PRIDE PETROLEUM SERVICES, INC.
and
THE CHASE MANHATTAN BANK
Trustee.
-------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of May __, 1997
-------------------------------
Supplementing the Indenture
dated as of
May __, 1997
TABLE OF CONTENTS
PAGE
ARTICLE ONE SUPPLEMENT OF THE ORIGINAL INDENTURE............................................1
SECTION 1.1. SUPPLEMENT TO ARTICLE ONE OF THE ORIGINAL INDENTURE...........................1
SECTION 1.3. SUPPLEMENT TO ARTICLE FIVE OF THE ORIGINAL INDENTURE.........................16
SECTION 1.4. SUPPLEMENT TO ARTICLE EIGHT OF THE ORIGINAL INDENTURE........................18
SECTION 1.5. SUPPLEMENT TO ARTICLE NINE OF THE ORIGINAL INDENTURE.........................19
SECTION 1.6. SUPPLEMENT TO ARTICLE TEN OF THE ORIGINAL INDENTURE..........................19
SECTION 1.7. SUPPLEMENT TO ARTICLE ELEVEN OF THE ORIGINAL INDENTURE.......................28
SECTION 1.8. NEW ARTICLE FOURTEEN.........................................................29
SECTION 1.9. EFFECT OF ARTICLE ONE........................................................33
ARTICLE TWO THE NOTES......................................................................33
ARTICLE THREE REPRESENTATIONS OF THE COMPANY.................................................34
SECTION 3.1. AUTHORITY OF THE COMPANY.....................................................34
SECTION 3.2. TRUTH OF RECITALS AND STATEMENTS.............................................34
ARTICLE FOUR CONCERNING THE TRUSTEE.........................................................34
SECTION 4.1. ACCEPTANCE OF TRUSTS.........................................................34
SECTION 4.2. NO RESPONSIBILITY OF TRUSTEE FOR RECITALS, ETC...............................34
ARTICLE FIVE MISCELLANEOUS PROVISIONS.......................................................34
SECTION 5.1. RELATION TO THIS INDENTURE...................................................34
SECTION 5.2. MEANING OF TERMS.............................................................35
SECTION 5.3. COUNTERPARTS OF SUPPLEMENTAL INDENTURE.......................................35
SECTION 5.4. GOVERNING LAW................................................................35
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of May __, 1997, between
Pride Petroleum Services, Inc., a Louisiana corporation (the "Company"), and The
Chase Manhattan Bank, as Trustee (the "Trustee") under the Original Indenture
referred to below,
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issuance from time to time
of its unsecured debentures, notes or other evidences of indebtedness (the
"Securities"), which are to be issued in one or more series; and the Company has
heretofore made, executed and delivered to the Trustee its Indenture of even
date herewith (the "Original Indenture") pursuant to which the Securities are
issuable;
WHEREAS, Sections 201 and 901 of the Original Indenture provide that
the form or terms of any series of Securities may be established in an Indenture
supplemental thereto, and the Company desires to establish in this First
Supplemental Indenture both the form and terms of a series of Securities
designated as its 93/8% Senior Notes due 2007 (the "Notes");
WHEREAS, Section 901 of the Original Indenture further provides that
under certain conditions the Company and Trustee, may, without the consent of
any Holders, from time to time and at any time, enter into an Indenture or
Indentures supplemental thereto, for the purposes, INTER ALIA, of adding to the
covenants of the Company for the benefit of the Holders of all or any series of
Securities, and adding any additional Events of Default, and the Company desires
by means of this First Supplemental Indenture to add to its covenants for the
sole benefit of the Holders of the Notes and to add certain additional Events of
Default, also solely for the benefit of such Holders; and
WHEREAS, all things necessary to authorize the execution and delivery
of this First Supplemental Indenture, to establish the Notes as provided for in
this First Supplemental Indenture, and to make the Original Indenture, as
supplemented by this First Supplemental Indenture (the Original Indenture, as so
supplemented by this Supplemental Indenture, being sometimes referred to herein
as the "Indenture"), a valid agreement of the Company, in accordance with its
terms, have been done;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH
that for and in consideration of the premises and the purchase of the Notes by
the Holders, the Company and the Trustee mutually covenant and agree, solely for
the equal and proportionate benefit of the respective Holders from time to time
of the Notes, as follows:
ARTICLE ONE
SUPPLEMENT OF THE ORIGINAL INDENTURE
SECTION 1.1. SUPPLEMENT TO ARTICLE ONE OF THE ORIGINAL INDENTURE.
Section 101 of the Original Indenture is supplemented or superseded with respect
to the Notes, in the case of definitional paragraphs that may be inconsistent,
by inserting therein, in alphabetical order, the following definitional
paragraphs:
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"Adjusted Net Assets" of a Subsidiary Guarantor at any date shall mean
the amount by which the Fair Value of the properties and assets of such
Subsidiary Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under its Subsidiary Guarantee, of such Subsidiary Guarantor at such
date.
"Affiliate" of any specified Person means another Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED, HOWEVER,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control.
"Asset Sale" means any direct or indirect sale, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger or
consolidation or by means of a Sale and Lease-Back Transaction other than a Sale
and Lease-Back Transaction that results in the creation or incurrence of (a) a
Capital Lease Obligation of the Company or any Subsidiary or (b) a lease of
newly constructed assets, which lease is treated as an operating lease in
accordance with GAAP and entered into within 180 days of completion of
construction) by the Company or any Subsidiary to any Person other than the
Company or a Wholly Owned Subsidiary, in one transaction, or a series of related
transactions, of (i) any Capital Stock of any Subsidiary (except for directors'
qualifying shares or certain minority interests sold to other Persons solely due
to local law requirements that there be more than one stockholder, but which are
not in excess of what is required for such purpose) or (ii) any other Property
or assets of the Company or any Subsidiary, other than (A) sales of drill-string
components and obsolete or worn out equipment in the ordinary course of business
or other assets that, in the Company's reasonable judgment, are no longer used
or useful in the conduct of the business of the Company and its Subsidiaries,
(B) any drilling contract, charter (bareboat or otherwise) or other lease of
Property or other asset entered into by the Company or any Subsidiary in the
ordinary course of business, other than any Bargain Purchase Contract, (C) a
Restricted Payment or Permitted Investment permitted under Section 1009 hereof,
(D) a Change of Control, (E) a consolidation, merger or the disposition of all
or substantially all of the assets of the Company in compliance with Section 801
hereof, (F) any trade or exchange by the Company or any Subsidiary of one or
more drilling rigs for one or more other drilling rigs of like kind owned or
held by another Person, PROVIDED that (x) the Fair Value of the rig or rigs
traded or exchanged by the Company or such Subsidiary (including cash or cash
equivalents to be delivered by the Company or such Subsidiary) is reasonably
equivalent to the Fair Value of the drilling rig or rigs (together with cash or
cash equivalents to be received by the Company or such Subsidiary) as determined
by written appraisal by a nationally (or industry) recognized investment banking
firm or appraisal firm and (y) such exchange is approved by a majority of the
disinterested directors of the Company and (G) any transfers that, but for this
clause (G), would be Asset Sales, if (y) the Company elects to designate such
transfers as not constituting Asset Sales and (z) after giving effect to such
transfers, the aggregate Fair Market Value of the Property or assets transferred
in such transaction or any such series of related transactions so designated by
the Company does not exceed $500,000. An Asset
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Sale shall include the requisition of title to, seizure of or forfeiture of any
Property or assets, or any actual or constructive total loss or an agreed or
compromised total loss of any Property or assets.
"Attributable Indebtedness" in respect of a Sale and Lease-Back
Transaction means, at any date of determination, the present value (discounted
at the interest rate borne by the Notes, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease (or to the first date on which the lessee is permitted to terminate such
lease without the payment of a penalty) included in such Sale and Lease-Back
Transaction (including any period for which such lease has been extended).
"Average Life" means, as of any date, with respect to any debt
security, the quotient obtained by dividing (i) the sum of the products of (x)
the number of years from such date to the date of each scheduled principal
payment (including any sinking fund or mandatory redemption payment
requirements) of such debt security multiplied in each case by (y) the amount of
such principal payment by (ii) the sum of all such principal payments.
"Bargain Purchase Contract" means a drilling contract, charter
(bareboat or otherwise) or lease that provides for acquisition of Property by
the other party to such agreement during or at the end of the term thereof for
less than Fair Market Value thereof at the time such right to acquire such
Property is granted.
"Capital Lease Obligation" means, at any time as to any Person with
respect to any Property leased by such Person as lessee, the amount of the
liability with respect to such lease that would be required at such time to be
capitalized and accounted for as a capital lease on the balance sheet of such
Person prepared in accordance with GAAP.
"Capital Stock" in any Person means any and all shares, interests,
partnership interests, participations or other equivalents in the equity
interest (however designated) in such Person and any rights (other than debt
securities convertible into an equity interest), warrants or options to acquire
an equity interest in such Person.
"Cash Proceeds" means, with respect to any Asset Sale by any Person,
the aggregate consideration received for such Asset Sale by such Person in the
form of cash or cash equivalents (including any amounts of insurance or other
proceeds received in connection with an Asset Sale of the type described in the
last sentence of the definition thereof), including payments in respect of
deferred payment obligations when received in the form of cash or cash
equivalents (except to the extent that such obligations are financed or sold
with recourse to such Person or any subsidiary thereof). For purposes of this
definition, "cash or cash equivalents" shall be deemed to include, for a period
not to exceed 12 months from the related Asset Sale, noncash consideration
received with respect to an Asset Sale to the extent that such noncash
consideration consists of (i) publicly traded debt securities of a Person, which
securities are rated as "BBB-" or higher by Standard & Poor's Ratings Services
("S&P") and "Baa3" or higher by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), or
(ii) other Indebtedness of a Person if (x) the lowest rated long-term, unsecured
debt obligation issued by such Person is rated "BBB-" or higher by S&P and
"Baa3" or higher by Moody's or (y) in the case of other Indebtedness, the
payment of such other Indebtedness is secured by an
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irrevocable letter of credit issued by a commercial bank having capital and
surplus in excess of $100 million and long-term unsecured debt obligations rated
at least "A-" by S&P and "A3" by Moody's.
"Change of Control" means (i) a determination by the Company that any
Person or group (as defined in Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended ("Exchange Act")) has become the direct or
indirect beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
more than 50% of the Voting Stock of the Company; (ii) the Company is merged
with or into or consolidated with another corporation and, immediately after
giving effect to the merger or consolidation, less than 50% of the outstanding
voting securities entitled to vote generally in the election of directors or
persons who serve similar functions of the surviving or resulting entity are
then beneficially owned (within the meaning of Rule 13d-3 of the Exchange Act)
in the aggregate by (x) the stockholders of the Company immediately prior to
such merger or consolidation, or (y) if the record date has been set to
determine the stockholders of the Company entitled to vote on such merger or
consolidation, the stockholders of the Company as of such record date; (iii) the
Company, either individually or in conjunction with one or more Subsidiaries,
sells, conveys, transfers or leases, or the Subsidiaries sell, convey, transfer
or lease, all or substantially all of the assets of the Company and the
Subsidiaries, taken as a whole (either in one transaction or a series of related
transactions), including Capital Stock of the Subsidiaries, to any Person (other
than a Wholly Owned Subsidiary); (iv) the liquidation or dissolution of the
Company; or (v) the first day on which a majority of the individuals who
constitute the Board of Directors are not Continuing Directors.
"Consolidated Current Liabilities" of any Person means, as of any date,
the total liabilities (including tax and other proper accruals) of such Person
and its subsidiaries (other than Non-Recourse Subsidiaries) on a consolidated
basis at such date which may properly be classified as current liabilities in
accordance with GAAP.
