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Exhibit 4.2
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NOBLE DRILLING CORPORATION
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
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First Supplemental Indenture
relating to
$400,000,000
$150,000,000 of 6.95% Senior Notes due 2009
$250,000,000 of 7.50% Senior Notes due 2019
Dated as of March 16, 1999
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FIRST SUPPLEMENTAL INDENTURE, dated as of March 16, 1999 and relating
to the 2009 Notes and the 2019 Notes referred to below (this "Supplemental
Indenture"), between NOBLE DRILLING CORPORATION, a corporation duly organized
and existing under the laws of the State of Delaware (the "Company"), and CHASE
BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association duly
organized and existing under the laws of the United States of America, as
trustee under this Supplemental Indenture and the Indenture referred to below
(the "Trustee"). Capitalized terms not otherwise defined in this Supplemental
Indenture have the meanings assigned to them in the Indenture referred to
below.
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture dated as of March 1, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Indenture") to provide for the
issuance from time to time of its unsecured senior debt securities (the
"Securities") the form and terms of which are to be established pursuant to
Articles Two and Three of the Indenture; and
WHEREAS, Article Nine of the Indenture provides, among other things,
that the Company and the Trustee may enter into indentures supplemental to the
Indenture for, among other things, the purpose of establishing the form and
terms of the Securities of any series as permitted in Articles Two and Three of
the Indenture and otherwise amending the Indenture in a manner not prejudicial
to the interests of the Holders of the Securities of any series; and
WHEREAS, the Company desires to create two series of Securities under
the Indenture in an aggregate principal amount of $400,000,000, comprising
$150,000,000 of 6.95% Senior Notes due 2009 (the "2009 Notes") and $250,000,000
of 7.50% Senior Notes due 2019 (the "2019 Notes," and together with the 2009
Notes, the "Notes"), in furtherance of which the Board of Directors of the
Company has adopted a Board Resolution authorizing the Company to enter into
this Supplemental Indenture without the consent of the Holders of the
Securities as provided for in Section 901 of the Indenture; and
WHEREAS, all acts necessary to make the Notes, when executed by the
Company and authenticated and delivered by the Trustee as provided in the
Indenture, the valid and binding obligations of the Company and to make this
Supplemental Indenture a valid and binding agreement in accordance with Article
Nine of the Indenture have been duly performed and executed;
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NOW, THEREFORE, in consideration of the promises and mutual agreements
herein contained, the Company and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the Holders from time to time of the
Notes as follows:
SECTION 1. Issuance, Terms and Form of the 2009 Notes.
1.1 Issuance of 2009 Notes. A series of Securities is hereby created
which shall be designated as the 6.95% Senior Notes due 2009 and shall be
referred to as the "2009 Notes." The aggregate principal amount of 2009 Notes
created hereby which may be authenticated and delivered under this Supplemental
Indenture shall not exceed $150,000,000, except as permitted under the terms of
the Indenture.
1.2 Terms of the 2009 Notes. The 2009 Notes shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to, the terms, conditions and covenants of the
Indenture and this Supplemental Indenture.
1.3 Form of the 2009 Notes. The 2009 Notes shall be executed,
authenticated and delivered substantially in the form attached hereto as
Exhibit A, the terms of which are incorporated in this Supplemental Indenture
for all purposes.
SECTION 2. Issuance, Terms and Form of the 2019 Notes.
2.1 Issuance of 2019 Notes. A series of Securities is hereby created
which shall be designated as the 7.50% Senior Notes due 2019 and shall be
referred to as the "2019 Notes." The aggregate principal amount of 2019 Notes
created hereby which may be authenticated and delivered under this Supplemental
Indenture shall not exceed $250,000,000, except as permitted under the terms of
the Indenture.
2.2 Terms of the 2019 Notes. The 2019 Notes shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to, the terms, conditions and covenants of the
Indenture and this Supplemental Indenture.
2.3 Form of the 2019 Notes. The 2019 Notes shall be executed,
authenticated and delivered substantially in the form attached hereto as
Exhibit B, the terms of which are incorporated in this Supplemental Indenture
for all purposes.
SECTION 3. Separate Voting for Holders of the 2009 Notes and the 2019
Notes.
3.1 Separate Voting. For purposes of interpreting the voting
provisions contained in Article Thirteen of the Indenture, and for all other
purposes, the 2009 Notes and the 2019 Notes
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shall vote as separate series of Securities. Therefore, the Holders of the 2009
Notes ("2009 Holders") and the Holders of the 2019 Notes ("2019 Holders") shall
vote separately.
3.2 Meetings. When determining whether the Holders of an adequate
principal amount of Securities have voted to request a meeting pursuant to
Section 1302(b) of the Indenture, 2009 Holders shall have no right to vote for
a meeting of 2019 Holders and 2019 Holders shall have no right to vote for a
meeting of 2009 Holders.
3.3 Quorum. When determining whether the Holders of an adequate
principal amount of Securities are present for purposes of determining the
existence of a quorum pursuant to Section 1304 of the Indenture, 2009 Holders
shall not count toward establishing a quorum of 2019 Holders and 2019 Holders
shall not count toward establishing a quorum of 2009 Holders.
3.4 Resolutions. When determining whether the Holders of an adequate
principal amount of Securities have voted to adopt a resolution pursuant to
Section 1304 of the Indenture, 2009 Holders shall have no right to vote for
resolutions affecting the 2019 Notes and 2019 Holders shall have no right to
vote for resolutions affecting the 2009 Notes.
SECTION 4. Amendments to the Indenture Relating to the Notes.
4.1 Amendments to Article One of the Indenture (Definitions). Article
One of the Indenture is hereby amended in respect of, and applicable to, the
Notes and only in respect of, and applicable to, the Notes as follows:
(a) by adding thereto the following new definitions in their
appropriate alphabetical order:
"Attributable Indebtedness," when used with respect to any
Sale/Leaseback Transaction, means, as at the time of determination, the
present value (discounted at the rate set forth or implicit in the terms
of the lease included in such transaction) of the total obligations of the
lessee for rental payments (other than amounts required to be paid on
account of taxes, maintenance, repairs, insurance, assessments, utilities,
operating and labor costs and other items which do not constitute payments
for property rights) during the remaining term of the lease included in
such Sale/Leaseback Transaction (including any period for which such lease
has been extended). In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall be the lesser
of the net amount determined assuming termination upon the first day such
lease may be terminated (in which case the net amount shall also include
the amount of the penalty, but no rent shall be considered as required to
be paid under such lease subsequent to the first date upon which it may be
so terminated) or the net amount determined assuming no such termination.
