Indenture dated as of November 12, among the Company,
the Subsidiary Guarantors and the Trustee (as supplemented by the First and
Second Supplemental Indentures, the "Original Indenture") providing for the
issuance by the Company of $300,000,000 aggregate principal amount of the
Company's 9 3/4% Senior Notes due 2006 (the "Notes") and pursuant to which the
Subsidiary Guarantors have agreed, jointly and severally, to unconditionally
guarantee the due and punctual payment of the principal of, premium, if any,
and interest on the Notes and all other amounts due and payable under the
Original Indenture and the Notes by the Company ("Indenture Obligations");
WHEREAS, Section 9.01(a)(vi) of the Original Indenture provides that under
certain conditions the Company and the Trustee may, without the consent of any
Holder of a Note, may amend or supplement the Original Indenture (x) to add any
Restricted Subsidiary as an additional Subsidiary Guarantor as provided in
Section 10.02 of the Original Indenture or (y) to evidence the succession of
another Person to any Subsidiary Guarantor pursuant to Section 10.04 of the
Original Indenture and the assumption by any such successor of the covenants
and agreements of such Subsidiary Guarantor contained in the Original Indenture
and in the Subsidiary Guarantee of such Subsidiary Guarantor;
WHEREAS, the Company has acquired the Hercules Companies indirectly through
Xxxxxx Offshore (the "Acquisition");
WHEREAS, the Hercules Companies have a fair market value or book value in
excess of $1M and requires the New Guarantors to issue a guarantee under the
Senior Credit Facility;
WHEREAS, Section 10.02 of the Original Indenture provides that the
Acquisition requires: (i) the execution and delivery by the New Guarantors of
this Third Supplemental Indenture whereby the New Guarantors agree to be bound
by the terms of the Original Indenture as applicable to a Subsidiary Guarantor;
and (ii) the execution of a Subsidiary Guarantee of the Notes by the New
Guarantors;
WHEREAS, all conditions and requirements necessary to make this Third
Supplemental Indenture valid and binding upon the Company and the New
Guarantors, and enforceable against the Company and the New Guarantors in
accordance with its terms, have been performed and fulfilled;
NOW, THEREFORE, in consideration of the above premises, each of the parties
hereto agrees, for the benefit of the others and for the equal and
proportionate benefit of the Holders of the Notes, as follows:
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ARTICLE I
ADDITIONAL GUARANTORS
Section 1.1. Addition of Guarantors. Each of the New Guarantors, by
execution and delivery of this Third Supplemental Indenture, hereby agrees to
be bound by the terms of the Indenture as Subsidiary Guarantors.
Section 1.2. Guarantees of Subsidiary Guarantors. Attached as Exhibit A
and incorporated hereby reference, are the respective Subsidiary Guarantees of
the New Guarantees in the form prescribed in the Original Indenture, by which
each of the New Guarantors agrees to guarantee the obligations of the Company,
in accordance with the terms set out in such form of Subsidiary Guarantee.
ARTICLE II
PARTICULAR REPRESENTATIONS AND COVENANTS
Section 2.1. Authority. The Company and each of the New Guarantors are duly
authorized by a resolution of their respective Board of Directors to execute
and deliver this Third Supplemental Indenture, and all corporate action on its
part required for the execution and delivery of this Third Supplemental
Indenture has been duly and effectively taken.
Section 2.2. Correctness of Recitals. The Company and each New Guarantor
represent and warrant that all recitals and statements in this Third
Supplemental Indenture are true and correct.
ARTICLE III
CONCERNING THE TRUSTEE
Section 3.1 Acceptance of Trusts. The trustee accepts the trusts
hereunder and agrees to perform same, but only upon the terms and conditions
set forth in the Indenture.
Section 3.2 Responsibility for Recitals. The recitals and statements
contained in this Third Supplemental Indenture shall be taken as recitals and
statements of the Company, and the Trustee assumes no responsibility for the
correctness of same. The Trustee makes no representations as to the validity
or sufficiency of this Third Supplemental Indenture, except that the Trustee is
duly authorized to deliver it.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1 Relation to the Original Indenture. This Third Supplemental
Indenture shall become effective immediately upon execution and delivery. All
terms and conditions in it shall form a part of the Original Indenture as fully
and with the same effect as if all such terms and conditions had been set forth
in the Original Indenture. The Original Indenture is hereby ratified and
confirmed and shall remain and continue in full force and effect in accordance
with its terms, as supplemented by this Third Supplemental Indenture. The
Original Indenture and the Third Supplemental Indenture shall be read, taken
and construed together as one instrument. Capitalized terms used but not
defined in this Third Supplemental Indenture have the meaning ascribed to such
terms in the Original Indenture.
Section 4.2 Execution in Counterparts. This Third Supplemental Indenture
may be executed in several counterparts, each of which shall be deemed an
original, but all of which together shall constitute one instrument.
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Section 4.3 Governing Law. The internal laws of the State of New York
shall govern and be used to construe this Third Supplemental Indenture and the
new Subsidiary Guarantees executed and delivered pursuant to it.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, all as of the date first above
written.
XXXXXX DRILLING COMPANY
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Sr. Vice President-Finance and
Chief Financial Officer
HERCULES OFFSHORE CORPORATION
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Vice President-Finance
HERCULES RIG CORP.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Vice President-Finance
XXXXXX DRILLING OFFSHORE COMPANY
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: President
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By: /s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
Title: Vice President and Trust Officer
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