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EXHIBIT 4.2
NOBLE DRILLING (▇▇▇▇ ▇▇▇▇▇▇) INC.
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TRUST INDENTURE
AND SECURITY AGREEMENT
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Dated as of ______________, 1998
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TABLE OF CONTENTS
Page
ARTICLE 1. DEFINED TERMS.................................................................3
1.1 Special Definitions....................................................................3
ARTICLE 2. FORM, EXECUTION, ISSUE AND DELIVERY OF NOTES.................................13
2.1 Issue of Notes........................................................................13
2.2 Authentication of Notes; Denominations of Notes and Form..............................14
2.3 Registration of Notes.................................................................14
2.4 Exchange of Notes.....................................................................14
2.5 Transfer of Notes.....................................................................14
2.6 General Rules.........................................................................16
2.7 Valid Obligations.....................................................................16
2.8 Execution and Delivery................................................................17
2.9 Replacement of Notes..................................................................17
ARTICLE 3. PAYMENTS AND DISTRIBUTION THEREOF............................................17
3.1 Payment by Issuer.....................................................................17
3.2 Delivery Expenses.....................................................................18
3.3 Issue Taxes...........................................................................18
3.4 Required Payments of Notes without Premium............................................18
3.5 Optional Prepayment of the Notes with Make-Whole Amount...............................19
3.6 Required Prepayments of Notes.........................................................19
3.7 Surrender of Notes on Prepayment......................................................20
3.8 Provision for Applicable Make-Whole Amount, Yield Protection Amount
and Breakage Amount...................................................................20
Breakage Amount................................................................................23
ARTICLE 4. RECEIPT, DISTRIBUTION AND APPLICATION OF TRUST
ESTATE.......................................................................23
4.1 Application of Shell Contract Revenues When No Indenture Event of Default
is Continuing.........................................................................23
4.2 (a) Payments in Case of an Early Termination.....................................24
(b) Payments in Case of an Event of Loss..................................................25
(c) Payments in Case of a Partial Event of Loss...........................................25
4.3 Payments During Continuance of an Indenture Event of Default..........................27
4.4 Amounts Held by Trustee...............................................................28
4.5 Allocation of Payments................................................................28
4.6 Method of Payment to Holders..........................................................28
4.7 Method of Payment to Issuer...........................................................29
4.8 Payments for which No Application is Otherwise Provided...............................29
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ARTICLE 5. EVIDENCE OF ACTS OF NOTE HOLDERS.............................................29
5.1 Execution by Note Holders or Agents...................................................29
5.2 Future Holders Bound..................................................................29
ARTICLE 6. INDENTURE DEFAULTS - REMEDIES................................................29
6.1 Indenture Events of Default...........................................................29
6.2 Acceleration of Notes.................................................................32
6.3 Annulment of Acceleration of Notes....................................................33
6.4 Default Remedies......................................................................33
6.5 Other Enforcement Rights..............................................................36
6.6 Effect of Sale, etc...................................................................37
6.7 Restoration of Rights and Remedies....................................................38
6.8 Application of Sale Proceeds and Deficiency...........................................38
6.9 Cumulative Remedies...................................................................38
6.10 Limitations on Suits..................................................................39
6.11 Suits for Principal and Interest......................................................39
6.12 Waiver by the Issuer..................................................................39
ARTICLE 7. AFFIRMATIVE COVENANTS........................................................40
7.1 Financial Statements..................................................................41
7.2 Litigation............................................................................43
7.3 Maintenance, Etc......................................................................43
7.4 Environmental Matters.................................................................46
7.5 Further Assurances....................................................................46
7.6 Performance of Obligations............................................................47
7.7 ERISA Information and Compliance......................................................47
7.8 Debt Service Reserve Fund.............................................................47
7.9 Maintenance of Agency.................................................................48
7.10 Additional Assurances.................................................................48
7.11 Year 2000 Compliance..................................................................48
7.12 Change in Location of Collateral or Issuer............................................49
7.13 Change in Issuer's Name...............................................................49
7.14 Corporate Independence................................................................49
7.15 Working Capital Fund..................................................................50
ARTICLE 8. NEGATIVE COVENANTS...........................................................50
8.1 Debt..................................................................................50
8.2 Liens.................................................................................51
8.3 Investments, Loans and Advances.......................................................51
8.4 Dividends, Distributions and Redemptions..............................................51
8.5 Sales and Leasebacks..................................................................51
8.6 Nature of Business....................................................................51
8.7 Limitation on Leases..................................................................51
8.8 Mergers, Etc..........................................................................51
8.9 Proceeds of Notes.....................................................................52
8.10 ERISA Compliance......................................................................52
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8.11 Sale or Discount of Receivables.......................................................53
8.12 Sale of Drilling Rig..................................................................53
8.13 Environmental Matters.................................................................53
8.14 Transactions with Affiliates..........................................................53
8.15 Subsidiaries..........................................................................53
8.16 Location of Issuer....................................................................54
8.17 Acquisition of Notes..................................................................54
8.18 Non-Petition Covenant.................................................................54
ARTICLE 9. THE TRUSTEES.................................................................54
9.1 Certain Duties and Responsibilities of Trustees.......................................54
9.2 Trustees' Compensation and Indemnification............................................55
9.3 Certain Rights of Trustees............................................................56
9.4 Showings Deemed Necessary by a Trustee................................................57
9.5 Status of Monies Received.............................................................58
9.6 Resignation of Trustees...............................................................58
9.7 Removal of Trustees...................................................................58
9.8 Successor Trustee.....................................................................58
9.9 Appointment of Successor Trustees.....................................................58
9.10 Merger or Consolidation of Trustee....................................................59
9.11 Acceptance of Appointment by Successor Trustee........................................59
9.12 Conveyance upon Request of Successor Trustee..........................................59
9.13 Co-Trustees and Additional Trustees...................................................59
9.14 Trustee's Representations and Warranties..............................................60
9.15 Non-Petition Covenant.................................................................61
ARTICLE 10. SUPPLEMENTAL INDENTURES, WAIVERS.............................................61
10.1 Supplemental Indentures Without Note Holders' Consent.................................61
10.2 Waivers and Consents by Note Holders; Supplemental Indentures with
Consent...............................................................................62
10.3 Notice of Supplemental Indenture......................................................63
10.4 Solicitation of Note Holders..........................................................63
10.5 Opinion of Counsel Conclusive as to Supplemental Indentures...........................63
10.6 Effect of Supplemental Indentures.....................................................63
10.7 New Notes.............................................................................64
ARTICLE 11. UNCLAIMED MONIES.............................................................64
11.1 Satisfaction and Discharge of Agreement...............................................64
11.2 Return of Unclaimed Monies............................................................64
ARTICLE 12. MISCELLANEOUS................................................................65
12.1 Successors and Assigns................................................................65
12.2 Partial Invalidity....................................................................65
12.3 Communications........................................................................65
12.4 GOVERNING LAW; SUBMISSION TO JURISDICTION.............................................66
12.5 Limitation on Interest................................................................67
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12.6 Counterparts..........................................................................69
12.7 Headings, etc.; Gender................................................................69
12.8 Amendments............................................................................69
12.9 Benefits of Agreement Restricted to Parties and Note Holders..........................69
12.10 Waiver of Notice......................................................................69
12.11 Intentionally Omitted.................................................................69
12.12 Additional Financing Statement Filings................................................69
12.13 Directly or Indirectly................................................................70
12.14 Exhibits, Annexes and Sections........................................................70
12.15 Officers' Certificate and Opinions of Counsel; Statements to be Contained
Therein...............................................................................70
12.16 Payment of Expenses, Indemnities, etc.................................................71
12.17 NO ORAL AGREEMENTS....................................................................74
12.18 EXCULPATION PROVISIONS................................................................74
12.19 Trustees Not Engaging in a Trade or Business..........................................74
Annex A-1 -- Form of Series A Note
Annex A-2 -- Form of Series B Note
Annex B -- Series A Note Payment Schedule
Annex C -- Form of Intercompany Subordinated Note
Annex D -- Surveys and Inspections
Schedule 7.3 -- Insurance
Schedule 9.2 -- Trustee Fees
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TRUST INDENTURE AND SECURITY AGREEMENT
TRUST INDENTURE AND SECURITY AGREEMENT dated as of _____________, 1998,
between NOBLE DRILLING (▇▇▇▇ ▇▇▇▇▇▇) INC., a Delaware corporation (the
"Issuer"), and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking
association (the "Trustee"; the Trustee and each other Person accepting trusts
created hereby being individually referred to as a "Trustee" and collectively as
the "Trustees").
RECITALS:
WHEREAS, the defined terms used in this Indenture shall have the
respective meanings set forth in Section 1.1 unless elsewhere defined or the
context shall otherwise require;
WHEREAS, the Issuer is authorized by law, and deems it necessary to
borrow money for its proper legal purposes and to mortgage, assign and pledge
its Property to secure the payment thereof and to that end, in the exercise of
said authority, has duly authorized the execution and delivery of this Indenture
providing for the issue of secured promissory notes of the Issuer hereunder;
WHEREAS, the Issuer has duly authorized the issuance of (i) its
drilling vessel secured notes limited in aggregate original principal amount to
Ninety-Five Million, Four Hundred Twelve Thousand, Five Hundred Dollars
($95,412,500) to be known as its Series A Senior Secured Notes, and (ii) its
drilling vessel secured notes limited in aggregate original principal amount to
Sixteen Million, Eight Hundred Thirty-Seven Thousand, Five Hundred Dollars
($16,837,500), to be known as its Series B Senior Secured Notes on the terms
herein provided;
WHEREAS, the Notes and the Trustee's Certificate of Authentication
thereon are to be substantially in the forms set forth in Annexes A-1 and A-2;
and
WHEREAS, all acts and proceedings required by law and by the
Certificate of Incorporation and Bylaws of the Issuer necessary to make the
Notes, when executed by the Issuer and authenticated and delivered by the
Trustee, the legal, valid and binding obligations of the Issuer, and all acts
and proceedings required by law and by the Certificate of Incorporation and
Bylaws of the Issuer necessary to constitute this Indenture a legal, valid and
binding agreement for the uses and purposes herein set forth, in accordance with
its terms, have been done and taken; and the Issuer has duly authorized,
executed and delivered this Indenture;
GRANTING CLAUSE:
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that to secure the prompt
and complete payment of the principal of, and interest and any applicable
Make-Whole Amount on, all of the Notes issued and delivered and Outstanding, the
payment of all other sums owing hereunder and under all other Credit Documents
and the performance of the covenants contained herein and in all other Credit
Documents, and in consideration of the premises and of the covenants contained
herein, the purchase of the Notes by the Purchasers, and the sum of One Dollar
($1.00) paid by the Trustee to the Issuer at or before the delivery hereof, the
receipt and sufficiency whereof are hereby
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acknowledged, the Issuer has hereby granted, bargained, sold, conveyed,
assigned, transferred, mortgaged, affected, pledged, set over, confirmed,
granted a continuing security interest in, and hypothecated and does hereby
grant, bargain, sell, convey, assign, transfer, mortgage, affect, pledge, set
over, confirm, grant a continuing security interest to the Trustee and to any
co-trustee or separate trustee hereafter acting pursuant to this Indenture, and
to their respective successors and assigns in trust forever, all of its right,
title and interest in, to and under the following described Properties (all of
such Properties, including without limitation all properties hereafter
specifically subjected to the lien of this Indenture by any indenture supplement
hereto, being hereinafter collectively referred to as the "Trust Estate"):
(a) All equipment, inventory, fixtures and other goods in all
forms, wherever located and whether now or hereafter existing, which
are owned by the Issuer or in which the Issuer otherwise has any rights
and all parts thereof, all accessions thereto, all replacements or
substitutions therefor, all accounts now or hereafter arising in
connection therewith, and all chattel paper, documents and General
Intangibles covering or relating thereto (any and all such equipment,
inventory, fixtures, other goods, parts, accessions, replacements,
substitutions, accounts, chattel paper, documents and General
Intangibles being herein collectively called the "Pledged Equipment");
(b) All accounts, general intangibles (excluding the Shell
Contract), chattel paper and documents, now owned or hereafter
acquired;
(c) The Operating Services Agreement, the Asset Transfer
Agreement and the Capital Funding Agreement (when and if executed and
delivered);
(d) All Properties subjected to the Lien of this Indenture by
each supplemental indenture entered into and delivered pursuant to
Article 10;
(e) All insurance proceeds, condemnation proceeds and the
accounts, issues, profits, products, revenues and other income of and
from the Shell Contract and the other Properties subjected or required
to be subjected to the Lien of this Indenture and all the estate,
right, title and interest of every nature whatsoever of the Issuer in
and to the same and every part thereof;
(f) The Collection Account, the Debt Service Reserve Fund, the
Working Capital Account and all other monies now or hereafter paid or
deposited or required to be paid or deposited to or with the Trustee
pursuant to Section 4.1 or 4.3 hereof or any other term hereof or any
term of the other Credit Documents and held or required to be held by
any Trustee hereunder;
(g) Any and all other Properties and any and all other rights,
interests and privileges granted to any Trustee in accordance with the
provisions hereof and pursuant to or in connection with the provisions
of the other Credit Documents, including but not limited to the First
Naval Mortgage; and
(h) All proceeds of the foregoing.
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It is expressly contemplated that additional property may from
time to time be pledged, assigned or granted to the Trustee as
additional security for the Outstanding Notes, and the term "Trust
Estate" as used herein shall be deemed for all purposes hereof to
include all such additional property, together with all other property
of the types described above related thereto, and all proceeds and
replacements of the same.
TO HAVE AND TO HOLD, all and singular, the Trust Estate for the uses
and purposes and subject to the terms and provisions set forth in this Indenture
unto the Trustees and their respective successors in trust, and to their
respective assigns forever.
IN TRUST NEVERTHELESS, under and subject to the terms and conditions
herein set forth and for the equal and proportionate, unless otherwise stated
herein, benefit and security of the holders from time to time of the Outstanding
Notes and for the enforcement of the prompt and complete payment when due of all
sums due in connection with the Outstanding Notes, this Indenture and each of
the other Credit Documents and for the performance and observance by the Issuer
of the covenants, obligations and conditions to be performed and observed by the
Issuer and all other parties, other than the Trustees and the holders of
Outstanding Notes, to this Indenture and each of the other Credit Documents;
PROVIDED, HOWEVER, that these presents are upon the condition that if
the Issuer, its successors or assigns, shall satisfy the conditions set forth in
Section 11.1 for a release of the Trust Estate in full, then this Indenture, and
the estates and rights assigned in the other Credit Documents, shall cease,
determine and be void; otherwise they shall remain and be in full force and
effect;
IT IS HEREBY FURTHER COVENANTED AND AGREED that all of the Notes are to
be issued, authenticated and delivered and that the Trust Estate is to be held
and applied by the Trustees, subject to the further covenants, agreements,
conditions, uses and trust hereafter set forth. The Issuer for itself and its
successors and permitted assigns does hereby covenant and agree with the
Trustees and their respective successors in trust for the benefit of all present
and future holders of the Outstanding Notes, or any of them, as follows:
ARTICLE 1. DEFINED TERMS.
1.1 Special Definitions. For purposes of this Indenture, the following
terms shall have the respective meanings (i) set forth below, (ii) set forth in
the Section or other part of this Indenture following such term or (iii)
provided for in the section or other part of such other Credit Document as may
be referred to immediately following such term (such definitions to be equally
applicable to both the singular and plural forms of the terms defined):
Affiliate -- at any time, and with respect to any Person, any
other Person that at such time directly or indirectly through one or
more intermediaries Controls, or is Controlled by, or is under common
Control with, such first Person. As used in this definition, "CONTROL"
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
Unless the context otherwise clearly requires, any reference to an
"Affiliate" is a reference to an Affiliate of the Issuer.
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Asset Purchase Agreement -- the Asset Purchase Agreement with
respect to the Series B Notes, dated as of the date hereof, among
Banner Receivables Corporation, BTM Capital Corporation, BTM, Ltd., as
agent, and the banks party thereto, as from time to time amended,
supplemented or modified.
Asset Transfer Agreement -- the Asset Transfer Agreement of
even date herewith from the Parent to the Issuer covering the Drilling
Rig and the Shell Contract.
Assignment of Drilling Contract Revenue -- has the meaning set
out in Schedule B to the Note Purchase Agreements.
Banner Credit Agreement -- the Credit Agreement dated as of
April 23, 1993, among Banner Receivables Corporation, BTM, Ltd., and
BTMTC, as administrator, as such agreement has been and may be from
time to time further amended, supplemented or modified.
Breakage Amount -- the amount determined pursuant to Section
3.8(c).
Breakage Party -- has the meaning set out in Section 3.8(c).
BTM, Ltd. -- The Bank of Tokyo - Mitsubishi, Ltd., New York
Branch.
BTMTC -- Bank of Tokyo - Mitsubishi Trust Company.
Business Day -- a day other than a Saturday, a Sunday or a day
on which banks are required or allowed by law (other than a general
banking moratorium or holiday for a period exceeding four (4)
consecutive days) to be closed in one or both of the State of Texas and
New York.
Capital Funding Agreement -- has the meaning set out in
Schedule B to the Note Purchase Agreements.
Closing Date -- the date of the initial issuance of the Notes.
Code -- the Internal Revenue Code of 1986, as amended from
time to time.
Collateral -- the Trust Estate, and any and all other
collateral held by any one or more of the Trustees to secure the Notes
or any other obligations created pursuant to the Credit Documents,
including without limitation the Credit Documents and all collateral
covered thereby.
Collection Account -- has the meaning set out in Section 4.1.
Consolidated -- the consolidation of any Person with its
properly consolidated subsidiaries, in accordance with GAAP.
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Contested in Good Faith -- actively contested in good faith by
appropriate actions or proceedings provided that (i) adequate book
reserves have been established with respect thereto as required by
GAAP, (ii) the applicable Person's title to, and its right to use, any
of its material Property is not materially adversely affected thereby
and (iii) the action to be taken will not result in any risk of
imposition of civil or criminal penalties on the Trustee or the holders
of the Notes or substantial danger of sale, forfeiture or loss of the
Drilling Rig.
CP Conduit -- Gotham Funding Corporation, Banner Receivables
Corporation or any other commercial paper conduit administered by BTMTC
which is an owner and holder of a Series B Note.
Credit Documents -- this Indenture, the Note Purchase
Agreements, the Notes, the Performance Agreement, the Assignment of
Drilling Contract Revenue, the Operating Services Agreement, the Asset
Transfer Agreement, the Capital Funding Agreement, if any, the First
Naval Mortgage, the SDDI Acknowledgment and Consent, and any and all
other agreements or instruments now or hereafter executed and delivered
by the Company or the Parent in connection with or a security for the
payment and performance of the Notes.
Credit Support Party -- BTM, Ltd., BTMTC, BTM Capital
Corporation and any other financial institutions providing funding,
liquidity, credit or asset purchase support with respect to sourcing
the funds for the Series B Notes.
Debt -- for any Person the sum of the following (without
duplication): (i) all obligations of such Person for borrowed money or
evidenced by bonds, debentures, notes or other similar instruments
(including principal, interest, fees and charges); (ii) all obligations
of such Person (whether contingent or otherwise) in respect of bankers'
acceptances, letters of credit, surety or other bonds and similar
instruments; (iii) all obligations of such Person to pay the deferred
purchase price of Property or services (other than for borrowed money);
(iv) all obligations under leases which shall have been, or should have
been, in accordance with GAAP, recorded as capital leases in respect of
which such Person is liable (whether contingent or otherwise); (v) all
obligations under leases which require such Person or its Affiliate to
make payments over the term of such lease, including payments at
termination, which are substantially equal to at least eighty percent
(80%) of the purchase price of the Property subject to such lease plus
interest at an imputed rate of interest; (vi) all Debt (as described in
the other clauses of this definition) and other obligations of others
secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person; (vii) all Debt (as described in the other
clauses of this definition) and other obligations of others guaranteed
by such Person or in which such Person otherwise assures a creditor
against loss of the debtor or obligations of others; (viii) all
obligations or undertakings of such Person to maintain or cause to be
maintained the financial position or covenants of others or to purchase
the Debt or Property of others; (ix) obligations to deliver goods or
services in consideration of advance payments; (x) obligations to pay
for goods or services whether or not such goods or services are
actually received or utilized by such Person; (xi) any capital stock of
such Person in which such Person has a mandatory obligation to redeem
such stock; and (xii) all obligations of such Person under Hedging
Agreements.
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Debt Service Reserve Fund -- has the meaning set out in
Section 7.8.
Default Rate -- 2% per annum above the prematurity interest
rate set forth in the Series B Notes; except to the extent a "Default
Rate" is called for in the Series A Notes when such rate shall be 2%
per annum above the prematurity interest rate set forth in the Series A
Notes.
Definitive Notes -- Series A Notes in the form of Exhibit A-1
attached hereto and Series B Notes in the form of Exhibit A-2 attached
hereto.
Drilling Order -- has the meaning attributed thereto in
Schedule B to the Note Purchase Agreements.
Drilling Rig -- the drilling vessel and all equipment
appurtenant thereto known as the "Noble ▇▇▇▇ ▇▇▇▇▇▇" being the vessel
and all equipment and other properties set out and described in the
First Naval Mortgage.
Environmental Laws -- any and all Governmental Requirements
pertaining to health, safety or the environment or the regulation of
hazardous substances or pollutants in effect in any and all
jurisdictions in which the Issuer is conducting or at any time has
conducted business, or where any Property of the Issuer is located,
including without limitation, the Oil Pollution Act of 1990 ("OPA"),
the Clean Air Act, as amended, the Comprehensive Environ mental,
Response, Compensation, and Liability Act of 1980 ("CERCLA"), as
amended, the Federal Water Pollution Control Act, as amended, the
Occupational Safety and Health Act of 1970, as amended, the Resource
Conservation and Recovery Act of 1976 ("RCRA"), as amended, the Safe
Drinking Water Act, as amended, the Toxic Substances Control Act, as
amended, the Superfund Amendments and Reauthorization Act of 1986, as
amended, the Hazardous Materials Transportation Act, as amended, and
any other international, federal, local or state environmental
conservation or protection laws. The terms "oil" and "discharge" shall
have the meanings specified in OPA, the terms "hazardous substance" and
"release" (or "threatened release") have the meanings specified in
CERCLA, except that "hazardous substance" shall also include petroleum
and any fraction thereof, and the terms "solid waste" and "disposal"
(or "disposed") have the meanings specified in RCRA; provided, however,
that (i) in the event either OPA, CERCLA or RCRA is amended so as to
broaden the meaning of any term defined thereby, such broader meaning
shall apply subsequent to the effective date of such amendment and (ii)
to the extent the laws of the state in which any Property of the Issuer
is located establish a meaning for "oil," "discharge," "hazardous
substance," "release," "solid waste" or "disposal" which is broader
than that specified in either OPA, CERCLA or RCRA, such broader meaning
shall apply.
ERISA -- the Employee Retirement Income Security Act of 1974,
as amended from time to time.
ERISA Affiliate -- has the meaning set out in Schedule B to
the Note Purchase Agreements.
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ERISA Event -- (i) a "reportable event" described in Section
4043 (c)(5), (c)(6), (c)(11) or (c)(13) of ERISA and the regulations
issued thereunder, (ii) the filing of a notice of intent to terminate a
Plan or the treatment of a Plan amendment as a termination under
section 4041 of ERISA, (iii) the institution of proceedings by the
Pension Benefit Guaranty Corporation ("PBGC") under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan or (iv) the partial or complete withdrawal of
Issuer or any ERISA Affiliate from a Multiemployer Plan.
Event of Loss -- has the meaning set out in the First Naval
Mortgage.
Excepted Liens -- (i) Liens for taxes, assessments or other
governmental charges or levies not yet due or which are being Contested
In Good Faith; (ii) Liens in connection with workmen's compensation,
unemployment insurance or other social security, old age pension or
public liability obligations not yet due or which are being Contested
In Good Faith; (iii) operators', vendors', carriers', warehousemen's,
repairmen's, mechanics', workmen's, materialmen's, construction,
shipyard liens (during repair or upgrade periods) or other like Liens
arising by operation of law in the ordinary course of business or
statutory landlord's liens, each of which is in respect of obligations
that have not been outstanding more than 60 days (so long as no action
has been taken to file or enforce such Liens within said 60 day period)
or which are being Contested In Good Faith; (iv) deposits of cash or
securities to secure the performance of bids, trade contracts, leases,
statutory obligations and other obligations of a like nature incurred
in the ordinary course of business; and (v) Liens permitted by the
Credit Documents.
Exchange Act -- has the meaning set forth in Schedule B to the
Note Purchase Agreements.
First Naval Mortgage -- has the meaning set forth in Schedule
B to the Note Purchase Agreements.
GAAP -- those generally accepted accounting principles and
practices which are recognized as such by the Financial Accounting
Standards Board (or any generally recognized successor) as in effect
from time to time.
General Intangibles -- all general intangibles related to any
property that is part of the Trust Estate, including, without
limitation, all (i) letters of credit, bonds, guaranties, purchase or
sales agreements and other contractual rights other than the Shell
Contract, rights to performance, and claims for damages, refunds
(including tax refunds) or other monies due or to become due; (ii)
orders, franchises, permits, certificates, licenses, consents,
exemptions, variances, authorizations or other approvals by any
governmental agency or court; (iii) consulting, engineering and
technological information and specifications, design data, patent
rights, trade secrets, literary rights, copyrights, trademarks, labels,
trade names and other intellectual property; (iv) business records,
computer tapes and computer software; (v) goodwill; and (vi) all other
intangible personal property, whether similar or dissimilar to the
other property that is part of the Trust Estate other than the Shell
Contract.
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Governmental Authority -- the country, the state, county, city
and political subdivisions in which any Person or such Person's
Property is located or which exercises jurisdiction over any such
Person or such Person's Property, and any court, agency, department,
commission, board, body, bureau or instrumentality of any of them
including monetary authorities which exercises jurisdiction over any
such Person or such Person's Property. Unless otherwise specified, all
references to Governmental Authority herein shall mean a Governmental
Authority having jurisdiction over, where applicable, the Issuer, the
Parent or any of their Property or the Trustees or any Note Holder.