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"Capitalized Lease Obligations" of any Person means the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
generally accepted accounting principles, and the amount of such
obligations shall be the capitalized amount thereof determined in
accordance with generally accepted accounting principles.
"Consolidated Net Tangible Assets" means the total amount of assets
(less applicable reserves and other properly deductible items) after
deducting (1) all current liabilities (excluding the amount of those which
are by their terms extendable or renewable at the option of the obligor to
a date more than 12 months after the date as of which the amount is being
determined and current maturities of long-term debt) and (2) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangible assets, all as set forth on the most recent quarterly
balance sheet of the Company and its consolidated Subsidiaries and
determined in accordance with generally accepted accounting principles.
"Funded Indebtedness" means all Indebtedness (including Indebtedness
incurred under any revolving credit, letter of credit or working capital
facility) that by its terms matures on, or that is renewable at the option
of any obligor thereon to, a date more than one year after the date on
which such Indebtedness is originally incurred.
"Indebtedness" of any Person means, without duplication, (i) all
indebtedness of such Person for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof), (ii) all obligations of such Person evidenced
by bonds, debentures, notes or other similar instruments, (iii) all
obligations of such Person in respect of letters of credit or other
similar instruments (or reimbursement obligations with respect thereto),
other than standby letters of credit, performance bonds and other
obligations issued by or for the account of such Person in the ordinary
course of business, to the extent not drawn or, to the extent drawn, if
such drawing is reimbursed not later than the third Business Day following
demand for reimbursement, (iv) all obligations of such Person to pay the
deferred and unpaid purchase price of property or services, except trade
payables and accrued expenses incurred in the ordinary course of business,
(v) all Capitalized Lease Obligations of such Person, (vi) all
Indebtedness of others secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person (provided that
if the obligations so secured have not been assumed in full by such Person
or are not otherwise such Person's legal liability in full, then such
obligations shall be deemed to be in an amount equal to the greater of (a)
the lesser of (1) the full amount of such obligations and (2) the fair
market value of such assets, as determined in good faith by the Board of
Directors of such Person, which determination shall be evidenced by a
Board
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Resolution, and (b) the amount of obligations as have been assumed by such
Person or which are otherwise such Person's legal liability), and (vii) all
Indebtedness of others (other than endorsements in the ordinary course of
business) guaranteed by such Person to the extent of such guarantee.
"Joint Venture" means any partnership, corporation or other entity in
which up to and including 50 percent of the partnership interests,
outstanding voting stock or other equity interests is owned, directly or
indirectly, by the Company and/or one or more Subsidiaries.
"Lien" means any mortgage, pledge, lien, encumbrance, charge or
security interest. For purposes of the Indenture, the Company or any
Subsidiary of the Company shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, Capitalized Lease Obligation
or other title retention agreement relating to such asset.
"Make-Whole Premium" with respect to any Note (or portion of a Note)
to be redeemed shall equal the excess, if any, of:
(i) the sum of the present values, calculated as of the
Redemption Date, of:
(A) each interest payment that, but for the redemption, would
have been payable on the Note (or its portion) being redeemed on each
Interest Payment Date occurring after the Redemption Date (excluding
any accrued interest for the period before the Redemption Date); and
(B) the principal amount that, but for the redemption, would
have been payable at the final maturity of the Note (or its portion)
being redeemed;
over
(ii) the principal amount of the Note (or its portion) being
redeemed.
The present values of interest and principal payments referred to in
clause (i) above will be determined in accordance with generally accepted
principles of financial analysis. Those present values will be calculated
by discounting the amount of each payment of interest or principal from
the date that such payment would have been payable, but for the
redemption, to the Redemption Date at a discount rate equal to the
Treasury Yield plus 25 basis points in the case of redemption of the 2009
Notes and 35 basis points in the case of redemption of the 2019 Notes. The
Make-Whole Premium will be calculated by an independent investment banking
institution of national standing appointed by the Company, provided that
if the
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Company fails to make such appointment at least 45 Business Days prior to
the Redemption Date, or if the institution so appointed is unwilling or
unable to make the calculation, such calculation will be made by ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co. or, if that firm is unwilling or unable to make the
calculation, by an independent investment banking institution of national
standing appointed by the Trustee (in any such case, the "Independent
Investment Banker").
"Non-Recourse Indebtedness" means any Indebtedness of the Company or
any Subsidiary in respect of which (a) the recourse of the holder of such
Indebtedness, whether direct or indirect and whether contingent or
otherwise, is effectively limited to (i) Liens on specified assets and
(ii) in respect of Indebtedness of a Subsidiary, Liens on assets of the
Subsidiary acquired after the date of original issuance of the Notes, and
with respect to such Indebtedness of the Company or a Subsidiary, neither
the Company nor any Subsidiary (other than the issuer of such
Indebtedness) provides any credit support or is otherwise liable or
obligated and (b) the occurrence of any event, or the existence of any
condition under any agreement or instrument relating to such Indebtedness,
shall not at any time have the effect of accelerating, or permitting the
acceleration of, the maturity of any other Indebtedness of the Company or
any of its Subsidiaries or otherwise permitting any such other Indebtedness
to be declared due and payable, or to be required to be prepaid, purchased
or redeemed, prior to the stated maturity thereof; provided that the
Indebtedness of Noble Drilling (▇▇▇▇ ▇▇▇▇▇▇) Inc. existing on the date of
original issuance of the Notes shall be Non-Recourse Indebtedness.
"Pari Passu Indebtedness" means any Indebtedness of the Company,
whether outstanding on the issue date of the Notes or thereafter created,
incurred or assumed, unless, in the case of any particular Indebtedness,
the instrument creating or evidencing the same or pursuant to which the
same is outstanding expressly provides that such Indebtedness shall be
subordinated in right of payment to the Notes.