"Consolidated Interest Coverage Ratio" means as of the date of the
transaction giving rise to the need to calculate the Consolidated Interest
Coverage Ratio (the "Transaction Date"), the ratio of (i) the aggregate amount
of EBITDA of the Company for the latest four fiscal quarters for which financial
information in respect thereof is available immediately prior to the applicable
Transaction Date (the "Determination Period") to (ii) the aggregate Consolidated
Interest Expense of the Company that is anticipated to accrue during a period
consisting of the fiscal quarter in which the Transaction Date occurs and the
three fiscal quarters immediately subsequent thereto (based upon the pro forma
amount and maturity of; and interest payments in respect of, Indebtedness of the
Company and its consolidated Subsidiaries expected by the Company to be
outstanding on the Transaction Date and reasonably anticipated by the Company to
be outstanding from time to time during such period), assuming for the purposes
of this measurement the continuation of market interest rates prevailing on the
Transaction Date and base interest rates in respect of floating interest rate
obligations equal to the base interest rates on such obligations in effect as of
the Transaction Date, PROVIDED that if the Company or any of its consolidated
Subsidiaries (other than Non-Recourse Subsidiaries) is a party to any Interest
Swap Obligation which would have the effect of changing the interest rate on any
Indebtedness of the Company or any of its consolidated Subsidiaries (other than
Non-Recourse Subsidiaries) for such four-quarter period (or a portion thereof),
the resulting rate shall be used for such four-quarter period or portion
thereof; PROVIDED, HOWEVER, that any Consolidated Interest Expense of the
Company with respect to Indebtedness incurred or retired by
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the Company or any of its Subsidiaries (other than Non-Recourse Subsidiaries)
during the fiscal quarter in which the Transaction Date occurs shall be
calculated as if such debt was so incurred or retired on the first day of the
fiscal quarter in which the Transaction Date occurs; PROVIDED, FURTHER, that if
the transaction giving rise to the need to calculate the Consolidated Interest
Coverage Ratio would have the effect of increasing or decreasing EBITDA in the
future and if such increase or decrease is readily quantifiable and is directly
attributable to such transaction, EBITDA shall be calculated on a pro forma
basis as if such transaction had occurred on the first day of the four fiscal
quarters referred to in clause (i) of this definition, and if, during the same
four fiscal quarters, (x) the Company or any of its consolidated Subsidiaries
(other than Non-Recourse Subsidiaries) shall have engaged in any Asset Sale,
EBITDA for such period shall be reduced by an amount equal to the EBITDA (if
positive), or increased by an amount equal to the EBITDA (if negative), directly
attributable to the assets which are the subject of such Asset Sale for such
period calculated on a pro forma basis as if such Asset Sale and any related
retirement of Indebtedness had occurred on the first day of such period or (y)
after the Issue Date, the Company or any of its consolidated Subsidiaries (other
than Non-Recourse Subsidiaries) shall have acquired any material assets other
than in the ordinary course of business, EBITDA and Consolidated Interest
Expense (if Indebtedness is incurred or assumed in connection with such
acquisition) shall be calculated on a pro forma basis as if such acquisition and
related financing had occurred on the first day of such period.
"Consolidated Interest Expense" means, with respect to any Person for
any period, without duplication, (A) the sum of (i) the aggregate amount of cash
and noncash interest expense (including capitalized interest) of such Person and
its subsidiaries (other than Non-Recourse Subsidiaries) for such period as
determined on a consolidated basis in accordance with GAAP in respect of
Indebtedness (including, without limitation, (v) any amortization of debt
discount, (w) net costs associated with Interest Swap Obligations (including any
amortization of discounts), (x) the interest portion of any deferred payment
obligation, (y) all accrued interest and (z) all commissions, discounts and
other fees and charges owed with respect to letters of credit, bankers
acceptances or similar facilities paid or accrued, or scheduled to be paid or
accrued, during such period other than in respect of Non-Recourse Indebtedness);
(ii) dividends on preferred stock of such Person (and preferred stock of its
subsidiaries (other than Non-Recourse Subsidiaries) if paid to a Person other
than such Person or its subsidiaries) declared and payable in cash; (iii) the
portion of any rental obligation of such Person or its subsidiaries (other than
Non-Recourse Subsidiaries) in respect of any Capital Lease Obligation allocable
to interest expense in accordance with GAAP; (iv) the portion of any rental
obligation of such Person or its subsidiaries (other than Non-Recourse
Subsidiaries) in respect of any Sale and Lease-Back Transaction allocable to
interest expense (determined as if such were treated as a Capital Lease
Obligation); and (v) to the extent any debt of any other Person is guaranteed by
such Person or any of its subsidiaries (other than Non-Recourse Subsidiaries),
(A) the aggregate amount of interest paid, accrued or scheduled to be paid or
accrued, by such other Person during such period attributable to any such debt,
LESS (B) to the extent included in (A) above, amortization or writeoff of
deferred financing costs of such Person and its subsidiaries during such period
and any charge related or any premium or penalty paid in connection with
redeeming or retiring any Indebtedness of such Person and its subsidiaries prior
to its stated maturity; in the case of both (A) and (B) above, after elimination
of intercompany accounts among such Person and its subsidiaries and as
determined in accordance with GAAP.
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"Consolidated Net Income" of any Person means, for any period, the
aggregate net income (or net loss, as the case may be) of such Person and its
subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP, PROVIDED that there shall be excluded therefrom, without duplication,
(i) any net income of any Non-Recourse Subsidiary, except that the Company's or
any Subsidiary's equity in the net income of such Non-Recourse Subsidiary for
such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash or cash equivalents actually distributed by such
Non-Recourse Subsidiary during such period to the Company or such subsidiary as
a dividend or other distribution, (ii) gains and losses from Asset Sales or
reserves relating thereto, (iii) items classified as extraordinary (other than
the tax benefit, if any, of the utilization of net operating loss carryforwards
or alternative minimum tax credits), (iv) the net income of any Person acquired
by such specified Person (other than a Non-Recourse Subsidiary) or any of its
subsidiaries in a pooling-of-interests transaction for any period prior to the
date of such acquisition, (v) any gain or loss, net of taxes, realized on the
termination of any employee pension benefit plan, and (vi) the net income of any
subsidiary of such specified Person to the extent that the transfer to that
Person of that income is not at the time permitted, directly or indirectly, by
any means (including by dividend, distribution, advance or loan or otherwise),
by operation of the terms of its charter or any agreement with a Person other
than with such specified Person, instrument held by a Person other than by such
specified Person, judgment, decree, order, statute, law, rule or governmental
regulations applicable to such subsidiary or its stockholders, except for any
dividends or distributions actually paid by such subsidiary to such Person.
"Consolidated Net Tangible Assets" of any Person means, as of any date,
Consolidated Tangible Assets of such Person at such date, after deducting
therefrom (without duplication of deductions) all Consolidated Current
Liabilities of such Person at such date.
"Consolidated Net Worth" of any Person means, as of any date, the sum
of the Capital Stock and additional paid-in capital plus retained earnings (or
minus accumulated deficit) of such Person and its subsidiaries on a consolidated
basis at such date, each item determined in accordance with GAAP, less amounts
attributable to Redeemable Stock of such Person or any of its subsidiaries.
"Consolidated Tangible Assets" of any Person means, as of any date, the
consolidated assets of such Person and its subsidiaries (other than Non-Recourse
Subsidiaries) at such date, after eliminating intercompany items and after
deducting from such total (i) the net book value of all assets that would be
classified as intangibles under GAAP (including, without limitation, goodwill,
organizational expenses, trademarks, trade names, copyrights, patents, licenses
and any rights in any thereof) and (ii) any prepaid expenses, deferred charges
and unamortized debt discount and expense, each such item determined in
accordance with GAAP.
"Continuing Director" means an individual who (i) is a member of the
Board of Directors of the Company and (ii) either (A) was a member of the Board
of Directors of the Company on the Issue Date or (B) whose nomination for
election or election to the Board of Directors of the Company was approved by
vote of at least 662/3% of the directors then still in office who were either
directors on the Issue Date or whose election or nomination for election was
previously so approved.
"Currency Hedge Obligations" means, at any time as to any Person, the
obligations of such Person at such time which were incurred in the ordinary
course of business pursuant to any foreign
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currency exchange agreement, option or future contract or other similar
agreement or arrangement designed to protect against or manage such Person's or
any of its subsidiaries' exposure to fluctuations in foreign currency exchange
rates.
"Default" means any event, act or condition the occurrence of which is,
or after notice or the passage time or both would be, an Event of Default.
"Determination Period" has the meaning specified under clause (i) of
the definition of "Consolidated Interest Coverage Ratio."
"EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such person, for such period, plus to the extent
reflected in the income statement of such Person for such period from which
Consolidated Net Income is determined, without duplication, (i) Consolidated
Interest Expense, (ii) income tax expense, (iii) depreciation expense, (iv)
amortization expense, (v) any charge related to any premium or penalty paid in
connection with redeeming or retiring any Indebtedness prior to its stated
maturity, and (vi) any other non-cash charges.
"Fair Market Value" means, with respect to consideration received or to
be received pursuant to any transaction by any Person, the fair market value of
such consideration as determined in good faith by the Board of Directors of the
Company.
"Fair Value" means, with respect to any asset or Property, the price
which could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under undue
pressure or compulsion to complete the transaction.
"Funded Indebtedness" means all Indebtedness incurred under any
revolving credit, letter of credit or working capital facility that matures by
its terms, or that is renewable at the option of any obligor therein to a date
more than one year after the date on which such Indebtedness is originally
incurred.
"GAAP" means, at any date, United States generally accepted accounting
principles, consistently applied, as set forth in the opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants
("AICPA") and statements of the Financial Accounting Standards Board, or in such
other statements by such other entity as may be designated by the AICPA, that
are applicable to the circumstances as of the date of determination; PROVIDED,
HOWEVER, that all calculations made for purposes of determining compliance with
the provisions set forth in Article 10 hereof shall utilize GAAP in effect at
the Issue Date.
"Indebtedness" as applied to any Person means, at any time, without
duplication, (i) any obligation of such Person, contingent or otherwise, for
borrowed money; (ii) any obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments; (iii) any obligation of such
Person for all or any part of the purchase price of Property or for the cost of
Property constructed or of improvements thereto (including any obligation under
or in connection with any letter of credit related thereto), other than accounts
payable included in current liabilities incurred in respect of Property and
services purchased in the ordinary course of business; (iv) any obligation of
such Person upon which interest charges are customarily paid (other than
accounts payable
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incurred in the ordinary course of business); (v) any obligation of such Person
under conditional sale or other title retention agreements relating to purchased
Property; (vi) any obligation of such Person issued or assumed as the deferred
purchase price of Property (other than accounts payable incurred in the ordinary
course of business); (vii) any Capital Lease Obligation; (viii) any obligation
of any other Person secured by (or for which the obligee thereof has an existing
right, contingent or otherwise, to be secured by) any Lien on Property owned or
acquired, whether or not any obligation secured thereby has been assumed, by
such Person; (ix) any obligation of such Person in respect of any letter of
credit supporting any obligation of any other Person; (x) the maximum fixed
repurchase price of any Redeemable Stock of such Person (or if such Person is a
subsidiary, any preferred stock of such Person); (xi) any Interest Swap
Obligation or Currency Hedge Obligation of such Person; and (xii) any obligation
which is in economic effect a guarantee, regardless of its characterization
(other than an endorsement in the ordinary course of business), with respect to
any Indebtedness of another Person, to the extent guaranteed. For purposes of
the preceding sentence, the maximum fixed repurchase price of any Redeemable
Stock or subsidiary preferred stock that does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Redeemable Stock or
subsidiary preferred stock as if such Redeemable Stock or subsidiary preferred
stock were repurchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture; PROVIDED, HOWEVER, that if such
Redeemable Stock or subsidiary preferred stock is not then permitted to be
repurchased, the repurchase price shall be the book value of such Redeemable
Stock or subsidiary preferred stock. The amount of Indebtedness of any Person at
any date shall be (x) the outstanding book value at such date of all
unconditional obligations as described above and (y) the maximum liability of
any such contingent obligation at such date.
"Interest Swap Obligations" means, with respect to any Person, the
obligation of such Person pursuant to any interest rate swap agreement, interest
rate cap, collar or floor agreement or other similar agreement or arrangement
designed to protect against or manage such Person's or any of its subsidiaries'
exposure to fluctuations in interest rates.