Governmental Requirements -- any law, statute, code,
ordinance, order, determination, rule, regulation, publication,
judgment, decree, injunction, franchise, permit, registration, consent,
approval, certificate, license, authorization or other directive or
requirement (whether or not having the force of law), including,
without limitation, Environmental Laws, energy regulations and
occupational, safety and health standards or controls, of any
Governmental Authority.
Hedging Agreements -- any commodity, interest rate or currency
swap, cap, floor, collar, forward agreement or other exchange or
protection agreements or any option with respect to any such
transaction.
Indemnified Parties -- has the meaning set out in Section
12.16(b).
Indemnity Matters -- any and all actions, suits, proceedings
(including any investigations, litigation or inquiries), orders,
claims, demands and causes of action made or threatened against a
Person and, in connection therewith, all settlements, judgments,
losses, liabilities, obligations, damages, penalties, fines (including,
without limitation, consequential damages) or reasonable costs and
expenses of any kind or nature whatsoever incurred by such Person
whether caused by the sole or concurrent negligence (but not gross
negligence or willful misconduct) of such Person seeking
indemnification.
Indenture -- this Trust Indenture and Security Agreement as
originally executed or as it may from time to time be supplemented or
amended in accordance with the provisions hereof.
Indenture Default -- an event or condition the occurrence of
which would, with the lapse of time or the giving of notice or both,
become an Indenture Event of Default.
Indenture Event of Default -- has the meaning set out in
Section 6.1.
Independent Director -- has the meaning set out in the
Certificate of Incorporation of the Issuer, as amended, as it existed
on September 22, 1998.
Institutional Investor -- has the meaning set out in Schedule
B to the Note Purchase Agreements.
Issuer -- has the meaning set out in the first paragraph of
this Indenture.
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Investment Grade -- a rating equal to or higher than "BBB-" by
Standard & Poor's Rating Services, a division of The McGraw Hill
Companies, Inc. or any successor thereto or equal to or higher than
"Baa3" by ▇▇▇▇▇'▇ Investors Service, Inc. or any successor thereto or a
comparable rating by another nationally recognized statistical rating
organization, which rating and organization are approved by the
Majority Holders.
Lien -- any interest in Property securing an obligation owed
to, or a claim by, a Person other than the owner of the Property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the security interest or lien arising
from a mortgage, encumbrance, pledge, conditional sale or other title
retention agreement, trust receipt or a lease, consignment or bailment
for security purposes. The term "Lien" shall include reservations,
exceptions, encroachments, easements, rights-of-way, covenants,
conditions, restrictions, leases and other title exceptions and
encumbrances (including, with respect to stock, stockholder agreements,
voting trust agreements, buy back agreements and all similar
agreements) affecting the Property. For the purposes of this Indenture,
a Person shall be deemed to be the owner of any Property which it has
acquired or holds subject to a conditional sale agreement, financing
lease or other arrangement pursuant to which title to the Property has
been retained by or vested in some other Person for security purposes,
and such retention or vesting shall constitute a Lien.
Liquidity Agreement -- the Liquidity Agreement, dated as of
_______, 1998, among Banner Receivables Corporation, BTM, Ltd., as
agent, the banks parties thereto and BTMTC as administrator, as from
time to time amended, supplemented or modified.
Liquidity Documents -- the Banner Credit Agreement, the
Liquidity Agreement and the Asset Purchase Agreement.
Loss Payment Date -- the date that the Company shall receive
the proceeds of any insurance payment or settlement or any condemnation
award or other payment in relation to an Event of Loss.
MPPAA -- Multiemployer Pension Plan Amendments Act of 1980, as
amended.
Majority Holders -- at any time, holders of more than
fifty-one percent (51%) in aggregate principal amount of all Notes then
Outstanding (exclusive of any Notes held by the Issuer or any Affiliate
of the Issuer).
Make-Whole Amount -- has the meaning set out in Section 3.8.
Material -- has the meaning set out in Schedule B to the Note
Purchase Agreements.
Material Adverse Effect -- has the meaning set out in Schedule
B to the Note Purchase Agreements.
Maturity Date -- has the meaning set out in Schedule B to the
Note Purchase Agreements.
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Multiemployer Plan -- has the meaning set out in Schedule B to
the Note Purchase Agreements.
Noble Corp. -- Noble Drilling Corporation, a Delaware
corporation.
Note Holder -- the owner and holder of a Note registered with
the Issuer as provided in Section 2.3.
Note Purchase Agreements -- the separate Note Purchase
Agreements dated as of September 24, 1998, between the Issuer and each
of the Purchasers in respect of the Notes.
Notes -- any or all of the Series A Notes and Series B Notes.
Operating Services Agreement -- has the meaning set forth in
Schedule B to the Note Purchase Agreements.
Opinion of Counsel -- an opinion of outside counsel (which may
from time to time serve as counsel for the Issuer, for the Trustee or
for a Note Holder) reasonably acceptable to the Trustee, which opinion
is in scope, form and substance reasonably satisfactory to the Trustee
and the Trustee's counsel.
outer Continental Shelf -- shall have the meaning assigned to
such term in 43 U.S.C. Section 1331.
Outstanding -- when used with reference to Notes shall mean,
as of any particular time, all Notes authenticated and delivered by the
Trustee under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Notes for the payment or prepayment of which
moneys in the necessary amount shall have been deposited in
trust with the Trustee; provided that if such Notes are to be
prepaid prior to the maturity thereof, notice of such
prepayment shall have been given as provided in Section 3.5 of
this Indenture, or provision satisfactory to the Trustee shall
have been made for giving such notice; and
(c) Notes in lieu of or in substitution for which
other Notes shall have been delivered pursuant to the terms of
Section 2.4, 2.5 or 2.9 of this Indenture.
Parent -- Noble Drilling (U.S.) Inc., a Delaware corporation.
Payment Date -- the twentieth (20th) day of each month of each
year beginning in the calendar month following the Closing Date, and
continuing through the Maturity Date.
Pension Plans -- employee pension benefit plans (as defined in
Section 3 of ERISA) to which from time to time the Issuer is required
to contribute.
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Performance Agreement -- has the meaning set forth in Schedule
B to the Note Purchase Agreements.
Permitted Investments -- (a) direct obligations of the United
States of America (including obligations issued or held in book-entry
form on the books of the Department of the Treasury of the United
States of America and certificates or other instruments evidencing
ownership interests in such direct obligations of the United States of
America such as CATS, TIGRS, Treasury Receipts and Stripped Treasury
Coupons) which mature within one (1) year after the acquisition
thereof; (b) obligations for which the timely payment of the principal
thereof are fully guaranteed by the United States of America or the
Federal Deposit Insurance Corporation, which mature within one (1) year
after the acquisition thereof; (c) certificates of deposit of, or time
deposits in, any bank (including any Trustee) or trust company
organized under the laws of the United States of America or any state
thereof whose unsecured obligations are accorded one of the two highest
ratings by Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc. or ▇▇▇▇▇'▇ Investors Service, Inc. and which have
capital and unimpaired surplus of at least Five Hundred Million Dollars
($500,000,000), maturing within ninety (90) days after the acquisition
thereof; (d) readily marketable commercial paper of corporations doing
business in and incorporated under the laws of the United States of
America or any State thereof given on the date of the investment a
credit rating of at least P-1 by ▇▇▇▇▇'▇ Investor Services, Inc., or
A-1 by Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc. in each case due within 90 days after the date of
the making of the investment; and (e) investments in a money-market
fund (including any fund for which the Trustee or any Affiliate of the
Trustee serves as adviser or sponsor or otherwise receives compensation
with respect to such fund) rated AAAm or better by Standard & Poor's
Ratings Services, a division of The McGraw Hill Companies, Inc. or Aaa
by ▇▇▇▇▇'▇ Investors Services, Inc. (or equivalent categories that may
be established by such rating services).
Person -- an individual, partnership, corporation, limited
liability company, trust, unincorporated association or organization,
government, governmental agency or governmental subdivision.
Plans -- employee benefit plans (as defined in Section 3(3) of
ERISA) sponsored, maintained or contributed to by the Issuer or an
ERISA Affiliate.
Pledged Equipment -- has the meaning set forth in Paragraph
(a) of the Granting Clause.
Property -- any interest in any kind of property or asset,
whether real, personal or mixed, and whether tangible or intangible.
Purchasers -- each Person named in Schedule A to the Note
Purchase Agreements.
QPAM -- a "qualified professional asset manager" under Part V
of the QPAM Exemption.
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QPAM Exemption -- has the meaning set out in Schedule B to the
Note Purchase Agreements.
Regulatory Change -- means, relative to any Credit Support
Party: any change in (or the adoption, implementation, change in phase
in or commencement of effectiveness of) any (i) United States federal
or state law or foreign law applicable to such Credit Support Party;
(ii) regulation, interpretation, directive, requirement or request
(whether or not having the force of law) applicable to such Credit
Support Party of any court, government authority charged with the
interpretation or administration of any law referred to in clause (i)
above or of any fiscal, monetary or other authority having jurisdiction
over such Credit Support Party; (iii) GAAP or regulatory accounting
principles applicable to such Credit Support Party; or (iv) any change
in the application to such Credit Support Party of any existing law,
regulation, interpretation, directive, requirement, request or
accounting principles referred to in clause (i), (ii) or (iii) above.
Required Holders -- at any time, holders of more than
fifty-one percent (51%) in aggregate principal amount of all of the
Series A Notes then Outstanding and fifty-one percent (51%) in
aggregate principal amount of all Series B Notes then Outstanding (in
each case, exclusive of any Notes held by the Issuer or any Affiliate
of the Issuer).
Responsible Officer -- with respect to any corporation, the
chairman or a vice chairman of the board (if an officer), the
president, the chief executive officer, the chief financial officer,
the chief operating officer, executive vice president, senior vice
president, second vice president or any other vice president, the
controller, the treasurer, any assistant treasurer or the secretary;
and with respect to any Trustee which is a corporation or banking
association, any vice president, corporate trust officer or other
officer, in each case employed within the corporate trust department of
such Trustee.
SDDI -- has the meaning set out in Schedule B to the Note
Purchase Agreements.
SDDI Acknowledgment and Consent -- has the meaning set out in
Schedule B to the Note Purchase Agreements.
Security -- has the same meaning as in Section 2(1) of the
Securities Act of 1933, as amended.
Series A Notes -- has the meaning set out in Section 2.1(a).
Series B Notes -- has the meaning set out in Section 2.1(b).
Shell Contract -- has the meaning set out in Schedule B to the
Note Purchase Agreements.
Shortfall -- has the meaning set out in Section 7.8.
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Subsidiary -- has the meaning set out in Schedule B to the
Note Purchase Agreements.
Transaction Document -- has the meaning set out in Section
3.8(b).
Trust Estate -- has the meaning set out in the Granting Clause
hereof.
Trustee -- has the meaning set out in the first paragraph of
this Indenture.
Trustee Security Document -- has the meaning set out in
Section 10.2.
UCC -- has the meaning set out in Section 6.4.
Voting Stock -- capital stock of any class or classes of a
corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the corporate directors
(or Persons performing similar functions).
Working Capital Fund -- has the meaning set out in Section
7.15.
Written Request -- with respect to any Person a written order
or request signed in the name of such Person by a Responsible Officer
of such Person (if a corporation) or a general or managing partner (if
a partnership) or the manager if a limited liability company or the
individual (if an individual).
Year 2000 Problem -- the risk that computer hardware or
software applications or other data processing capacities used by the
Issuer may be unable to recognize and perform properly date-sensitive
functions involving certain dates before and any date after December
31, 1999.
Yield Protection Amount -- has the meaning set out in Section
3.8(b).
ARTICLE 2. FORM, EXECUTION, ISSUE AND DELIVERY OF NOTES.
2.1 Issue of Notes.
(a) The Issuer has authorized the issue and sale of
Ninety-Five Million, Four Hundred and Twelve Thousand, Five Hundred
Dollars ($95,412,500) aggregate original principal amount of its
______% Series A Senior Secured Notes due _________ (such notes and all
notes given in substitution or exchange therefore are herein
collectively called the "Series A Notes"). The Series A Notes shall be
issuable as fully registered Notes in the form
set out in Annex A-1 to this Indenture.
(b) The Issuer has also authorized the issue and sale of
Sixteen Million, Eight Hundred Thirty-Seven Thousand, Five Hundred
Dollars ($16,837,500) aggregate original principal amount of its ____%
Series B Senior Secured Notes due ______ (such notes and
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all notes given in substitution or exchange therefor are herein
collectively called the "Series B Notes"). The Series B Notes shall be
issuable as fully registered Notes in the form set out in Annex A-2 of
this Indenture.
2.2 Authentication of Notes; Denominations of Notes and Form.
(a) Authentication. The Notes shall be of the tenor and
purport above recited, and the maturity date of each series of Notes
shall be determined, on or prior to the initial issuance of such
series, in the manner contemplated by the Note Purchase Agreements.
Only such of the Notes as shall bear thereon a certificate in form
substantially as set forth in the form of Trustee's Certificate of
Authentication contained in Annex A-1 or Annex B-2, as the case may be,
executed by the Trustee, shall be valid or become obligatory for any
purpose or entitle the holder thereof to any right or benefit under
this Indenture, and the Certificate of Authentication by the Trustee
upon any such Note executed on behalf of the Issuer as aforesaid shall
be conclusive evidence that the Note so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture. Subject to the provisions of Section
2.9 respecting Notes issued in replacement of lost or stolen Notes, the
aggregate principal amount of all Notes which may be issued and
outstanding under this Indenture at any time shall not exceed One
Hundred Twelve Million, Two Hundred Fifty Thousand Dollars
($112,250,000) less the aggregate amount of prepayments of principal
made on the Notes up to such time.
(b) Denominations. The Notes shall be issued in minimum
denominations of Five Hundred Thousand Dollars ($500,000); provided,
however, that if it is necessary to enable the registration of transfer
by a holder of its entire holding of Notes, a Note may be in a
denomination which is less than Five Hundred Thousand Dollars
($500,000).
(c) Form. All Notes shall be issued in the form of Definitive
Notes, duly executed by the Company and authenticated by the Trustee as
hereinabove provided.
2.3 Registration of Notes. All Notes issuable under this Indenture
shall be registered Notes. The Issuer shall cause to be kept at its agency,
maintained pursuant to Section 7.9, a register for the registration and transfer
of Notes. The name and address of each holder of record of one or more Notes,
each registration of transfer thereof and the name and address of each
transferee of one or more Notes shall be registered in such register. The Person
in whose name any Note shall be registered shall be deemed and treated as the
owner and holder thereof for all purposes of this Indenture, and the Issuer and
the Trustee shall not be affected by any notice or knowledge to the contrary.
2.4 Exchange of Notes. Upon surrender of any Note at the agency of the
Issuer maintained pursuant to Section 7.9, the Issuer, at the request of the
holder thereof, will execute and deliver, at the Issuer's expense (except as
provided in Section 2.6 below), and the Trustee will authenticate, one or more
new Notes payable to such holder in exchange therefor, of like tenor for a like
aggregate principal amount in authorized denominations.
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2.5 Transfer of Notes.
(a) General. Any Note may be transferred at the agency of the
Issuer maintained pursuant to Section 7.9, by surrendering such Note
for cancellation, accompanied by a written instrument of transfer in a
form reasonably satisfactory to the Issuer and the Trustee (which must
specify the taxpayer identification number of the transferee), duly
executed by the holder of such Note or by its attorney duly authorized
in writing. Thereupon the Issuer, at its expense, shall issue in the
name of the transferee or transferees, and arrange for the
authentication by the Trustee of (and the Trustee shall authenticate)
and deliver in exchange therefor, a new Note or Notes, of a like tenor
for a like aggregate principal amount, in authorized denominations.
(b) Legends. Each Note shall bear a legend in substantially
the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. THE HOLDER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE ISSUER IS NOT REQUIRED TO REGISTER
THE NOTES UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY IN ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EITHER CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION."
(c) Subsequent Transferee Representations. Any transferee, by
its acceptance of a Note registered in its name (or the name of its
nominee), shall be deemed to have made the representations set forth in
Sections 6.1 and 6.2 of the Note Purchase Agreements, provided,
however, that, such transferee will not be deemed to have made the
representation set forth in Section 6.2(c), (d) or (g) unless such
transferee shall have made the disclosures referred to therein to the
Issuer at least five Business Days prior to its acceptance of such Note
and shall have received prior to such acceptance of such Note a
certificate from the Issuer stating that (1) the Issuer is neither a
"party in interest" (as defined in Section 3(14) of ERISA) nor a
"disqualified person" (as defined in Section 4975(e)(2) of the Code),
with respect to any plan identified pursuant to Section 6.2(c) or (g)
or (2) with respect to any plan identified pursuant to Section 6.2(d)
neither the Issuer nor any "affiliate" (as defined in Section V(e) of
the QPAM Exemption) has at such time, or has exercised during the
immediately preceding one year, the authority to appoint or terminate
the QPAM as manager of the assets of any plan identified in writing
pursuant to Section 6.2(d) or to negotiate the terms of said QPAM's
management agreement on behalf of any such identified plan, and
provided, further, that, such transferee will not be deemed to have
made the representation set forth in Section 6.2(b), (c) or (d) unless
the applicable Prohibited Transaction Class Exemption referred to
therein remains in effect at that time or another similar Prohibited
Transaction Class Exemption is then available. The Issuer shall
exercise reasonable due diligence as is necessary to respond to any
such disclosure, provided that, if the Issuer shall not respond within
five Business Days following receipt of any such disclosure, it shall
be deemed to
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have made the statement set forth in either clause (1) or (2), as
applicable, of this Section 2.5(c). If the Issuer shall respond within
five Business Days following receipt of any such prospective transferee
disclosure and shall state that the Issuer is unable to make the
statement set forth in either clause (1) or (2), as applicable, of this
Section 2.5(c) (which statement shall include a description of the
basis for its determination), the Trustee shall not be permitted (and
the Issuer shall not be required) to register the transfer to such
prospective transferee of the Note.
2.6 General Rules.
(a) All transfers, exchanges or replacements of Notes pursuant
to Section 2.4, Section 2.5 or Section 2.9 shall be made without
expense to the holder of the Notes, except that any stamp taxes or
other governmental charges required to be paid with respect to the same
shall be paid by the Note Holder requesting such transfer, exchange or
replacement as a condition precedent to the exercise of such privilege,
unless an Indenture Event of Default has occurred and is continuing, in
which case Issuer shall be liable for such stamp taxes or other
governmental charges. All Notes surrendered for transfer, exchange or
replacement shall be canceled and destroyed by the Trustee. Each new
Note delivered pursuant to Section 2.4 or Section 2.5 shall be dated
and bear interest from the most recent date to which interest has been
paid on the surrendered Note or Notes, or dated the date of the
surrendered Note or Notes if no interest has been paid thereon. The
Trustee shall make a notation on each new Note delivered pursuant to
Section 2.4, Section 2.5 or Section 2.9 of the amount of all payments
of principal previously made on the old Note or Notes with respect to
which such new Note is issued. The Issuer may deposit fully executed
but unauthenticated Notes with the Trustee, which shall hold such Notes
(as agent of the Issuer) for subsequent authentication and issuance and
delivery by the Issuer pursuant to this Article 2. The Issuer shall not
be required to register the transfer, exchange or replacement of,
pursuant to this Article 2, (i) any Note during the five (5) days
preceding the due date of any payment thereon or (ii) any Note after
the Issuer shall have given notice pursuant to Article 3 of this
Indenture of the prepayment thereof and prior to the prepayment date
specified in such notice.
(b) With respect to the CP Conduit as a Purchaser, each holder
of a Note, by its acceptance of said Note, hereby agrees that until the
368th day following the maturity of the last maturing commercial paper
note to be issued by the CP Conduit in connection with its funding of
its investment in the Notes, no holder of a Note will institute, nor
will said holder join with others in instituting, any involuntary
bankruptcy or analogous proceeding against the CP Conduit under any
bankruptcy, reorganization, receivership or similar law, domestic or
foreign, as now or hereafter in effect.
2.7 Valid Obligations. All Notes executed, authenticated and delivered
in exchange for, upon transfer of, or in replacement of, other Notes as provided
in this Indenture shall be the valid obligations of the Issuer, evidencing the
same debt as such other Notes, and shall be entitled to the benefits of this
Indenture to the same extent as the Notes in exchange for or upon transfer or
replacement of which they were executed and delivered.
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2.8 Execution and Delivery. The Notes may be typewritten, printed or
lithographed or produced by any other means acceptable to the Trustee, and shall
be signed on behalf of the Issuer by the manual signature of one of the
Responsible Officers under its corporate seal (which may be printed, engraved or
otherwise reproduced thereon or affixed thereto) and attested by the manual
signature of the Secretary or one of the Assistant Secretaries of the Issuer. In
the case that any of the officers who shall have signed or sealed any of the
Notes shall cease to be such officer or officers of the Issuer before the Notes
so signed or sealed shall have been delivered by or on behalf of the Issuer,
such Notes may nevertheless be delivered and issued and, upon such delivery and
issue, shall be binding upon the Issuer as though those who signed or sealed the
same had continued to be such officer or officers.
2.9 Replacement of Notes. Upon receipt by the Issuer and the Trustee of
evidence reasonably satisfactory to each of them of the ownership of and the
loss, theft, destruction or mutilation of any Note and
(a) in the case of loss, theft or destruction, (i) if the
holder is a Purchaser, its nominee or other nationally recognized bank,
insurance company, benefit society or other institutional investor,
upon receipt of an unsecured indemnity agreement signed by the holder
of the Note in form reasonably satisfactory to the Issuer and the
Trustee to save each of them harmless, or (ii) otherwise, upon receipt
of such security or indemnity as may be reasonably required by the
Issuer or the Trustee to save each of them harmless, or
(b) in the case of mutilation, upon surrender and cancellation
thereof, the Issuer, at its own expense, will execute and deliver in
lieu thereof, and arrange for the authentication by the Trustee of (and
the Trustee will authenticate), a new Note of like tenor, dated and
bearing interest from the date to which interest has been paid on such
lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest has been paid
thereon.
ARTICLE 3. PAYMENTS AND DISTRIBUTION THEREOF.
3.1 Payment by Issuer. Anything in this Indenture or in the Notes to
the contrary notwithstanding, but subject to the provisions of Section 12.5
hereof, the Issuer will pay all amounts payable with respect to the Notes held
by each Purchaser or other registered holder of Notes (without any presentment
of any such Notes and without any notation of such payment being made thereon)
in lawful money of the United States of America to the Trustee for payment on
behalf of the Issuer as provided in this Article 3 and in Article 4. In any case
where the date of maturity of principal of, and interest and any applicable
Make-Whole Amount, Yield Protection Amount or Breakage Amount on, the Notes or
the date fixed for any prepayment (in whole or in part) of the Notes will not be
a Business Day, then payment of such principal of, and interest and any
applicable Make-Whole Amount, Yield Protection Amount or Breakage Amount on, the
Notes need not be made on such date but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for such prepayment. Each holder of a Note, by its acceptance
of such Note, agrees that (i) the Trustee, in its individual capacity, shall not
be liable to the holder of any Note for any amounts payable under any Note or
this Indenture, and
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(ii) the Trustee, in its individual capacity, shall not have any liability under
this Indenture, except as provided herein.
3.2 Delivery Expenses. If any holder of a Note shall surrender any Note
to the Issuer or to the Trustee pursuant to this Indenture, the Issuer will pay
the cost of delivering to or from such holder's home office from or to the
agency of the Issuer maintained pursuant to Section 7.9, as the case may be,
insured to such holder's satisfaction, the surrendered Note and any Note issued
in substitution or replacement for the surrendered Note.
3.3 Issue Taxes. The Issuer will pay all taxes, assessments and charges
in connection with the issuance and sale of the Notes by the Issuer and in
connection with any modification of the Notes and will save each holder of any
Note harmless without limitation as to time against any and all liabilities with
respect to all such taxes. The obligations of the Issuer under this Section 3.3
shall survive the payment or prepayment of the Notes and the termination of this
Indenture.
3.4 Required Payments of Notes without Premium.
(a) Scheduled Required Prepayments for Series A Notes. In
addition to paying the entire outstanding principal amount of, and the
interest due on, the Series A Notes on the Maturity Date, the Issuer
agrees to prepay, and there shall become due and payable, principal
amounts of the Series A Notes (per $1,000,000 of original principal
amount) (together with accrued interest owing thereon) on the Payment
Dates (the first of which shall be on the twentieth (20th) day of the
calendar month following the Closing Date) as set out on Annex B
hereto.
(b) Prepayment at Par. Each such prepayment of principal made
pursuant to Section 3.4(a) shall be at 100% of the principal amount
prepaid, together with interest accrued thereon to the date of
prepayment.
(c) Prepayment Schedules. Each Series A Note shall have
attached thereto a prepayment schedule showing the amounts of principal
of such Note required to be prepaid pursuant to Section 3.4(a) and the
respective due dates of such amounts. The Trustee shall make a notation
on the prepayment schedule attached to each new Series A Note delivered
pursuant to Section 2.4, Section 2.5 or Section 2.9 of the amount of
all prepayments of principal previously made on the old Series A Note
or Notes with respect to which such new Series A Note is issued;
provided that the failure of Trustee to make any such notation shall
not affect the obligations of the Issuer hereunder or under such Series
A Note.
(d) Required Prepayments Unaffected by Optional Prepayments.
The Issuer's exercise of any prepayment option contained in Section 3.5
shall be applied against the principal amount due at the Maturity Date
and the prepayment installments, if any, in the inverse order of
maturity, and shall not reduce the Issuer's obligation to make any
earlier prepayment as provided in Section 3.4(a).
(e) Series B Notes. In addition to paying the entire
outstanding principal amount of, and the interest due on, the Series B
Notes on the Maturity Date, the Issuer agrees to pay,
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and there shall become due and payable, unpaid accrued interest on
Series B Notes on the Payment Dates.
3.5 Optional Prepayment of the Notes with Make-Whole Amount. None of
the Notes may be prepaid except as required or permitted by Section 3.4, this
Section 3.5, Section 3.6 or Section 6.2. The Issuer may prepay the Notes in
accordance with this Section 3.5 on any Payment Date.