"Permitted Liens" means (i) Liens existing on the date of original
issuance of a series of Notes; (ii) Liens on property or assets of, or any
shares of stock of, or other equity interests in, or indebtedness of, any
Person existing at the time such Person becomes a Subsidiary of the
Company or at the time such Person is merged into or consolidated with the
Company or any of its Subsidiaries or at the time of a sale, lease or
other disposition of the properties of a Person (or a division thereof) as
an entirety or substantially as an entirety to the Company or a
Subsidiary; (iii) Liens in favor of the Company or any of its
Subsidiaries; (iv) Liens in favor of governmental bodies to secure
progress or advance payments; (v) Liens securing industrial revenue or
pollution control bonds; (vi) Liens on property securing (a) all or any
portion of the cost of acquiring, constructing, altering, improving or
repairing any property or assets, real or personal, or improvements used
or to be used in connection with such property or (b) Indebtedness
incurred by the Company or any Subsidiary of the Company prior to or
within one year after the later of the acquisition,
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the completion of construction, alteration, improvement or repair or the
commencement of commercial operation thereof, which Indebtedness is
incurred for the purpose of financing all or any part of the purchase price
thereof or construction or improvements thereon; (vii) statutory liens or
landlords', carriers', warehouseman's, mechanics', suppliers',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business and with respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings; (viii) Liens on current
assets of the Company or any Subsidiary securing Indebtedness of the
Company or such Subsidiary, respectively; (ix) Liens on the stock,
partnership or other equity interest of the Company or any Subsidiary in
any Joint Venture or any Subsidiary that owns an equity interest in such
Joint Venture to secure Indebtedness, provided the amount of such
Indebtedness is contributed and/or advanced solely to such Joint Venture;
and (x) any extensions, substitutions, replacements or renewals in whole or
in part of a Lien enumerated in clauses (i) through (ix) above.
"Principal Property" means any drilling rig or drillship, or integral
portion thereof, owned or leased by the Company or any Subsidiary and used
for drilling offshore oil and gas ▇▇▇▇▇, which, in the opinion of the Board
of Directors, is of material importance to the business of the Company and
its Subsidiaries taken as a whole, but no such drilling rig or drillship,
or portion thereof, shall be deemed of material importance if its net book
value (after deducting accumulated depreciation) is less than two percent
of Consolidated Net Tangible Assets.
"Sale/Leaseback Transaction" means any arrangement with any Person
pursuant to which the Company or any Subsidiary leases any Principal
Property that has been or is to be sold or transferred by the Company or
the Subsidiary to such Person, other than (1) temporary leases for a term,
including renewals at the option of the lessee, of not more than five
years, (2) leases between the Company and a Subsidiary or between
Subsidiaries, (3) leases of Principal Property executed by the time of, or
within 12 months after the later of, the acquisition, the completion of
construction, alteration, improvement or repair or the commencement of
commercial operation of the Principal Property, and (4) arrangements
pursuant to any provision of law with an effect similar to the former
Section 168(f) of the Internal Revenue Code of 1954.
"Treasury Yield" means a rate of interest per annum equal to the
weekly average yield to maturity of United States Treasury Notes that have
a constant maturity that corresponds to the remaining terms to maturity of
the Notes, calculated to the nearest 1/12th of a year (the "Remaining
Term"). The Treasury Yield will be determined as of the third Business Day
immediately before the applicable Redemption Date. The weekly average
yields of United States Treasury Notes will be determined by referring to
the most recent statistical release published by the Federal Reserve Bank
of New York and designated "H.15(519) Selected Interest Rates" or any
successor release (the "H.15 Statistical Release").
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If the H.15 Statistical Release contains a weekly average yield for United
States Treasury Notes having a constant maturity that is the same as the
Remaining Term, then the Treasury Yield will be equal to that weekly
average yield. In all other cases, the Treasury Yield will be calculated by
interpolation, on a straight-line basis, between the weekly average yields
on the United States Treasury Notes that have a constant maturity closest
to and greater than the Remaining Term and the United States Treasury Notes
that have a constant maturity closest to and less than the Remaining Term
(in each case as set forth in the H.15 Statistical Release). Any weekly
average yields as calculated by interpolation will be rounded to the
nearest 1/100th of 1% with any figure of 1/200% or above being rounded
upward. If weekly average yields for United States Treasury Notes are not
available in the H.15 Statistical Release or otherwise, then the Treasury
Yield will be calculated by interpolation of comparable rates selected by
the Independent Investment Banker.
(b) by deleting the definitions of "Redemption Price" and
"Subsidiary" and replacing them as follows:
"Redemption Price" shall be the price equal to 100% of the principal
amount of the Notes being redeemed plus accrued interest to the Redemption
Date (subject to the right of holders of record on the relevant record date
to receive interest due on an interest payment date that is on or prior to
the Redemption Date), plus the Make-Whole Premium applicable to such series
of Notes, if any is required to be paid. The Redemption Price will not ever
be less than 100% of the principal amount of the Notes being redeemed plus
accrued interest to the Redemption Date.
"Subsidiary" means, with respect to the Company at any date, any
corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the
Company in the Company's consolidated financial statements if such
financial statements were prepared in accordance with generally accepted
accounting principles as of such date, as well as any other corporation,
limited liability company, partnership, association or other entity (a) of
which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise controlled, by the Company or one or more
Subsidiaries of the Company.
4.2 Amendments to Article Ten of the Indenture (Covenants of the
Company). Article Ten of the Indenture is hereby amended in respect of, and
applicable to, the Notes and only in respect of, and applicable to, the Notes
by adding thereto the following new Sections 1008 and 1009:
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SECTION 1008. Limitations on Liens. The Company will not, and will
not permit any of its Subsidiaries to, issue, assume or guarantee any
Indebtedness for borrowed money secured by any Lien upon any Principal
Property or any shares of stock or indebtedness of any Subsidiary that
owns or leases a Principal Property (whether such Principal Property,
shares of stock or indebtedness are now owned or hereafter acquired)
without making effective provision whereby the Notes (together with, if
the Company shall so determine, any other Indebtedness or other
obligation) shall be secured equally and ratably with (or, at the option
of the Company, prior to) the Indebtedness so secured for so long as such
Indebtedness is so secured. The foregoing restrictions do not, however,
apply to Indebtedness secured by Permitted Liens.