"Investment" means with respect to any Person, any investment in
another Person, whether by means of a share purchase, capital contribution,
loan, advance (other than advances to employees for moving and travel expenses,
drawing accounts and similar expenditures or prepayments or deposits in the
ordinary course of business) or similar credit extension constituting
Indebtedness of such other Person and any guarantee of Indebtedness of any other
Person; PROVIDED, HOWEVER, that the term "Investment" shall not include any
transaction involving the purchase or other acquisition (including by way of
merger) of Property (including Capital Stock) by the Company or any Subsidiary
in exchange for Capital Stock (other than Redeemable Stock) of the Company. The
amount of any Person's Investment shall be the original cost of such Investment
to such Person, PLUS the cost of all additions thereto paid by such Person, and
MINUS the amount of any portion of such Investment repaid to such Person in cash
as a repayment of principal or a return of capital, as the case may be, but
without any other adjustments for increases or decreases in value, or writeups,
writedowns or writeoffs with respect to such Investment in determining the
amount of any investment involving a transfer of any Property other than cash,
such Property shall be valued at its Fair Value at the time of such transfer as
determined in good faith by the board of directors (or comparable body) of the
Person making such transfer.
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"Issue Date" means the date on which the Notes are first authenticated
and delivered under this Indenture.
"Lien" means any mortgage, pledge, hypothecation, charge, assignment,
deposit arrangement, encumbrance, security interest, lien (statutory or other),
or preference, priority or other security or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
agreement to give or ▇▇▇▇▇ ▇ ▇▇▇▇ or any lease, conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"Limited Recourse Indebtedness" means (i) Indebtedness with respect to
the two drilling/workover barge rigs owned by the Company's Venezuelan
subsidiary as in effect on the date of this Indenture (the "Venezuelan Barge
Financing") and (ii) Indebtedness incurred to finance the purchase, acquisition,
renovation or construction of capital assets and related items (including
interest added to principal), or refinancings thereof, (a) in respect of which
the recourse of the holder of such Indebtedness is effectively limited to such
capital assets and related items or (b) in which the recourse and security are
similar to (or more favorable to the Company and its Subsidiaries than) the
Venezuelan Barge Financing.
"Maturity" means the date on which the principal of a Note becomes due
and payable as provided therein or in this Indenture, whether at the Stated
Maturity or by declaration of acceleration or otherwise.
"Net Available Proceeds" means, (a) as to any Asset Sale (other than a
Bargain Purchase Contract), the Cash Proceeds therefrom, net of all legal and
title expenses, commissions and other fees and expenses incurred, and all
Federal, state, provincial, foreign, recording and local taxes payable as a
consequence of such Asset Sale, net of all payment made to any Person other than
the Company or a Subsidiary on any Indebtedness which is secured by such assets,
in accordance with the terms of any Lien upon or with respect to such assets, or
which must by its terms, or in order to obtain a necessary consent to such Asset
Sale, or by applicable law, be repaid out of the proceeds from such Asset Sale
and, as for any Asset Sale by a Subsidiary, net of the equity interest in such
Cash Proceeds of any holder of Capital Stock of such Subsidiary (other than the
Company or any other Subsidiary) and (b) as to any Bargain Purchase Contract, an
amount equal to (i) that portion of the rental or other payment stream arising
under a Bargain Purchase Contract that represents an amount in excess of the
Fair Market Value of the rental or other payments with respect to the pertinent
Property or other asset and (ii) the Cash Proceeds from the sale of such
Property or other asset, net of the amounts set forth in clause (a) above, in
each case as and when received.
"Non-Recourse Indebtedness" means Indebtedness or that portion of
Indebtedness of a Non-Recourse Subsidiary as to which (a) neither the Company
nor any other Subsidiary (other than a Non-Recourse Subsidiary) (i) provides
credit support including any undertaking, agreement or instrument which would
constitute Indebtedness or (ii) is directly or indirectly liable for such
Indebtedness and (b) no default with respect to such Indebtedness (including any
rights which the holders thereof may have to take enforcement action against a
Non-Recourse Subsidiary) would permit (upon notice, lapse of time or both) any
holder of any other Indebtedness of the Company or its Subsidiaries to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.
- 9 -
"Non-Recourse Subsidiary" means (i) any Subsidiary of the Company that
at the time of determination will be designated a Non-Recourse Subsidiary by the
Board of Directors of the Company as provided below and (ii) any Subsidiary of a
Non-Recourse Subsidiary. The Board of Directors of the Company may designate any
Subsidiary of the Company as a Non-Recourse Subsidiary so long as (a) neither
the Company nor any Subsidiary is directly or indirectly liable pursuant to the
terms of any Indebtedness of such Subsidiary; (b) no default with respect to any
Indebtedness of such Subsidiary would permit (upon notice, lapse of time or
otherwise) any holder of any other Indebtedness of the Company or any Subsidiary
to declare a default on such other Indebtedness or cause the payment thereof to
be accelerated or payable prior to its stated maturity; (c) neither the Company
nor any Subsidiary has made an Investment in such Subsidiary unless such
Investment was made pursuant to, and in accordance with, Section 1009 hereof
(other than Investments of the type described in clause (i) of the definition of
"Permitted Investments"); and (d) such designation shall not result in the
creation or imposition of any Lien on any Property of the Company or any
Subsidiary (other than any Permitted Lien or any Lien the creation or imposition
of which shall have been in compliance with Section 1015 hereof); PROVIDED,
HOWEVER, that with respect to clause (a), the Company or a Subsidiary may be
liable for Indebtedness of a Non-Recourse Subsidiary if (x) such liability
constituted a Permitted Investment or a Restricted Payment permitted by Section
1009 hereof, in each case at the time of incurrence, or (y) the liability would
be a Permitted Investment at the time of designation of such Subsidiary as a
Non-Recourse Subsidiary. Any such designation by the Board of Directors of the
Company shall be evidenced to the Trustee by filing a Board Resolution with the
Trustee giving effect to such designation. The Board of Directors of the Company
may designate any Non-Recourse Subsidiary as a Subsidiary if, immediately after
giving effect to such designation, (i) no Default or Event of Default shall have
occurred and be continuing, (ii) the Company could incur $1.00 of additional
Indebtedness (not including the incurrence of Permitted Indebtedness) under the
first paragraph of Section 1010 hereof and (iii) if any Property of the Company
or any of its Subsidiaries would upon such designation become subject to any
Lien (other than a Permitted Lien), the creation or imposition of such Lien
shall have been in compliance with Section 1015 hereof.
"Permitted Indebtedness" means (a) Indebtedness of the Company under
the Notes; (b) Indebtedness (and any guarantee or pledge thereof) under one or
more bank revolving credit facilities in an aggregate principal amount at any
one time outstanding not to exceed the greater of (A) $100 million and (B) an
amount equal to 10% of Consolidated Net Tangible Assets determined as of the
date of the incurrence of such Indebtedness (plus interest and fees under such
facilities), less any amounts derived from Asset Sales and applied to the
permanent reduction of Indebtedness thereunder (and a permanent reduction of the
related commitment to lend thereunder) as contemplated by Section 1013 hereof;
(c) Indebtedness of the Company or any Subsidiary under Interest Swap
Obligations, PROVIDED that (i) such Interest Swap Obligations are related to
payment obligations on Indebtedness otherwise permitted under the covenants
described in Section 1010 hereof and (ii) the notional principal amount of such
Interest Swap Obligations does not exceed the principal amount of the
Indebtedness to which such Interest Swap Obligations relate; (d) Indebtedness of
the Company or any Subsidiary under Currency Hedge Obligations, PROVIDED that
(i) such Currency Hedge Obligations are related to payment obligations on
Indebtedness otherwise permitted under the covenants described in Section 1010
hereof or to the foreign currency cash flows reasonably expected to be generated
by the Company and the Subsidiaries and (ii) the notional principal amount of
such Currency Hedge Obligations does not exceed the principal amount of the
- 10 -
Indebtedness and the amount of the foreign currency cash flows to which such
Currency Hedge Obligations relate; (e) Indebtedness of the Company or any
Subsidiary outstanding on the Issue Date; (f) the Subsidiary Guarantees of the
Notes (and any assumption of the obligations guaranteed thereby); (g)
Indebtedness of the Company or any Subsidiary in respect of bid performance
bonds, surety bonds, appeal bonds and letters of credit or similar arrangement
issued for the account of the Company or any Subsidiary, in each case in the
ordinary course of business; (h) Indebtedness of the Company to any Wholly Owned
Subsidiary (but only so long as it remains a Wholly Owned Subsidiary); (i)
Indebtedness of any Subsidiary (other than a Non-Recourse Subsidiary) to the
Company or any Wholly Owned Subsidiary (but only so long as it remains a Wholly
Owned Subsidiary); (j) Indebtedness of the Company in connection with a purchase
of the Notes pursuant to a Change of Control Offer, PROVIDED that the aggregate
principal amount of such Indebtedness does not exceed 101% of the aggregate
principal amount of the Notes purchased pursuant to such Change of Control Offer
plus the related expenses of such purchase; PROVIDED, FURTHER, that such
Indebtedness (A) has an Average Life equal to or greater than the remaining
Average Life of the Notes and (B) does not mature prior to one year following
the Stated Maturity of the Notes; (k) Permitted Refinancing Indebtedness and (i)
Permitted Subsidiary Refinancing Indebtedness. So as to avoid duplication in
determining the amount of Permitted Indebtedness under any clause of this
definition, guarantees of, or obligations in respect of letters of credit
supporting, Indebtedness otherwise included in the determination of such amount
shall not also be included.
"Permitted Investments" means (a) certificates of deposit, bankers
acceptances, time deposits, Eurocurrency deposits and similar types of
Investments routinely offered by commercial banks with final maturities of one
year or less issued by commercial banks having capital and surplus in excess of
$100 mullion; (b) commercial paper issued by any corporation, if such commercial
paper has credit ratings of at least A-1 by "S&P" and at least "P-I" by ▇▇▇▇▇'▇;
(c) U.S. Government Obligations with a maturity of four years or less; (d)
repurchase obligations for instruments of the type described in clause (c); (e)
shares of money market mutual or similar funds having assets in excess of $100
million; (f) payroll advances in the ordinary course of business; (g) other
advances and loans to officers and employees of the Company or any Subsidiary,
so long as the aggregate principal amount of such advances and loans does not
exceed $500,000 at any one time outstanding; (h) Investments represented by that
portion of the proceeds from Asset Sales (1) that is not Cash Proceeds or (2)
that is deemed to be Cash Proceeds pursuant to the second sentence of the
definition of Cash Proceeds; (i) Investments made by the Company in its Wholly
Owned Subsidiaries (or any Person that will be a Wholly Owned Subsidiary as a
result of such Investment) or by a Subsidiary in the Company or in one or more
Wholly Owned Subsidiaries (or any Person that will be a Wholly Owned Subsidiary
as a result of such Investment); (j) Investments in stock, obligations or
securities received in settlement of debts owing to the Company or any
Subsidiary as a result of bankruptcy or insolvency proceedings or upon the
foreclosure, perfection or enforcement of any Lien in favor of the Company or
any Subsidiary, in each case as to debt owing to the Company or any Subsidiary
that arose in the ordinary course of business of the Company or any such
Subsidiary, provided that any stocks, obligations or securities received in
settlement of debts that arose in the ordinary course of business (and received
other than as a result of bankruptcy or insolvency proceedings or upon
foreclosure, perfection or enforcement of any Lien) that are, within 30 days of
receipt, converted into cash or cash equivalents shall be treated as having been
cash or cash equivalents at the time received; (k) Investments in any Person
(other than the Company or any Wholly Owned Subsidiary) engaged in construction,
ownership or operation of rigs and related equipment pursuant to the tender of
- 11 -
Petrobras for construction and operation of two dynamically positioned
semi-submersible rigs designated Amethyst 2 and 3 in an aggregate amount not to
exceed $35 million at any time outstanding; and (1) Investments in any Person
(other than the Company or any Wholly Owned Subsidiary) engaged in the
construction, ownership or operation of rigs and related equipment pursuant to
Lagoven, S.A.'s Call for Bids No. 96-0-016-4-0 for construction and operations
of "Multipurpose Units" in Venezuela in an aggregate amount not to exceed $15
million at any time outstanding.