(a) The Issuer may, upon notice as provided in Section 3.5(b),
prepay all of the Notes in whole or in part, in multiples of One
Million Dollars ($1,000,000), together with all interest accrued on the
amount so prepaid plus the Make-Whole Amount, if any, determined for
the prepayment date with respect to such principal amount.
(b) The Issuer will give (or cause to be given) notice of any
optional prepayment of the Notes to the Trustee and to each holder of
the Notes not less than thirty (30) days nor more than sixty (60) days
before the date fixed for prepayment, specifying (i) such date, (ii)
the Section of this Indenture under which such prepayment is to be
made, (iii) the principal amount of such holder's Notes to be prepaid
on such date, in the case of partial prepayments, and (iv) the interest
to be paid on the prepayment date with respect to such principal amount
being prepaid and shall be accompanied by a certificate of a
Responsible Officer as to the estimated Make-Whole Amount, if any, due
in connection with such prepayment (calculated as if the date of such
notice were the date of the prepayment), setting forth the details of
such computation. Two Business Days prior to such prepayment, the
Issuer shall deliver to the Trustee and each holder of Notes a
certificate of a Responsible Officer specifying in reasonable detail
the calculation of such Make-Whole Amount as of the specified
prepayment date. Notice of prepayment having been so given, the
aggregate principal amount of the Notes specified in such notice,
together with the Make-Whole Amount, if any, and accrued interest on
such principal amount shall become due and payable on the specified
prepayment date.
(c) Upon any partial prepayment of the Notes, the principal
amount so prepaid shall be allocated to all Notes at the time
Outstanding in proportion to the respective outstanding principal
amounts thereof, with adjustments to avoid fractions of one dollar
($1).
3.6 Required Prepayments of Notes. The Notes shall be prepaid in full,
together with accrued interest thereon to the date of prepayment and (with
respect to clause 3.6(a) only) the Breakage Amount, if any, and (with respect to
clause 3.6(b) only) the Make-Whole Amount, if any, determined for the prepayment
date with respect to the principal amount plus all other amounts payable
hereunder to the holders of the Notes and the Trustee:
(a) Upon the occurrence of an Event of Loss; or
(b) Upon the early termination of the Shell Contract as
provided in Section 17E of the Drilling Order.
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The Issuer will give (or cause to be given) notice of such prepayment
under clause (a) or (b) of this Section 3.6 to the Trustee and the holders of
the Notes promptly (and in any event within one (1) Business Day) after the
occurrence of an Event of Loss or the early termination of the Shell Contract
under Section 17E of the Drilling Order, as the case may be, and shall specify
the date for such prepayment, which date shall not be less than 30 days nor more
than 45 days after the date of such notice, together with the other information
specified in Section 3.5(b). In the event the Trustee and the Note Holders have
not received the aforesaid notice, such prepayment shall be due and payable 30
days after the occurrence of the event listed in (a) or (b) above.
3.7 Surrender of Notes on Prepayment. Following any prepayment of any
Note pursuant to Section 3.5 or Section 3.6, such Note shall, prior to any
transfer thereof, be (a) made available to the Trustee for notation on the
prepayment schedule attached to such Note of the amount of principal so prepaid
or, (b) at the option of the holder thereof and in lieu of the alternative in
the foregoing clause (a) of this sentence, held by the holder of such Note who
shall make a notation on such schedule of the amount of principal so prepaid. In
case the entire principal amount of any Note is prepaid or paid, such Note shall
be surrendered promptly at the agency of the Issuer maintained pursuant to
Section 7.9, for cancellation, upon Written Request therefor by the Issuer, and
shall not be reissued, and no Note shall be issued in lieu of the prepaid or
paid principal amount of any Note.
3.8 Provision for Applicable Make-Whole Amount, Yield Protection
Amount and Breakage Amount.
(a) Applicable Make-Whole Amount. The Issuer acknowledges that the
right of each holder of a Note to maintain a rate of return based upon the full
term of the Notes and the scheduled prepayments under Section 3.4 is a valuable
right, and that the provisions for payment of the Make-Whole Amount by the
Issuer in the event that (a) the Notes are otherwise prepaid, or (b) the
maturity of the Notes is accelerated, are intended to provide reasonable
compensation for the deprivation of such right under such circumstances.
The term "MAKE-WHOLE AMOUNT" means, with respect to any Note, an amount
equal to the excess, if any, of the Discounted Value of the Remaining Scheduled
Payments with respect to the Called Principal of such Note over the amount of
such Called Principal, provided that the Make-Whole Amount may in no event be
less than zero. For the purposes of determining the Make-Whole Amount, the
following terms have the following meanings:
"CALLED PRINCIPAL" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section 3.5 or
3.6(b) or has become or is declared to be immediately due and payable
pursuant to Section 6.2, as the context requires.
"DISCOUNTED VALUE" means, with respect to the Called Principal
of any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
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"REINVESTMENT YIELD" means, with respect to the Called
Principal of any Note, .32% (with respect to the Series A Notes) and
.32% (with respect to the Series B Notes) over the yield to maturity
implied by (i) the yields reported, as of 10:00 A.M. (New York City
time) on the second Business Day preceding the Settlement Date with
respect to such Called Principal, on the display designated as "Page
678" on the Telerate Access Service (or such other display as may
replace Page 678 on Telerate Access Service) for actively traded U.S.
Treasury securities having a maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date, or (ii) if
such yields are not reported as of such time or the yields reported as
of such time are not ascertainable, the Treasury Constant Maturity
Series Yields reported, for the latest day for which such yields have
been so reported as of the second Business Day preceding the Settlement
Date with respect to such Called Principal, in Federal Reserve
Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a
constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield will be
determined, if necessary, by (a) converting U.S. Treasury ▇▇▇▇
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the duration closest to and
greater than the Remaining Average Life and (2) the actively traded
U.S. Treasury security with the duration closest to and less than the
Remaining Average Life.
"REMAINING AVERAGE LIFE" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum
of the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth year)
that will elapse between the Settlement Date with respect to such
Called Principal and the scheduled due date of such Remaining Scheduled
Payment.
"REMAINING SCHEDULED PAYMENTS" means, with respect to the
Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled due date, provided that if such
Settlement Date is not a date on which interest payments are due to be
made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Sections 3.5, 3.6(b) or 6.2.
"SETTLEMENT DATE" means, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be prepaid
pursuant to Section 3.5 or 3.6(b) or has become or is declared to be
immediately due and payable pursuant to Section 6.2, as the context
requires.
(b) Yield Protection Amount. If any Regulatory Change occurring after
the date hereof:
(i) shall subject any Credit Support Party to any tax, duty or
other charge with respect to any Series B Note (or its participation
therein), or any of its obligations or right to
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acquire or hold any Series B Note or to provide funding, liquidity,
credit or asset purchase support to the CP Conduit in respect of any of
the foregoing (or with respect to its participation in any of the
foregoing), or shall change the basis of taxation of payments to the
Credit Support Party of the principal or interest on any Series B Note
(or its participation in any of the foregoing) or any other amounts due
hereunder or under any funding, liquidity, or credit support agreement
it may have with the CP Conduit (collectively, a "Transaction
Document") or its obligations or rights, if any, to acquire or
participate in any Series B Note or to provide funding, liquidity,
credit or asset purchase support to the CP Conduit in respect of any of
the foregoing (or with respect to its participation in any of the
foregoing) (except for changes in the rate of tax on or determined by
reference to the overall net income of such Credit Support Party
imposed by the United States of America); or
(ii) shall impose upon any Credit Support Party, modify or
deem applicable any reserve, special deposit or similar requirement
against assets of any Credit Support Party, deposits or obligations
with or for the account of any Credit Support Party or with or for the
account of any Affiliate (or entity deemed by the Federal Reserve Board
to be an Affiliate) of any Credit Support Party, or credit extended by
any Credit Support Party; or
(iii) shall change the amount of capital maintained or
required or requested or directed to be maintained by any Credit
Support Party; or
(iv) shall impose any other condition affecting any Series B
Note (or its participation therein) or any of its obligations or right
to acquire or hold any Series B Note or to provide funding, liquidity,
credit or asset purchase support to the CP Conduit in respect of any of
the foregoing (or with respect to its participation in any of the
foregoing);
and the result of any of the foregoing is or would be
(I) to increase the cost to (or impose a cost on) (I) a Credit
Support Party funding or acquiring or holding any Series B Note, or
loans or other extensions of credit under any Transaction Document or
any obligation or commitment of such Credit Support Party with respect
to any of the foregoing, or (II) a Credit Support Party for continuing
its relationship with the CP Conduit,
(II) to reduce the amount of any sum received or receivable by
a Credit Support Party as successor in interest to the CP Conduit as a
Series B Note Holder under this Indenture, or under any Transaction
Document (or its participation in any of the foregoing), or
(III) to reduce the rate of return on the capital of such a
Credit Support Party as a consequence of its obligations under the
Transaction Documents (or its participation therein) to a level below
that which such Credit Support Party could otherwise have achieved,
in each such case by an amount reasonably deemed by such Credit Support Party to
be material, then prior to the next scheduled Payment Date, and in any case
within 30 days after demand by such Credit Support Party (which demand shall be
accompanied by a statement setting forth in reasonable
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detail the basis of such demand), the Issuer shall pay directly to the Trustee
for the benefit of such Credit Support Party such additional amount or amounts
as will compensate such Credit Support Party for such additional or increased
cost or such reduction (the "Yield Protection Amount"). The Trustee will deposit
such amounts in the Collection Account for distribution in accordance with
Article 4.
In determining any amount provided for or referred to in this Section
3.8(b), a Credit Support Party may use any reasonable averaging and attribution
method that it (in its sole discretion) shall deem applicable. Any Credit
Support Party when making a claim under this Section 3.8(b) shall submit to the
Issuer and the Trustee a statement as to such increased cost or reduced return
(including calculation thereof in reasonable detail), which statement shall, in
the absence of error, be conclusive and binding upon the Issuer. No Credit
Support Party shall be entitled to recover any Yield Protection Amount under
this Section 3.8(b), incurred or accrued more than 180 days prior to the notice
described in this Section 3.8(b), unless (i) the Regulatory Change giving rise
to such Yield Protection Amount is retroactive in its application to said Credit
Support Party, or (ii) said Credit Support Party lacked knowledge of the
Regulatory Change.
(c) Breakage Amount. Within 30 days after demand by the CP Conduit or
any Credit Support Party as successor in interest to the CP Conduit as a Series
B Note Holder (a "Breakage Party") (which demand shall be accompanied by a
statement in reasonable detail setting forth the basis for such demand) the
Issuer shall pay directly to the Trustee for the benefit of such Breakage Party,
such amount or amounts as shall compensate such Breakage Party for any loss,
cost or expense incurred by such Breakage Party in connection with any Hedging
Agreements, as a result of any payment of principal of any Series B Note being
received by reason of an Event of Loss. By its purchase of the Series B Notes,
the Breakage Party agrees to pay directly to the Trustee, for the benefit of the
Issuer, such amount or amounts that it may receive as breakage payments in
connection with any Hedging Agreements, as a result of any payment of principal
on any Series B Note being received by reason of an Event of Loss. The
determination by any such Breakage Party of any such loss, expense or amount
shall be presumed correct, absent manifest error. The Trustee will deposit such
amounts in the Collection Account for distribution in accordance with Article 4.
ARTICLE 4. RECEIPT, DISTRIBUTION AND APPLICATION OF TRUST ESTATE.
4.1 Application of Shell Contract Revenues When No Indenture Event of
Default is Continuing.
The Trustee shall establish an account styled "Noble/▇▇▇▇ ▇▇▇▇▇▇ Cash
Collateral Account" (the "Collection Account") subject to the Trustee's sole
dominion and control. Each payment to the Trustee under any Credit Document and
all payments under the Drilling Order, other than payment pursuant to Section
17E of the Drilling Order, shall be deposited with the Trustee in the Collection
Account and held in trust by it as part of the Trust Estate and, so long as no
Indenture Event of Default shall have occurred and be continuing, applied on the
next succeeding Payment Date as follows:
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first, the amount required to reimburse any Trustee for any
unpaid fees for its services under this Indenture and to reimburse any
Trustee for any reasonable expenses (including reasonable external
attorneys' fees) not previously reimbursed;
second, the accrued unpaid interest due and payable to the
Note Holders on any of the Notes, allocated among the Notes pursuant to
Section 4.5 and distributed to the Note Holders thereof;
third, the required prepayments of principal due and payable
on the Series A Notes on such Payment Date, allocated among such Notes
pursuant to Section 4.5 and distributed to the Note Holders thereof;
fourth, the amount required to reimburse an Indemnified Party
or other Person entitled to reimbursement under Section 12.16 hereof
(except to the extent already provided for in the "first" provision
above);
fifth, to deposit with the Trustee any amounts previously
withdrawn from the Debt Service Reserve Fund which have not been
replenished;
sixth, the amount required to pay any Yield Protection Amount
due to any Credit Support Party; and
seventh, the balance, if any, of such payment remaining shall
be distributed to the Issuer or its assigns.
4.2 (a) Payments in Case of an Early Termination. Each payment made by
SDDI pursuant to an early termination of the Drilling Order in accordance with
the provisions of Section 17E of the Drilling Order (an "Early Termination"),
together with the net proceeds received by the Trustee upon foreclosure or
conveyance in lieu of foreclosure of the Drilling Rig following an Early
Termination, shall be deposited with the Trustee in the Collection Account and
held in trust by it and applied when received as follows:
first, so much of such payment as shall be required to
reimburse any Trustee for any unpaid fees for its services under this
Indenture or to reimburse any Trustee for any reasonable expenses or
indemnity amount (including reasonable external attorneys' fees) or
other losses incurred by them (to the extent reimbursable hereunder and
not previously reimbursed) shall be distributed to each such Trustee
ratably, without priority of one over the other, in the proportion that
the amount of the expenses or other loss incurred by such Trustee bears
to the aggregate amount of such losses or expenses incurred by all such
Trustees;
second, so much of such payment remaining as shall be required
to prepay the aggregate unpaid principal amount of all Series A Notes
then Outstanding, plus accrued but unpaid interest thereon to the date
of distribution including interest on past due principal and, to the
extent permitted by applicable law, on past due interest (but excluding
any Make- Whole Amount) shall be distributed to the holders of the
Outstanding Series A Notes;
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third, so much of such payment remaining as shall be required
to prepay the aggregate unpaid principal amount of all Series B Notes
then Outstanding, plus accrued but unpaid interest thereon to date of
distribution including interest on past due principal and, to the
extent permitted by applicable law, on past due interest (but excluding
any Make-Whole Amount) shall be distributed to the holders of the
Outstanding Series B Notes;
fourth, so much of such payment remaining as shall be required
to pay any applicable Make-Whole Amount due by virtue of prepayment of
the Series A Notes shall be distributed to the holders of the Series A
Notes;
fifth, so much of such payment remaining as shall be required
to pay any applicable Make-Whole Amount due by virtue of prepayment of
the Series B Notes shall be distributed to the holders of the Series B
Notes; and
sixth, so much of such payment remaining as shall be required
to reimburse any holders of Outstanding Notes or any Indemnified Party
(other than any Trustee) for any reasonable expenses or indemnity
amount (including reasonable external attorneys' fees) or other losses
incurred by them (to the extent reimbursable hereunder and not
previously reimbursed) shall be distributed to each holder and
Indemnified Party ratably, without priority of one over the other, in
the proportion that the amount of the expenses or other loss incurred
by such holder or Indemnified Party bears to the aggregate amount of
such losses or expenses incurred by all such holders and Indemnified
Parties;
seventh, so much of such payments remaining as shall be
required to reimburse or pay any other fee or expense to any Person
required hereunder or under any other Credit Document, in the
proportion that the amount of the fee or expense required to be paid
hereunder for any Person bears to the aggregate amount of such fees or
expenses incurred for all such Persons; and
eighth, so much of such payments remaining as shall be
required to pay any applicable Yield Protection Amount shall be
distributed to any Credit Support Party;
ninth, the balance, if any, of such payment remaining shall be
distributed to the Issuer or its assigns.
(b) Payments in Case of an Event of Loss. All payments received by the
Trustee as proceeds of insurance, condemnation, confiscation or otherwise by
reason by an Event of Loss shall be deposited with the Trustee in the Collection
Account and held in trust by it and applied when received in the same manner as
provided in Section 4.3 below, provided, however, the Make-Whole Amount payments
shall not be due.
(c) Payments in Case of a Partial Event of Loss. In the event of any
accident, occurrence or event resulting in damage to the Drilling Rig that does
not constitute an Event of Loss (a "Partial Loss"), and so long as there is no
Indenture Event of Default that has occurred and is continuing, then the
following provisions shall apply and all proceeds of insurance by reason of such
Partial Loss
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shall be payable to the Trustee as loss payee and shall be applied upon
direction by the Trustee as follows:
(i) To the Issuer to reimburse the Issuer for the
actual costs incurred by the Issuer in connection with the
repairs, upon receipt by the Trustee of the following:
(a) For progress payments, a certificate
signed by a Responsible Officer of
the Issuer certifying that all work
for which reimbursement is requested
has been completed as required by
Section 7.3 hereof, in a good and
workmanlike manner, the Issuer has
expended funds in the full amount of
all insurance deductibles and has
obtained lien waivers with respect
to any liens in excess of $100,000
individually or $2,500,000 in the
aggregate that could attach with
respect to such work, with such
certificate to include an
itemization of the costs incurred by
the Issuer in connection with the
repairs. For all progress payments
prior to completion of all required
repairs the Trustee shall withhold
an amount equal to 10% of the
completed repair cost to be
disbursed upon final payment as
provided under clause (b) below.
(b) For final payment (which will
include the hold back amount called
for in clause (a) above), (A) a
certificate signed by a Responsible
Officer that all repairs have been
completed as required by Section
7.3, in a good and workmanlike
manner, has obtained final lien
waivers with respect to liens in
excess of $100,000 individually or
$2,500,000 in the aggregate that
could attach with respect to such
work, with the certificate to
include an itemization of the costs
incurred by the Issuer in connection
with the repairs; and (B) so long as
the Shell Contract is in full force
and effect, an International
Association of Drilling Contractors
Tour Sheet executed by the Issuer
and SDDI indicating that full day
rate payments under the Shell
Contract are accruing currently or,
if the Shell Contract is terminated,
a written report in form and
substance satisfactory to the
Required Holders prepared by a third
party engineer/surveyor or loss
adjustor selected by the Trustee
with the consent of the Required
Holders, and compensated by the
Issuer, certifying that all repairs
have been completed as required by
Section 7.3 hereof in good and
workmanlike manner and final lien
waivers obtained.
(ii) Any insurance proceeds not paid pursuant to
clause (i) above shall be paid pursuant to Section 4.1 or 4.3,
as appropriate.
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4.3 Payments During Continuance of an Indenture Event of Default. All
monies held or realized hereunder or in connection herewith in the Collection
Account, Debt Service Reserve Fund, proceeds of insurance, or otherwise (other
than Early Termination payments provided for in Section 4.2(a)) by the Trustee
after an Indenture Event of Default shall have occurred and be continuing or
after the acceleration of the Notes pursuant to Sections 6.2(a) or (b)
(including any amounts realized by the Trustee from the exercise of any remedies
pursuant to Article 6), as well as all payments or amounts then held or
thereafter received by the Trustee as part of the Trust Estate while any such
Indenture Event of Default shall be continuing, shall be applied by the Trustee
as follows:
first, so much of such monies, payments or amounts as shall be
required to reimburse any Trustee for its default administration
services and the costs and expenses of foreclosure or suit, if any, and
the retaking, holding, preparing for sale or other disposition of the
Collateral and, to the extent permitted by applicable law, the
reasonable external attorneys' fees and legal expenses incurred by any
Trustee;
second, so much of such monies, payments or amounts remaining
as shall be required to reimburse the holders of the Outstanding Notes
for all theretofore unreimbursed payments paid by the then existing or
prior holders of Outstanding Notes pursuant to any indemnity furnished
to any Trustee shall be distributed to such holders ratably, without
priority of one over the other, in the proportion that the amount of
each such unreimbursed payment of each such holder of a Note bears to
the aggregate amount of all such unreimbursed payments by all such
holders of Outstanding Notes;
third, so much of such monies, payments or amounts remaining
as shall be required to pay the unpaid principal balance of all of the
Outstanding Notes, plus all accrued and unpaid interest on such
principal, plus any applicable Make-Whole Amount shall be distributed
to the appropriate holders of such Notes without priority of one such
holder over another in the proportion that the amount then owed to such
holder bears to the aggregate amount of all such obligations which are
then due and payable;
fourth, so much of such monies, payments or amounts remaining
as shall be required to reimburse any holders of the Outstanding Notes
or any Indemnified Party for any expenses or other indemnity amount
(including reasonable external attorneys' fees) or other losses
incurred by them (to the extent reimbursable hereunder and not
previously reimbursed) shall be distributed to each such holder or
Indemnified Party, ratably, without priority of one over the other, in
the proportion that the amount of the expenses or other loss incurred
by such holder or Indemnified Party bears to the aggregate amount of
such losses or expenses incurred by all such holders or Indemnified
Party;
fifth, so much of such monies, payments or amounts remaining
as shall be required to pay any other obligations of the Issuer
hereunder (other than the obligation of the Issuer under Section
6.4(c)) or under any other Credit Document to the holders of the
Outstanding Notes which are then due and payable, shall be distributed
to such holders ratably without priority of one such holder over
another in the proportion that the amount then owed to such holder
bears to the aggregate amount of all such obligations which are then
due and payable;
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sixth, so much of such monies, payments or amounts remaining
as shall be required to pay the Series B Note Holders or any Credit
Support Party any Yield Protection Amount and/or Breakage Amount due;
seventh, so much of such monies, payments or amounts remaining
as shall be required to pay the obligations of the Issuer under Section
6.4(c) to the holders of the Outstanding Series B Notes shall be
distributed to such holders ratably without priority of one over the
other in the proportion that the amount then owed to such holder bears
to the aggregate amount of all such obligations; and
eighth, the balance, if any, of such monies, payments or
amounts shall be distributed to the Issuer or its assigns.
4.4 Amounts Held by Trustee. Any amounts held by the Trustee in the
Debt Service Reserve Fund, Working Capital Fund, or pursuant to any other
provision hereof or any provision of any other Credit Document providing for
amounts to be held by the Trustee which are not distributed pursuant to the
other provisions of this Article 4 shall be invested by the Trustee from time to
time in Permitted Investments selected by the Issuer. Unless otherwise expressly
provided in this Indenture, any income realized as a result of any such
Permitted Investment, net of the Trustee's reasonable fees and expenses in
making such Permitted Investment, shall be held and applied by the Trustee in
the same manner as the principal amount of such Permitted Investment is to be
applied and any losses, net of earnings and such reasonable fees and expenses,
shall be charged against the principal amount invested. The Trustee shall not be
liable for any loss resulting from any investment required to be made by it
under this Indenture other than by reason of its willful misconduct or gross
negligence, and any such investment may be sold (without regard to its maturity)
by the Trustee without instructions whenever the Trustee reasonably believes
that such sale is necessary to make a distribution required by this Indenture.
4.5 Allocation of Payments. Each payment applied to the Outstanding
Notes pursuant to Articles 3 or 4 shall be allocated among the appropriate
Outstanding Notes in proportion to the respective outstanding principal amounts
thereof, with adjustments to avoid fractions of one dollar ($1). All payments of
principal of the Notes as and when called for hereunder, except those required
pursuant to Section 3.4, shall be applied against the principal amount due at
maturity and then against the last maturing prepayment installments of
principal, if any, provided for in Section 3.4.
4.6 Method of Payment to Holders. The principal of, Yield Protection
Amount, Breakage Amount and any Make-Whole Amount and interest on, each Note and
all other amounts payable to the holders of the Notes pursuant to this Indenture
will be payable at the office of the Trustee which has been designated as the
agency of the Issuer in Section 7.9, in United States dollars in immediately
available funds, prior to 9:00 a.m. Central time, on the due date thereof.
Notwithstanding the foregoing or any provision in any Note to the contrary, the
Trustee will pay, if so requested in writing by a holder of an Outstanding Note,
all amounts payable by the Trustee hereunder to such holder, by wire transfer of
immediately available funds to an account maintained by such holder with any
other bank located in the United States. The Trustee acknowledges that the
payment instructions given in Schedule A to the Note Purchase Agreements
constitute the written
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notice required by the preceding sentence to make all payments on the Notes as
provided therein. The Trustee shall institute the transfer of such funds prior
to 11:00 a.m. Central time on such due date in accordance with this section if
it has received funds prior to 9:00 a.m. Central time. If the Trustee fails to
so institute the transfer of such funds and such funds are not received prior to
the end of such due date, the Issuer agrees to compensate the Note Holders for
the loss of the use of such funds.
4.7 Method of Payment to Issuer. Any amounts distributed hereunder by
the Trustee to the Issuer shall be paid to the Issuer or as Issuer may otherwise
direct by wire transfer of immediately available funds of the type received by
the Trustee at such office and to such account or accounts of such entity or
entities as shall be designated by notice from the Issuer to the Trustee from
time to time.
4.8 Payments for which No Application is Otherwise Provided. Any
payments received by the Trustee for which no provision as to the application
thereof is made elsewhere in this Indenture or in any other Credit Document,
shall be distributed by the Trustee (a) to the extent received or realized at
any time prior to the payment in full of all obligations secured by this
Indenture, in the order of priority specified in Section 4.1, 4.2 or 4.3, as
appropriate, and (b) to the extent received or realized at any time after
payment in full of all such obligations: first, to any continuing amount of the
type provided in clause "first", "second" and "fourth" of Section 4.3 and
second, to the Issuer or as the Issuer may request.
ARTICLE 5. EVIDENCE OF ACTS OF NOTE HOLDERS.
5.1 Execution by Note Holders or Agents. Any request, consent, demand,
authorization, direction, notice, waiver or other action provided by this
Indenture to be given or taken by holders of the Notes may be embodied in and
evidenced by one or more instruments of substantially similar tenor and may be
signed or executed by such holders in person or by agent or agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Issuer.