Notwithstanding the foregoing, the Company and its Subsidiaries may,
without securing the Notes, issue, assume or guarantee secured
Indebtedness that would otherwise be subject to the foregoing restrictions
in an aggregate principal amount that, together with all other such
Indebtedness of the Company and its Subsidiaries that would otherwise be
subject to the foregoing restrictions (including Indebtedness permitted to
be secured under clause (i) under the definition of Permitted Liens but
excluding Indebtedness permitted to be secured under clauses (ii) through
(x) thereunder) and the aggregate amount of Attributable Indebtedness
deemed outstanding with respect to Sale/Leaseback Transactions (other than
those in connection with which the Company has voluntarily retired any of
the Notes, any Pari Passu Indebtedness or any Funded Indebtedness pursuant
to clause (c) of Section 1009 captioned "Limitation on Sale/Leaseback
Transactions"), does not at any one time exceed 15 percent of Consolidated
Net Tangible Assets of the Company and its consolidated subsidiaries.
SECTION 1009. Limitation on Sale/Leaseback Transactions. The Company
will not, and will not permit any Subsidiary to, enter into any
Sale/Leaseback Transaction with any person (other than the Company or a
Subsidiary) unless: (a) the Company or such Subsidiary would be entitled
to incur Indebtedness in a principal amount equal to the Attributable
Indebtedness with respect to such Sale/Leaseback Transaction secured by a
Lien on the property subject to such Sale/Leaseback Transaction pursuant
to the covenant contained in Section 1008 captioned "Limitations on Liens"
without equally and ratably securing the Notes pursuant to such covenant;
(b) after the date of the first series of Notes issued under the Indenture
and within a period commencing nine months prior to the consummation of
such Sale/Leaseback Transaction and ending nine months after the
consummation thereof, the Company or such Subsidiary shall have expended
for property used or to be used in the ordinary course of business of the
Company and its Subsidiaries an amount equal to all or a portion of the
net proceeds of such Sale/Leaseback Transaction and the Company shall have
elected to designate such amount as a credit against such Sale/Leaseback
Transaction (with any such amount not being so designated to be applied as
set forth in clause (c) below or as otherwise permitted); or (c) the
Company, during the nine-
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month period after the effective date of such Sale/Leaseback Transaction,
shall have applied to either (i) the voluntary defeasance or retirement of
any Notes, any Pari Passu Indebtedness or any Funded Indebtedness or (ii)
the acquisition of one or more Principal Properties at fair value, an
amount equal to the greater of the net proceeds of the sale or transfer of
the property leased in such Sale/Leaseback Transaction and the fair value,
as determined by the Board of Directors, of such property as the time of
entering into such Sale/Leaseback Transaction (in either case adjusted to
reflect the remaining term of the lease and any amount expended by the
Company as set forth in clause (b) above), less an amount equal to the sum
of the principal amount of Notes, Pari Passu Indebtedness and Funded
Indebtedness voluntarily defeased or retired by the Company plus any amount
expended to acquire any Principal Properties at fair value, within such
nine-month period and not designated as a credit against any other
Sale/Leaseback Transaction entered into by the Company or any Subsidiary
during such period.
4.3 Amendments to Article Five of the Indenture (Events of Default).
Article Five of the Indenture is hereby amended in respect of, and applicable
to, the Notes and only in respect of, and applicable to, the Notes by:
(a) deleting in its entirety clause (1) of Section 501 of the
Indenture and substituting in lieu thereof the following new clause (1):
"(1) default in the payment of any interest on or any Additional
Amounts with respect to any Security of that series when such interest
or Additional Amounts become due and payable, and continuance of such
default for a period of 30 days; or" and
(b) providing that in accordance with clause (7) of Section 501 of
the Indenture the following shall constitute an Event of Default with
respect to the 2009 Notes or the 2019 Notes, as the case may be:
default under any bond, debenture, note or other evidence of
Indebtedness (other than Non-Recourse Indebtedness) by either of the
Company or any Subsidiary or under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness (other than Non-Recourse
Indebtedness) of either of the Company or any Subsidiary resulting in
the acceleration of such Indebtedness (other than Non-Recourse
Indebtedness), or any default in payment of such Indebtedness (other
than Non-Recourse Indebtedness) (after expiration of any applicable
grace periods and presentation of any debt instruments, if required),
if the aggregate amount of all such Indebtedness (other than
Non-Recourse Indebtedness) that has been so accelerated and with
respect to which there has been such a default in payment shall
exceed $25,000,000 and there has been
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a failure to obtain rescission or annulment of all such accelerations
or to discharge all such defaulted indebtedness within 20 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of all Outstanding Notes of such series
a written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder.
4.4 Amendments to Article Eleven of the Indenture (Redemption of
Securities). Article Eleven of the Indenture is hereby amended in respect of,
and applicable to, the Notes and only in respect of, and applicable to, the
Notes by deleting Sections 1102, 1103, 1105 and 1106 therefrom in their
entirety and substituting in lieu thereof the following new Sections 1102,
1103, 1105 and 1106:
SECTION 1102. Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Notes shall be evidenced by a Board Resolution,
a certified copy of which is delivered to the Trustee. In case of any
redemption at the election of the Company, the Company shall, at least 45
days prior to the Redemption Date fixed by it (unless a shorter notice
period shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the series and aggregate principal amount of Notes
to be redeemed.
SECTION 1103. Selection by Trustee of Notes to Be Redeemed. If less
than all of the 2009 Notes or 2019 Notes are to be redeemed, the
particular Notes or portions thereof to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee from the
Outstanding 2009 Notes or 2019 Notes, as the case may be, not previously
called for redemption, either pro rata, by lot or by another method the
Trustee shall deem fair
and reasonable, and the aggregate principal amounts to be redeemed may be
equal to $1,000 or any integral multiple thereof.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Notes selected for partial
redemption, the aggregate principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall
relate, in the case of any Note redeemed or to be redeemed only in part,
to the portion of the aggregate principal amount of such Note which has
been or is to be redeemed.