"Permitted Liens" means (a) Liens in existence on the Issue Date; (b)
Liens created for the benefit of the Notes; (c) Liens on Property of a Person
existing at the time such Person is merged or consolidated with or into the
Company or a Subsidiary (and not incurred as a result of, or in anticipation of,
such transaction), PROVIDED that such Lien relates solely to such Property and
the proceeds thereof and accessories and upgrades thereto; (d) Liens on Property
existing at the time of the acquisition thereof (and not incurred as a result
of, or in anticipation of, such transaction), PROVIDED that such Liens relate
solely to such Property and the proceeds thereof and accessories and upgrades
thereto; (e) Liens incurred or pledges and deposits made in connection with
worker's compensation, unemployment insurance and other social security
benefits, statutory obligations, bid, surety or appeal bonds, performance bonds
or other obligations of a like nature incurred in the ordinary course of
business; (f) Liens imposed by law or arising by operation of law, including,
without limitation, landlords', mechanics', carriers', warehousemen's,
materialmen's, suppliers' and vendors' Liens and Liens for master's and crew's
wages and other similar maritime Liens, and incurred in the ordinary course of
business; (g) zoning restrictions, easements, licenses, covenants, reservations,
restrictions on the use of real property and defects, irregularities and
deficiencies in title to real property that do not, individually or in the
aggregate, materially affect the ability of the Company or any Subsidiary to
conduct its business presently conducted; (h) Liens for taxes or assessments or
other governmental charges or levies not yet due and payable, or the validity of
which is being contested by the Company or a Subsidiary in good faith
appropriate proceedings upon stay of execution or the enforcement thereof and
for which adequate reserves in accordance with GAAP or other appropriate
provision has been made; (i) Liens to secure Indebtedness incurred for the
purpose of financing all or a part of the purchase price or construction cost of
Property (including the cost of upgrading or refurbishing rigs or drillships)
acquired or constructed after the Issue Date, PROVIDED that (1) the principal
amount of Indebtedness secured by such Liens shall not exceed 100% of the lesser
of cost or Fair Market Value of the Property so acquired, upgraded or
constructed plus transaction costs related thereto, (2) such Liens shall not
encumber any other assets or Property of the Company or any Subsidiary (other
than the proceeds thereof and accessions and upgrades thereto) and (3) such
Liens shall attach to such Property within 120 days of the date of the
completion of the construction or acquisition of such Property; (j) Liens
securing Capital Lease Obligations, PROVIDED that such Liens secure Capital
Lease Obligations which, when combined with (1) the outstanding secured
Indebtedness of the Company and it Subsidiaries (other than Indebtedness secured
by Liens described under clauses (b) and (i) hereof) and (2) the aggregate
amount of all other Capital Lease Obligations of the Company and Subsidiaries,
does not exceed 10% of the Company's Consolidated Net Tangible Assets; (k) Liens
to secure any extension, renewal, refinancing or refunding (or successive
extensions, renewals, refinancings or refundings), in whole or in part, of any
Indebtedness secured by Liens referred to in the foregoing clauses (a), (b), (c)
and (d), PROVIDED that such Liens do not extend to any other Property of the
Company or any Subsidiary (other than the proceeds thereof and accessions and
upgrades thereto) and the principal
- 12 -
amount of the Indebtedness secured by such Liens is not increased; (1) any
charter or lease of drilling rigs in the ordinary of course of business; (m)
leases or subleases of real property to other Persons in the ordinary course of
business; (n) Liens securing Non-Recourse Indebtedness; (o) Liens securing
Permitted Indebtedness described in clause (b) of the definitions thereof; (p)
judgment liens not giving rise to an Event of Default so long as any appropriate
legal proceedings which may have been only initiated for the review of such
judgment shall not have been finally terminated or the period within which such
proceeding may be initiated shall not have expired; and (q) rights of set-off of
banks and other Persons.
"Permitted Non-Recourse Subsidiary Refinancing Indebtedness" means
Non-Recourse Indebtedness of any Non-Recourse Subsidiary, incurred in exchange
for, or the net proceeds of which are used to renew, extend, refinance, refund
or repurchase outstanding Non-Recourse Indebtedness of such Subsidiary which
outstanding Non-Recourse Indebtedness was incurred in accordance with, or is
otherwise permitted by, the terms of this Indenture.
"Permitted Refinancing Indebtedness" means Indebtedness of the Company,
incurred in exchange for, or the net proceeds of which are used to renew,
extend, refinance, refund or repurchase outstanding Indebtedness of the Company,
which outstanding Indebtedness was incurred in accordance with, or is otherwise
permitted by, the terms of this Indenture (excluding any Permitted
Indebtedness), PROVIDED that (i) if the Indebtedness being renewed, extended,
refinanced, refunded or repurchased is PARI PASSU with or subordinated in right
of payment to the Notes, then such new Indebtedness is PARI PASSU with or
subordinated in right of payment (without regard to its being secured) to, as
the case may be, the Notes at least to the same extent as the Indebtedness being
renewed, extended, refinanced refunded or repurchased, (ii) such new
Indebtedness is scheduled to mature later than the Indebtedness being renewed,
extended, refinanced, refunded or repurchased, (iii) such new Indebtedness has
an Average Life at the time such Indebtedness is incurred that is greater than
the Average Life of the Indebtedness being renewed, extended, refinanced,
refunded or repurchased, and (iv) such new Indebtedness is in an aggregate
principal amount (or, if such Indebtedness is issued at a price less than the
principal amount thereof, the aggregate amount of gross proceeds therefrom is)
not in excess of the aggregate principal amount then outstanding of the
Indebtedness being renewed, extended, refinanced, refunded or repurchased (or if
the Indebtedness being renewed, extended, refinanced, refunded or repurchased
was issued at a price less than the principal amount thereof, then not in excess
of the amount of liability in respect thereof determined in accordance with
GAAP) plus the amount of reasonable fees, expenses and premium, if any, incurred
by the Company or such Subsidiary in connection therewith.
"Permitted Subsidiary Refinancing Indebtedness" means Indebtedness of
any Subsidiary (other than a Non-Recourse Subsidiary) incurred in exchange for,
or the net proceeds of which are used to renew, extend, refinance, refund or
repurchase outstanding Indebtedness of such Subsidiary, which outstanding
Indebtedness was incurred in accordance with, or is otherwise permitted by, the
terms of this Indenture, PROVIDED that (i) such new Indebtedness is scheduled to
mature later than the Indebtedness being renewed, extended, refinanced, refunded
or repurchased, (ii) such new Indebtedness has an Average Life at the time such
Indebtedness is incurred that is greater than the Average Life of the
Indebtedness being renewed, extended, refinanced, refunded or repurchased, and
(iii) such new Indebtedness is in an aggregate principal amount (or, if such
indebtedness is issued at a price less than the principal amount thereof, the
aggregate amount of gross proceeds therefrom
- 13 -
is) not in excess of the aggregate principal amount then outstanding of the
Indebtedness being renewed, extended, refinanced, refunded or repurchased (or if
the Indebtedness being renewed, extended, refinanced, refunded or repurchased
was issued at a price less than the principal amount thereof, then not in excess
of the amount of liability in respect thereof determined in accordance with
GAAP) plus the amount of reasonable fees, expenses and premium, if any, incurred
by the Company or such Subsidiary in connection therewith.
"Person" means any individual, corporation, partnership, joint venture,
incorporated or unincorporated association, joint stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, excluding Capital Stock in any other Person.
"Public Equity Offering" means an underwritten public offering of
Common Stock for cash by the Company pursuant to a registration statement that
has been declared effective by the Commission (other than a registration
statement on Form S-8 or any successor form or otherwise relating to equity
securities issuable under any employee benefit plan of the Company).
"Redeemable Stock" means, with respect to any Person, any equity
security that by its terms or otherwise is required to be redeemed, or is
redeemable at the option of the holder thereof, at any time prior to one year
following the Stated Maturity of the Notes or is exchangeable into Indebtedness
of such Person or any of its subsidiaries.
"Related Business" means any business related, ancillary or
complementary to the business of the Company and its Subsidiaries on the Issue
Date.
"Replacement Asset" means a Property or asset that, as determined by
the Board of Directors of the Company as evidenced by a Board Resolution, is
used or is useful in a Related Business.
"Restricted Investment" means any Investment other than a Permitted
Investment.
"Restricted Payment" means to (i) declare or pay any dividend on, or
make any distribution in respect of, or purchase, redeem, retire or otherwise
acquire for value any Capital Stock of the Company or any Affiliate of the
Company, or warrants, rights or options to acquire such Capital Stock, other
than (x) dividends payable solely in the Capital Stock (other than Redeemable
Stock) of the Company or such Affiliate, as the case may be, or in warrants,
rights or options to acquire such Capital Stock and (y) dividends or
distributions by a Subsidiary to the Company or to a Wholly Owned Subsidiary;
(ii) make any principal payment on, or redeem, repurchase, defease or otherwise
acquire or retire for value, prior to any scheduled principal payment, scheduled
sinking fund payment or other stated maturity, Indebtedness of the Company or
any Subsidiary which is subordinated in right of payment to the Notes; or (iii)
make any Restricted Investment in any Person.
"Sale and Lease-Back Transaction" means, with respect to any Person,
any direct or indirect arrangement pursuant to which Property is sold or
transferred by such Person or a subsidiary of such
- 14 -
Person and is thereafter leased back from the purchaser or transferee thereof by
such Person or one of its subsidiaries.
"Senior Debt" means any Indebtedness incurred by the Company, unless
the instrument under which such Indebtedness is incurred expressly provides that
it is subordinated in right of payment to the Notes, PROVIDED that Senior Debt
will not include (a) any liability for federal, state, local or other taxes owed
or owing, (b) any Indebtedness owing to any Subsidiaries of the Company, (c) any
trade payables or (d) any Indebtedness that is incurred in violation of this
Indenture.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act of 1933, as amended, as such
Regulation is in effect on the date hereof.
"Stated Maturity," when used with respect to a Note or any installment
of interest thereon, means the date specified in such Note as the fixed date on
which the principal of such Note or such installment of interest is due and
payable.
"Subordinated Indebtedness" means any Indebtedness of the Company or
any Subsidiary Guarantor that is subordinated in right of payment to the Notes
or the Subsidiary Guarantees, as the case may be, and does not mature prior to
one year following the Stated Maturity of the Notes.
The term "subsidiary" means, with respect to any Person, (i) any
corporation more than 50% of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person, or by one or more other subsidiaries or
such Person, or by such Person and one or more other subsidiaries of such
Person, (ii) any general partnership, joint venture or similar entity, more than
50% of the outstanding partnership or similar interests of which is owned,
directly or indirectly, by such Person, or by one or more other subsidiaries of
such Person, or by such Person and one or more other subsidiaries of such Person
and (iii) any limited partnership of which such Person or any subsidiary of such
Person is a general partner.
"Subsidiary" means a subsidiary of the Company other than a
Non-Recourse Subsidiary.
"Subsidiary Guarantee" means any guarantee of the Notes by any
Subsidiary Guarantor in accordance with the provisions described under Article
Fourteen hereof.
"Subsidiary Guarantor" means (i) each of the Company's Subsidiaries, if
any, executing this Indenture and (ii) any Person that becomes a successor
guarantor of the Notes in compliance with the provisions described under Article
Fourteen hereof.
"Transaction Date" has the meaning specified within the definition of
"Consolidated Interest Coverage Ratio."
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged; (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation
- 15 -
by the United States of America, which, in either case under clauses (i) or (ii)
above, are not callable or redeemable at the option of the issuer thereof; or
(iii) depository receipts issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligations or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt, PROVIDED that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depository receipt.
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or at the times that such class of Capital Stock has
voting power by reason of the happening of any contingency) to vote in the
election of members of the board of directors or comparable body of such Person.