5.2 Future Holders Bound. Any request, consent, demand, authorization,
direction, notice, waiver or other action of the holder of any Note shall bind
every future holder of the same Note and the holder of every Note issued upon
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done or suffered to be done by the Trustee or the Issuer in
pursuance of such action irrespective of whether or not any notation in regard
thereto is made upon such Note.
ARTICLE 6. INDENTURE DEFAULTS - REMEDIES
6.1 Indenture Events of Default. One or more of the following events
shall constitute an "Indenture Event of Default":
(a) the Issuer shall default in the payment or prepayment when
due of any principal of, or interest, or any applicable Make-Whole
Amount, Yield Protection Amount,
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or Breakage Amount on any Note, or any fees or other amount payable by
it hereunder or under any other Credit Document and such default, other
than a default of a payment or prepayment of principal or applicable
Make-Whole Amount and Breakage Amount (which shall have no cure
period), shall continue unremedied for a period of five (5) Business
Days; or
(b) any representation, warranty or certification at any time
made or deemed made herein or in any other Credit Document by the
Issuer or the Parent, or any certificate furnished to any Purchaser or
other holder of any Note or the Trustee pursuant to the provisions
hereof or any other Credit Document, shall prove to have been false or
misleading as of the time made or furnished in any material respect; or
(c) the Issuer shall default in the performance of any of its
obligations under Sections 7.3(d)(ii), 7.12 and 7.14, Article 8 or any
other Article of this Indenture other than under Article 7 (with the
exception of Sections 7.3(d)(ii), 7.12 and 7.14) or in any obligation
to maintain insurance as required by this Agreement or the First Naval
Mortgage; or the Issuer shall default in the performance of any of its
obligations under Article 7 (with the exception of Sections 7.3(d)(ii),
7.12 and 7.14) or any other Credit Document (other than the payment of
amounts due which shall be governed by Section 6.1(a)), and such
default shall continue unremedied (or unwaived) by Issuer or Parent for
a period of thirty (30) days (or, in the case of the Shell Contract (i)
such additional time, not to exceed thirty (30) additional days, if
Issuer or Parent has promptly commenced and is diligently pursuing a
cure or (ii) such shorter period of time as is required to effect a
cure under the Shell Contract for a default under the Shell Contract)
after the earlier to occur of (x) notice thereof to the Issuer by the
Trustee or any Note Holder and (y) the date when a Responsible Officer
of the Issuer has actual knowledge of the existence of such default; or
(d) the Issuer shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(e) the Issuer shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the Federal Bankruptcy
Code (as now or hereafter in effect), (iv) file a petition seeking to
take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, liquidation or composition or readjustment
of debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an
involuntary case under the Federal Bankruptcy Code, or (vi) take any
corporate action for the purpose of effecting any of the foregoing; or
(f) a proceeding or case shall be commenced, without the
application or consent of the Issuer, in any court of competent
jurisdiction, seeking (i) its liquidation, reorganization, dissolution
or winding-up, or the composition or readjustment of its debts, (ii)
the appointment of a trustee, receiver, custodian, liquidator or the
like of the Issuer of all or any substantial part of its assets, or
(iii) similar relief in respect of the Issuer under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment
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of debts, and such proceeding or case shall continue undismissed, or an
order, judgment or decree approving or ordering any of the foregoing
shall be entered and continue unstayed and in effect, for a period of
sixty (60) days; or (iv) an order for relief against the Issuer shall
be entered in an involuntary case under the Federal Bankruptcy Code; or
(g) a judgment or judgments for the payment of money in excess
of $500,000 in the aggregate shall be rendered by a court against the
Issuer and the same shall not be discharged (or provision shall not be
made for such discharge), or a stay of execution thereof shall not be
procured, within thirty (30) days from the date of entry thereof and
the Issuer shall not, within said period of thirty (30) days, or such
longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or
(h) any of the Credit Documents after delivery thereof shall
for any reason, except to the extent permitted by the terms thereof,
cease to be in full force and effect and valid, binding and enforceable
in accordance with their terms, or cease to create a valid and
perfected Lien of the priority required thereby on any of the
collateral purported to be covered thereby, or the Issuer or the Parent
shall so state in writing; or
(i) the Issuer discontinues its usual business; or
(j) Parent, SDDI or Shell Oil Company takes, suffers or
permits to exist any of the events or conditions referred to in
paragraphs (d), (e), or (f) hereof; or
(k) an Event of Default shall occur under, and as defined in,
the Performance Agreement or the Capital Funding Agreement (after
delivery thereof pursuant to the terms of Section 7.8 hereof) or the
Parent shall default in the performance of any of its covenants under
the Operating Services Agreement, and such default shall continue
unremedied for a period of five (5) Business Days in the case of the
Operating Services Agreement after the earlier to occur of (i) notice
thereof to the Parent by the Trustee or any holder of a Note, or (ii)
the Issuer otherwise becoming aware of such default); or
(l) the Shell Contract shall for any reason (other than an
early termination event as provided in Section 17E of the Drilling
Order) terminate or cease to be in full force and effect or SDDI (or
any other permitted assignee in accordance with the Shell Contract)
ceases to be a party to the Shell Contract; or
(m) the Issuer shall cease to be a 100% owned Subsidiary of
the Parent or the Parent shall cease to be a 100% owned Subsidiary of
Noble Corp.; or
(n) The Issuer shall fail to permanently record the First
Naval Mortgage at the Public Registry Office of the Republic of Panama
within ninety (90) days after the date of its execution.
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6.2 Acceleration of Notes.
(a) Acceleration by Trustee. If an Indenture Event of Default exists
under any of Subsections 6.1(d), (e) or (f), the Notes then Outstanding shall
automatically become forthwith due and payable. If any other Indenture Event of
Default exists, the Trustee upon written request of the Majority Holders, shall
declare the entire principal of and all interest accrued on all the Notes then
Outstanding and the applicable Make-Whole Amount, if any, to be, and such Notes
shall thereupon become, forthwith due and payable together with all interest
accrued thereon and the applicable Make-Whole Amount, if any. In either such
case, the Outstanding Notes shall become due and payable without any
presentment, demand, protest, notice of protest, notice of acceleration or
intention to accelerate or any other notice or declaration of any kind, all of
which are hereby expressly waived by the Issuer, and the Issuer will forthwith
pay to all holders of the Notes then Outstanding the entire principal of and
interest accrued on their respective Notes (but specifically excluding unearned
interest) and, to the extent permitted by applicable law and for the reasons set
forth in the first sentence of Section 3.8, the applicable Make-Whole Amount, if
any, for the then entire outstanding principal of the Notes as of the date of
such declaration or automatic acceleration.
(b) Acceleration by Individual Holder. Subject to the provisions of
Section 6.3, during the existence of an Indenture Event of Default described in
Section 6.1(a) or 6.1(c) (to the extent the 6.1(c) Event of Default is with
respect to the obligation to maintain or repair the Drilling Rig or to maintain
insurance as required by this Indenture or the First Naval Mortgage or to the
obligations set forth in Sections 7.12 or 8.19) and irrespective of whether the
Trustee shall have declared all the Notes to be due and payable pursuant to
Section 6.2(a), any holder of an Outstanding Note which has not consented to a
waiver with respect to such Indenture Event of Default described in Section
6.1(a) or 6.1(c) may, at its option, by notice in writing to the Issuer and the
Trustee, declare the entire principal of, and all interest accrued on, such
holder's Notes then Outstanding and the applicable Make-Whole Amount, if any, to
be, and such holder's Notes shall thereupon become, forthwith due and payable
together with all interest accrued thereon and the applicable Make-Whole Amount,
if any, without any presentment, demand, protest, notice of protest, notice of
acceleration or intention to accelerate or any other notice or declaration of
any kind, all of which are hereby expressly waived by the Issuer, and the Issuer
shall forthwith pay to such holder the entire principal of and interest accrued
on its Notes (but specifically excluding unearned interest) and, to the extent
permitted by applicable law and for the reasons set forth in the first sentence
of Section 3.8, the amount of the applicable Make-Whole Amount, if any, for the
then entire outstanding principal of such Notes as of the date of such
declaration by such holder. Such Notes shall be surrendered by the holder
thereof upon such full payment thereof with a Written Request for such surrender
by, and at the sole cost and expense of, the Issuer.
(c) Nonwaiver and Expenses. No course of dealing on the part of any
holder of the Notes or on the part of any Trustee nor any delay or failure on
the part of any holder of the Notes or on the part of any Trustee to exercise
any right shall operate as a waiver of such right or otherwise prejudice such
holder's rights, powers and remedies. If the Issuer fails to pay when due the
principal of, or interest, any applicable Make-Whole Amount, or Yield Protection
Amount, or Breakage Amount on any Note, or fails to comply with any other
provision of this Indenture, the Issuer will pay to the holders of the Notes and
to each Trustee, to the extent permitted by law, such further amounts as shall
be sufficient to cover such costs and expenses, including but not limited to
reasonable external
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attorneys' fees, as may be incurred by such holder or by such Trustee, or both,
in collecting any sums due on the Notes or in otherwise enforcing any of their
rights.
6.3 Annulment of Acceleration of Notes. If (i) a declaration is made
pursuant to Section 6.2(a) by the Trustee, then, and in every such case, the
Majority Holders may, by written instrument filed with the Issuer and the
Trustee, rescind and annul such declaration, and the consequences thereof or
(ii) a declaration is made pursuant to Section 6.2(b) by a holder of any of the
Notes, then, such holder may, by written instrument filed with the Issuer and
the Trustee, rescind and annul such declaration, and the consequences thereof;
provided, that at the time such declaration is annulled and rescinded:
(a) no judgment or decree has been entered for the payment of
any monies due on or pursuant to the Notes or this Indenture;
(b) all arrears of interest upon all the Notes and all other
sums payable under the Notes and under this Indenture, except any
principal of, or interest or any applicable Make-Whole Amount on, the
Notes which has become due and payable solely by reason of such
declaration under Section 6.2(a) or Section 6.2(b), shall have been
duly paid;
(c) each and every other Indenture Default and Indenture Event
of Default shall have been waived pursuant to Section 10.2 or otherwise
made good or cured;
and, provided further, that no such rescission and annulment shall (i) extend to
or affect any subsequent Indenture Default or Indenture Event of Default or (ii)
impair any right consequent thereon.
6.4 Default Remedies.
(a) If an Indenture Event of Default exists, each Trustee may exercise
(i) all of the rights and remedies granted to such Trustee hereunder and/or
under each of the other Credit Documents, and (ii) all of the rights and
remedies of a secured party on default under the Uniform Commercial Code in
effect in the State of New York or in effect in any other jurisdiction, the laws
of which are applicable to the Collateral (the "UCC"). Any Trustee may take
possession of all or any part of the Properties covered or intended to be
covered by the Lien created by this Indenture or by any other Credit Document,
and such Trustee may exclude the Issuer and all Persons claiming under the
Issuer wholly or partly therefrom. Without limiting the foregoing, if any
Indenture Event of Default exists, any Trustee may from time to time in its
discretion, without notice (except as expressly provided in this Section 6.4) do
any of the following:
(i) subject to compliance with any mandatory legal
requirements, take immediate possession of the Collateral, and
require the Issuer to, and the Issuer hereby agrees that it
will at its expense and upon request of any Trustee forthwith,
assemble all or part of the Collateral as reasonably directed
by such Trustee and make it available to such Trustee at a
place or places to be designated by such Trustee which are
reasonably convenient to both parties. In any event, Issuer
shall bear the risk of accidental loss or damage to or
diminution in value of the Collateral, and
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Trustee shall have no liability whatsoever for failure to
obtain or maintain insurance, nor to determine whether any
insurance ever in force is adequate as to amount or as to the
risk insured.
(ii) either with or without taking possession and
either before or after taking possession, and without
instituting any legal proceedings whatsoever, subject to
compliance with any mandatory legal requirements, dispose of
by public or private proceedings conducted at its office, on
the premises of the Issuer, at any site where any Collateral
is located, or elsewhere, all or any part of the Collateral,
as a unit or in parts and separately or in combination with
any other Collateral, and by way of one or more contracts (it
being agreed that the sale of any part of the Collateral shall
not exhaust the Trustee's power of sale, but sales may be made
from time to time, and at any time, until all of the
Collateral has been sold or until the obligations secured by
this Indenture have been paid and performed in full), and at
any such sale it shall not be necessary to move any of the
Collateral to any location of sale, or to assemble, prepare in
any manner or exhibit any of the Collateral (the Issuer hereby
acknowledging that the Collateral is not of a type for which
moving, assembling, preparation in any manner or exhibition is
necessary for a commercially reasonable sale);
(iii) buy the Collateral, or any part thereof, at any
public sale;
(iv) buy the Collateral, or any part thereof, at any
private sale if the Collateral is of a type customarily sold
in a recognized market or is of a type which is the subject of
widely distributed standard price quotations;
(v) at its discretion, retain the Collateral in
satisfaction of the obligations secured by this Indenture
whenever the circumstances are such that any Trustee is
entitled to do so under the UCC or otherwise (but under no
circumstances will any Trustee be deemed to have elected to
retain the Collateral in satisfaction of such obligations
unless it shall have sent written notice of such election to
the Issuer);
(vi) Take possession of all books and records of
Issuer pertaining to the Collateral. Each Trustee shall have
the authority (subject to compliance with any mandatory legal
requirements) to enter upon any real property or improvements
thereon in order to obtain any such books or records, or any
Collateral located thereon, and remove the same therefrom
without liability;
(vii) Apply proceeds of the disposition of the
Collateral to the obligations hereby secured in the manner set
forth in the Trust Indenture and permitted by the UCC or
otherwise permitted by law or in equity. Such application may
include, without limitation, the reasonable expenses of
retaking, holding, preparing for sale or other disposition,
and the reasonable external attorneys' fees and legal expenses
incurred by each Trustee;
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(viii) Appoint any Person as agent to perform any act
or acts necessary or incident to any sale or transfer by each
Trustee of the Collateral. Additionally, any sale or transfer
hereunder may be conducted by an auctioneer or any officer or
agent of each Trustee;
(ix) Receive, change the address for delivery, open
and dispose of mail addressed to Issuer, and to execute,
assign and endorse negotiable and other instruments for the
payment of money, documents of title or other evidences of
payment, shipment or storage for any form of Collateral on
behalf of and in the name of Issuer;
(x) Notify or require Issuer to notify account
debtors that the accounts have been assigned to each Trustee
and direct such account debtors to make payments on the
accounts directly to each Trustee. To the extent each Trustee
does not so elect, Issuer shall continue to collect the
accounts. Each Trustee or its designee shall also have the
right, in its own name or in the name of Issuer, to do any of
the following: (A) to demand, collect, receipt for, settle,
compromise any amounts due, give acquittance for, prosecute or
defend any action which may be in relation to any monies due
or to become due by virtue of, the accounts; (B) to sell,
transfer or assign or otherwise deal in the accounts or the
proceeds thereof or the related goods, as fully and
effectively as if each Trustee were the absolute owner
thereof; (C) to extend the time of payment of any of the
accounts, to grant waivers and make any allowance or other
adjustment with reference thereto; (D) to endorse the name of
Issuer on notes, checks or other evidences of payments on
Collateral that may come into possession of each Trustee; (E)
to take control of cash and other proceeds of any Collateral;
(F) to sign the name of Issuer on any invoice or ▇▇▇▇ of
lading relating to any Collateral, or any drafts against
account debtors or other Persons making payment with respect
to Collateral; (G) to send a request for verification of
accounts to any account debtor; and (H) to do all other acts
and things necessary to carry out the intent of this
Indenture; and
(xi) Exercise all other rights and remedies permitted
by law or in equity.
(b) The Issuer agrees that, to the extent notice of sale shall
be required by law, at least ten (10) Business Days' notice to the
Issuer of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable
notification. The Trustee shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The Trustee
may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was
so adjourned.
(c) In addition to the foregoing, in the event the Series B
Notes are not paid and satisfied in full at maturity thereof and
payment and satisfaction thereof is effected through realization upon
the Collateral pursuant to this Article 6, the Series B Note Holders
shall be entitled to additional compensation from the proceeds of such
realization of the Collateral
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pursuant to Section 4.3 of $3,000,000 to compensate the Series B Note
Holders for the additional risk, time and expense.
6.5 Other Enforcement Rights.
(a) Each Trustee may, but unless first requested so to do by
the Majority Holders and furnished with reasonable indemnity
satisfactory to it pursuant to Section 9.3(f) hereof shall not (subject
to the provisions of Section 9.1) be under any obligation to, proceed
to protect and enforce this Indenture, the Notes and each other Credit
Document by suit or suits or proceedings in equity, at law or in
bankruptcy, and whether for the specific performance of any covenant or
agreement herein or therein provided, or for foreclosure thereunder, or
for the appointment of a receiver or receivers for the foreclosure
thereunder, or for the appointment of a receiver or receivers for the
Trust Estate or other Collateral or any part thereof, for the recovery
of judgment for the obligations hereby secured or for the enforcement
of any other proper, legal or equitable remedy available under
applicable law.
(b) In case an Indenture Event of Default has occurred and is
continuing and there shall be pending any case or proceedings for the
bankruptcy or for the reorganization or arrangement of the Issuer, the
Parent or SDDI, under the federal bankruptcy laws or any other
applicable law or in connection with the insolvency of the Issuer, the
Parent or SDDI, or in case a custodian, receiver or trustee shall have
been appointed for the Issuer, the Parent or SDDI, or in case of any
other proceedings in respect of the Issuer, the Parent or SDDI, the
Trustee may file such proof of claim and other papers or documents as
may be necessary or advisable in order to have the claims of any
Trustee and of the Note Holders allowed in any judicial proceedings
relative to the Issuer, the Parent or SDDI, and, irrespective of
whether the principal of all of the Notes shall then be due and payable
as therein expressed, by proceedings for the prepayment thereof, by
declaration or otherwise, the Trustee shall be entitled and empowered
to file and prove a claim for the whole amount of principal, applicable
Make-Whole Amount (if any) and interest owing and unpaid in respect of
the Notes, and any other sum or sums owing thereon or pursuant thereto
or pursuant hereto, and to collect and receive any or other Property
payable or deliverable on any such claim, and to distribute the same as
provided in Section 4.3; and any receiver, custodian, assignee or
trustee in bankruptcy, trustee or debtor in reorganization or trustee
or debtor in any proceedings for the adoption of an arrangement is
hereby authorized by each holder of any Note, by the acceptance of the
Note or Notes held by it, 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 Note Holders, to pay to each of the Trustees any amount
due it for compensation and expenses, including reasonable external
counsel fees, incurred by it up to the date of such distribution;
provided, however, that nothing herein contained shall be deemed to
authorize or empower the Trustee to consent to accept or adopt, on
behalf of any holder of the Notes, any plan of reorganization or
readjustment of the Issuer affecting the Notes or the rights of any
holder thereof, or to authorize or empower the Trustee to vote in
respect of the claim of any holder in any such proceedings.
(c) The Issuer hereby irrevocably appoints the Trustee as the
Issuer's attorney-in-fact and proxy, with full authority in the place
and stead of the Issuer and in the
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name of the Issuer or otherwise, from time to time during the
continuance of an Indenture Event of Default in the Trustee's
discretion, to take any action and to execute any instrument which the
Trustee may deem necessary or advisable to accomplish the purposes of
this Indenture, including, without limitation: (a) to ask, demand,
collect, ▇▇▇ for, recover, compound, receive and give acquittance and
receipts for monies due and to become due under or in respect of any of
the Collateral; and (b) to file any claims or take any action or
institute any proceedings which the Trustee may deem necessary or
desirable for the collection of any of the Collateral or otherwise to
enforce the rights of the Trustee with respect to any of the
Collateral. Without limiting the generality of the foregoing and
whether or not an Indenture Event of Default shall have occurred and be
continuing, the Trustee shall have the right to receive, collect and
endorse all checks made payable to the Issuer or the Issuer's order
representing payments under the Shell Contract or any payment on
account of any of the Collateral and to give full discharge therefor.
(d) If the Issuer or the Parent fails to perform any act or to
take any action which hereunder or under any other Credit Document to
which it is a party, the Issuer or the Parent is required to perform or
take, or to pay any money which hereunder or under any other Credit
Document the Issuer or the Parent is required to pay, the Trustee, in
the Issuer's or the Parent's name or in its own name, may (but shall
not be obligated to) following notice to the Issuer or Parent perform
or cause to be performed such act or take such action or pay such
money, and any expenses so incurred by the Trustee, and any money so
paid by the Trustee, shall be a demand obligation owing by the Issuer
and shall bear interest from the date of making such payment until paid
at the Default Rate and shall be secured by this Indenture and by any
other instrument securing the obligations secured hereby. Upon making
any such payment, the Trustee shall be subrogated to all of the rights
of the Person receiving such payment, which rights will be held by the
Trustee to secure the obligations secured hereby.
(e) Anything in this Indenture to the contrary
notwithstanding, the Majority Holders shall have the right, at any
time, by an instrument or instruments in writing, executed and
delivered to any Trustee and providing for indemnity satisfactory to it
pursuant to Section 9.3(f), to direct the method and place of
conducting all proceedings to be taken in connection with the
enforcement of the terms and conditions of this Indenture; provided,
however, that such direction shall not be otherwise than in accordance
with the provisions of law and of this Indenture.
6.6 Effect of Sale, etc.
(a) Any sale or sales pursuant to the provisions hereof or of
any other Credit Document, whether under the power of sale granted
hereby or thereby or pursuant to any legal proceedings, shall operate
to divest the Issuer of all right, title, interest, claim and demand
whatsoever, either at law or in equity, of, in and to the Trust Estate
or other Collateral, or any part thereof, so sold, and any Property so
sold shall be free and clear of any and all rights of redemption by,
through or under the Issuer. At any such sale, the holder of any Note
may bid for and purchase the Property sold and may make payment
therefor as set forth below, and any Note Holder so purchasing any such
Property, upon compliance with
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the terms of sale may hold, retain and dispose of such Property without
further accountability.
(b) The receipt by any Trustee, or by any Person authorized
under any judicial proceedings to make any such sale, of the proceeds
of any such sale shall be a sufficient discharge to any purchaser of
the Trust Estate or other Collateral, or of any part thereof, sold as
aforesaid; and no such purchaser shall be bound to see to the
application of such proceeds, or be bound to inquire as to the
authorization, necessity or propriety of any such sale. In the event
that, at any such sale, any holder of Outstanding Notes is the
successful purchaser, it may, in paying the purchase price, turn in any
of its Notes in lieu of cash in the amount which shall, upon
distribution of the net proceeds of such sale, be payable thereon, and
if the cash amounts so payable thereon shall be less than the amount
due therein, said Notes shall be returned to the holders thereof after
a notation of each partial prepayment shall have been made thereon.
6.7 Restoration of Rights and Remedies. If any Trustee shall have
instituted any proceeding to enforce any right or remedy under this Indenture or
under any other Credit Document and such proceeding shall have been discontinued
or abandoned for any reason, or shall have been determined adversely to such
Trustee, then and in every such case such Trustee, the Issuer and the holders of
the Notes shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder or under any
other Credit Document, and thereafter all rights and remedies of such Trustee
shall continue as though no such proceeding had been instituted.
6.8 Application of Sale Proceeds and Deficiency. The proceeds of any
exercise of rights with respect to the Trust Estate or any other Collateral, or
any part thereof, and the proceeds and the avails or any remedy hereunder shall
be paid to and applied as described in Section 4.3. In the event that at any
time and from time to time the payments under the Shell Contract then collected
by the Trustee and the proceeds of any sale, collection or realization of or
upon Collateral by the Trustee are insufficient to pay all the obligations
secured by this Indenture, the Issuer shall be liable for the deficiency,
together with interest thereon as provided in the governing Credit Documents or
(if no interest is so provided) at such other rate as shall be fixed by
applicable law, together with the costs of collection and the reasonable fees
and disbursements of any external attorneys employed by the Trustee or any
holder of an Outstanding Note to collect such deficiency.
6.9 Cumulative Remedies. No delay or omission of any Trustee or of the
holder of any Note to exercise any right or power hereunder or under any other
Credit Document arising from any Indenture Default or Indenture Event of Default
or failure of performance on the part of the Issuer shall exhaust or impair any
such right or power or prevent its exercise during the continuance of such
Indenture Default or Indenture Event of Default. No waiver by any Trustee, or
the holder of any Note, of any such Indenture Default or Indenture Event of
Default, whether such waiver be full or partial, shall extend to or be taken to
affect any subsequent default, or to impair the rights resulting therefrom
except as may be otherwise expressly provided herein. No remedy hereunder or
under any other Credit Document is intended to be exclusive of any other remedy
but each and every remedy shall be cumulative and in addition to any and every
other remedy given hereunder or under any other Credit Document or otherwise
existing; nor shall the giving, taking or enforcement of any other
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or additional security, Collateral or guaranty for the payment of the
obligations secured under this Indenture operate to prejudice, waive or affect
the security of this Indenture or any other Credit Document or any rights,
powers or remedies hereunder or under any other Credit Document, nor shall any
Trustee or any holder of any Note be required to first look to, enforce or
exhaust such other or additional security, Collateral or guaranties. All
covenants, conditions, provisions, warranties, guaranties, indemnities and other
undertakings of the Issuer contained in this Indenture, or in any document
referred to herein or in any agreement supplementary hereto or in any other
Credit Documents shall be deemed cumulative to and not in derogation or
substitution of any of the terms, covenants, conditions, or agreements of the
Issuer herein contained. To the extent of overlap of any security interest or
lien granted hereunder or under any other Credit Document on any particular
Collateral, the Trustee may elect to exercise rights and remedies under either
or, if appropriate, both of such security interests or liens.