SECTION 1105. Deposit of Redemption Price. On or before 10:00 a.m.,
New York City time, on any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in
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a trust as provided in Section 1003) an amount of money sufficient to pay
the Redemption Price of all the Notes that are to be redeemed on that date.
SECTION 1106. Notes Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Notes so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default
in the payment of the Redemption Price) such Notes shall cease to accrue
interest. Upon surrender of any such Note for redemption in accordance
with said notice, such Notes shall be paid by the Company at the
Redemption Price.
If any Notes called for redemption shall not be so paid upon
surrender thereof for redemption, the Redemption Price thereof shall
accrue interest at the rate of 6.95% per annum in the case of the 2009
Notes and 7.50% per annum in the case of the 2019 Notes.
SECTION 5. Miscellaneous.
5.1 The Trustee. The recitals contained herein shall be taken as the
statements of the Company and the Trustee shall not assume responsibility for,
or be liable in respect of, the correctness thereof. The Trustee makes no
representation as to, and shall not be liable or responsible for, the validity
or sufficiency of this Supplemental Indenture.
5.2 Limited Effect. Except as expressly amended hereby, all of the
provisions, covenants, terms and conditions of the Indenture are ratified and
confirmed, and shall remain in full force.
5.3 Counterparts. This Supplemental Indenture may be executed by one or
more parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
5.4 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE DEEMED TO BE A
CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
-12-
14
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
NOBLE DRILLING CORPORATION
(the "Company")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
Attest: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Senior Vice President -
Finance, Treasurer and Controller
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: Vice President and Trust
Officer
Attest: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: Administrator
-13-
15
EXHIBIT A
[FORM OF 2009 NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC). ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
NOBLE DRILLING CORPORATION
6.95% SENIOR NOTE DUE 2009
$150,000,000
No. G-1
CUSIP No. ▇▇▇▇▇▇▇▇▇
Issue Date: March 16, 1999
Noble Drilling Corporation, a Delaware corporation (the "Company"),
promises to pay to CEDE & CO. or its registered assigns, the principal amount
of _________________________________ MILLION DOLLARS ($__________________) on
March 15, 2009. This 2009 Note shall not bear interest except as specified on
the other side of this 2009 Note. Additional provisions of this 2009 Note are
set forth on the other side of this 2009 Note.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
NOBLE DRILLING CORPORATION
By:
--------------------------------------
Title:
A-1
16
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Dated: March _____, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, NATIONAL
ASSOCIATION, as Trustee
By:
---------------------------------
Authorized Signatory
A-2
17
[FORM OF REVERSE SIDE OF 2009 NOTE]
6.95% SENIOR NOTE DUE 2009
1. INTEREST. Commencing March 16, 1999, interest on this 2009 Note
will accrue at the rate of 6.95% per annum and will be payable in cash
semiannually on each March 15 and September 15, commencing September 15, 1999,
to 2009 Holders of record on the close of business on the immediately preceding
March 1 and September 1. All such interest shall be payable on demand.
2. METHOD OF PAYMENT. Subject to the terms and conditions of the
Indenture, payments in respect of the 2009 Notes shall be made at the office or
agency of the Company maintained for that purpose in the City and State of New
York. The Company will pay cash amounts in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND SECURITY REGISTRAR. Initially, Chase Bank of
Texas, National Association, as Trustee (the "Trustee"), will act as Paying
Agent and Security Registrar. The Company may appoint and change any paying
agent or security registrar without notice, other than notice to the Trustee.
The Company or any of its Subsidiaries or any of their Affiliates may act as
Paying Agent or Security Registrar.
4. INDENTURE. The Company issued the 2009 Notes under an Indenture,
dated as of March 1, 1999, between the Company and the Trustee, as supplemented
by a First Supplemental Indenture, dated as of March 16, 1999 (collectively,
the "Indenture"). The terms of the 2009 Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act of 1939").
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The 2009 Notes are subject to all such terms, and
2009 Holders are referred to the Indenture and the Trust Indenture Act of 1939
for a statement of those terms.
The 2009 Notes are general unsecured obligations of the Company,
limited to $150,000,000 aggregate principal amount.
5. REDEMPTION AT THE OPTION OF THE COMPANY. No sinking fund is
provided for the 2009 Notes. The 2009 Notes will be subject to redemption at
the option of the Company, in whole or in part, at any time and from time to
time, upon not less than 30 nor more than 60 days' notice, at the Redemption
Price (as defined below).
If notice of redemption has been given as provided in Article Eleven
of the Indenture and funds for the redemption of any 2009 Notes called for
redemption shall have been made
A-3
18
available on the Redemption Date referred to in such notice, such 2009 Notes
will cease to bear interest on the date fixed for such redemption specified in
such notice and the only right of the Holders of the 2009 Notes from and after
the Redemption Date will be to receive payment of the Redemption Price upon
surrender of such 2009 Notes in accordance with such notice.
As used herein:
"Make-Whole Premium" with respect to any 2009 Note (or portion of a
2009 Note) to be redeemed shall equal the excess, if any, of:
(i) the sum of the present values, calculated as of the Redemption Date,
of:
(A) each interest payment that, but for the redemption, would have
been payable on the 2009 Note (or its portion) being redeemed on each
Interest Payment Date occurring after the Redemption Date (excluding any
accrued interest for the period before the Redemption Date); and
(B) the principal amount that, but for the redemption, would have been
payable at the final maturity of the 2009 Note (or its portion) being
redeemed;
over
(ii) the principal amount of the 2009 Note (or its portion) being redeemed.
The present values of interest and principal payments referred to in
clause (i) above will be determined in accordance with generally accepted
principles of financial analysis. Those present values will be calculated by
discounting the amount of each payment of interest or principal from the date
that such payment would have been payable, but for the redemption, to the
Redemption Date at a discount rate equal to the Treasury Yield plus 25 basis
points for such 2009 Notes. The Make-Whole Premium will be calculated by an
independent investment banking institution of national standing appointed by
the Company, provided that if the Company fails to make such appointment at
least 45 Business Days prior to the Redemption Date, or if the institution so
appointed is unwilling or unable to make the calculation, such calculation will
be made by the Independent Investment Banker.