"Wholly Owned Subsidiary" means any Subsidiary to the extent (i) all of
the Capital Stock or other ownership interests in such Subsidiary, other than
any director's qualifying shares mandated by applicable law, is owned directly
or indirectly by the Company or (ii) such Subsidiary is organized in a foreign
jurisdiction and is required by the applicable laws and regulations of such
foreign jurisdiction to be partially owned by the government of such foreign
jurisdiction or individual or corporate citizens of such foreign jurisdiction in
order for such Subsidiary to transact business in such foreign jurisdiction,
provided that the Company, directly or indirectly, owns the remaining Capital
Stock or ownership interest in such Subsidiary and, by contract or otherwise,
controls the management and business of such Subsidiary and derives the economic
benefits of ownership of such Subsidiary to substantially the same extent as if
such Subsidiary were a wholly owned Subsidiary.
SECTION 1.2. The Original Indenture is supplemented with respect to the
Notes by inserting the following provision in Article Four:
Section 405. DEFEASANCE OF SUBSIDIARY GUARANTEES. The Company
may, at its option, elect (a) to have all of the obligations of the
Subsidiary Guarantors discharged with respect to the Notes and any
Subsidiary Guarantees (except for certain obligations to register the
transfer or exchange of Notes, replace stolen, lost or mutilated Notes
or maintain paying agencies and hold moneys for payment in trust) or
(b) to have their obligations released with respect to certain
restrictive covenants of this Indenture and to have certain Events of
Default no longer constitute Events of Default with respect to any
Notes, by complying with the provisions of this Article Four.
SECTION 1.3. SUPPLEMENT TO ARTICLE FIVE OF THE ORIGINAL INDENTURE.
Section 501 of the Original Indenture is supplemented with respect to the Notes
by adding the following provisions (8)-(14) below:
(8) the Company fails to comply with any of its covenants or
agreements contained in Section 801 hereof or fails to make a Change of
Control Offer in
- 16 -
accordance with Section 1017 hereof or an Asset Sale Offer in
accordance with Section 1013 hereof;
(9) default in the performance or breach of any covenant or
agreement of the Company or any Subsidiary Guarantor contained in the
Notes, any Subsidiary Guarantee or this Indenture (other than a
covenant or agreement a default in performance or breach of which is
specifically dealt with) and continuance of such default or breach for
a period of 30 days after written notice thereof has been mailed, by
registered or certified mail, to the Company or such Subsidiary
Guarantor by the Trustee or to the Company and the Trustee by the
Holders of at least 25% of the aggregate principal amount of the
outstanding Notes;
(10) Indebtedness of the Company or any Subsidiary (other than
Non-Recourse Indebtedness or Limited Recourse Indebtedness) is not paid
when due within the applicable grace period or is accelerated by the
holders thereof and, in either case, the aggregate principal amount of
such due and unpaid or accelerated Indebtedness exceeds $ 10 million;
(11) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of any Subsidiary (other
than a Non-Recourse Subsidiary) that constitutes a Significant
Subsidiary or any group of Subsidiaries (other than Non-Recourse
Subsidiaries) that, taken together, would constitute a Significant
Subsidiary, in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging such Subsidiary or
Subsidiaries a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition
of or in respect of such Subsidiary or Subsidiaries under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of such Subsidiary or Subsidiaries or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 90
consecutive days; or
(12) the commencement by any Subsidiary (other than a
Non-Recourse Subsidiary) that constitutes a Significant Subsidiary or
any group of Subsidiaries (other than Non-Recourse Subsidiaries) that,
taken together, would constitute a Significant Subsidiary, of a
voluntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or of any
other case of proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of such Subsidiary or Subsidiaries in an involuntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against such
Subsidiary or Subsidiaries, or the filing by such Subsidiary or
Subsidiaries, of a petition or answer or consent seeking reorganization
or relief under any applicable federal or state law, or the
- 17 -
consent by such Subsidiary or Subsidiaries to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Subsidiary or Subsidiaries or of any substantial part
of the property of such Subsidiary or Subsidiaries, or the making by
such Subsidiary or Subsidiaries of an assignment for the benefit of
creditors, or the admission by such Subsidiary or Subsidiaries in
writing of the inability of such Subsidiary or Subsidiaries to pay the
debts of such Subsidiary or Subsidiaries generally as they become due,
or the taking of corporate action by such Subsidiary or Subsidiaries in
furtherance of any such action; or
(13) the entry by a court of competent jurisdiction of one or
more judgments or orders against the Company or any Subsidiary (other
than a Non-Recourse Subsidiary) in an uninsured or unindemnified
aggregate amount in excess of $10 million which remain undischarged or
unsatisfied for a period of 60 consecutive days after the right to
appeal them has expired; or
(14) any Subsidiary Guarantee shall for any reason cease to
be, or be asserted by the Company or any Subsidiary Guarantor, as
applicable, not to be, in full force and effect (except pursuant to the
release of any such Subsidiary Guarantee in accordance with this
Indenture).
SECTION 1.4. SUPPLEMENT TO ARTICLE EIGHT OF THE ORIGINAL INDENTURE.
Section 801 of the Original Indenture is superseded with respect to the Notes by
the following provisions:
Section 801. The Company will not, in any transaction or
series of transactions, consolidate with or merge into any other Person
(other than a merger of a Subsidiary into the Company in which the
Company is the continuing corporation), or sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of the
Property and assets of the Company and the Subsidiaries, taken as a
whole, to any Person, unless
(i) either (a) the Company shall be the continuing
corporation or (b) the Person (if other than the Company)
formed by such consolidation or into which the Company is
merged, or the Person which acquires, by sale, assignment,
conveyance, transfer, lease or other disposition, all or
substantially all of the Property and assets of the Company
and the Subsidiaries, taken as a whole (such corporation or
Person, the "Surviving Entity"), shall be a corporation
organized and validly existing under the laws of the United
States of America, any political subdivision thereof or any
state thereof or the District of Columbia, and shall expressly
assume, by a supplemental Indenture, the due and punctual
payment of the principal of (and premium, if any) and interest
on all the Notes and the performance of the Company's
covenants and obligations under this Indenture;
(ii) immediately after giving effect to such
transaction or series of transactions on a pro forma basis
(including, without limitation, any
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Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of
transactions), no Event of Default or Default shall have
occurred and be continuing or would result therefrom;
(iii) immediately after giving effect to such
transaction or series of transactions on a pro forma basis
(including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of
such transaction or series of transactions), the Company (or
the Surviving Entity if the Company is not continuing) shall
have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of the Company immediately prior to
such transactions;
(iv) immediately after giving effect to any such
transaction or series of transactions on a pro forma basis as
if such transaction or series of transactions had occurred on
the first day of the Determination Period, the Company (or the
Surviving Entity if the Company is not continuing) would be
permitted to incur $1.00 of additional Indebtedness pursuant
to the tests described in the first sentence under the caption
Section 1010 hereof; and
SECTION 1.5. SUPPLEMENT TO ARTICLE NINE OF THE ORIGINAL INDENTURE.
(a) Section 901 of the Original Indenture is supplemented with respect
to the Notes by inserting the following provisions at the end of Section 901:
(9) to provide for uncertificated Notes in addition to or in
place of certificated Notes; or
(10) to add or, except as provided in Article IV or Section
1404, release any Subsidiary Guarantor pursuant to the terms of this
Indenture, PROVIDED that such actions will not adversely affect the
interests of the Holders in any material respect.
(b) Section 902 of the Original Indenture is supplemented with respect
to the Notes by inserting the following provisions:
(4) modify the obligations of the Company to make a Change of
Control Offer pursuant to Section 1017 hereof or an Asset Sale Offer
pursuant to Section 1013 hereof; or
(5) subordinate in right of payment, or otherwise subordinate,
the Notes to any other Indebtedness.
SECTION 1.6. SUPPLEMENT TO ARTICLE TEN OF THE ORIGINAL INDENTURE.
Article 10 of the Original Indenture is supplemented with respect to the Notes
by inserting the following sections at the end thereof:
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Section 1008. TRANSACTIONS WITH AFFILIATES. Subsequent to the
Issue Date, the Company will not, and will not permit any Subsidiary
to, directly or indirectly, enter into or permit to exist any
transaction or series of related transactions, including, but not
limited to, the purchase, sale or exchange of Property, the making of
any Investment, the giving of any guarantee or the rendering of any
service with any Affiliate of the Company (other than transactions
among the Company and any Wholly Owned Subsidiaries) unless (i) such
transaction or series of related transactions is on terms no less
favorable to the Company or such Subsidiary than those that could be
obtained in a comparable arm's length transaction with a Person that is
not such an Affiliate and (ii) (a) with respect to a transaction or
series of related transactions that has a Fair Market Value in excess
of $2 million but less than $5 million, the Company delivers an
Officers' Certificate to the Trustee certifying that such transaction
or series of related transactions complies with clause (i) above and
(b) with respect to a transaction or series of related transactions
that has a Fair Market Value equal to or in excess of $5 million, the
transaction or series of related transactions is approved by a majority
of the Board of Directors of the Company (including a majority of the
disinterested directors), which approval is set forth in a Board
Resolution certifying that such transaction or series of transactions
complies with clause (i) above. The foregoing provisions shall not be
applicable to (i) reasonable compensation, indemnification and other
benefits paid or made available to an officer, director or employee of
the Company or a Subsidiary for services rendered in such person's
capacity as an officer, director or employee (including reimbursement
or advancement of reasonable out-of-pocket expenses and provisions of
directors' and officers' liability insurance) or (ii) the making of any
Restricted Payment otherwise permitted by this Indenture.
Section 1009. LIMITATION ON RESTRICTED PAYMENTS. The Company
will not, and will not permit any Subsidiary (other than Non-Recourse
Subsidiaries) to, make any Restricted Payment, unless at the time of
and after giving effect to the proposed Restricted Payment (a) no
Default shall have occurred and be continuing (or would result
therefrom), (b) the Company could incur at least $1.00 of additional
Indebtedness under the tests described in the first sentence under
Section 1010 hereof and (c) the aggregate amount of all Restricted
Payments declared or made on or after the Issue Date by the Company or
any Subsidiary (other than Non-Recourse Subsidiaries) shall not exceed
the sum of (i) 50% (or if such Consolidated Net Income shall be a
deficit, minus 100% of such deficit) of the aggregate Consolidated Net
Income accrued during the period beginning on the first day of the
fiscal quarter in which the Issue Date falls and ending on the last day
of the fiscal quarter ending immediately prior to the date of such
proposed Restricted Payment, plus (ii) an amount equal to the aggregate
net cash proceeds received by the Company, subsequent to the Issue
Date, from the issuance or sale (other than to a Subsidiary) of shares
of its Capital Stock (excluding Redeemable Stock and the net proceeds
from the Common Stock Offering), but including Capital Stock issued
upon the exercise of options, warrants or rights to purchase
- 20 -
Capital Stock (other than Redeemable Stock) of the Company) and the
liability (expressed as a positive number) in accordance with GAAP in
respect of any Indebtedness of the Company or carrying value of
Redeemable Stock, which has been converted into, exchanged for or
satisfied by the issuance of shares of Capital Stock (other than
Redeemable Stock) of the Company, subsequent to the Issue Date plus
(iii) to the extent not otherwise included in Consolidated Net Income,
the net reduction in Investments in Non-Recourse Subsidiaries resulting
from dividends, repayments of loans or advances, or other transfers of
assets, in each case to the Company or a Subsidiary after the Issue
Date from any Non-Recourse Subsidiary or from the redesignation of a
Non-Recourse Subsidiary as a Subsidiary (valued in each case as
provided in the definition of Investment), not to exceed in the case of
any Non-Recourse Subsidiary the total amount of Investments (other than
Permitted Investments) in such Non-Recourse Subsidiary made by the
Company and its Subsidiaries in such Non-Recourse Subsidiary after the
Issue Date, plus (iv) $50 million minus the sum of Investments
described in clauses (k) and (1) under the definition of "Permitted
Investments," but in no event to exceed $10 million.