6.10 Limitations on Suits. Except as provided in Section 6.2(b), no
holder of any Note issued hereunder shall have the right to institute any suit,
action or proceeding at law or in equity, for the execution of any trust or
power granted to the Trustees under this Indenture or any other Credit Document
or for any other remedy under or upon this Indenture or any other Credit
Document, unless (a) the Majority Holders shall have made Written Request upon
the applicable Trustee to exercise the powers hereinbefore granted or to
institute such action, suit or proceeding in its own name; (b) such holder or
said holders shall have offered to such applicable Trustee the indemnity
reasonably satisfactory to it as provided under Section 9.3(f); and (c) such
applicable Trustee shall have refused or failed to comply with such Written
Request for a period of thirty (30) days after such Written Request shall have
been received by it. Such notification, request, offer of indemnity and refusal
or failure are hereby declared, in every case, to be conditions precedent to the
exercise by any holder of a Note of any remedy hereunder; it being understood
and intended that no one or more holders of Notes shall have any right in any
manner whatever by its or their action to enforce any right under this Indenture
or any other Credit Document, except in the manner herein provided, and that all
judicial proceedings to enforce any provision of this Indenture or any other
Credit Document shall be instituted, had and maintained in the manner herein or
any other Credit Document provided and for the equal and proportionate benefit
of all holders of the Outstanding Notes.
6.11 Suits for Principal and Interest. Nothing contained in Section
6.10 or in any other provision of this Indenture or in the Notes shall affect or
impair the obligation of the Issuer, which is absolute and unconditional, to pay
(or cause to be paid from the Trust Estate or other Collateral as in Article 4
provided) the principal of, any applicable Make-Whole Amount and interest on,
the Notes to the holders thereof on the dates when due, respectively, and at the
place specified in Section 4.6, or affect or impair the right of action, which
is also absolute and unconditional, of such holders to institute suit to enforce
such payment by virtue of the contract embodied in the Notes.
6.12 Waiver by the Issuer.
(a) In granting to the Trustee the power to enforce its rights
hereunder without prior judicial process or judicial hearing, the
Issuer expressly waives, renounces and knowingly relinquishes (to the
extent it may lawfully do so) any legal right which might otherwise
require the Trustee to enforce its rights by judicial process. In so
providing for
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non-judicial remedies, the Issuer recognizes and concedes that such
remedies are consistent with the usage of trade, are responsive to
commercial necessity, and are the result of a bargain at arm's length.
Nothing herein is intended to prevent the Trustee or the Issuer from
resorting to judicial process.
(b) The Issuer by becoming a party to any Credit Document (to
the extent that it may lawfully do so) hereby covenants that it will
not at any time insist upon or plead, or in any manner claim or take
the benefit or advantage of, any stay (except in connection with a
pending appeal of a judgment in a legal proceeding), valuation,
appraisal, redemption or extension law now or at any time hereafter in
force which, but for this waiver, might be applicable to any sale made
under any judgment, order or decree based on any of the Notes or this
Indenture or any other Credit Document; and the Issuer by becoming a
party to any Credit Document (to the extent it may lawfully do so)
hereby expressly waives and relinquishes all benefit and advantage of
any and all such laws and hereby covenants that it will not hinder,
delay or impede the execution of any power herein granted and delegated
to any Trustee, but that it will suffer and permit the execution of
every such power as though no such law or laws had been made or
enacted.
(c) The Issuer waives any right to require the Trustee or the
holders of the Outstanding Notes to proceed against any other Person,
or to exhaust any Collateral or other security for the obligations
secured hereby, or to have any other Person joined with the Issuer in
any suit arising out of such obligations or the Credit Documents, or to
pursue any other remedy in the Trustee's or such holders' power. The
Issuer further waives any and all notice of acceptance of this
Indenture by any other Person directly or indirectly liable for such
obligations from time to time. The Issuer further waives any defense
arising by reason of any disability or other defense of any other
Person or by reason of the cessation from any cause whatsoever of the
liability of any other Person liable for the obligations secured
hereby. Until all of such obligations shall have been paid in full, the
Issuer shall have no right to subrogation and the Issuer waives the
right to enforce any remedy which the Trustee or the holders of the
Outstanding Notes have or may hereafter have against any other Person
liable for such obligations, and the Issuer waives any benefit of any
right to participate in any security whatsoever now or hereafter held
by the Trustee or the holders of the Outstanding Notes. The Issuer
authorizes the Trustee and the holders of the Outstanding Notes,
without notice or demand and without any reservation of rights against
the Issuer and without affecting the Issuer's liability hereunder or on
the obligations secured hereby, from time to time to (a) take or hold
any Property other than the Collateral from any other Person as
security for such obligations, and exchange, enforce, waive and release
any or all of such Property, (b) apply such Property and direct the
order or manner of sale thereof as the Trustee and the Majority Holders
may in their discretion determine, and (c) renew, extend for any
period, accelerate, modify, compromise, settle or release any of the
obligations of any other Person in respect of the obligations secured
hereby or other security for such obligations.
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ARTICLE 7. AFFIRMATIVE COVENANTS.
The Issuer covenants and agrees that, so long as any of the commitments
are in effect and until payment in full of all Notes issued hereunder, all
interest thereon and all other amounts payable by the Issuer hereunder:
7.1 Financial Statements. The Issuer shall deliver, or shall cause to
be delivered, to the Trustee and each Note Holder:
(a) As soon as available and in any event within 120 days
after the end of each fiscal year of the Issuer the audited statements
of operations, stockholders' equity and cash flow, of the Issuer for
such fiscal year, and the related balance sheet of the Issuer as at the
end of such fiscal year, and setting forth in each case in comparative
form the corresponding figures for the preceding fiscal year, and
accompanied by (i) the related opinion of PriceWaterhouseCoopers, or
such other independent public accountants of recognized national
standing acceptable to the Majority Holders, which opinion shall state
that said financial statements fairly present the financial condition
and results of operations of the Issuer as at the end of, and for, such
fiscal year, that such financial statements have been prepared in
accordance with GAAP, except for such changes in such principles with
which the independent public accountants shall have concurred and
footnoted and such opinion shall not contain a "going concern" or scope
or like qualification or exception and that the examination of such
accountants in connection with such financial statements has been
conducted in accordance with generally accepted auditing standards and
included such tests of the accounting records and such other auditing
procedures as said accountants deemed necessary in the circumstances
and (ii) a certificate of such accountants stating that in making the
examination necessary for their opinion, they obtained no knowledge,
except as specifically stated, of any Indenture Default or Indenture
Event of Default.
(b) As soon as available and in any event within 120 days
after the end of each fiscal year of Noble Corp., the audited
consolidated statements of operations, stockholders' equity, and cash
flow, of Noble Corp. and its consolidated subsidiaries for such fiscal
year, and the related balance sheet of Noble Corp. and its consolidated
subsidiaries as at the end of such fiscal year, and setting forth in
each case in comparative form the corresponding figures for the
preceding fiscal year, and accompanied by the related opinion of
PriceWaterhouseCoopers, or such other independent public accountants of
recognized national standing acceptable to the Majority Holders, which
opinion shall state that said financial statements fairly present the
consolidated financial condition and results of operations of Noble
Corp. and its consolidated subsidiaries as at the end of, and for, such
fiscal year, that such financial statements have been prepared in
accordance with GAAP, except for such changes in such principles with
which the independent public accountants shall have concurred and
footnoted and such opinion shall not contain a "going concern" or scope
or like qualification or exception and that the examination of such
accountants in connection with such financial statements has been
conducted in accordance with generally accepted auditing standards and
included such tests of the accounting records and such other auditing
procedures as said accountants deemed necessary in the circumstances.
(c) As soon as available and in any event within 120 days
after the end of each fiscal year of the Parent, the unaudited
consolidated statements of operations, of the Parent
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and its consolidated subsidiaries for such fiscal year and the related
consolidated balance sheets of the Parent and its consolidated
subsidiaries as at the end of such fiscal year, and setting forth in
each case in comparative form, the corresponding figures for the
preceding fiscal year, and accompanied by the certificate of a
Responsible Officer, which certificate shall state that said financial
statements fairly present the consolidated financial condition and
results of operations of the Parent and its consolidated subsidiaries
as at the end of, and for, such fiscal year and that such financial
statements have been prepared in accordance with GAAP (exclusive of
footnotes), as at the end of, and for, such period.
(d) As soon as available and in any event within 60 days after
the end of each of the first three fiscal quarterly periods of each
fiscal year of the Issuer the unaudited statements of operations and
cash flows of the Issuer for such period and for the period from the
beginning of the respective fiscal year to the end of such period, and
the related balance sheets as at the end of such period, and setting
forth in each case in comparative form the corresponding figures for
the corresponding period in the preceding fiscal year, accompanied by
the certificate of a Responsible Officer, which certificate shall state
that said financial statements fairly present the consolidated
financial condition and results of operations of the Issuer in
accordance with GAAP, as at the end of, and for, such period (subject
to normal year-end audit adjustments) and further stating whether there
existed as of the date of such financial statements and whether, to the
best of such officer's knowledge, there exists on the date of the
certificate or existed at any time during the period covered by such
financial statements any Indenture Default or Indenture Event of
Default and, if any such condition or event exists on the date of the
certificate, specifying the nature and period of existence thereof and
the action the Issuer is taking and proposes to take with respect
thereto.
(e) As soon as available and in any event within 60 days after
the end of each of the first three fiscal quarterly periods of each
fiscal year of the Parent, the unaudited consolidated statements of
operations of the Parent and its consolidated subsidiaries for such
period and for the period from the beginning of the respective fiscal
year to the end of such period, and the related consolidated balance
sheets as at the end of such period, and setting forth in each case, in
comparative form the corresponding figures for the corresponding period
in the preceding fiscal year, accompanied by the certificate of a
Responsible Officer, which certificate shall state that said financial
statements fairly present the consolidated financial condition and
results of operations of the Parent and its consolidated subsidiaries
in accordance with GAAP, as at the end of, and for, such period
(subject to normal year-end audit adjustments).
(f) As soon as available and in any event within 60 days after
the end of each of the first three fiscal quarterly periods of each
fiscal year of Noble Corp. the unaudited consolidated statements of
operations and cash flows of Noble Corp. and its consolidated
subsidiaries for such period and for the period from the beginning of
the respective fiscal year to the end of such period, and the related
consolidated balance sheets as at the end of such period and setting
forth in each case in comparative form the corresponding figures for
the corresponding period in the preceding fiscal year.
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(g) Within the period provided in paragraph (a) above, a
certificate of a Responsible Officer of the Issuer stating whether
there existed as of the date of such financial statements and whether,
to the best of such officer's knowledge, there exists on the date of
the certificate or existed at any time during the period covered by
such financial statements any Indenture Default or Indenture Event of
Default and, if any such condition or event exists on the date of the
certificate, specifying the nature and period of existence thereof and
the action the Issuer is taking and proposes to take with respect
thereto.
(h) Promptly and in any event within three (3) Business Days
after the Issuer knows that any Indenture Default or Indenture Event of
Default or any Material Adverse Effect has occurred, a notice of such
Indenture Default or Indenture Event of Default or Material Adverse
Effect, and promptly and in any event within three (3) Business Days
after the Issuer knows of any material default under the Shell Contract
or the Operating Services Agreement a notice of such default, in each
case, describing the same in reasonable detail and the action the
Issuer proposes to take with respect thereto.
(i) Promptly upon its becoming available, each financial
statement, report, notice or proxy statement sent by the Issuer, the
Parent or Noble Corp. to stockholders generally and each regular or
periodic report and any registration statement, prospectus or written
communication (other than transmittal letters) in respect thereof filed
by the Issuer, the Parent or Noble Corp. with or received by the
Issuer, the Parent or Noble Corp. in connection therewith from any
securities exchange or the SEC or any successor agency.
(j) From time to time such other information regarding the
business, affairs or financial condition of the Issuer, the Parent or
information from Noble Corp. reasonably related to the Issuer or the
Parent (including, without limitation, any Plan or Multiemployer Plan
and any reports or other information required to be filed under ERISA)
as any Purchaser or other Note Holder or the Trustee may reasonably
request.
7.2 Litigation. The Issuer shall promptly give to the Trustee and each
registered Note Holder notice of any litigation or proceeding against or
adversely affecting the Issuer or the Parent in which the amount involved is not
covered in full by insurance or in which the Issuer has received notice from any
insurer reserving its rights or contesting coverage under any policy (subject to
normal and customary deductibles and for which the insurer has not assumed the
defense), or in which injunctive or similar relief is sought and which could
reasonably be expected to result in a Material Adverse Effect. The Issuer will
promptly notify the Trustee and each registered Note Holder of all claims,
judgments, Liens or other encumbrances affecting any Property of the Issuer if
the aggregate value of such claims, judgments, Liens or other encumbrances
affecting such Property shall exceed $500,000.
7.3 Maintenance, Etc.
(a) The Issuer shall: (i) preserve and maintain its corporate
existence and all of its material rights, privileges, licenses and
franchises; (ii) keep proper books of record and account in which full,
true and correct entries will be made of all dealings or transactions
of, or in relation to its business and activities in accordance with
GAAP consistently applied;
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(iii) comply with all Governmental Requirements if failure to comply
with such requirements will have a Material Adverse Effect; (iv) pay
and discharge all taxes, assessments and governmental charges or levies
imposed on it or on its income or profits or on any of its Property,
all trade accounts payable in accordance with usual and customary
business terms and all claims for work, labor or materials prior to the
date on which any Lien (other than Liens for obligations that have not
been outstanding more than 60 days, unless action has been taken to
file or enforce such Liens) or penalties attach thereto, except for any
such tax, assessment, charge, levy, account payable or claim, the
payment of which is being Contested In Good Faith; (v) permit any
holder of the Notes or its representative to visit and inspect, under
the Issuer's guidance, any of the properties of the Issuer, to examine
all of its books of account, records, reports and other papers, to make
copies and extracts therefrom and to discuss its affairs, finances and
accounts with its officers, employees, and independent public
accountants (and by this provision the Issuer authorizes said
accountants to discuss with any holder of the Notes the finances and
affairs of the Issuer) all at such reasonable time, upon reasonable
notice and as often as may be reasonably requested; provided that the
Issuer shall not be required to pay or reimburse any Note Holder for
expenses which such holder may incur in connection with any such
visitation or inspection, except that if such visitation or inspection
is made during any period when an Indenture Default or an Indenture
Event of Default shall have occurred and be continuing, the Issuer
agrees to reimburse such holder for all such expenses promptly upon
demand, and (vi) keep, or cause to be kept, insured by financially
sound and reputable insurers all Property of a character usually
insured by Persons engaged in the same or similar business similarly
situated against loss or damage of the kinds and in the amounts
customarily insured against by such Persons and carry such other
insurance as is usually carried by such Persons and as required by each
of the Shell Contract and the First Naval Mortgage including, without
limitation, the insurance described on Schedule 7.3 hereto.
(b) Contemporaneously with the delivery of the financial
statements required by Section 7.1 to be delivered for each year, the
Issuer will furnish or cause to be furnished to the Trustee a
certificate of insurance coverage from each insurer in form and
substance satisfactory to the Trustee and the Required Holders.
(c) The Issuer will maintain the Drilling Rig and all
equipment used in connection therewith in a good running order, repair
and first class condition and in compliance with the Shell Contract and
all Governmental Requirements and within the class designation as on
the Closing Date and with all equipment capable of operation within the
tolerances designated on the Closing Date and at all times registered
as a vessel under the laws of Panama and otherwise operate its
Properties or cause such Properties to be operated in United States
territorial waters in the Gulf of Mexico or in the Gulf of Mexico on or
above the outer Continental Shelf of the United States and as set forth
in Section 1 of the Drilling Order and in accordance with the Shell
Contract and the practices of the industry and in compliance with all
other applicable contracts and agreements and otherwise in a careful
efficient manner and in compliance in all material respects with all
Governmental Requirements.
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The Issuers' maintenance obligations hereunder shall include,
without limitation, causing the surveys and inspections referred to in
Annex D hereto to be timely conducted and satisfactorily passed with
the 5 year surveys and inspections conducted and passed prior to the
Maturity Date.
In the event of any damage to the Drilling Rig from any
casualty having a repair cost in excess of $250,000, the Issuer shall
give prompt written notice thereof to the Trustee, which notice shall
set forth in reasonable detail the nature and extent of the damage, an
estimate of the cost of repairs and an estimate of the length of time
necessary to repair such damage. Such notice shall also state whether
the Issuer considers such damage to constitute an Event of Loss, which
statement shall not, however, be determinative. With respect to any
casualty damage, regardless of whether insurance proceeds are
available, the Issuer shall promptly and diligently repair the Drilling
Rig or cause the Drilling Rig to be repaired to the same condition as
it was before such damage and in compliance with the foregoing
requirements of this Section 7.3(c), free and clear of all liens and
encumbrances other than Excepted Liens. At the request of the Trustee,
all contracts for any such repairs shall be assigned to the Trustee as
part of the Trust Estate as security for Issuer's obligations
hereunder. Such assignment may be effected by a blanket assignment and
by specific assignments with respect to third party contracts in excess
of $100,000. In the event of any damage that constitutes an Event of
Loss, then the Issuer shall be relieved of the foregoing repair
obligations upon repayment in full of all principal, interest and all
other amounts payable under the Notes and the other Credit Documents in
compliance with the provisions of Section 3.6 hereof.
(d)(i) The Issuer will maintain the Shell Contract and the
Operating Services Agreement in full force and effect and comply with
all terms and provisions thereof and enforce the compliance of SDDI and
the Parent in accordance with their respective terms except for
immaterial variances and immaterial waivers. In furtherance of the
foregoing, Issuer shall: (A) pursue all reasonable efforts with respect
to collecting dayrate payments due under the Shell Contract in
accordance with prudent business practices, and (B) collect all dayrate
payments due under the Shell Contract not later than sixty days after
the date due, unless on such due date and continuing through and until
the date on which such dayrate payment is made, the Debt Service
Reserve Fund shall equal two (2) months worth of payments required on
the Notes or, if the Capital Funding Agreement is then in effect, no
amount shall have been drawn thereunder and not reinstated.
(ii) The Operating Services Agreement will not be amended or
modified without the approval of the Required Holders. The maintenance,
repair and insurance requirement provisions of the Shell Contract will
not be amended or modified without the approval of the Required Holders
and the Shell Contract will not otherwise be amended or modified
without the approval of the Required Holders if such other amendment or
modification will reduce or impair the rentals or other payments of
SDDI thereunder, including, without limitation, the termination
payments called for in Section 17E of the Drilling Order, or will
change the payment terms or the term of the Shell Contract, or will
increase the material obligations of the contractor thereunder or will
otherwise materially impair the value, operational capabilities and
useful life of the Drilling Rig or the Shell Contract. Without the
consent of
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all of the Note Holders, the Issuer will not consent to the assignment
by SDDI (except to permitted assignees in accordance with the Shell
Contract) of the Shell Contract.
(e) Promptly after the submission to SDDI of each monthly
billing under the Shell Contract, the Issuer shall supply the Trustee
with a copy thereof, which billing shall clearly set out the amount of
the billing and the due date thereof.
7.4 Environmental Matters.
(a) The Issuer will operate the Property in compliance with
Environmental Laws such that any noncompliance will not have a Material
Adverse Effect, and will establish and implement such procedures as may
be reasonably necessary to continuously determine and assure that any
failure of the following does not have a Material Adverse Effect: (i)
all Property of the Issuer and the operations conducted thereon and
other activities of the Issuer are in compliance with and do not
violate the requirements of any Environmental Laws, (ii) no oil,
hazardous substances or solid wastes are disposed of, discharged or
otherwise released except in compliance with Environmental Laws, (iii)
no hazardous substance will be released in a quantity equal to or
exceeding that quantity which requires reporting pursuant to Section
103 of CERCLA, and (iv) no oil, oil and gas exploration and production
wastes or hazardous substance is discharged or released so as to pose
an imminent and substantial endangerment to public health or welfare or
the environment which will result in damages recoverable under the OPA.
(b) The Issuer will promptly notify the Trustee and the
registered Note Holders in writing of any threatened action,
investigation or inquiry by any Governmental Authority of which the
Issuer has knowledge in connection with any Environmental Laws,
excluding routine testing and corrective action.
7.5 Further Assurances. The Issuer will cure promptly any defects in
the creation and issuance of the Notes and the execution and delivery of the
Credit Documents and this Indenture. The Issuer at its expense will promptly
execute and deliver to the Trustee upon request all such other documents,
agreements and instruments to comply with or accomplish the covenants and
agreements of the Issuer in the Credit Documents and this Indenture, or to
further evidence and more fully describe the Collateral intended as security for
the Notes, or to correct any omissions in the Credit Documents, or to state more
fully the security obligations set out herein or in any of the Credit Documents,
or to perfect, protect or preserve any Liens created pursuant to any of the
Credit Documents, or to make any recordings, to file any notices or obtain any
consents, all as may be necessary or appropriate in connection therewith. To
facilitate assembling the Collateral upon the occurrence of an Indenture Event
of Default and making it available to the Indenture Trustee at a place to be
designated by the Indenture Trustee which is reasonably convenient, the Issuer
has agreed to, among other things, move the Drilling Rig under certain
conditions as specified in Section 3.3(c) of the First Naval Mortgage. In
addition and in connection therewith, the Issuer acknowledges that the Indenture
Trustee and the Note Holders have certain rights under and pursuant to the
Operating Services Agreement which rights shall be exercisable under the
circumstances and in
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accordance with the terms of the Operating Services Agreement without any demand
on, or legal or other proceeding or action against, the Issuer.
7.6 Performance of Obligations. The Issuer will pay the Notes according
to the reading, tenor and effect thereof; and the Issuer will perform every act
and discharge all of the obligations to be performed and discharged by it under
the Credit Documents including, without limitation, this Indenture, at the time
or times and in the manner specified.
7.7 ERISA Information and Compliance. The Issuer will furnish to the
Trustee and the Note Holders (i) immediately upon becoming aware of the
occurrence of any ERISA Event or of any "prohibited transaction," as described
in section 406 of ERISA or in section 4975 of the Code, in connection with any
Plan or any trust created thereunder, a written notice signed by a Responsible
Officer specifying the nature thereof, what action the Issuer or the ERISA
Affiliate is taking or proposes to take with respect thereto, and, when known,
any action taken or proposed by the Internal Revenue Service, the Department of
Labor or the PBGC with respect thereto, and (ii) immediately upon receipt
thereof, copies of any notice of the PBGC's intention to terminate or to have a
trustee appointed to administer any Plan. With respect to each Plan (other than
a Multiemployer Plan), the Issuer will, and will cause each ERISA Affiliate to,
(i) satisfy in full and in a timely manner without giving rise to any Lien, all
of the contribution and funding requirements of section 412 of the Code
(determined without regard to subsections (d), (e), (f) and (k) thereof) and of
section 302 of ERISA (determined without regard to sections 303, 304 and 306 of
ERISA), and (ii) pay, or cause to be paid, to the PBGC in a timely manner, all
premiums required pursuant to sections 4006 and 4007 of ERISA.
7.8 Debt Service Reserve Fund. The Trustee shall establish an account
styled "Noble/▇▇▇▇ ▇▇▇▇▇▇ Debt Service Reserve Fund" (the "Debt Service Reserve
Fund"), subject to the Trustee's sole dominion and control. From the proceeds
received by the Issuer, upon the issuance of the Notes pursuant hereto and
pursuant to the Note Purchase Agreements, Issuer shall deposit or cause to be
deposited an amount in the Debt Service Reserve Fund equal to two (2) months
worth of prepayments required on the Notes pursuant to Section 3.4(a) and (b).
Five (5) Business Days prior to a Payment Date, the Trustee shall determine
whether the sums received in the Collection Account pursuant to Section 4.1, 4.2
or 4.3 since the last preceding Payment Date together with the Working Capital
Reserve Fund provided pursuant to Section 7.15 below will be sufficient to cover
the required payments of principal and interest due on the Notes under Article 3
hereof on the next Payment Date. In the event the Trustee determines that
insufficient funds are available as aforesaid, the Trustee will give notice to
the Issuer and each Note Holder three (3) Business Days prior to the Payment
Date that a shortfall (a "Shortfall") exists, the amount thereof, the basis for
such Shortfall and the Trustee's intention to draw on the Debt Service Reserve
Fund to cover such Shortfall. In such event, the Trustee will transfer an amount
equal to the lesser of (i) the Shortfall and (ii) the balance in the Debt
Service Reserve Fund to the Collection Account on the Business Day next
preceding the Payment Date. Thereafter, from time to time, any Shortfall in the
Debt Service Reserve Fund shall be replenished as provided in Section 4.1.
In the event (A) the Parent executes and delivers the Capital Funding
Agreement together with an opinion of counsel for the Parent in form and
substance reasonably satisfactory to the Trustee as to the authorization and
enforceability of the Capital Funding Agreement upon the Parent, (B) no
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Indenture Default or Indenture Event of Default exists and is continuing
hereunder and (C) the then outstanding senior unsecured debt securities of Noble
Corp. are rated Investment Grade, the Trustee shall distribute to the Issuer,
upon the Issuer's request, all sums then held in the Debt Service Reserve Fund
and such account shall be closed but if such debt securities of Noble Corp. at
any time thereafter are not rated Investment Grade or are not rated then Issuer
and Parent shall immediately re-open and fund the Debt Service Reserve Fund and
or provide comparable security (as in a letter of credit) to the satisfaction of
the Majority Holders.
7.9 Maintenance of Agency. So long as any of the Notes remain
Outstanding, the Issuer will maintain a single agency where: (i) the Notes may
be presented for payment, and (ii) the Notes may be presented for registration
of transfer, exchange or replacement as in Article 2 provided. The Issuer hereby
designates the principal corporate trust office of the Trustee in Houston,
Texas, as its agency for each such purpose. The Issuer will give to the Trustees
and the holders of the Notes prior written notice of any change of location of
any such agency, which shall be located in the United States. In case the Issuer
shall fail to maintain such agency or shall fail to give such notices of any
change of the location thereof, presentations and demands may be made and notice
may be served at the address specified for the Issuer in or pursuant to Section
12.3. Notice and demands to or upon the Issuer in respect to the Notes or this
Indenture may also be served at such address.