"Redemption Price," with respect to 2009 Notes being redeemed on a
Redemption Date, shall be the price equal to 100% of the principal amount
thereof plus accrued interest to the Redemption Date (subject to the right of
holders of record on the relevant record date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date), plus a
Make-Whole Premium, if any is required to be paid. The Redemption Price of any
2009 Notes being
A-4
19
redeemed will not ever be less than 100% of the principal amount of such 2009
Notes plus accrued interest thereon to the Redemption Date.
If less than all the 2009 Notes are to be redeemed, the particular
2009 Notes or portions thereof to be redeemed shall be selected not more than
60 days prior to the Redemption
Date by the Trustee from the Outstanding 2009 Notes not previously called for
redemption, either pro rata, by lot or by another method the Trustee shall deem
fair and reasonable, and the aggregate principal amounts to be redeemed must be
equal to $1,000 or any integral multiple thereof.
6. DENOMINATIONS; TRANSFER; EXCHANGE. The 2009 Notes are in
registered form, without coupons, in denominations of $1,000 of principal
amount and integral multiples of $1,000. A 2009 Holder may register the
transfer of or exchange 2009 Notes in accordance with the Indenture. The
Security Registrar may require a 2009 Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Company shall not be
required to exchange or register a transfer of (a) any 2009 Notes for a period
of 15 days next preceding the first mailing or publication of notice of
redemption of 2009 Notes to be redeemed or (b) any 2009 Notes selected, called
or being called for redemption, in whole or in part, except, in the case of any
2009 Note to be redeemed in part, the portion thereof not so to be redeemed.
7. PERSONS DEEMED OWNERS. The registered Holder of this 2009 Note may
be treated as the owner of this 2009 Note for all purposes.
8. UNCLAIMED MONEY. The Trustee and each Paying Agent shall each
return to the Company upon written request any money held by them for the
payment of any amount with respect to the 2009 Notes that remains unclaimed for
two years. After return to the Company, 2009 Holders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
9. AMENDMENT; WAIVER. Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the 2009 Notes may be amended with the written
consent of the Holders of a majority in aggregate principal amount of the 2009
Notes at the time Outstanding and (ii) certain defaults or noncompliance with
certain provisions may be waived with the written consent of the Holders of a
majority in aggregate principal amount of the 2009 Notes at the time
Outstanding. Subject to certain exceptions set forth in the Indenture, without
the consent of any 2009 Holder, the Company and the Trustee may amend the
Indenture or the 2009 Notes to cure any ambiguity, defect or inconsistency, or
to comply with Article Nine of the Indenture, or to make any change that does
not adversely affect the rights of any Holder of 2009 Notes.
10. DEFAULTS AND REMEDIES. Under the Indenture, Events of Default
include, among others, (a) default in
A-5
20
the payment of principal or premium, if any, when due; (b) default in the
payment of any installment of interest when due, continued for 30 days; (c)
default in the performance of any other covenant of the Company applicable to
the 2009 Notes, continued for 90 days after written notice given in accordance
with the Indenture to the Company by the Trustee or to the Company and the
Trustee, by the Holders of at least 25% in aggregate principal amount of the
2009 Notes then Outstanding requiring the same to be remedied; (d) certain
events of bankruptcy, insolvency or reorganization of the Company; and (e)
default under any bond, debenture, note or other evidence of Indebtedness (other
than Non-Recourse Indebtedness) by either of the Company or any Subsidiary or
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness (other than
Non-Recourse Indebtedness) of either of the Company or any Subsidiary resulting
in the acceleration of such Indebtedness (other than Non-Recourse Indebtedness),
or any default in payment of such Indebtedness (other than Non-Recourse
Indebtedness) (after expiration of any applicable grace periods and presentation
of any debt instruments, if required), if the aggregate amount of all such
Indebtedness (other than Non-Recourse Indebtedness) that has been so accelerated
and with respect to which there has been such a default in payment shall exceed
$25,000,000 and there has been a failure to obtain rescission or annulment of
all such accelerations or to discharge all such defaulted indebtedness within 20
days after there has been given in accordance with the Indenture to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the 2009 Notes a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder.
If any Event of Default shall occur and be continuing, the Trustee or
the Holders of not less than 25% in aggregate principal amount of the 2009
Notes then Outstanding, by notice in writing to the Company (and to the
Trustee, if given by the 2009 Holders), may declare the principal of all of the
2009 Notes and the interest, if any, accrued thereon to be due and payable
immediately; provided, however, that the Holders of a majority in aggregate
principal amount of the 2009 Notes then Outstanding, by notice in writing to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if all defaults under such Indenture are cured or waived.
No Holder of 2009 Notes then Outstanding may institute any suit,
action or proceeding with respect to, or otherwise attempt to enforce, the
Indenture, unless (i) such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, (ii) the Holders of
not less than 25% in aggregate principal amount of the 2009 Notes then
Outstanding shall have made written request to the Trustee to institute such
suit, action or proceeding and shall have offered to the Trustee such
reasonable indemnity as it may require with respect thereto and (iii) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit
or proceeding; provided that, the right of any Holder of any 2009 Note to
receive payment of the principal of, premium, if any, or interest, if any, on
such 2009 Note, on or after the respective due dates, or to institute suit for
the enforcement of any such payment shall not be impaired or affected without
the consent of such Holder. The Holders of a majority in aggregate principal
amount of the 2009 Notes then Outstanding may direct
A-6
21
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the 2009 Notes, provided that the Trustee may decline to follow such
direction if the Trustee determines that such action or proceeding is unlawful
or would involve the Trustee in personal liability.
The Company is required to furnish to the Trustee annually a
certificate as to compliance by the Company with all conditions and covenants
under the Indenture.
11. TRUSTEE DEALINGS WITH THE COMPANY. Subject to certain limitations
imposed by the Trust Indenture Act of 1939 and the Indenture, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of 2009 Notes and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
12. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the 2009 Notes or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a 2009 Note, each 2009 Holder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the 2009 Notes.