The foregoing provisions will not prevent (A) the payment of
any dividend on Capital Stock of any class within 60 days after the
date of its declaration if at the date of declaration such payment
would be permitted by this Indenture; (B) any repurchase or redemption
of Capital Stock or Subordinated Indebtedness of the Company made by
exchange for Capital Stock of the Company (other than Redeemable
Stock), or out of the net cash proceeds from the substantially
concurrent issuance or sale (other than to a Subsidiary) of Capital
Stock of the Company (other than Redeemable Stock), PROVIDED that the
net cash proceeds from such sale are excluded from computations under
clause (c)(ii) above to the extent such proceeds are applied to
purchase or redeem such Capital Stock or Subordinated Indebtedness; and
(C) any repurchase or redemption of Subordinated Indebtedness of the
Company solely in exchange for, or out of the net cash proceeds from
the substantially concurrent sale of, new Subordinated Indebtedness of
the Company, so long as such Subordinated Indebtedness (x) is
subordinated to the Notes at least to the same extent as the
Subordinated Indebtedness so exchanged, purchased or redeemed, (y) has
a stated maturity later than the stated maturity of the Subordinated
Indebtedness so exchanged, purchased or redeemed and (z) has an Average
Life at the time incurred that is greater than the remaining Average
Life of the Subordinated Indebtedness so exchanged, purchased or
redeemed. Restricted Payments permitted to be made as described in the
preceding sentence will be excluded in calculating the amount of
Restricted Payments thereafter, except such Restricted Payments made as
described in clause (A), which will be included in calculating the
amount of Restricted Payments thereafter.
Section 1010. LIMITATION ON INDEBTEDNESS. The Company will
not, and will not permit any Subsidiary to, directly or indirectly,
create, incur, assume, suffer to exist, guarantee or otherwise become
liable, with respect to the payment of (collectively, "incur"), any
Indebtedness (other than Non-Recourse Indebtedness),
- 21 -
unless after giving pro forma effect to the incurrence of such
Indebtedness, the Consolidated Interest Coverage Ratio for the
Determination Period preceding the Transaction Date is at least 2.5 to
1.0. Notwithstanding the foregoing, the Company or any Subsidiary may
incur Permitted Indebtedness. Any Indebtedness of a Person existing at
the time such Person became a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred
by such Subsidiary at the time it becomes a Subsidiary.
Section 1011. LIMITATION ON SUBSIDIARY INDEBTEDNESS AND
PREFERRED STOCK. The Company will not permit any Subsidiary to incur,
directly or indirectly, any Indebtedness (other than Indebtedness of
Non-Recourse Subsidiaries) or issue any preferred stock except:
(a) Indebtedness or preferred stock issued to and
held by the Company or a Wholly Owned Subsidiary, so long as
any transfer of such Indebtedness or preferred stock to a
Person other than the Company or a Wholly Owned Subsidiary
will be deemed to constitute the issuance of such Indebtedness
or preferred stock by the issuer thereof;
(b) Indebtedness or preferred stock of a Subsidiary
issued and outstanding prior to the date on which such
Subsidiary was acquired by the Company (other than
Indebtedness or preferred stock issued in connection with or
in anticipation of such acquisition);
(c) Indebtedness or preferred stock outstanding on
the Issue Date;
(d) Indebtedness described in clauses (b), (c), (d),
(f) and (g) under the definition of "Permitted Indebtedness";
(e) Permitted Subsidiary Refinancing Indebtedness of
such Subsidiary;
(f) Preferred stock issued in exchange for, or the
proceeds of which are used to refinance, repurchase or redeem,
Indebtedness or preferred stock described in clauses (b) and
(c) of this paragraph (the Retired Indebtedness or Stock),
PROVIDED that the preferred stock so issued has (i) a
liquidation value not in excess of the principal amount or
liquidation value of the Retired Indebtedness or Stock plus
related expenses for redemption and issuance and (ii) a
redemption date later than the stated maturity or redemption
date (if any) of the Retired Indebtedness or Stock;
(g) Indebtedness of a Subsidiary which represents the
assumption by such Subsidiary of Indebtedness of another
Subsidiary (other than Non-Recourse Indebtedness) in
connection with a merger of such
- 22 -
Subsidiaries, PROVIDED that no Subsidiary or any successor (by
way of merger) thereto existing on the Issue Date shall assume
or otherwise become responsible for any Indebtedness of an
entity which is not a Subsidiary on the Issue Date, except to
the extent that a Subsidiary would be permitted to incur such
Indebtedness under tills paragraph; and
(h) Indebtedness of any Subsidiary, which when taken
together with all other Indebtedness of the Subsidiaries
(except Indebtedness incurred pursuant to clauses (a), (b) and
(d) of this covenant), does not exceed at any one time
outstanding the greater of (i) $230 million and (ii) 15% of
Consolidated Net Tangible Assets determined as of the date of
incurrence of such Indebtedness.
Section 1012. LIMITATIONS ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES. The Company will not, and will not
permit any Subsidiary (other than a Non-Recourse Subsidiary) to,
directly or indirectly, create, enter into any agreement with any
Person or otherwise cause or suffer to exist or become effective any
consensual encumbrance or restriction of any kind which by its terms
restricts the ability of any Subsidiary (other than a Non-Recourse
Subsidiary) to (a) pay dividends, in cash or otherwise, or make any
other distributions on its Capital Stock to the Company or any
Subsidiary (other than a Non-Recourse Subsidiary), (b) pay any
Indebtedness owed to the Company or any Subsidiary (other than a
Non-Recourse Subsidiary), (c) make loans or advances to the Company or
any Subsidiary (other than a Non-Recourse Subsidiary) or (d) transfer
any of its Property or assets to the Company or any Subsidiary (other
than a NonRecourse Subsidiary) except any encumbrance or restriction
contained in any agreement or instrument:
(i) existing on the Issue Date;
(ii) relating to any Property or asset acquired after
the Issue Date, so long as such encumbrance or restriction
relates only to the Property or asset so acquired;
(iii) relating to any Indebtedness of any Subsidiary
at the date on which such Subsidiary was acquired by the
Company or any Subsidiary (other than Indebtedness incurred in
anticipation of such acquisition);
(iv) effecting a refinancing of Indebtedness issued
pursuant to an agreement referred to in the foregoing clauses
(i) through (iii), so long as the encumbrances and
restrictions contained in any such refinancing agreement are
no more restrictive than the encumbrances and restrictions
contained in such agreements;
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(v) which constitute customary provisions restricting
subletting or assignment of any lease of the Company or any
Subsidiary or provisions in agreements that restrict the
assignment of such agreement or any rights hereunder; and
(vi) which constitute restrictions on the sale or
other disposition of any Property securing Indebtedness as a
result of a Permitted Lien on such Property.
Section 1013. LIMITATION ON ASSET SALES. The Company will not
engage in, and will not permit any Subsidiary to engage in, any Asset
Sale unless (a) except in the case of (i) an Asset Sale resulting from
the requisition of tide to, seizure or forfeiture of any Property or
assets or any actual or constructive total loss or an agreed or
compromised total loss or (ii) a Bargain Purchase Contract, the Company
or such Subsidiary, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the Fair Market Value of the
Property; (b) except in the case of an Asset Sale described in clause
(a), at least 75% of such consideration consists of Cash Proceeds (or
the assumption of Indebtedness of the Company or such Subsidiary
relating to the Capital Stock or Property that was the subject of such
Asset Sale and the release of the Company or such Subsidiary from
Indebtedness); (c) after giving effect to such Asset Sale, the total
non-cash consideration held by the Company from all such Asset Sales
does not exceed $10 million, and (d) the Company delivers to the
Trustee an Officers' Certificate, which Officers' Certificate shall be
conclusive, certifying that such Asset Sale complies with clauses (a),
(b) and (c); PROVIDED, HOWEVER, that the requirement set forth in
clause (b) shall not apply to an Asset Sale in which the Company
exchanges (a "Permitted Exchange") assets for assets that constitute
Replacement Assets. The Company or such Subsidiary, as the case may be,
may apply the Net Available Proceeds from each Asset Sale (x) to the
acquisition of one or more Replacement Assets, or (y) to repurchase or
repay Senior Debt (with a permanent reduction of availability in the
case of revolving credit borrowings); PROVIDED, HOWEVER, that such
acquisition or such repurchase or repayment shall be made within 365
days after the consummation of the relevant Asset Sale.
Any Net Available Proceeds from any Asset Sale that are not
used to so acquire Replacement Assets or to repurchase or repay Senior
Debt within 365 days after consummation of the relevant Asset Sale
constitute "Excess Proceeds." When the aggregate amount of Excess
Proceeds exceeds $10 million, the Company shall, or at any time after
receipt of Excess Proceeds, the Company may, at its option, make a pro
rata offer (an "Asset Sale Offer") to purchase from all Holders an
aggregate principal amount of Notes equal to the Excess Proceeds, at a
price in cash equal to 100% of the outstanding principal amount thereof
plus accrued interest, if any, to the purchase date, in accordance with
the procedures set forth in this Indenture. Upon completion of such
Asset Sale Offer, the amount of Excess
- 24 -
Proceeds shall be reset to zero and the Company may use any remaining
amount for general corporate purposes.
The Company will comply with any applicable tender offer rules
(including, without limitation, any applicable requirements of Rule
14e-1 under the Exchange Act) in the event that an Asset Sale Offer is
required under the circumstances described herein.
Section 1014. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
The Company will not, and will not permit any Subsidiary to, directly
or indirectly, enter into, assume, guarantee or otherwise become liable
with respect to any Sale and Lease-Back Transaction (other than a Sale
and Lease-Back Transaction between NonRecourse Subsidiaries) unless (i)
the proceeds from such Sale and Lease-Back Transaction are at least
equal to the Fair Market Value of such Property being transferred and
(ii) the Company or such Subsidiary would have been permitted to enter
into such transaction under the tests described under Sections 1010,
1011 and 1015 hereof.
Section 1015. LIMITATION ON LIENS. The Company will not, and
will not permit any Subsidiary to, directly or indirectly, create,
affirm, incur, assume or suffer to exist any Liens on or with respect
to any Property of the Company or such Subsidiary or any interest
therein or any income or profits therefrom, whether owned at the Issue
Date or thereafter acquired, without effectively providing that the
Notes shall be secured equally and ratably with (or prior to) the
Indebtedness so secured, other than Permitted Liens.
Section 1016. LIMITATION ON NON-GUARANTOR SUBSIDIARIES. The
Company will not permit any Subsidiary that is not a Subsidiary
Guarantor to guarantee the payment of any Indebtedness of the Company
unless: (i)(A) such Subsidiary simultaneously executes and delivers a
supplemental Indenture to this Indenture providing for a Subsidiary
Guarantee of the Notes by such Subsidiary and (B), with respect to any
guarantee of Subordinated Indebtedness by a Subsidiary, any such
guarantee shall be subordinated to such Subsidiary's Subsidiary
Guarantee at least to the same extent as such Subordinated Indebtedness
is subordinated to the Notes; (ii) such Subsidiary waives, and agrees
not in any manner whatsoever to exercise any right or claim or take the
benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Company or any other
Subsidiary as a result of any payment by such Subsidiary under its
Subsidiary Guarantee until such time as the obligations guaranteed
thereby are paid in full; and (iii) such Subsidiary shall deliver to
the Trustee an opinion of independent legal counsel to the effect that
such Subsidiary Guarantee has been duly executed and authorized and
constitutes a valid, binding and enforceable obligation of such
Subsidiary, except insofar as enforcement thereof may be limited by
bankruptcy, insolvency or similar laws (including, without limitation,
all laws relating to fraudulent transfers) and except insofar as
enforcement thereof is subject to general
- 25 -
principles of equity; PROVIDED that this covenant shall not be
applicable to any guarantee of any Subsidiary that (x) existed at the
time such Person became a Subsidiary of the Company and (y) was not
incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary of the Company. Further, a pledge of assets to
secure any Indebtedness for which the pledgor is not otherwise liable
shall not be considered a guarantee.
Section 1017. OFFER TO REPURCHASE UPON CHANGE OF CONTROL. (a)
Upon the occurrence of a Change of Control, each Holder of Notes shall
have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's
Notes pursuant to the offer described below (the "Change of Control
Offer") at an offer price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest, if any,
thereon to the date of purchase (the "Change of Control Payment").