7.10 Additional Assurances. The Issuer will cause this Indenture, any
and all supplemental indentures, mortgages, security agreements, instruments of
further assignment, financing statements and continuation statements at all
times to be kept recorded and filed in such manner and in such places as may be
required by law to fully preserve and protect the rights of the holders of the
obligations secured hereby as a first priority security interest and the
Trustees hereunder and under all other documents and instruments evidencing or
securing the obligations secured hereby (including, without limitation,
documents and instruments granting Liens to the Trustees with respect to the
Trust Estate). The Issuer will, at its expense and at any time and from time to
time, promptly execute and deliver all further instruments and documents and
take all further action that may be necessary or desirable or that the Trustee
may request in order to (a) perfect and protect the Liens and other rights
created or purported to be created hereby and by the other Credit Documents and
the first priority of such Liens and other rights; (b) enable the Trustee to
exercise and enforce its rights and remedies hereunder in respect of the
Collateral; or (c) otherwise effect the purposes of this Indenture, including,
without limitation: (i) executing and filing such supplements to this Indenture
and such financing or continuation statements (or amendments thereto) as may be
necessary or desirable or that the Trustee may reasonably request in order to
perfect and preserve the Liens created or purported to be created hereby or
thereby; and (ii) furnishing to the Trustee from time to time such other
information in connection with the Collateral as the Trustee may reasonably
request, all in reasonable detail. The Issuer will furnish to the Trustee any
information which the Trustee may from time to time reasonably request
concerning any covenant, provision or representation contained herein or
concerning any other matter in connection with the Collateral.
7.11 Year 2000 Compliance. The Issuer shall take appropriate steps to
assess, quantify, address and resolve its business and financial risks resulting
from the Year 2000 Problem, including those business and economic risks
resulting from the failure of key suppliers, vendors and customers of the Issuer
to properly assess, quantify, address and resolve the Year 2000 Problem.
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7.12 Change in Location of Collateral or Issuer. The Drilling Rig shall
be kept at all times in United States territorial waters in the Gulf of Mexico
or in the Gulf of Mexico on or above the outer Continental Shelf of the United
States and as set forth in Section 1 of the Drilling Order. Issuer will not,
without the Required Holders' prior written consent, change the location of any
of the other Collateral to any state, county or other jurisdiction in which
Trustee has not already filed a financing statement or taken other necessary
steps to perfect its first priority security interests in the Collateral or to
maintain such perfection. Issuer will give Trustee and each Note Holder thirty
(30) days' prior written notice of (i) the opening or closing of any place of
Issuer's business or (ii) any change in the location of Issuer's chief executive
office or address.
7.13 Change in Issuer's Name. Issuer will not change its name or
identity without notifying Trustee of such change in writing at least thirty
(30) days prior to the effective date of such change. Without the express
written consent of the Majority Holders, however, Issuer will not engage in any
other business or transaction under any name other than Issuer's name hereunder.
7.14 Corporate Independence. Until 367 days have elapsed following
payment and satisfaction of all Notes, the Issuer shall not change its legal
structure to anything other than a corporation and shall observe the applicable
legal requirements for the recognition of the Issuer as a legal entity separate
and apart from Parent and its Affiliates, including, without limitation,
compliance with the following:
(i) the Issuer shall maintain separate corporate records,
books of account and financial statements (each of which shall be
sufficiently full and complete to permit a determination of the
Issuer's assets and liabilities and to permit a determination of the
obligees thereon and the time for performance on each of the Issuer's
obligations) from those of the Parent and its Affiliates;
(ii) the Issuer shall not commingle any of its assets or funds
with those of the Parent or any of its Affiliates;
(iii) the board of directors of the Issuer shall be elected
independently from the board of directors of the Parent and any of its
Affiliates and shall at all times include at least one Independent
Director (except in the case of death, incapacity, resignation or
removal, and in any such case said Independent Director shall be
promptly replaced);
(iv) the board of directors and stockholders of the Issuer
shall hold all regular and special meetings appropriate to authorize
corporate actions. Regular meetings of directors will be held at least
annually. The board of directors may act from time to time through one
or more committees of the board in accordance with the Issuer's
by-laws. Appropriate minutes of all meetings of board of directors (and
committees thereof) and of the stockholders' meetings shall be kept by
the Issuer;
(v) the Issuer shall act solely in its own corporate name and
through its own authorized officers and agents. Neither the Parent nor
any of its Affiliates shall be appointed agent of the Issuer;
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(vi) the Issuer will maintain a separate office which shall be
physically separate from space occupied by the Parent, or any of its
Affiliates (but may be separate space occupied solely by the Issuer at
the offices of the Parent or any of its Affiliates) and shall be
identified as the Issuer's office so it can be identified by outsiders;
(vii) the Issuer shall at all times hold itself out to the
public under the Issuer's own name as a legal entity separate and
distinct from Parent and its Affiliates (the foregoing to include, but
not be limited to, use of materially separate and distinct letterhead
and telephone number(s));
(viii) all financial reports prepared by the Issuer shall
comply with GAAP and shall be issued separately from any reports
prepared for Parent and any of its Affiliates; and
(ix) Parent's financial reports shall disclose the
separateness of the Issuer as required by GAAP and that the Collateral
is owned by the Issuer and is not available to creditors of Parent or
any of its Affiliates.
7.15 Working Capital Fund. The Trustee shall establish an account
styled "Noble/▇▇▇▇ ▇▇▇▇▇▇ Working Capital Fund" (the "Working Capital Fund"),
subject to the Trustee's sole dominion and control. From the proceeds received
by the Issuer, upon the issuance of the Notes pursuant hereto and pursuant to
the Note Purchase Agreements, Issuer shall deposit or cause to be deposited an
amount in the Working Capital Fund equal to $1,950,000. Five (5) Business Days
prior to the first two Payment Dates, the Trustee shall determine whether the
sums in the Collection Account will be sufficient to cover the required payments
of principal and interest due on the Notes under Article 3 hereof on the next
Payment Date. In the event the Trustee determines that insufficient funds are
available as aforesaid, the Trustee will draw on the Working Capital Fund. In
such event, the Trustee will transfer an amount equal to the lesser of (i) the
amount necessary to pay the principal and interest due on the Notes under
Article 3 and (ii) the balance in the Working Capital Fund to the Collection
Account on the Business Day next preceding the Payment Date. Following the
second Payment Date, if the funds in the Collection Account are otherwise
sufficient to pay the amounts required under Article 3, and no Indenture Default
or Indenture Event of Default shall have occurred and be continuing, the Trustee
shall release any funds remaining in the Working Capital Fund to the Collection
Account.
ARTICLE 8. NEGATIVE COVENANTS.
The Issuer covenants and agrees that, so long as any of the commitments
under the Note Purchase Agreements are in effect and until payment in full of
Notes issued hereunder, all interest thereon and all other amounts payable by
the Issuer hereunder, without the prior written consent of the Majority Holders
(except for Sections 8.12, 8.13, 8.17 and 8.18 which shall require the prior
written consent of the Required Holders):
8.1 Debt. The Issuer will not incur, create, assume, suffer to exist or
otherwise become liable in respect of any Debt, except:
(a) the Notes or other indebtedness arising under the Credit
Documents;
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(b) accounts payable (for the deferred purchase price of
Property or services) from time to time incurred in the ordinary course
of business which, if greater than 60 days past the invoice or billing
date, are being Contested In Good Faith; and
(c) Debt owing to the Parent evidenced by subordinated
promissory notes in the form attached hereto as Annex C.
8.2 Liens. The Issuer will not create, incur, assume or permit to exist
any Lien on any of its Properties (now owned or hereafter acquired), or upon any
income or profits therefrom except:
(a) Liens securing the payment of the Notes; and
(b) during the period up to but not including the Maturity
Date, Excepted Liens.
8.3 Investments, Loans and Advances. The Issuer will not make or permit
to remain outstanding any loans or advances to or investments in any Person,
except that the foregoing restriction shall not apply to:
(a) accounts receivable arising in the ordinary course of
business; and
(b) Permitted Investments made pursuant to the requirements of
this Indenture.
8.4 Dividends, Distributions and Redemptions. In the event of the
occurrence and during the continuance of an Indenture Default or Indenture Event
of Default, the Issuer will not declare or pay any dividend, purchase, redeem or
otherwise acquire for value any of its stock now or hereafter outstanding,
return any capital to its stockholders or make any distribution of its assets to
its stockholders.
8.5 Sales and Leasebacks. The Issuer will not enter into any
arrangement, directly or indirectly, with any Person whereby the Issuer shall
sell or transfer any of its Property, whether now owned or hereafter acquired,
and whereby the Issuer shall then or thereafter rent or lease as lessee such
Property or any part thereof or other Property which the Issuer intends to use
for substantially the same purpose or purposes as the Property sold or
transferred.
8.6 Nature of Business. The Issuer will not engage directly or
indirectly in any business or activity except owning and operating the Drilling
Rig and activities incidental thereto.
8.7 Limitation on Leases. The Issuer will not create, incur, assume or
suffer to exist any obligation for the payment of rent or hire of Property of
any kind whatsoever (real or personal including capital leases), under leases or
lease agreements which would cause the aggregate amount of all payments made by
the Issuer pursuant to all such leases or lease agreements to exceed $500,000 in
any period of twelve consecutive calendar months during the life of such leases.
8.8 Mergers, Etc. The Issuer will not merge into or with or consolidate
with any other Person, or sell, lease or otherwise dispose of (whether in one
transaction or in a series of transac tions) all or substantially all of its
Property to any other Person.
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8.9 Proceeds of Notes. The Issuer will not permit the proceeds of the
Notes to be used for any purpose other than those permitted by the Note Purchase
Agreements. Neither the Issuer nor any Person acting on behalf of the Issuer has
taken or will take any action which might cause any of the Credit Documents to
violate Regulation T, U or X or any other regulation of the Board of Governors
of the Federal Reserve System or to violate Section 7 of the Securities Exchange
Act of 1934 or any rule or regulation thereunder, in each case as now in effect
or as the same may hereinafter be in effect.
8.10 ERISA Compliance. The Issuer will not at any time:
(a) engage in, or permit any ERISA Affiliate to engage in, any
transaction in connection with which the Issuer or any ERISA Affiliate
could be subjected to either a civil penalty assessed pursuant to
section 502(c), (i) or (l) of ERISA or a tax imposed by Chapter 43 of
Subtitle D of the Code that is Material;
(b) terminate, or permit any ERISA Affiliate to terminate, any
Plan in a manner, or take any other action with respect to any Plan,
which could result in any liability of the Issuer or any ERISA
Affiliate to the PBGC that is Material;
(c) fail to make, or permit any ERISA Affiliate to fail to
make, full payment when due of all amounts which, under the provisions
of any Plan, agreement relating thereto or applicable law, the Issuer
or any ERISA Affiliate is required to pay as contributions thereto to
the extent that such failure could reasonably be expected to result in
a liability of the Issuer or any ERISA Affiliate that is Material;
(d) permit to exist, or allow any ERISA Affiliate to permit to
exist, any accumulated funding deficiency within the meaning of Section
302 of ERISA or section 412 of the Code, whether or not waived, with
respect to any Plan;
(e) permit, or allow any ERISA Affiliate to permit, the
actuarial present value of the benefit liabilities under any Plan
maintained by the Issuer or any ERISA Affiliate which is regulated
under Title IV of ERISA to exceed the current value of the assets
(computed on a plan termination basis in accordance with Title IV of
ERISA) of such Plan allocable to such benefit liabilities by an amount
which in the event of the termination of such Plan would be Material.
The term "actuarial present value of the benefit liabilities" shall
have the meaning specified in section 4041 of ERISA;
(f) contribute to or assume an obligation to contribute to, or
permit any ERISA Affiliate to contribute to or assume an obligation to
contribute to, any Multiemployer Plan if a future withdrawal or partial
withdrawal from such Plan could reasonably be expected to result in a
withdrawal liability assessment which is Material;
(g) acquire, or permit any ERISA Affiliate to acquire, an
interest in any Person that causes such Person to become an ERISA
Affiliate with respect to the Issuer or any ERISA Affiliate if such
Person sponsors, maintains or contributes to, or at any time in the
six-year period preceding such acquisition has sponsored, maintained,
or contributed to, (1)
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any Multiemployer Plan, if a Material withdrawal liability has been
assessed by such Plan against such ERISA Affiliate or Person or if a
future withdrawal or partial withdrawal from such Plan could reasonably
be expected to result in a withdrawal liability assessment which is
Material or (2) any other Plan that is subject to Title IV of ERISA
under which the actuarial present value of the benefit liabilities
under such Plan exceeds the current value of the assets (computed on a
plan termination basis in accordance with Title IV of ERISA) of such
Plan allocable to such benefit liabilities by an amount which in the
event of the termination of such Plan would be Material;
(h) incur, or permit any ERISA Affiliate to incur, a Material
liability to or on account of a Plan under sections 515, 4062, 4063,
4064, 4201 or 4204 of ERISA;
(i) contribute to or assume an obligation to contribute to, or
permit any ERISA Affiliate to contribute to or assume an obligation to
contribute to, any employee welfare benefit plan, as defined in section
3(1) of ERISA, including, without limitation, any such plan maintained
to provide benefits to former employees of such entities, that may not
be terminated by such entities without any Material liability; or
(j) amend or permit any ERISA Affiliate to amend, a Plan
resulting in an increase in current liability such that the Issuer or
any ERISA Affiliate is required to provide security to such Plan under
section 401(a)(29) of the Code.
8.11 Sale or Discount of Receivables. The Issuer will not discount or
sell (with or without recourse) any of its notes receivable or accounts
receivable.
8.12 Sale of Drilling Rig. The Issuer will not sell, lease, charter,
assign, convey, dispose or otherwise transfer the Drilling Rig or any interest
therein; provided, however, this covenant shall not apply to attendant equipment
to the Drilling Rig which is obsolete or which is replaced by equipment of equal
or greater value.
8.13 Environmental Matters. The Issuer will not cause or permit any of
its Property to be in violation of, or do anything or permit anything to be done
which will subject any such Property to any remedial obligations under any
Environmental Laws, assuming disclosure to the applicable Governmental Authority
of all relevant facts, conditions and circumstances, if any, pertaining to such
Property where such violations or remedial obligations would have a Material
Adverse Effect.
8.14 Transactions with Affiliates. The Issuer will not enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property or the rendering of any service, with any Affiliate unless
such transactions are otherwise permitted under this Indenture or the other
Credit Documents, are in the ordinary course of its business and are upon fair
and reasonable terms no less favorable to it than it would obtain in a
comparable arm's length transaction with a Person not an Affiliate.
8.15 Subsidiaries. The Issuer has no subsidiaries and shall not create
or acquire any subsidiaries.
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8.16 Location of Issuer. The Issuer will not cause or permit any change
to be made in its corporate name or identity or any change to be made in the
address of its chief executive office or principal place of business (presently
being the address set forth in Section 12.3), unless the Issuer shall have first
notified the Trustee and each Note Holder of such change at least thirty (30)
days prior to the effective date of such change and shall have first taken all
action required by the Trustee for the purpose of further perfecting or
protecting the rights of the Trustee in the Collateral. In any notice furnished
pursuant to this subsection 8.16, the Issuer will state that the notice is
required by this Indenture and contains facts that may require additional
filings of financing statements.
8.17 Acquisition of Notes. The Issuer will not, directly or indirectly
through any of its Affiliates or otherwise, purchase, redeem, prepay or
otherwise acquire any of the Outstanding Notes except upon payment or prepayment
of the Notes in accordance with the terms of this Indenture and the Notes. In
case the Issuer or any of its Affiliates acquires any Notes, such Notes shall
thereupon be delivered to the Trustee for cancellation and no Notes shall be
issued in substitution therefor.
8.18 Non-Petition Covenant. With respect to the CP Conduit as a
Purchaser, the Issuer hereby agrees that until the 368th day following the
maturity of the last maturing commercial paper note to be issued by the CP
Conduit in connection with its funding of its investment in the Notes, the
Issuer will not institute, and will not join with others in instituting, any
involuntary bankruptcy or analogous proceeding against the CP Conduit under any
bankruptcy, reorganization, receivership or similar law, domestic or foreign, as
now or hereafter in effect.
8.19 Jurisdiction of Registration. The Issuer shall not change the
jurisdiction of registration of the Drilling Rig to another jurisdiction, unless
the Issuer has given the Trustee and the Note Holders not less than 60 days
prior written notice, the Required Holders have consented (which consent shall
not be unreasonably withheld) and the Issuer has furnished the Trustee and the
Note Holders with a new replacement ship mortgage acceptable to the Trustee and
the Required Holders and appropriate opinions of counsel, acceptable in form and
substance to the Required Holders, with respect to such mortgage and the filing
and first priority thereof.
ARTICLE 9. THE TRUSTEES.
9.1 Certain Duties and Responsibilities of Trustees.
(a) Except during the continuance of an Indenture Event of
Default:
(i) each Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against such Trustee; and
(ii) each Trustee may conclusively rely, in good
faith, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or
opinions furnished to such Trustee and conforming to the
requirements of this Indenture or other Credit Documents; but
in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to
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such Trustee, such Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Indenture Event of Default has occurred and is
continuing, each Trustee shall exercise such of the rights and powers
vested in it by this Indenture for the benefit of the holders of the
Notes, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve any Trustee from liability for its own negligence or its own
willful misconduct, or the inaccuracy of any of its representations or
warranties made in Section 9.14, except that:
(i) no Trustee which is a corporation or banking
association shall be liable for any error of judgment made in
good faith by an officer of such Trustee unless it shall be
proved that such Trustee was negligent in ascertaining
material facts; and
(ii) no Trustee shall be liable to the holder of any
Note with respect to any action taken or omitted to be taken
by it, in good faith after an Indenture Event of Default shall
have occurred in accordance with the direction of the Majority
Holders relating to the method and place of conducting any
proceeding for any remedy available to such Trustee.
(d) No provision of this Indenture shall require any Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to any Trustee shall be subject to
the provisions of this Section 9.1.
(f) The Trustee shall give to the holder of each Note written
notice of each and every Indenture Default or Indenture Event of
Default of which one of its Responsible Officers has actual knowledge
within three (3) days of obtaining such actual knowledge unless the
same shall be cured during such period.
9.2 Trustees' Compensation and Indemnification. The Issuer covenants
and agrees to pay to each Trustee promptly (and in any event within 30 days
after receipt of any invoice or other statement or notice) and each Trustee
shall be entitled to the fees and expenses determined as provided in Schedule
9.2 hereto for all services rendered and expenses incurred by it in the
execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties hereunder of such Trustee, which compensation shall
not be limited by any provisions of law in regard to the compensation of a
trustee of an express trust, and the Issuer will pay or reimburse each
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Trustee promptly (and in any event within 30 days after receipt of any invoice
or other statement or notice) for all reasonable expenses, disbursements and
advances incurred or made by such Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its external counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as may
arise from its gross negligence (but not mere negligence) or bad faith or wilful
misconduct. Subject to Section 9.3(f), each Trustee agrees that it shall have no
right against any holder of any Note for the payment of compensation for its
services hereunder or any expenses or disbursements incurred in connection with
the exercise and performance of its powers and duties hereunder or any
indemnification against liability which it may incur in the exercise and
performance of such powers and duties but on the contrary, shall look solely to
the Issuer for such payment and indemnification and that it shall have no Lien
on or security interest in the Collateral as security for such compensation,
expenses, disbursements and indemnification except to the extent provided for in
Section 4.3.
9.3 Certain Rights of Trustees.
(a) No Trustee shall be responsible for any recitals herein or
for insuring all or any portion of the Trust Estate nor shall any
Trustee be bound to ascertain or inquire as to the performance or
observance of any covenants, conditions or agreement contained herein.
Except in the case of an Indenture Default or Indenture Event of
Default of which a Responsible Officer of the Trustee has actual
knowledge, the Trustee shall be deemed to have knowledge of an
Indenture Default or Indenture Event of Default only upon receipt of
written notice thereof from the Issuer or any holder of a Note;
provided, however, that the Trustee shall be deemed to have actual
knowledge of (i) any failure to receive payments under the Shell
Contract when due, if the Trustee shall have received a copy of the
billing for such payment pursuant to Section 7.3(e) above, (ii) sums
required to be deposited in the Debt Service Reserve Fund and sums
actually deposited, and (iii) of the principal of, any applicable
Make-Whole Amount or interest on, any Note on the date any such payment
is due.
(b) No Trustee makes any representation, or warranty as to the
validity, sufficiency or enforceability of this Indenture, the Notes,
the Note Purchase Agreements or any other Credit Documents, or as to
the title, operation, merchantability or fitness for use or purpose,
value, compliance with specifications, condition, design, quantity,
durability or otherwise with respect to the Drilling Rig or any other
Collateral or any substitute therefor. No Trustee shall be accountable
to anyone for the use or application of any of the Notes of the
proceeds thereof or for the use or application of any Collateral or the
proceeds thereof which shall be released from the Lien and security
interest in favor of such Trustee held in trust under the terms hereof,
in accordance with the provisions of this Indenture.
(c) Each Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice request, direction, consent, order,
bond, note or other paper or document believed by it, in good faith, to
be genuine and to have been signed or presented by the proper party or
parties.
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(d) Any request, direction or authorization by the Issuer
shall be sufficiently evidenced by a request, direction or
authorization in writing, delivered to a Trustee, and signed in the
name of such party by a Responsible Officer; and any resolution of the
Board of Directors of the Issuer or any committee thereof shall be
sufficiently evidenced by a copy of such resolution certified by its
Secretary or an Assistant Secretary to have been duly adopted and to be
in full force and effect on the date of such certification, and
delivered to such Trustee.
(e) Any Trustee may consult with counsel, appraisers,
engineers, accountants and other skilled persons to be selected by such
Trustee, and the written advice of any thereof shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon.
(f) No Trustee shall be under any obligation to take any
action to protect, preserve or enforce any rights or interests in the
Collateral or to take any action towards the execution or enforcement
of the trusts hereunder or otherwise hereunder, whether on its own
motion or on the request of any other Person, if it shall have notified
the holders of the Notes that the same, in the opinion of such Trustee,
may involve pecuniary loss, liability or expense, unless the Issuer or
one or more holders of the Notes shall offer and furnish reasonable
security or indemnity reasonably satisfactory to such Trustee against
pecuniary loss, liability and expense to such Trustee. With respect to
any original Purchasers of the Notes or any other Institutional
Investor an indemnity agreement by such Purchaser, in form and
substance reasonably satisfactory to such Trustee, will satisfy such
requirement without any bond, security or third party indemnity.
(g) No Trustee shall be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, note or other paper or document, unless requested in
writing to do so by the Majority Holders and such holders shall have
tendered funds to pay expenses to be incurred in performing such
duties.
(h) Any Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and such Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it with due care.
(i) The provisions of paragraphs (c) through (h), inclusive,
of this Section 9.3, shall be subject to the provisions of Section 9.1.
(j) No Trustee need post any bond for any action taken under
this Indenture.
9.4 Showings Deemed Necessary by a Trustee. Anything else in this
Indenture contained to the contrary notwithstanding, each Trustee shall have the
right, but shall not be required, to demand in respect of the withdrawal of any
cash (other than payments out of the Collection Account or the Debt Service
Reserve Fund or the Working Capital Fund), the release of any Property or the
subjection of any after acquired Property to any Lien to be held by such Trustee
pursuant to the terms
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hereof, or any other action whatsoever within the purview hereof, any showings,
certificates, opinions, appraisals or other information which such Trustee may
deem reasonably necessary or appropriate in addition to the matters required by
the terms hereof as a condition precedent to such action.
9.5 Status of Monies Received. All monies received by a Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but, if such Trustee is a bank, need not be segregated
in any manner from any other monies, except to the extent required by law, and
may be deposited by such Trustee under such general conditions as may be (if
such Trustee is a bank) prescribed by law and such Trustee's trust department,
and such Trustee shall be under no liability for interest on any monies received
by it hereunder except as provided in Section 4.4. Any Trustee which is a trust
company, banking corporation or banking association and any affiliated
corporation may be interested in any financial transaction with the Issuer or
any of its Affiliates; and any such Trustee may act as depository or otherwise
in respect to other Securities of the Issuer or any of its Affiliates, all with
the same rights which it would have if not a Trustee; provided that such Trustee
shall not exercise any right of setoff against any part of the Trust Estate.
9.6 Resignation of Trustees. Any Trustee may resign and be discharged
of the trusts hereby created by mailing notice to the Issuer and to all holders
of Notes specifying the time and date (not earlier than sixty (60) days after
the date of such notice) when such resignation shall take effect. Such
resignation shall take effect upon the appointment, qualification and acceptance
of a successor trustee as herein provided.
9.7 Removal of Trustees. Any Trustee may be removed, with or without
cause, and a successor Trustee may be appointed at any time by the Majority
Holders and delivered to each other Trustee and the Issuer, and, in the case of
the appointment of a successor Trustee, to such successor Trustee.
9.8 Successor Trustee. Each Trustee appointed in succession of the
Trustee named in this Indenture, or its successor in trust, shall be a trust
company, banking corporation or banking association organized under the laws of
the United States of America, in good standing and having a capital and
unimpaired surplus aggregating at least $500,000,000, if there be such a trust
company, banking corporation or banking association qualified, able and willing
to accept the trusts upon reasonable or customary terms; and otherwise having
the highest capital of such trust companies, banking corporations or banking
associations that are qualified, able and willing to accept the trusts upon
reasonable or customary terms.
9.9 Appointment of Successor Trustees. If a Trustee shall have given
notice of resignation pursuant to Section 9.6 or if notice of removal shall have
been given to a Trustee and the Issuer pursuant to Section 9.7 and such notice
does not appoint a successor Trustee or if such notice of removal appointed a
successor Trustee and such successor shall not have accepted such appointment
within fifteen (15) days after the giving of such notice of removal, a successor
Trustee may be appointed by the Majority Holders with the consent of the Issuer
not to be unreasonably withheld. If no such appointment shall have been made
within twenty-five (25) days after the giving of such notice of resignation or
the giving of such notice of removal, a successor Trustee may be
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appointed by the holder of any Outstanding Note or, upon application of the
retiring Trustee, by any court of competent jurisdiction.