13. AUTHENTICATION. This 2009 Note shall not be valid until an
authorized signatory of the Trustee manually signs the Trustee's Certificate of
Authentication on the other side of this 2009 Note.
14. DEFEASANCE, COVENANT DEFEASANCE. The 2009 Notes are subject to
defeasance and covenant defeasance as provided in the Indenture.
15. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder of 2009 Notes or an assignee, such as TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (=
Uniform Gift to Minors Act).
16. GOVERNING LAW. THIS 2009 NOTE AND THE INDENTURE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
A-7
22
The Company will furnish to any Holder of 2009 Notes upon written
request and without charge a copy of the Indenture. Requests may be made to:
Noble Drilling Corporation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Secretary.
A-8
23
EXHIBIT B
[FORM OF 2019 NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC). ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NOBLE DRILLING CORPORATION
7.50% SENIOR NOTE DUE 2019
$250,000,000
No. G-1
CUSIP No. ▇▇▇▇▇▇▇▇▇
Issue Date: March 16, 1999
Noble Drilling Corporation, a Delaware corporation (the "Company"),
promises to pay to CEDE & CO. or its registered assigns, the principal amount
of _________________________________ MILLION DOLLARS ($__________________) on
March 15, 2019. This 2019 Note shall not bear interest except as specified on
the other side of this 2019 Note. Additional provisions of this 2019 Note are
set forth on the other side of this Note.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
NOBLE DRILLING CORPORATION
By:
-----------------------------------
Title:
B-1
24
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
Dated: March _____, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
Authorized Signatory
B-2
25
[FORM OF REVERSE SIDE OF 2019 NOTE]
7.50% SENIOR NOTE DUE 2019
1. INTEREST. Commencing March 16, 1999, interest on this 2019 Note
will accrue at the rate of 7.50% per annum and will be payable in cash
semiannually on each March 15 and September 15, commencing September 15, 1999,
to 2019 Holders of record on the close of business on the immediately preceding
March 1 and September 1. All such interest shall be payable on demand.
2. METHOD OF PAYMENT. Subject to the terms and conditions of the
Indenture, payments in respect of the 2019 Notes shall be made at the office or
agency of the Company maintained for that purpose in the City and State of New
York. The Company will pay cash amounts in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND SECURITY REGISTRAR. Initially, Chase Bank of
Texas, National Association, as Trustee (the "Trustee"), will act as Paying
Agent and Security Registrar. The Company may appoint and change any paying
agent or security registrar without notice, other than notice to the Trustee.
The Company or any of its Subsidiaries or any of their Affiliates may act as
Paying Agent or Security Registrar.
4. INDENTURE. The Company issued the 2019 Notes under an Indenture,
dated as of March 1, 1999, between the Company and the Trustee, as supplemented
by a First Supplemental Indenture, dated as of March 16, 1999 (collectively,
the "Indenture"). The terms of the 2019 Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act of 1939").
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The 2019 Notes are subject to all such terms, and
2019 Holders are referred to the Indenture and the Trust Indenture Act of 1939
for a statement of those terms.
The 2019 Notes are general unsecured obligations of the Company,
limited to $250,000,000 aggregate principal amount.
5. REDEMPTION AT THE OPTION OF THE COMPANY. No sinking fund is
provided for the 2019 Notes. The 2019 Notes will be subject to redemption at
the option of the Company, in whole or in part, at any time and from time to
time, upon not less than 30 nor more than 60 days' notice, at the Redemption
Price (as defined below).
If notice of redemption has been given as provided in Article Eleven
of the Indenture and funds for the redemption of any 2019 Notes called for
redemption shall have been made
B-3
26
available on the Redemption Date referred to in such notice, such 2019 Notes
will cease to bear interest on the date fixed for such redemption specified in
such notice and the only right of the Holders of the 2019 Notes from and after
the Redemption Date will be to receive payment of the Redemption Price upon
surrender of such 2019 Notes in accordance with such notice.
As used herein:
"Make-Whole Premium" with respect to any 2019 Note (or portion of a
2019 Note) to be redeemed shall equal the excess, if any, of:
(i) the sum of the present values, calculated as of the Redemption Date,
of:
(A) each interest payment that, but for the redemption, would
have been payable on the 2019 Note (or its portion) being redeemed on
each Interest Payment Date occurring after the Redemption Date
(excluding any accrued interest for the period before the Redemption
Date); and
(B) the principal amount that, but for the redemption, would have
been payable at the final maturity of the 2019 Note (or its portion)
being redeemed;
over
(ii) the principal amount of the 2019 Note (or its portion) being redeemed.
The present values of interest and principal payments referred to in
clause (i) above will be determined in accordance with generally accepted
principles of financial analysis. Those present values will be calculated by
discounting the amount of each payment of interest or principal from the date
that such payment would have been payable, but for the redemption, to the
Redemption Date at a discount rate equal to the Treasury Yield plus 35 basis
points for such 2019 Notes. The Make-Whole Premium will be calculated by an
independent investment banking institution of national standing appointed by
the Company, provided that if the Company fails to make such appointment at
least 45 Business Days prior to the Redemption Date, or if the institution so
appointed is unwilling or unable to make the calculation, such calculation will
be made by the Independent Investment Banker.
"Redemption Price," with respect to 2019 Notes being redeemed on a
Redemption Date, shall be the price equal to 100% of the principal amount
thereof plus accrued interest to the Redemption Date (subject to the right of
holders of record on the relevant record date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date), plus a
Make-Whole Premium, if any is required to be paid. The Redemption Price of any
2019 Notes being
B-4
27
redeemed will not ever be less than 100% of the principal
amount of such 2019 Notes plus accrued interest thereon to the Redemption Date.
If less than all the 2019 Notes are to be redeemed, the particular
2019 Notes or portions thereof to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee from the Outstanding 2019 Notes
not previously called for redemption, either pro rata, by lot or by another
method the Trustee shall deem fair and reasonable, and the aggregate principal
amounts to be redeemed must be equal to $1,000 or any integral multiple thereof.