Within 30 days following any Change of Control, the Company shall mail
a notice to the Trustee and each Holder stating: (1) that the Change of
Control Offer is being made pursuant to this Section 1017 and that all
Notes tendered shall be accepted for payment; (2) the purchase price
and the purchase date described below (the "Change of Control Payment
Date"); (3) that any Note not tendered shall continue to accrue
interest; (4) that, unless the Company defaults in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest, if any,
after the Change of Control Payment Date; (5) that Holders electing to
have any Notes purchased pursuant to a Change of Control Offer shall be
required to surrender the Notes, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Notes completed, to the
Paying Agent at the address specified in the notice prior to the close
of business on the fifth Business Day preceding the Change of Control
Payment Date; (6) that Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes
delivered for purchase, and a statement that such Holder is withdrawing
his election to have the Notes purchased; and (7) that Holders whose
Notes are being purchased only in part shall be issued new Notes equal
in principal amount to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof. If any of the Notes
subject to a Change of Control Offer is in the form of a Global
Certificate, then such notice shall be modified in form but not
substance to the extent appropriate to accord with the procedures of
the Depository applicable to repurchases. The Change of Control Offer
shall remain open for at least 20 Business Days and until the close of
business on the fifth Business Day prior to the Change of Control
Payment Date. The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes as a result
of a Change of Control.
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(b) On a date that is no earlier than 30 days nor later than
60 days from the date that the Company mails or causes to be mailed
notice of the Change of Control to the Holders (the "Change of Control
Payment Date"), the Company shall, to the extent lawful, (i) accept for
payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent an amount
equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (iii) deliver or cause to be delivered
to the Trustee the Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount of Notes or portions
thereof being purchased by the Company. The Paying Agent shall promptly
mail or deliver to each Holder of Notes so tendered the Change of
Control Payment for such Notes, and the Trustee shall promptly
authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that each such new
Note shall be in a principal amount of $1,000 or an integral multiple
thereof. The Company shall publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
The Change of Control provisions described above shall be
applicable whether or not any other provisions of this Indenture are
applicable.
The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance
with the requirements set forth in this Section 1017 and purchases all
Notes validly tendered and not withdrawn under such Change of Control
Offer.
Section 1018. REPORTS. The Company and any Subsidiary
Guarantors shall file with the Commission, to the extent such filings
are accepted by the Commission and whether or not the Company has a
class of securities registered under the Exchange Act, the annual
reports, quarterly reports and other documents that the Company and the
Subsidiary Guarantors would be required to file if the Company were
subject to Section 13 or 15 of the Exchange Act, in each case on or
before the dates on which such reports and other documents would have
been required to have been filed with the Commission if the Company had
been subject to Section 13 or 15 of the Exchange Act, beginning with
the Company's fiscal year ended December 31, 1997. The Company shall
also (i) file with the Trustee (with exhibits), and provide to each
Holder of Notes (without exhibits), without cost to such Holder, copies
of such reports and documents within 15 days after the date on which
the Company files such reports and documents with the Commission or the
date on which the Company would be required to file such reports and
documents if the Company were so required and (ii) if filing such
reports and documents with the Commission is not accepted by the
Commission or is prohibited under the Exchange Act, supply at the
Company's cost copies of such reports and documents (including any
exhibits thereto) to any Holder of Notes promptly upon written request.
The Company shall at all times comply with Trust Indenture Act ss.
314(a).
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Section 1019. TAXES. The Company shall pay, and shall cause
each of its Subsidiaries to pay, prior to delinquency, all material
taxes, assessments, and governmental levies except such as are
contested in good faith and by appropriate proceedings or where the
failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.
Section 1020. STAY, EXTENSION AND USURY LAWS. Each of the
Company and the Subsidiary Guarantors covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of
this Indenture; and each of the Company and the Subsidiary Guarantors
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it shall not,
by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 1.7. SUPPLEMENT TO ARTICLE ELEVEN OF THE ORIGINAL INDENTURE.
Article Eleven of the Original Indenture is supplemented with respect to the
Notes by inserting the following section at the end thereof:
Section 1109. OPTIONAL REDEMPTION. The Notes will not be
redeemable at the option of the Company prior to May 1, 2002. On or
after such date, the Notes will be redeemable at the option of the
Company, in whole at any time or in part from time to time, at the
following prices (expressed in percentages of the principal amount), if
redeemed during the 12 months beginning May 1 of the years indicated
below, in each case together with interest accrued to the redemption
date (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date):
YEAR PERCENTAGE
---- ----------
2002................................................. 104.688%
2003................................................. 103.125%
2004................................................. 101.563%
2005 and thereafter.................................. 100.000%
(b) If fewer than all the Notes are redeemed, selection for
redemption will be made by the Trustee, by lot or by any other means
the Trustee determines to be fair and appropriate.
(c) Notwithstanding the foregoing, at any time on or prior to
May 1, 2000, the Company may redeem up to an aggregate of $108,333,000
principal amount of Notes at a redemption price of 109.375% of the
principal amount thereof, plus accrued and unpaid interest thereon to
the redemption date, with the net proceeds of a Public Equity Offering
(other than the Common Stock Offering
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concurrently with the date of original issuance of the Notes), PROVIDED
that at least $216,667,000 in aggregate principal amount of Notes
remain outstanding immediately after the occurrence of such redemption
and PROVIDED, FURTHER, that such redemption occurs within 60 days of
the date of the closing of such Public Equity Offering.
SECTION 1.8. NEW ARTICLE FOURTEEN. The Original Indenture is
supplemented with respect to the Notes by inserting the following Article
Fourteen:
ARTICLE FOURTEEN
SUBSIDIARY GUARANTEES
Section 1401. SUBSIDIARY GUARANTEES. Each Subsidiary
Guarantor, jointly and severally, shall unconditionally guarantee to
each Holder of a Note authenticated and delivered by the Trustee and to
the Trustee and their respective successors and assigns, irrespective
of the validity and enforceability of this Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that: (a) the
principal of and premium and interest on the Notes shall be promptly
paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of and interest on
premium and interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or
thereunder shall be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such
other obligations, that the same shall be promptly paid in full when
due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Subsidiary Guarantors shall be
jointly and severally obligated to pay the same immediately. The
Subsidiary Guarantors hereby agree that their obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder with
respect to any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same or any
other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Subsidiary Guarantor. Each
Subsidiary Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and
covenants that this Subsidiary Guarantee shall not be discharged (other
than in accordance with Section 1404 of the Indenture) except by
complete performance of the obligations contained in the Notes and this
Indenture. If any Holder or the Trustee is required by any court or
otherwise to return to the Company or Subsidiary Guarantors, or any
custodian, trustee, liquidator or other similar official acting in
relation to either the Company or Subsidiary Guarantors, any amount
paid by either to the Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and
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effect. Each Subsidiary Guarantor further agrees that, as between the
Subsidiary Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Five for
the purposes of this Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect
of the obligations guaranteed hereby and (y) in the event of any
declaration of acceleration of such obligations as provided in Article
Five, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Subsidiary Guarantors for the purpose of
this Subsidiary Guarantee. In order to provide for just and equitable
contribution among the Subsidiary Guarantors, in the event any payment
or distribution is made by any Subsidiary Guarantor (a "Funding
Subsidiary Guarantor") under its Subsidiary Guarantee, such Funding
Subsidiary Guarantor shall be entitled to a contribution from each
other Subsidiary Guarantor in a pro rata amount based on the Adjusted
Net Assets of each Subsidiary Guarantor (including the Funding
Subsidiary Guarantor) for all payments, damages and expenses incurred
by the Funding Subsidiary Guarantor in discharging the Company's
obligations with respect to the Notes or any other Subsidiary
Guarantor's obligations with respect to any Subsidiary Guarantee. Each
Subsidiary Guarantor agrees that it will not be entitled to exercise
any right of subrogation or contribution in relation to the Holders of
Notes in respect of any obligations guaranteed hereby until payment in
full of all amounts guaranteed under this Section 1401.
Section 1402. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES.
To evidence its Subsidiary Guarantee set forth in Section 1401, each
Subsidiary Guarantor hereby agrees that a notation of such Subsidiary
Guarantee substantially in the form of Exhibit B to the First
Supplemental Indenture shall be endorsed by an Officer of such
Subsidiary Guarantor on each Note thereafter authenticated and
delivered by the Trustee, that a supplement to this Indenture shall be
executed on behalf of such Subsidiary Guarantor by its duly authorized
officer in accordance with Section 1016 hereof and that such Subsidiary
Guarantor shall deliver to the Trustee an Opinion of Counsel that the
foregoing have been duly authorized, executed and delivered by such
Subsidiary Guarantor and that such Subsidiary Guarantor's Subsidiary
Guarantee is a valid and legally binding obligation of such Subsidiary
Guarantor, enforceable against such Subsidiary Guarantor in accordance
with its terms, subject to bankruptcy, insolvency, moratorium,
fraudulent conveyance and other law affecting the rights of creditors
generally.
Each Subsidiary Guarantor hereby agrees that its Subsidiary
Guarantee set forth in Section 1401 shall remain in full force and
effect notwithstanding any failure to endorse on each Note a notation
of such Subsidiary Guarantee.
If an Officer whose signature is on a supplement to this
Indenture or on the notation of Subsidiary Guarantee no longer holds
that office at the time the Trustee authenticates the Note on which a
notation of Subsidiary Guarantee is endorsed, the Subsidiary Guarantee
shall be valid nevertheless.
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The delivery of any Note by the Trustee, after the
authentication thereof hereunder and whether upon original issue,
registration of transfer, exchange or otherwise, shall constitute due
delivery of the Subsidiary Guarantee set forth in this Indenture on
behalf of each Person that is then a Subsidiary Guarantor.
Section 1403. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON
CERTAIN TERMS. No Subsidiary Guarantor may consolidate with or merge
with or into (whether or not such Subsidiary Guarantor is the surviving
Person), another Person whether or not affiliated with such Subsidiary
Guarantor unless:
(a) subject to the provisions of Section 1404 hereof,
the Person formed by or surviving any such consolidation or
merger (if other than such Subsidiary Guarantor) assumes all
the obligations of such Subsidiary Guarantor, pursuant to a
supplemental indenture in form and substance reasonably
satisfactory to the Trustee in respect of the Notes, this
Indenture and such Subsidiary Guarantor's Subsidiary
Guarantee;
(b) immediately after giving effect to such
transaction, no Default or Event of Default exists; and
(c) such transaction does not violate any of Sections
1008, 1009, 1010, 1011, 1012, 1014, 1015, 1016, 1017, 1018,
1019 and 1020.
Notwithstanding the foregoing, no Subsidiary Guarantor shall
be permitted to consolidate with or merge with or into (whether or not
such Subsidiary Guarantor is the surviving Person), another Person
pursuant to the preceding sentence if such consolidation or merger
would not be permitted by Article Eight hereof.
In case of any such consolidation or merger and upon the
assumption by the successor Person, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee,
of the obligations of the Subsidiary Guarantor in respect of the Notes,
this Indenture and such Subsidiary Guarantor's Subsidiary Guarantee,
such successor corporation shall succeed to and be substituted for the
Subsidiary Guarantor with the same effect as if it had been named
herein as a Subsidiary Guarantor. Such successor Person thereupon may
cause to be signed any or all of the Subsidiary Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee.
All the Subsidiary Guarantees so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Subsidiary
Guarantees theretofore and thereafter issued in accordance with the
terms of this Indenture as though all of such Subsidiary Guarantees had
been issued at the date of the execution hereof.
Except as set forth in Articles Eight and Ten hereof, nothing
contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into the
Company, or shall prevent any sale or
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conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety to the Company.