9.10 Merger or Consolidation of Trustee. Any corporation into which a
Trustee which is a corporation, or any successor to it in the trusts created by
this Indenture, may be merged or consolidated or with which it or any successor
to it may be consolidated or any corporation resulting from any merger or
consolidation to which such Trustee or any successor to it shall be a party or
any state or national bank or trust company succeeding to the corporate trust
business of the Trustee as a whole or substantially as a whole (provided such
corporation which is a successor to the Trustee shall be a corporation organized
under the laws of any state of the United States of America or of the United
States of America, having a capital and surplus of at least $500,000,000 and
such corporation which is a successor to any other Trustee shall be permitted by
law to perform its obligations hereunder), shall be the successor to such
Trustee under this Indenture without the execution or filing of any paper or any
further act on the part of any of the parties hereto. The Issuer covenants that
in case of any such merger, consolidation or transfer of the corporate trust
business it will, upon the request of the merged, consolidated or transferred
corporation, execute, acknowledge and cause to be recorded or filed suitable
instruments in writing to confirm the estates, rights and interests of such
corporation as such Trustee under this Indenture.
9.11 Acceptance of Appointment by Successor Trustee. Any new Trustee
appointed pursuant to any of the provisions hereof shall execute, acknowledge
and deliver to the Issuer an instrument accepting such appointment; and
thereupon such new Trustee, without any further act, deed or conveyance, shall
become vested with all the estates, Properties, rights, powers and trusts of its
predecessor in the rights hereunder with like effect as if originally named as
Trustee herein; but, nevertheless upon the Written Request of the Issuer or the
successor Trustee, the Trustee ceasing to act, upon payment of fees and expenses
due to it, shall execute and deliver an instrument transferring to such
successor Trustee, upon the trusts herein expressed, all the estates,
Properties, rights, powers, and trusts of the Trustee so ceasing to act, and
shall duly assign, transfer and deliver any of the Property of the Trust Estate
and monies held by such Trustee to the successor Trustee so appointed in its or
his place. Upon acceptance of appointment by a successor Trustee as provided in
this Section 9.11, the successor Trustee shall give to the Note Holders written
notice of the succession of such Trustee to the trusts hereunder. Neither
failure so to mail nor any defect in the notice so mailed shall affect the
sufficiency of the proceedings in question.
9.12 Conveyance upon Request of Successor Trustee. Should any deed,
conveyance or instrument in writing from the Issuer be required by any successor
Trustee for more fully and certainly vesting in and confirming to such new
Trustee such estates, Properties, rights, powers and trusts, then upon request
of such successor Trustee any and all such deeds, conveyances and instruments in
writing shall be made, executed, acknowledged and delivered, and, if and where
appropriate, shall be caused to be recorded and filed, by the Issuer.
9.13 Co-Trustees and Additional Trustees.
(a) Delivery of Documents. Anything herein contained to the
contrary notwithstanding, if, at any time or times, in order to conform
with any law of any jurisdiction in which the Issuer shall then own or
hold any Collateral, the Trustee shall be advised by
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counsel satisfactory to it that it is necessary or prudent in the
interest of the holders of the Notes so to do, the Trustee shall
execute and deliver any and all instruments and agreements necessary or
proper to appoint, on behalf of the Trustee, the Note Holders and the
Issuer, another trust company, banking corporation or banking
association, or one or more other Persons approved by the Trustee
either to act as co-trustee or co-trustees hereunder, jointly with the
Trustee, or its successors, or to act as separate trustee or trustees
hereunder; and the trust company, banking corporation or banking
association, or the Person or Persons so appointed shall be such
co-trustee or co-trustees, or separate trustee or trustees, with such
powers, duties and discretion as shall be specified in the said
instruments or agreements of appointment, executed as aforesaid. It
shall not be necessary for any holder of a Note or the Issuer or any
other Person other than the Trustee to execute and deliver any such
instruments or agreements.
(b) Exercise of Powers. The rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred
and imposed upon, and exercised or performed by the Trustee, or jointly
by the Trustee and any co-trustee or co-trustees or separate trustee or
trustees appointed pursuant to this Section 9.13 as provided herein or
in the instrument or agreement appointing such co-trustee or
co-trustees or separate trustee or trustees, except to the extent that
under the law of any jurisdiction in which any particular act or acts
are to be performed the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations shall be exercised and performed by such co-trustee or
co-trustees or separate trustee or trustees.
(c) Trustee Attorney-in-Fact. Any co-trustee or co-trustees or
separate trustee or trustees appointed hereunder may at any time by an
instrument in writing, and each Trustee by this Indenture does hereby,
constitute the Trustee, or its successor in the trusts hereunder, his,
their or its agent or attorney-in-fact, with full power and authority,
to the extent which may be permitted by law, to do any and all acts and
things and exercise any and all discretion authorized or permitted by
him, them or it, for and on behalf of him, them or it, and in his,
their or its name.
(d) Resignation of Co-Trustee or Separate Trustee. Each
co-trustee or separate trustee appointed pursuant to the provisions of
this Section 9.13 may resign and may be removed by the Trustee, and the
successors to such trustees may be appointed by the Trustee as set
forth in the first paragraph of this Section 9.13.
9.14 Trustee's Representations and Warranties. The Trustee represents,
warrants and covenants that:
(a) Organization, Etc. It is a national banking association
duly chartered, validly existing and in good standing under the laws of
the United States of America, and has all requisite power, authority
and legal right under the laws of the State of Texas and the United
States to execute, deliver and carry out the terms of each of the
Credit Documents to which it is a party. Its principal place of
business is located at its street address set forth in Section 12.3.
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(b) Authorization, Etc. It has duly authorized, executed and
delivered this Indenture and the other Credit Documents to which it is
a party and this Indenture and the other Credit Documents constitute
legal, valid and binding obligations, enforceable against it in
accordance with the terms thereof.
(c) No Violation. The execution and delivery of, and
performance of its obligations under, this Indenture and the other
Credit Documents to which it is a party will not result in any
violation of, or be in conflict with, or constitute a default under,
any of the provisions of its articles of association or by-laws, or of
any indenture, mortgage, chattel mortgage, deed of trust, conditional
sales contract, lease, note or bond purchase agreement, license or bank
loan or credit agreement or other agreement to which it is a party or
by which it is bound, or any law, judgment, governmental rule,
regulation or order of any government or governmental authority or
agency governing the banking or trust powers of the Trustee.
(d) No Consents or Approvals. Neither the execution and
delivery by it, in its individual capacity or as Trustee, as the case
may be, of this Indenture nor the consummation of any of the
transactions contemplated thereby requires the consent or approval of,
the giving of notice to, or the registration with, any federal or State
governmental authority or agency pursuant to any federal or State law
governing the banking or trust powers of Trustee.
(e) Capitalization. It has unimpaired capital and surplus
aggregating at least $500,000,000.
9.15 Non-Petition Covenant. With respect to the CP Conduit as a
Purchaser, the Trustee hereby agrees that until the 368th day following the
maturity of the last maturing commercial paper note to be issued by the CP
Conduit in connection with its funding of its investment in the Notes, the
Trustee will not institute, and will not join with others in instituting, any
involuntary bankruptcy or analogous proceeding against the CP Conduit under any
bankruptcy, reorganization, receivership or similar law, domestic or foreign, as
now or hereafter in effect.
ARTICLE 10. SUPPLEMENTAL INDENTURES, WAIVERS.
10.1 Supplemental Indentures Without Note Holders' Consent. The Issuer
and the Trustee from time to time and at any time, subject to the restrictions
in this Indenture contained, may, without consent from the holder of any Note,
enter into an indenture or indentures supplemental hereto and which thereafter
shall form a part hereof for any one or more or all of the following purposes:
(a) to add to the Trust Estate held by the Trustees pursuant
to the terms hereof additional Property hereafter acquired by the
Issuer and intended to be subjected to this Indenture, and to correct
and amplify the description of any Property subject to this Indenture;
(b) to cure any ambiguity or cure, correct or supplement any
defective provisions of this Indenture or any supplement hereto;
provided, that the same shall in no respect be adverse to the interests
of the holders of the Series A Notes or the Series B Notes; and
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(c) to appoint a co-trustee or co-trustees, or a separate
trustee or trustees, pursuant to Section 9.13.
and the Issuer covenants to perform all requirements of any such supplemental
indenture. No restrictions or obligations imposed upon the Issuer may, except as
otherwise proved in this Indenture, be waived or modified by such supplemental
indentures or otherwise.
10.2 Waivers and Consents by Note Holders; Supplemental Indentures with
Consent.
(a) Subject to the provisions of the following subsection 10.2(b), upon
the waiver or consent of the Majority Holders (unless it is specifically
required that the Required Holders act): (i) the Trustee shall execute an
appropriate instrument permitting any Person to take any action prohibited, or
omit the taking of any action required, by any of the provisions of this
Indenture or any indenture supplemental hereto, or any other Credit Document to
which the Trustee is a party or of which the Trustee is a third party
beneficiary or which is granted in favor of the Trustee ("Trustee Security
Document"), or (ii) the Issuer and the Trustee may enter into an indenture or
indentures supplemental hereto or to a Trustee Security Document for the purpose
of adding, changing or eliminating any provisions of this Indenture or of any
indenture supplemental hereto or to a Trustee Security Document or modifying in
any manner the rights of the holders of the Notes or the rights and obligations
of the Issuer; provided, that no such waiver, consent or supplemental indenture
or amendment shall (A) impair or affect the right of any Note Holder to receive
payments of the principal of and payments of the interest and any applicable
Make-Whole Amount (if any), Yield Protection Amount or Breakage Amount, if any,
on any Note held by it, as therein and herein provided including, without
limitation, the timing of any such payment or the principal amount of any Note
or rate of interest thereon, without the consent of such holder, (B) permit the
creating of any Lien with respect to any of the Trust Estate, without the
consent of the holders of all the Notes at the time Outstanding, (C) deprive the
holder of any Note of the benefit of the Liens held by the Trustee pursuant to
the terms of this Indenture or any other Credit Document without the consent of
such holder, (D) amend Article 2, Article 3, Article 4 or Article 6 (other than
an amendment of the nature described, and permitted by the provisions of,
Section 10.1), without the consent of the holders of all of the Notes at the
time Outstanding, (E) reduce the aforesaid percentage of the aggregate principal
amount of Notes, the holders of which are required to consent to any such waiver
or supplemental indenture or amendment pursuant to this Section 10.2, without
the consent of the holders of all of the Notes at the time Outstanding, or (F)
modify the rights, duties, or immunities of any Trustee, without the consent of
such Trustee. The holder of any Notes may specify that any such waiver or
consent shall be effective only with respect to a portion of the Notes held by
it (in which case it shall specify by dollar amount the aggregate principal
amount of Notes with respect to which such waiver or consent shall be effective)
and in the event of any such specification such holder shall be deemed to have
given such waiver or consent only with respect to the portion of Notes so
specified.
(b) Notwithstanding the provisions of the foregoing subsection 10.2(a)
(and in addition to, and not in limitation of, any provisions of this Indenture,
the Note Purchase Agreements or any other Credit Documents specifically
requiring that the Required Holders act), (i) so long as there is no Indenture
Event of Default continuing hereunder, the Trustee shall not enter into any
indenture supplemental hereto (except as permitted by the foregoing Section
10.1), or agree to any amendment,
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modification or waiver of any of the terms, conditions or provisions of this
Indenture or any indenture supplemental hereto, or any Trustee Security Document
without the consent of the Required Holders, and (ii) regardless of the
existence and continuance of any Indenture Event of Default, the Trustee shall
not (A) agree to any amendment, modification or waiver of any of the terms,
conditions or provisions of Section 12.16 of this Indenture, section 6 of the
Performance Agreement or section 5 of the Operating Services Agreement, the
effect of which would be to reduce, modify or amend any indemnities payable by
the Issuer or the Parent to any Note Holder (except to add additional
indemnities by the Issuer or the Parent), (B) agree to any amendment of the
definition of Indenture Event of Default or (C) agree to any amendment,
modification or waiver of any of the terms, conditions, or provisions of
Sections 7.3(c), 7.3(d)(i), 7.4(a) or 7.12 of this Indenture, sections 2.3,
3.3(c), 2.4, 2.9 or 2.13 of the First Naval Mortgage, section 2(a) of the
Performance Agreement or section 1(b) of the Operating Services Agreement.
10.3 Notice of Supplemental Indenture. Promptly after the execution by
the Issuer and the Trustee of any supplemental indenture or promptly after the
execution by the Trustee of an appropriate instrument or permission pursuant to
the provisions of Section 10.2, the Trustee shall give written notice, setting
forth in general terms the substance of such supplemental indenture or
instrument, together with a conformed copy thereof to each holder of the Notes.
Any failure of the Trustee to give such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture or instrument.
10.4 Solicitation of Note Holders. So long as there are any Notes
Outstanding, the Issuer will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Indenture or the Notes unless each holder of the Notes shall be informed thereof
by the Issuer and shall be afforded the opportunity of considering the same and
shall be supplied by the Issuer with sufficient information to enable it to make
an informed decision with respect thereto. The Issuer will not, directly or
indirectly, pay or cause to be paid any remuneration, whether by way of
supplemental or additional interest, fee or otherwise, to any holder of Notes as
consideration for or as an inducement to entering into by any holder of Notes of
any waiver or amendment of any of the provisions of this Indenture or of any
Note unless such remuneration is concurrently offered to be paid, on the same
terms, ratably to the holders of all Notes then Outstanding even if such holder
did not consent to such waiver or amendment. Such remuneration will not be
inferred solely from the participation by a holder of the Notes in an existing
or future loan to or investment in or with the Issuer or any of its Affiliates.
10.5 Opinion of Counsel Conclusive as to Supplemental Indentures. The
Trustee is hereby authorized to join with the Issuer in the execution of any
such supplemental indenture authorized or permitted by the terms of this
Indenture and to make the further agreements and stipulations which may be
therein contained, and the Trustee may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to the
provisions of this Article 10 complies with the requirements of this Article 10.
10.6 Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article 10, this
Indenture shall be deemed to be modified and amended in accordance therewith and
the respective rights, duties and obligations under this Indenture of the
Issuer, the Trustees and all holders of Notes thereunder shall thereafter be
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determined, exercised and enforced hereunder subject in all respects to such
modification and amendment, and all the terms and conditions of any such
supplemental indenture shall be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
10.7 New Notes. Notes executed and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article 10 may bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If such supplemental indenture shall so provide, new
Notes, so modified as to conform, in the opinion of the Trustee and the Board of
Directors of the Issuer to any modification or amendment of this Indenture
contained in any such supplemental indenture, may be prepared by the Issuer,
executed and delivered without cost to the holders of Notes, upon surrender of
such Notes, in equal aggregate principal amounts.
ARTICLE 11. UNCLAIMED MONIES.
11.1 Satisfaction and Discharge of Agreement. If at any time (a) the
Issuer shall pay and discharge the entire indebtedness on all Notes hereunder by
paying or causing to be paid as provided in Article 4 the principal of, and any
applicable Make-Whole Amount, Yield Protection Amount and Breakage Amount and
interest on, all Notes hereunder, as and when the same become due and payable or
(b) all such Notes shall have been repurchased by the Issuer or an Affiliate of
the Issuer and canceled as herein provided (other than any Notes which shall
have been destroyed, lost or stolen and which shall have been replaced as
provided in Section 2.9); and if the Issuer shall also pay or cause to be paid
all other sums payable hereunder by the Issuer (including, without limitation,
fees and expenses of the Trustees), and the Issuer shall fully and faithfully
discharge, and cause to be faithfully discharged, every other obligation herein
and in each of the other Credit Documents contained, then and in that case this
Indenture shall cease, determine, and become null and void, and thereupon each
Trustee shall, upon Written Request of the Issuer or any other party to the
Credit Documents forthwith execute proper instruments acknowledging satisfaction
of and discharging this Indenture and releasing all Liens held by it pursuant to
the terms hereof and any other Credit Document, including the First Naval
Mortgage; provided, however, that in no event shall the trusts created by this
Indenture continue beyond the expiration of twenty-one (21) years after the
death of the last to die of all descendants living on the date of execution of
this Indenture of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, late father of the late President of the
United States, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇. The satisfaction and discharge of this Indenture
shall be without prejudice to the rights of each Trustee under Section 9.2 to
charge and be reimbursed by the Issuer for any expenditures which it may
thereafter incur in connection herewith.
11.2 Return of Unclaimed Monies. Notwithstanding any provisions of this
Indenture, any monies deposited with any Trustee in trust for the payment of the
principal of, or interest or any applicable Make-Whole Amount on, any Notes and
remaining unclaimed for two (2) years after the last date on which any such
principal, interest or any applicable Make-Whole Amount shall have become due
and payable (whether at maturity or upon optional or required prepayment or by
declaration as provided in this Indenture), shall then be repaid to the Issuer
upon its Written Request, unless otherwise required by mandatory provisions of
applicable escheat or abandoned property laws, and the holders of such Notes,
unless otherwise required by mandatory provisions of applicable escheat or
abandoned property laws, shall thereafter be entitled to look only to the Issuer
for repayment thereof, and all liability of such Trustee with respect to such
monies shall thereupon
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cease; provided, however, that before the repayment of such monies to the
Issuer, as aforesaid, such Trustee shall (at the cost of the Issuer) first mail
to all holders of the Notes then Outstanding at their addresses as set forth in
the register required to be maintained pursuant to Section 2.3, a notice that
said monies remain unclaimed and that, after a date named in said notice, which
date shall not be less than ten (10) or more than twenty (20) days after the
date of the first mailing of such notice, the balance of such monies then
unclaimed will be returned to the Issuer. In the event of the repayment of any
such monies to the Issuer as aforesaid, the holders of the Notes in respect of
which such monies were deposited shall thereafter be deemed to be unsecured
creditors of the Issuer for amounts equivalent to the respective amounts
deposited for the payment of such Notes and so repaid to the Issuer (without
interest thereon and subject to applicable escheat and abandoned property laws).
ARTICLE 12. MISCELLANEOUS.
12.1 Successors and Assigns. Whenever any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party; and all the covenants, promises and agreements in this
Indenture contained by or on behalf of the Issuer, by or on behalf of a Trustee
or by or on behalf of a Purchaser, shall bind and inure to the benefit of the
respective successors and assigns of such parties whether so expressed or not;
provided; however, that the Issuer shall not assign or transfer any of its
rights or delegate any of its duties or obligations under the Credit Documents
without the prior written consent of the Majority Holders.
12.2 Partial Invalidity. Any provision of this Indenture that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by law)
not invalidate or render unenforceable such provision in any other jurisdiction.
12.3 Communications. All communications provided for herein shall be in
writing or by telecommunication device capable of creating a written record and
shall be deemed to have been given when delivered personally or otherwise
actually received by such Person listed below at its address set forth below:
If to the Issuer:
If by mail:
Noble Drilling (▇▇▇▇ ▇▇▇▇▇▇) Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
If by personal delivery:
Noble Drilling (▇▇▇▇ ▇▇▇▇▇▇) Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 581
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▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
in either case with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to the Trustee:
If by mail or personal delivery:
Chase Bank of Texas, National Association
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Corporate Trust Dept.
or to either such party at such other address as such party may designate by
notice duly given in accordance with this Section to the other party. Where this
Indenture provides for any communication to holders of Notes, such communication
shall be deemed to have been given when delivered personally or otherwise
actually received by such holder at its last address as it appears in the
register required to be maintained pursuant to Section 2.3.
12.4 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(A) THIS INDENTURE AND THE NOTES (INCLUDING, BUT NOT LIMITED
TO, THE VALIDITY AND ENFORCEABILITY HEREOF AND THEREOF) SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK OTHER THAN CONFLICT OF LAW RULES THEREOF THAT WOULD REQUIRE
THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THE CREDIT
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND, BY EXECUTION AND DELIVERY OF THIS INDENTURE, EACH OF THE ISSUER
AND THE TRUSTEES HEREBY ACCEPTS FOR ITSELF AND (TO THE EXTENT PERMITTED
BY LAW) IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH OF THE ISSUER AND THE
TRUSTEES HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS. THIS SUBMISSION TO JURISDICTION IS
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NONEXCLUSIVE AND DOES NOT PRECLUDE THE PARTIES FROM OBTAINING
JURISDICTION OVER OTHER PARTIES IN ANY COURT OTHERWISE HAVING
JURISDICTION.
(C) THE ISSUER HEREBY IRREVOCABLY DESIGNATES CT CORPORATION
LOCATED AT ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AS THE DESIGNEE,
APPOINTEE AND AGENT OF THE ISSUER TO RECEIVE, FOR AND ON BEHALF OF THE
ISSUER, SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THE CREDIT DOCUMENTS. IT IS UNDERSTOOD THAT
A COPY OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY FORWARDED
BY OVERNIGHT COURIER TO THE ISSUER AT ITS ADDRESS SET FORTH IN SECTION
12.3 HEREOF, BUT THE FAILURE OF THE ISSUER TO RECEIVE SUCH COPY SHALL
NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. THE ISSUER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE ISSUER AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE THIRTY
(30) DAYS AFTER SUCH MAILING.
(D) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ISSUER OR THE
TRUSTEES OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE ISSUER IN ANY OTHER JURISDICTION, INCLUDING WITHOUT
LIMITATION, THE COMMENCEMENT OF ENFORCEMENT PROCEEDINGS UNDER THE
CREDIT DOCUMENTS IN ALL APPLICABLE JURISDICTIONS.
(E) EACH OF THE ISSUER AND THE TRUSTEES HEREBY (I) IRREVOCABLY
AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW,
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN; (II) IRREVOCABLY WAIVE, TO THE MAXIMUM EXTENT NOT PROHIBITED
BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES,
OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (III) CERTIFY
THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OF COUNSEL FOR ANY
PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT
SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS, AND (IV) ACKNOWLEDGE THAT IT HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 12.4.
12.5 Limitation on Interest.
(a) It is the intent of the parties hereto to comply strictly
with applicable usury laws, and the parties hereto stipulate and agree
that none of the terms and provisions contained in this Indenture, the
Notes or any other Credit Documents shall ever be construed to create a
contract to pay, for the use, forbearance or detention of money,
interest in excess of the maximum amount of interest permitted to be
charged by applicable law from time to
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time in effect. If any excess of interest in such respect is hereby
provided for or shall be adjudicated to be so provided, in this
Indenture, in any Note or otherwise in connection with the Credit
Documents, the provisions of this Section 12.5 shall govern and
prevail, and neither the Issuer nor any present or future guarantors,
endorsers, or other Persons hereafter becoming liable for payment of
the Notes shall ever be obligated to pay the excess amount of such
interest. The provisions of this Section 12.5 shall control over all
other provisions of the Credit Documents which may be in conflict or
apparent conflict herewith. Each of the Trustees and the holders of the
Notes expressly disavows any intention to charge, collect or contract
for excessive unearned interest or finance charges in the event the
maturity of any of the Notes is accelerated. If the maturity of a Note
is accelerated for any reason, any amounts held to constitute interest
(including any applicable Make-Whole Amount, Yield Protection Amount or
Breakage Amount due upon acceleration if such applicable Make-Whole
Amount, Yield Protection Amount or Breakage Amount is held to
constitute interest under applicable law) which are then unearned and
have theretofore been collected by any Trustee or the holder of such
Note shall be applied as of the date of receipt thereof to reduce the
principal balance thereof then outstanding and if the principal of the
Notes has been paid in full, any remaining excess shall be forthwith
paid to the Issuer. If any Trustee or any holder of any Note shall
receive, collect or apply monies which are deemed to constitute
interest which would otherwise increase the interest on such Note to an
amount in excess of that permitted to be charged by applicable law then
in effect, all such sums deemed to constitute interest in excess of
such legal limit shall be applied to reduce the principal balance
thereof then outstanding or immediately returned to the Issuer or the
other payor thereof upon such determination. All sums paid or agreed to
be paid to any Trustee or holder of any Note for the use, forbearance
or detention of sums due hereunder shall, to the extent permitted by
law applicable to such party, be amortized, prorated, allocated and
spread throughout the full term of the indebtedness evidenced by the
Notes until payment in full so that the rate or amount of interest on
account of any indebtedness hereunder does not exceed the maximum
amount allowed by such applicable law. If at any time and from time to
time (i) the amount of interest payable to any holder of a Note on any
date shall be pursuant to this Section 12.5 be limited and (ii) in
respect of any subsequent interest computation period the amount of
interest otherwise payable to such holder would be less than the amount
of interest payable to such holder computed at the maximum lawful rate
applicable to such holder, then the amount of interest payable to such
holder in respect to such subsequent interest computation period shall
continue to be computed at the maximum lawful rate applicable to such
holder until the total amount of interest payable to such holder shall
equal the total amount of interest which would have been payable to
such holder if the total amount of interest had been computed without
giving effect to this Section 12.5. As used in this section the term
"applicable law" means the laws of the State of New York or the laws of
the United States of America, whichever laws allow the greater
interest, as such laws now exist or may be changed or amended or come
into effect in the future.
(b) All proceeds of the sale of the Notes are to be delivered
by the Purchasers to the Issuer and used by the Issuer as represented
in Section 5.14 of the Note Purchase Agreements.
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(c) Notwithstanding any term or provision contained in this
Indenture, the Notes or any other Credit Document to the contrary the
Make-Whole Amount, Yield Protection Amount and/or Breakage Amount shall
be charged and payable only to the extent permitted by applicable law.
12.6 Counterparts. This Indenture may be executed, acknowledged and
delivered in any number of counterparts, each of such counterparts constituting
an original but all together only one Indenture; provided, however, that this
Indenture shall not be deemed to be delivered until at least one counterpart
shall have been executed by the Issuer and the Trustee and a counterpart so
executed shall have been delivered to the Trustee at its principal place of
business specified in Section 12.3.
12.7 Headings, etc.; Gender. Any headings or captions preceding the
text of the several sections hereof are intended solely for convenience of
reference and shall not constitute a part of this Indenture nor shall they
affect its meaning, construction or effect. Each covenant contained in this
Indenture shall be construed (absent an express contrary provision therein) as
being independent of each and every other covenant contained herein and
compliance with any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with any and all other covenants. All
references herein or in any other Credit Document to the masculine, feminine or
neuter gender shall also include and refer to each other gender not so referred
to.
12.8 Amendments. This Indenture may, subject to the provisions of
Article 10 hereof, from time to time and at any time, be amended or supplemented
by an instrument or instruments in writing executed by the parties hereto.
12.9 Benefits of Agreement Restricted to Parties and Note Holders.
Nothing in this Indenture expressed or implied is intended or shall be construed
to give to any Person other than the Issuer, the Trustees, the Credit Support
Parties and the holders of the Notes, any legal or equitable right, remedy or
claim under or in respect of this Indenture or any covenant, condition or
provision therein or herein contained; and all such covenants, conditions and
provisions are and shall be held to be for the sole and exclusive benefit of the
Issuer, the Trustees and the holders of the Notes issued hereunder.