6. DENOMINATIONS; TRANSFER; EXCHANGE. The 2019 Notes are in
registered form, without coupons, in denominations of $1,000 of principal
amount and integral multiples of $1,000. A 2019 Holder may register the
transfer of or exchange 2019 Notes in accordance with the Indenture. The
Security Registrar may require a 2019 Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Company shall not be
required to exchange or register a transfer of (a) any 2019 Notes for a period
of 15 days next preceding the first mailing or publication of notice of
redemption of 2019 Notes to be redeemed or (b) any 2019 Notes selected, called
or being called for redemption, in whole or in part, except, in the case of any
2019 Note to be redeemed in part, the portion thereof not so to be redeemed.
7. PERSONS DEEMED OWNERS. The registered Holder of this 2019 Note may
be treated as the owner of this 2019 Note for all purposes.
8. UNCLAIMED MONEY. The Trustee and each Paying Agent shall each
return to the Company upon written request any money held by them for the
payment of any amount with respect to the 2019 Notes that remains unclaimed for
two years. After return to the Company, 2019 Holders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
9. AMENDMENT; WAIVER. Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the 2019 Notes may be amended with the written
consent of the Holders of a majority in aggregate principal amount of the 2019
Notes at the time Outstanding and (ii) certain defaults or noncompliance with
certain provisions may be waived with the written consent of the Holders of a
majority in aggregate principal amount of the 2019 Notes at the time
Outstanding. Subject to certain exceptions set forth in the Indenture, without
the consent of any 2019 Holder, the Company and the Trustee may amend the
Indenture or the 2019 Notes to cure any ambiguity, defect or inconsistency, or
to comply with Article Nine of the Indenture, or to make any change that does
not adversely affect the rights of any Holder of 2019 Notes.
10. DEFAULTS AND REMEDIES. Under the Indenture, Events of Default
include, among others, (a) default in the payment of principal or premium, if
any, when due; (b) default in
B-5
28
the payment of any installment of interest when due, continued for 30 days; (c)
default in the performance of any other covenant of the Company applicable to
the 2019 Notes, continued for 90 days after written notice given in accordance
with the Indenture to the Company by the Trustee or to the Company and the
Trustee, by the Holders of at least 25% in aggregate principal amount of the
2019 Notes then Outstanding requiring the same to be remedied; (d) certain
events of bankruptcy, insolvency or reorganization of the Company; and (e)
default under any bond, debenture, note or other evidence of Indebtedness (other
than Non-Recourse Indebtedness) by either of the Company or any Subsidiary or
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness (other than
Non-Recourse Indebtedness) of either of the Company or any Subsidiary resulting
in the acceleration of such Indebtedness (other than Non-Recourse Indebtedness),
or any default in payment of such Indebtedness (other than Non-Recourse
Indebtedness) (after expiration of any applicable grace periods and presentation
of any debt instruments, if required), if the aggregate amount of all such
Indebtedness (other than Non-Recourse Indebtedness) that has been so accelerated
and with respect to which there has been such a default in payment shall exceed
$25,000,000 and there has been a failure to obtain rescission or annulment of
all such accelerations or to discharge all such defaulted indebtedness within 20
days after there has been given in accordance with the Indenture to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the 2019 Notes a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder.
If any Event of Default shall occur and be continuing, the Trustee or
the Holders of not less than 25% in aggregate principal amount of the 2019
Notes then Outstanding, by notice in writing to the Company (and to the
Trustee, if given by the 2019 Holders), may declare the principal of all of the
2019 Notes and the interest, if any, accrued thereon to be due and payable
immediately; provided, however, that the Holders of a majority in aggregate
principal amount of the 2019 Notes then Outstanding, by notice in writing to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if all defaults under such Indenture are cured or waived.
No Holder of 2019 Notes then Outstanding may institute any suit,
action or proceeding with respect to, or otherwise attempt to enforce, the
Indenture, unless (i) such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, (ii) the Holders of
not less than 25% in aggregate principal amount of the 2019 Notes then
Outstanding shall have made written request to the Trustee to institute such
suit, action or proceeding and shall have offered to the Trustee such
reasonable indemnity as it may require with respect thereto and (iii) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit
or proceeding; provided that, the right of any Holder of any 2019 Note to
receive payment of the principal of, premium, if any, or interest, if any, on
such 2019 Note, on or after the respective due dates, or to institute suit for
the enforcement of any such payment shall not be impaired or affected without
the consent of such Holder. The Holders of a majority in aggregate principal
amount of the 2019 Notes then Outstanding may direct
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the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the 2019 Notes, provided that the Trustee may decline to follow such
direction if the Trustee determines that such action or proceeding is unlawful
or would involve the Trustee in personal liability.
The Company is required to furnish to the Trustee annually a
certificate as to compliance by the Company with all conditions and covenants
under the Indenture.
11. TRUSTEE DEALINGS WITH THE COMPANY. Subject to certain limitations
imposed by the Trust Indenture Act of 1939 and the Indenture, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of 2019 Notes and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
12. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the 2019 Notes or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a 2019 Note, each 2019 Holder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the 2019 Notes.
13. AUTHENTICATION. This 2019 Note shall not be valid until an
authorized signatory of the Trustee manually signs the Trustee's Certificate of
Authentication on the other side of this 2019 Note.
14. DEFEASANCE, COVENANT DEFEASANCE. The 2019 Notes are subject to
defeasance and covenant defeasance as provided in the Indenture.
15. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder of 2019 Notes or an assignee, such as TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (=
Uniform Gift to Minors Act).
16. GOVERNING LAW. THIS 2019 NOTE AND THE INDENTURE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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The Company will furnish to any Holder of 2019 Notes upon written
request and without charge a copy of the Indenture. Requests may be made to:
Noble Drilling Corporation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Secretary.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
(Please insert Name, Social Security Number or other
Identifying Number of Assignee)
at the following address:
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address, including postal zip code,
of assignee)
_______________________________________________________________________________
this Note and all rights hereunder, hereby irrevocably constituting and
appointing ____________________________________________________________________
Attorney to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated: ____________________________ _______________________________________
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of
this Note in every particular, without
alteration or enlargement or any change
whatsoever.