12.10 Waiver of Notice. Whenever in this Indenture the giving of notice
by mail or otherwise is required, the giving of such notice may be waived in
writing by the Person or Persons entitled to receive such notice.
12.11 Intentionally Omitted.
12.12 Additional Financing Statement Filings. The Issuer hereby
authorizes the Trustee to file, without the signature of the Issuer where
permitted by law, one or more financing or continuation statements, and
amendments thereto, relating to the Collateral. The Issuer further agrees that a
carbon, photographic or other reproduction of any Credit Document or any
financing statement describing any Collateral is sufficient as a financing
statement and may be filed in any jurisdiction the Trustee may deem appropriate.
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12.13 Directly or Indirectly. Where any provision in this Indenture
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person, including actions taken by or on behalf
of any partnership in which such Person is a general partner.
12.14 Exhibits, Annexes and Sections. All references herein to
Exhibits, Annexes or Sections shall be to the Exhibits and Annexes attached to
this Indenture and to the Sections hereof unless the context otherwise requires
reference to an exhibit, annex to or section of another document. All Exhibits
and Annexes attached to this Indenture are made a part hereof for all purposes.
The words "this Indenture," "this instrument," "herein," "hereof," "hereby,"
"hereunder," and words of similar import refer to this Indenture as a whole and
not to any particular subdivision unless expressly so limited. The phrases "this
section" and "this subsection" and similar phrases refer only to the sections or
subsections hereof in which such phrases occur. The word "or" is not exclusive.
12.15 Officers' Certificate and Opinions of Counsel; Statements to be
Contained Therein.
(a) Upon any request, application or demand by the Issuer to
the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee a certificate signed
by two of its Responsible Officers stating that all conditions
precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent (to which
a legal opinion is reasonably appropriate) have been complied with,
except that in the case of any such request, application or demand as
to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular request,
application or demand, no additional certificate or opinion need be
furnished.
(b) Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture 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, (iii) a
statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with, and (iv) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been complied
with.
(c) Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such
officer has actual knowledge that the certificate or opinion or
representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar
as it relates to factual matters, upon information with respect to
which is in the
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possession of the Issuer, upon the certificate, statement or opinion of
or representations by a Responsible Officer or Officers of the Issuer,
unless such counsel has actual knowledge that the certificate,
statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as
aforesaid are erroneous.
(d) Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Issuer or an
Affiliate thereof, unless such officer or counsel, as the case may be,
has actual knowledge that the certificate or opinion or representations
with respect to the accounting matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
(e) Any certificate or opinion of any independent firm of
public accountants filed with the Trustee shall contain a statement
that such firm is independent.
12.16 Payment of Expenses, Indemnities, etc. The Issuer agrees:
(a) to pay all reasonable expenses of the Trustees in the
administration (both before and after the execution hereof and
including advice of counsel as to the rights and duties of the Trustees
and the Note Holders with respect thereto) of, and in connection with
the negotiation, investigation, preparation, execution and delivery of,
recording or filing of, preservation of rights under, enforcement of,
and refinancing, renegotiation or restructuring of, any Credit Document
and any proposed amendment, waiver or consent, whether or not adopted,
relating thereto (including, without limitation, travel, photocopy,
mailing, courier, telephone and other similar expenses of the Trustees,
the reasonable fees and disbursements of external counsel and other
outside consultants for the Trustees and, in the case of enforcement,
the reasonable fees and disbursements of external counsel for the
Trustees and any of the Note Holders; provided that to the extent it is
feasible and a conflict of interest does not exist in the reasonable
judgment of the Series A Note Holders or Series B Note Holders as
applicable, the Series A Note Holders shall all use the same counsel
and the Series B Note Holders shall all use the same counsel); and
promptly reimburse the Trustees and the Note Holders for all amounts
expended, advanced or incurred by the Trustees and any of the Note
Holders to satisfy any obligation of the Issuer under this Indenture or
any other Credit Document, including without limitation, all costs and
expenses of foreclosure;
(b) TO INDEMNIFY EACH TRUSTEE, EACH NOTE HOLDER AND EACH
CREDIT SUPPORT PARTY AND EACH OF THEIR AFFILIATES AND EACH OF THEIR
OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, ATTORNEYS,
ACCOUNTANTS AND EXPERTS ("INDEMNIFIED PARTIES") FROM, HOLD EACH OF THEM
HARMLESS AGAINST AND PROMPTLY UPON DEMAND PAY OR REIMBURSE EACH OF THEM
FOR, THE INDEMNITY MATTERS WHICH MAY BE INCURRED BY OR ASSERTED AGAINST
OR INVOLVE ANY OF THEM (WHETHER OR NOT ANY OF THEM IS DESIGNATED A
PARTY THERETO) AS A RESULT OF, ARISING OUT OF OR IN ANY WAY RELATED TO
(I) ANY ACTUAL OR PROPOSED USE BY THE ISSUER OF THE PROCEEDS OF ANY OF
THE NOTES, (II) THE EXECUTION, DELIVERY AND PERFORMANCE OF THE CREDIT
DOCUMENTS, (III) THE OPERATIONS OF THE BUSINESS OF
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THE ISSUER OR ANY AFFILIATE THEREOF (IV) THE FAILURE OF THE ISSUER OR
ANY AFFILIATE THEREOF TO COMPLY WITH THE TERMS OF ANY CREDIT DOCUMENT
INCLUDING, WITHOUT LIMITATION, THE PERFORMANCE AGREEMENT OR THIS
INDENTURE, OR WITH ANY GOVERNMENTAL REQUIREMENT, (V) ANY INACCURACY OF
ANY REPRESENTATION OR ANY BREACH OF ANY WARRANTY OR COVENANT OF THE
ISSUER OR ANY AFFILIATE THEREOF SET FORTH IN ANY OF THE CREDIT
DOCUMENTS, (VI) ANY ASSERTION THAT THE TRUSTEE OR THE NOTE HOLDERS WERE
NOT ENTITLED TO RECEIVE THE PROCEEDS RECEIVED PURSUANT TO THE CREDIT
DOCUMENTS OR (VI) ANY OTHER ASPECT OF THE CREDIT DOCUMENTS, INCLUDING,
WITHOUT LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL
AND ALL OTHER EXPENSES INCURRED IN CONNECTION WITH INVESTIGATING,
DEFENDING OR PREPARING TO DEFEND ANY SUCH ACTION, SUIT, PROCEEDING
(INCLUDING ANY INVESTIGATIONS, LITIGATION OR INQUIRIES) OR CLAIM AND
INCLUDING ALL INDEMNITY MATTERS ARISING BY REASON OF THE ORDINARY
NEGLIGENCE OF ANY INDEMNIFIED PARTY, BUT EXCLUDING ALL INDEMNITY
MATTERS ARISING SOLELY BY REASON OF CLAIMS BETWEEN THE NOTE HOLDERS OR
A NOTE HOLDER AND A NOTE HOLDER'S SHAREHOLDER OR SOLELY BY REASON OF
THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF THE
INDEMNIFIED PARTY; AND
(c) TO INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES
FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, COST RECOVERY ACTIONS,
ADMINISTRATIVE ORDERS OR PROCEEDINGS, DAMAGES AND LIABILITIES TO WHICH
ANY SUCH PERSON MAY BECOME SUBJECT IN CONNECTION WITH THIS INDENTURE,
THE NOTE PURCHASE AGREEMENTS OR ANY OTHER CREDIT DOCUMENT (I) UNDER ANY
ENVIRONMENTAL LAW, (II) AS A RESULT OF THE BREACH OR NON-COMPLIANCE BY
THE ISSUER OR ANY AFFILIATE THEREOF WITH ANY ENVIRONMENTAL LAW
APPLICABLE TO THE ISSUER OR ANY AFFILIATE THEREOF, (III) DUE TO PAST
OWNERSHIP BY THE ISSUER OR ANY AFFILIATE THEREOF OF ANY OF THEIR
PROPERTIES OR PAST ACTIVITY ON ANY OF THEIR PROPERTIES WHICH, THOUGH
LAWFUL AND FULLY PERMISSIBLE AT THE TIME, COULD RESULT IN PRESENT OR
FUTURE LIABILITY, (IV) THE PRESENCE, USE, RELEASE, DISCHARGE, STORAGE,
TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES OR OIL ON OR AT ANY OF
THE PROPERTIES NOW OR FORMERLY OWNED OR OPERATED BY THE ISSUER OR ANY
AFFILIATE THEREOF, OR (V) ANY OTHER ENVIRONMENTAL, HEALTH OR SAFETY
CONDITION IN CONNECTION WITH THE CREDIT DOCUMENTS, PROVIDED, HOWEVER,
NO INDEMNITY SHALL BE AFFORDED UNDER THIS SECTION 12.16 IN RESPECT OF
ANY PROPERTY FOR ANY OCCURRENCE ARISING SOLELY FROM THE ACTS OR
OMISSIONS (IN EACH CASE CONSTITUTING GROSS NEGLIGENCE OR WILFUL
MISCONDUCT) OF A TRUSTEE OR ANY NOTE HOLDER ARISING DURING THE PERIOD
AFTER WHICH SUCH PERSON, ITS SUCCESSORS OR ASSIGNS SHALL HAVE OBTAINED
POSSESSION OF SUCH PROPERTY (WHETHER BY FORECLOSURE OR DEED IN LIEU OF
FORECLOSURE, AS MORTGAGEE-IN-POSSESSION OR OTHERWISE).
(d) So long as no Indenture Default or Indenture Event of
Default has occurred and is continuing, no Indemnified Party may settle
any claim to be indemnified without the consent of the indemnitor, such
consent not to be unreasonably withheld; provided, that the indemnitor
may not reasonably withhold consent to any settlement that an
Indemnified Party
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proposes, if the indemnitor does not have the financial ability to pay
all its obligations outstanding and asserted against the indemnitor at
that time, including the maximum potential claims against the
Indemnified Party to be indemnified pursuant to this Section 12.16.
(e) In the case of any indemnification hereunder, an
Indemnified Party shall give notice to the Issuer of any claim or
demand being made against it; provided, however, that the failure to
give such notice shall not release the Issuer from any of its
obligations, except to the extent that failure to give notice of any
action, suit or proceeding against such Indemnified Party shall prevent
the Issuer's ability to contest such claim or demand. Subject to the
provisions of the following paragraph, the Issuer shall at its sole
cost and expense be entitled to control, and shall assume full
responsibility for, the defense of such claim or liability; provided
that the Issuer shall keep the Indemnified Party which is the subject
of such proceeding fully apprised of the status of such proceeding and
shall provide such Indemnified Party with all information with respect
to such proceeding as such Indemnified Person shall reasonably request.
Notwithstanding any of the foregoing to the contrary, the Issuer shall
not be entitled to control and assume responsibility for the defense of such
claim or liability if (i) an Indenture Event of Default shall have occurred and
be continuing, (ii) such proceeding will involve any possibility of the sale,
forfeiture or loss of, or the creation of any Lien (other than an Excepted Lien
or a Lien which is adequately bonded to the satisfaction of such Indemnified
Party) on, the Trust Estate or any part thereof, (iii) in the good faith opinion
of such Indemnified Party, there exists an actual or potential conflict of
interest such that it is advisable for such Indemnified Person to retain control
of such proceeding or (iv) such claim or liability involves the possibility of
criminal sanctions or liability to such Indemnified Party. In the circumstances
described in clauses (i) - (iv), the Indemnified Party shall be entitled to
control and assume responsibility for the defense of such claim or liability at
the expense of the Issuer. In addition, any Indemnified Party may participate in
any proceeding controlled by the Issuer, at its own expense in respect of any
such proceeding as to which the Issuer shall have acknowledged in writing its
obligation to indemnify the Indemnified Party, and at the expense of the Issuer
in respect of any such proceeding as to which the Issuer shall not have so
acknowledged its obligation to the Indemnified Party, the Issuer may in any
event participate in all such proceedings at its own cost. Nothing contained
herein shall be deemed to require an Indemnified Party to contest any claim or
demand or to assume responsibility for or control of any judicial proceeding
with respect thereto.
(f) THE FOREGOING INDEMNITIES SHALL EXTEND TO THE INDEMNIFIED
PARTIES NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND
OR CHARACTER WHATSOEVER, WHETHER ACTIVE OR PASSIVE, WHETHER AN
AFFIRMATIVE ACT OR AN OMISSION, INCLUDING WITHOUT LIMITATION, ALL TYPES
OF NEGLIGENT CONDUCT IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS OF
ONE OR MORE OF THE INDEMNIFIED PARTIES OR BY REASON OF STRICT LIABILITY
IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF THE INDEMNIFIED PARTIES. TO
THE EXTENT THAT AN INDEMNIFIED PARTY IS FOUND TO HAVE COMMITTED AN ACT
OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THIS CONTRACTUAL OBLIGATION
OF INDEMNIFICATION AS TO SUCH
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INDEMNIFIED PARTY SHALL CONTINUE BUT SHALL ONLY EXTEND TO THE PORTION
OF THE CLAIM THAT IS DEEMED TO HAVE OCCURRED BY REASON OF EVENTS OTHER
THAN THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNIFIED
PARTY.
(g) The Issuer's obligations under this Section 12.16 shall
survive any termination of this Indenture or any other Credit Document
and the payment of the Notes and shall continue thereafter in full
force and effect.
(h) The Issuer shall pay any amounts due under this Section
12.16 within thirty (30) days of the receipt by the Issuer of notice of
the amount due.
(i) If any amounts due by the Issuer to the Trustees or any
Note Holder under this Section 12.16 or any other provision of this
Agreement or any other Credit Document is not paid on the date due,
such amounts shall bear interest and Issuer agrees to pay such amounts
with interest at the Default Rate from the due date of such payable
until paid.
12.17 NO ORAL AGREEMENTS. THE CREDIT DOCUMENTS EMBODY THE ENTIRE
AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AND SUPERSEDE ALL OTHER
AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO THE SUBJECT
MATTER HEREOF AND THEREOF. THE CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPO
RANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
12.18 EXCULPATION PROVISIONS. EACH OF THE PARTIES HERETO SPECIFICALLY
AGREES THAT IT HAS A DUTY TO READ THIS INDENTURE AND THE OTHER CREDIT DOCUMENTS
AND AGREES THAT IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF THE TERMS OF THIS
INDENTURE AND THE OTHER CREDIT DOCUMENTS; THAT IT HAS IN FACT READ THIS
INDENTURE AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS,
CONDITIONS AND EFFECTS OF THIS INDENTURE; THAT IT HAS BEEN REPRESENTED BY
INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING
ITS EXECUTION OF THIS INDENTURE AND THE OTHER CREDIT DOCUMENTS; AND HAS RECEIVED
THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS INDENTURE AND THE OTHER CREDIT
DOCUMENTS; AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS INDENTURE
AND THE OTHER CREDIT DOCUMENTS RESULT IN ONE PARTY ASSUMING THE LIABILITY
INHERENT IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING THE OTHER PARTY OF ITS
RESPONSIBILITY FOR SUCH LIABILITY. EACH PARTY HERETO AGREES AND COVENANTS THAT
IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION
OF THIS INDENTURE AND THE OTHER CREDIT DOCUMENTS ON THE BASIS THAT THE PARTY HAD
NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT
"CONSPICUOUS."
12.19 Trustees Not Engaging in a Trade or Business. The trusts created
hereunder have been organized for the purposes described herein with no
objective by the Trustees to engage in the conduct of a trade or business. The
Trustees shall report the trusts for federal income tax purposes as a "grantor
trust" subject to the provisions of Subchapter J, subpart E of the Code unless
otherwise required.
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[Signature Pages Start Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized, and their
respective corporate seals to be hereunder affixed and attested, all as of the
day and year first written above.
Witnesses to all Signatures
---------------------------------
---------------------------------
ATTEST: NOBLE DRILLING (▇▇▇▇ ▇▇▇▇▇▇) INC.
By
--------------------------------- ----------------------------------
Name: Name:
Title: Title:
(seal)
ATTEST: CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By
--------------------------------- ----------------------------------
Name: Name:
Title: Title:
(seal)
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ANNEX A-1
NOBLE DRILLING (▇▇▇▇ ▇▇▇▇▇▇) INC.
No. AR-_____
_____% SERIES A SENIOR SECURED NOTE DUE _____________, _______
$
-------------------- --------------------
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED
HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE ISSUER IS NOT REQUIRED TO REGISTER
THIS SECURITY UNDER THE SECURITIES ACT. THE HOLDER OF
THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
THE COMPANY THAT SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1) IN ACCORDANCE WITH AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, OR (2) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOBLE DRILLING (▇▇▇▇ ▇▇▇▇▇▇) INC., a Delaware corporation (the
"Company"), for value received, hereby promises to pay to
_________________________ or registered assigns the principal sum of
_________________________ Dollars ($__________) on ______________, 20__ , and to
pay interest (computed on the basis of a 360-day year of twelve 30-day months)
on the unpaid principal balance thereof from the date of this Note at the rate
of _____% per annum, monthly on the twentieth (20th) day of each month of each
year, commencing on _____________, until the principal amount hereof shall
become due and payable and to pay on demand interest on any overdue principal,
including any overdue prepayment of principal, and (to the extent permitted by
applicable law) on any applicable Make-Whole Amount or overdue installment of
interest, at a rate of interest per annum equal to the Default Rate; provided
that interest on this Note shall in no event exceed the maximum rate permitted
by applicable law, and this Note is expressly made subject to Section 12.5 of
the Indenture.
Payments of principal, applicable Make-Whole Amount, if any, or other
amounts due hereon, and interest shall be made in any coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts in installments in such manner and at such
place as provided in Section 4.6 of the Indenture.
This Note is one of an issue of Series A Senior Secured Notes of the
Company issued in an aggregate original principal amount limited to $95,412,500
under the Trust Indenture and Security Agreement of the Company (said indenture,
together with all agreements and indentures supplemental thereto being herein
called the "Indenture") dated as of ___________, 1998, with Chase Bank of Texas,
National Association as Trustee and is entitled to the benefits thereof.
Reference is hereby made to the Indenture for a description of certain rights,
obligations and duties of the parties thereto and for the meanings assigned to
terms used and not defined in this Note. As
83
provided in the Indenture, this Note is subject to optional prepayment. The
Company agrees to make required prepayments on account of this Note in
accordance with the prepayment schedule attached to this Note and in accordance
with the provisions of the Indenture. This Note is secured as set forth in the
Indenture and in the separate Note Purchase Agreements dated as of September __,
1998, between the Company and each of the Purchasers (listed on Schedule A
attached thereto).
This Note is a registered Note and is transferable only by surrender
thereof at the agency of the Company maintained pursuant to Section 7.9 of the
Indenture, duly endorsed or accompanied by a written instrument of transfer duly
executed by the registered holder of this Note or its attorney duly authorized
in writing.
Following any partial prepayment of this Note, this Note shall, prior
to any transfer hereof, be (a) made available to the Trustee for notation on the
prepayment schedule attached hereto of the amount of principal so prepaid or,
(b) at the option of the holder hereof and in lieu of the alternative in the
foregoing clause (a), held by the holder who shall make a notation of such
schedule of the amount of principal so prepaid. In case the entire principal
amount on this Note is prepaid or paid, this Note shall, upon written request
therefor by the Company, be surrendered promptly at the agency of the Company
maintained pursuant to Section 7.9 of the Indenture, for cancellation.
In any case where the date of maturity of any interest, applicable
Make-Whole amount, or other amount due hereon, or principal owed with respect to
this Note or the date fixed for any prepayment (in whole or in part) of this
Note will not be a Business Day, then payment of such interest, applicable
Make-Whole Amount, or other amount due hereon, or principal need not be made on
such date but may be made on the next succeeding Business Day with the same
force and effect as if made on the date of maturity or the date fixed for such
prepayment.
Under certain circumstances, as specified in the Indenture, the
principal of this Note (together with interest accrued thereon and any
applicable Make-Whole Amount) may be declared due and payable in the manner and
with the effect provided in the Indenture.
This Note and the Indenture are governed by, and shall be construed and
enforced in accordance with, the law of the State of New York applicable to
contracts made and to be performed entirely within such state and applicable
federal law.
Dated:
-------------------------
ATTEST: NOBLE DRILLING (▇▇▇▇ ▇▇▇▇▇▇) INC.
By
------------------------------- ----------------------------------
Assistant Secretary Name:
----------------------
Title:
---------------------
[CORPORATE SEAL]
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This is one of the Series A Notes described in the Indenture referred
to herein.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as Trustee
By
----------------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
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PREPAYMENT SCHEDULE TO
NOTE NO. AR-_______________
(SERIES A)
In addition to paying the entire outstanding principal amount of, and
the interest due on, this Note on _______________, 20__, the maturity date
hereof, the Company agrees to prepay, and there shall become due and payable,
principal amounts of this Note on the last day of each month, in each year,
beginning on ___________, 1998, as follows:
Date Due Amount Due
-------- ----------
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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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ANNEX A-2
NOBLE DRILLING (▇▇▇▇ ▇▇▇▇▇▇) INC.
No. BR-_____
_____% SERIES B SENIOR SECURED NOTE DUE _____________, _______
$
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THE SECURITY (OR ITS PREDECESSOR) EVIDENCED
HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE ISSUER IS NOT REQUIRED TO REGISTER
THIS SECURITY UNDER THE SECURITIES ACT. THE HOLDER OF
THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
THE COMPANY THAT SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1) IN ACCORDANCE WITH AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, OR (2) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOBLE DRILLING (▇▇▇▇ ▇▇▇▇▇▇) INC., a Delaware corporation (the
"Company"), for value received, hereby promises to pay to
_________________________ or registered assigns the principal sum of
_________________________ Dollars ($__________) on ___________, 20__, and to pay
interest (computed on the basis of a 360-day year of twelve 30-day months) on
the unpaid principal balance thereof from the date of this Note at the rate of
*1/_% per annum, monthly on the twentieth (20th) day of each month of each year,
commencing on _______________, until the principal amount hereof shall become
due and payable and to pay on demand interest on any overdue principal,
including any overdue prepayment of principal, and (to the extent permitted by
applicable law) on any applicable Make-Whole Amount or overdue installment of
interest, at a rate of interest per annum equal to the Default Rate; provided
that interest on this Note shall in no event exceed the maximum rate permitted
by applicable law, and this Note is expressly made subject to 12.5 of the
Indenture.
Payments of principal, applicable Make-Whole Amount, if any, or other
amounts due hereon, and interest shall be made in any coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts in such manner and at such place as provided
in Section 4.6 of the Indenture.
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(1)The interest rate shall be the rate reported at 2:00 P.M. eastern
time on the Business Day immediately before the Closing Date (as defined in the
Indenture) on the PX1 government page of the Bloomberg service as the yield to
maturity for the five year on-the-run U.S. Treasury security, plus (i) 64 basis
points, and (ii) the facility fee percentage set out in the letter agreement
between the Company and Banner Receivables Corporation dated September __, 1998.
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88
This Note is one of an issue of Series B Senior Secured Notes of the
Company issued in an aggregate original principal amount limited to $16,837,500
under the Trust Indenture and Security Agreement of the Company (said indenture,
together with all agreements and indentures supplemental thereto being herein
called the "Indenture") dated as of ____________, 1998, with Chase Bank of
Texas, National Association as Trustee and is entitled to the benefits thereof.
Reference is hereby made to the Indenture for a description of certain rights,
obligations and duties of the parties thereto and for the meanings assigned to
terms used and not defined in this Note. As provided in the Indenture, this Note
is subject to optional prepayment. This Note is secured as set forth in the
Indenture and in the separate Note Purchase Agreements dated as of September __,
1998, between the Company and each of the Purchasers (listed on Schedule A
attached thereto).
This Note is a registered Note and is transferable only by surrender
thereof at the agency of the Company maintained pursuant to Section 7.9 of the
Indenture, duly endorsed or accompanied by a written instrument of transfer duly
executed by the registered holder of this Note or its attorney duly authorized
in writing.
Following any partial prepayment of this Note, this Note shall, prior
to any transfer hereof, be (a) made available to the Trustee for notation on the
prepayment schedule attached hereto of the amount of principal so prepaid or,
(b) at the option of the holder hereof and in lieu of the alternative in the
foregoing clause (a), held by the holder who shall make a notation of such
schedule of the amount of principal so prepaid. In case the entire principal
amount on this Note is prepaid or paid, this Note shall, upon written request
therefor by the Company, be surrendered promptly at the agency of the Company
maintained pursuant to Section 7.9 of the Indenture, for cancellation.
In any case where the date of maturity of any interest, applicable
Make-Whole Amount, or other amounts due hereon, or principal owed with respect
to this Note or the date fixed for any prepayment (in whole or in part) of this
Note will not be a Business Day, then payment of such interest, applicable
Make-Whole Amount, or other amounts due hereon, or principal need not be made on
such date but may be made on the next succeeding Business Day with the same
force and effect as if made on the date of maturity or the date fixed for such
prepayment.
Under certain circumstances, as specified in the Indenture, the
principal of this Note (together with interest accrued thereon and any
applicable Make-Whole Amount) may be declared due and payable in the manner and
with the effect provided in the Indenture.
This Note and the Indenture are governed by, and shall be construed and
enforced in accordance with, the law of the State of New York applicable to
contracts made and to be performed entirely within such state and applicable
federal law.
Dated:
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ATTEST: NOBLE DRILLING (▇▇▇▇ ▇▇▇▇▇▇) INC.
By
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Assistant Secretary Name:
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Title:
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[CORPORATE SEAL]
This is one of the Series B Notes described in the Indenture referred
to herein.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as Trustee
By
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Name:
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Its:
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PAYMENTS OF PRINCIPAL
Date of Principal Amount
Payment Amount Paid Remaining Unpaid Authorized Signature
---------------------- -------------------------- ------------------------------ -----------------------------------
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
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(Insert assignee's soc. sec. or tax I.D. no.)
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(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:
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(Sign exactly as your name appears on the face of
this Note)
Signature Guarantee:
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