Section 1404. RELEASES OF SUBSIDIARY GUARANTEES. In the event
of a sale or other disposition of all or substantially all of the
assets of any Subsidiary Guarantor to a Person that is not a Subsidiary
or a Non-Recourse Subsidiary in a transaction that does not violate any
provisions of this Indenture, by way of merger, consolidation or
otherwise, or a sale or other disposition (including, without
limitation, by foreclosure) of all of the capital stock of any
Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a
sale or other disposition (including, without limitation, by
foreclosure), by way of such a merger, consolidation or otherwise, of
all of the capital stock of such Subsidiary Guarantor) or the Person
acquiring the property (in the event of a sale or other disposition of
all or substantially all of the assets of such Subsidiary Guarantor)
shall be released and relieved of any obligations under this Indenture
and its Subsidiary Guarantee; PROVIDED that the Net Available Proceeds
of such sale or other disposition are applied in accordance with
Section 1013 hereof. Upon delivery by the Company to the Trustee of an
Officers' Certificate and an Opinion of Counsel to the effect that such
sale or other disposition was made by the Company in accordance with
the provisions of this Indenture, including without limitation Section
1013, the Trustee shall execute any documents reasonably required in
order to evidence the release of any Subsidiary Guarantor from its
obligations under this Indenture and its Subsidiary Guarantee. In the
event of a release or discharge in full of all obligations of any
Subsidiary Guarantor in respect of all of its guarantees of
Indebtedness of the Company, such Subsidiary Guarantor shall, upon the
written request of the Company, be released and relieved of any
obligation under this Indenture and its Subsidiary Guarantee. Upon
delivery by the Company to the Trustee of an Officers' Certificate to
the effect that such Subsidiary Guarantor has been released or
discharged in full from all of its obligations under all of its
guarantees of Indebtedness of the Company, the Trustee shall execute
any documents reasonably required in order to evidence the release of
such Subsidiary Guarantor from its obligations under this Indenture and
its Subsidiary Guarantee.
Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantee shall remain liable for the full amount
of principal of and premium and interest on the Notes and for the other
obligations of any Subsidiary Guarantor under this Indenture.
Any Subsidiary Guarantor that is designated a Non-Recourse
Subsidiary in accordance with the terms of this Indenture shall be
released from and relieved of its obligations under this Indenture and
its Subsidiary Guarantee. Any Non-Recourse Subsidiary that ceases to be
a Non-Recourse Subsidiary shall thereupon execute a supplement to this
Indenture in accordance with the terms of this Indenture.
Section 1405. LIMITATION ON SUBSIDIARY GUARANTOR LIABILITY.
For purposes hereof, each Subsidiary Guarantor's liability shall be
that amount from time to time equal to the aggregate liability of such
Subsidiary Guarantor thereunder, but shall be
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limited to the lesser of (i) the aggregate amount of the obligations of
the Company under the Notes and this Indenture and (ii) the amount, if
any, which would not have (A) rendered such Subsidiary Guarantor
"insolvent" (as such term is defined in the federal Bankruptcy Law and
in the Debtor and Creditor Law of the State of New York) or (B) left it
with unreasonably small capital at the time its Subsidiary Guarantee of
the Notes was entered into, after giving effect to the incurrence of
existing Indebtedness immediately prior to such time; provided that, it
shall be a presumption in any lawsuit or other proceeding in which such
Subsidiary Guarantor is a party that the amount guaranteed pursuant to
its Subsidiary Guarantee is the amount set forth in clause (i) above
unless any creditor, or representative of creditors of such Subsidiary
Guarantor, or debtor in possession or trustee in bankruptcy of such
Subsidiary Guarantor, otherwise proves in such a lawsuit that the
aggregate liability of such Subsidiary Guarantor is limited to the
amount set forth in clause (ii). In making any determination as to the
solvency or sufficiency of capital of a Subsidiary Guarantor in
accordance with the previous sentence, the right of such Subsidiary
Guarantor to contribution from other Subsidiary Guarantors and any
other rights such Subsidiary Guarantor may have, contractual or
otherwise, shall be taken into account.
Section 1406. "TRUSTEE" TO INCLUDE PAYING AGENT. In case at
any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article Fourteen shall in such case (unless
the context shall otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully and for all
intents and purposes as if such Paying Agent were named in this Article
Fourteen in place of the Trustee.
SECTION 1.9. EFFECT OF ARTICLE ONE. The supplements to the Original
Indenture set forth in Article One of this First Supplemental Indenture affect
only the provisions of the Original Indenture as such provisions relate to the
Notes, the series of Securities comprised of the Notes and the rights, remedies
and obligations of the Company, the Subsidiaries, the Holders of Notes, the
Trustee and other Persons set forth in the Original Indenture as such rights,
remedies and obligations relate to the Notes. Unless otherwise expressly set
forth in a subsequent supplement to the Original Indenture, as supplemented
hereby, the supplements to the Original Indenture contained in Article One of
this First Supplemental Indenture relate only to the series of Securities
comprised of the Notes.
ARTICLE TWO
THE NOTES
The Notes shall be issued in the form of one or more permanent global
Notes substantially in the form set forth on Exhibit A hereof, duly executed by
the Company and authenticated by the Trustee as provided in the Indenture. The
terms of the Notes set forth on Exhibit A hereto are incorporated by reference
herein as if set forth herein in their entirety.
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ARTICLE THREE
REPRESENTATIONS OF THE COMPANY
SECTION 3.1. AUTHORITY OF THE COMPANY. The Company is duly authorized
to execute and deliver this First Supplemental Indenture, and all corporate
action on its part required for the execution and delivery of this Supplemental
Indenture has been duly and effectively taken.
SECTION 3.2. TRUTH OF RECITALS AND STATEMENTS. The Company warrants
that the recitals of fact and statements contained in this First Supplemental
Indenture are true and correct, and that the recitals of fact and statements
contained in all certificates and other documents furnished thereunder will be
true and correct.
ARTICLE FOUR
CONCERNING THE TRUSTEE
SECTION 4.1. ACCEPTANCE OF TRUSTS. The Trustee accepts the trusts
hereunder and agrees to perform the same, but only upon the terms and conditions
set forth in the Original Indenture and in this First Supplemental Indenture, to
all of which the Company and the respective Holders of the Notes at any time
hereafter outstanding agree by their acceptance thereof.
SECTION 4.2. NO RESPONSIBILITY OF TRUSTEE FOR RECITALS, ETC. The
recitals and statements contained in this First Supplemental Indenture shall be
taken as the recitals and statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this First Supplemental
Indenture, except that the Trustee is duly authorized to execute and deliver
this First Supplemental Indenture.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
SECTION 5.1. RELATION TO THIS INDENTURE. The provisions of this First
Supplemental Indenture shall become effective immediately upon the execution and
delivery hereof. This First Supplemental Indenture and all the terms and
provisions herein contained shall form a part of the Original Indenture as fully
and with the same effect as if all such terms and provisions had been set forth
in the Original Indenture; PROVIDED, HOWEVER, such terms and provisions shall be
so included in this First Supplemental Indenture solely for the benefit of the
Company, the Subsidiary Guarantors the Trustee and the Holders of the Notes. The
Original Indenture is hereby ratified and confirmed and shall remain and
continue in full force and effect in accordance with the terms and provisions
thereof, as supplemented by this First Supplemental Indenture, and the Original
Indenture and this First Supplemental Indenture shall be read, taken and
construed together as one instrument.
- 34 -
SECTION 5.2. MEANING OF TERMS. Any term used in this First Supplemental
Indenture which is defined in the Original Indenture shall have the meaning
specified in the Original Indenture, unless the context shall otherwise require.
SECTION 5.3. COUNTERPARTS OF SUPPLEMENTAL INDENTURE. This First
Supplemental Indenture may be executed in several counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
instruments.
SECTION 5.4. GOVERNING LAW. This First Supplemental Indenture and the
Notes shall be governed by and construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, Pride Petroleum Services, Inc. has caused this
First Supplemental Indenture to be executed in its corporate name by a duly
authorized officer and The Chase Manhattan Bank has caused this Supplemental
Indenture to be executed in its corporate name by a duly authorized officer, all
as of the date first above written.
PRIDE PETROLEUM SERVICES, INC.
By:
Name:
Title:
THE CHASE MANHATTAN BANK
By:
Name:
Title:
EXHIBIT A
(FACE OF NOTE)
9 3/85% Senior Notes due 2007
CUSIP Number______________
No. $325,000,000
PRIDE PETROLUEM SERVICES, INC.
promises to pay to
or registered assigns,
the Principal sum of
Dollars on May 1, 2007.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
Dated: May ___, 1997
[SEAL]
ATTEST: PRIDE PETROLEUM SERVICES, INC.
By: By:
Name: Name:
Title: Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture:
The Chase Manhattan Bank,
as Trustee
By:
Authorized Officer
A-1
(BACK OF NOTE)
93/8% Senior Note due May ___, 2007
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. (a) Pride Petroleum Services, Inc., a Louisiana
corporation (the "Company"), promises to pay interest on the principal amount of
this Note at the rate of 93/8% per annum, which interest shall be payable in
cash semi-annually in arrears on May 1 and November 1, or if any such day is not
a Business Day, on the next succeeding Business Day (each an "Interest Payment
Date"); PROVIDED that the first Interest Payment Date shall be November 1, 1997.
Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of original
issuance. Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months.
2. METHOD OF PAYMENT. On each Interest Payment Date the Company will
pay interest to the Person who is the Holder of record of this Note as of the
close of business on the April 15 or October 15 immediately preceding such
Interest Payment Date, even if this Note is canceled after such record date and
on or before such Interest Payment Date. Principal, premium, if any, and
interest, if any, on this Note will be payable at the office or agency of the
Company maintained for such purpose within the City and State of New York. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, The Chase Manhattan Bank, the
Trustee under the Indenture, will act as Registrar and Paying Agent. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company, any Subsidiary Guarantor or any other of its Subsidiaries may act in
any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of May 1, 1997, as supplemented by a First Supplemental Indenture of even date
(collectively, the "Indenture") between the Company and the Trustee. The terms
of the Notes include those stated in the Indenture
A-2
and those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code ▇▇.▇▇. 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are general unsecured obligations of the
Company limited in an aggregate principal amount to $325,000,000 and will mature
on May 1, 2007.
5. OPTIONAL REDEMPTION. (a) The Notes are not redeemable at the
Company's option prior to May 1, 2002. Thereafter, the Notes will be subject to
redemption at the option of the Company, in whole or in part, upon not less than
30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest thereon to the applicable redemption date (subject to the right of the
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date), if redeemed during the twelve-month period
beginning on May 1 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2002 .......................... 104.688%
2003 .......................... 103.125%
2004 .......................... 101.563%
2005 and thereafter ........... 100.000%
(b) Notwithstanding clause (a) of this Paragraph 5, prior to May 1,
2000, the Company may, at its option, on any one or more occasions, redeem up to
$108,333,000 in aggregate principal amount of Notes at a redemption price equal
to 109.375% of the principal amount thereof, plus accrued and unpaid interest
thereon to the redemption date, with the net proceeds of a Public Equity
Offering (other than the Common Stock offering concurrently with the date of
original issuance of the Notes); PROVIDED that at least $200.0 million in
aggregate principal amount of Notes must remain outstanding immediately after
the occurrence of such redemption; and provided, further, that any such
redemption shall occur within 60 days of the date of the closing of such Public
Equity Offering.
6. MANDATORY REDEMPTION. Except as set forth in paragraph 7 below, the
Company shall not be required to make mandatory redemption payments with respect
to the Notes.
7. REPURCHASE AT OPTION OF HOLDER. (a) Upon the occurrence of a Change
of Control, each Holder of Notes shall have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
such Holder's Notes pursuant to the offer described below (the "Change of
Control Offer") at an offer price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest thereon, if any, to
the date of purchase (the "Change of Control Payment"). Within 30 days following
any Change of Control, the Company will mail a notice to each Holder and the
Trustee describing the transaction or transactions that constitute the Change of
Control and offering to repurchase Notes pursuant to the procedures required by
the Indenture and described in such notice. The Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control.
A-3
(b) If the Company or a Subsidiary consummates any Asset Sales
permitted by the Indenture, when the aggregate amount of Excess Proceeds exceeds
$10.0 million, the Company shall make an Asset Sale Offer to purchase the
maximum principal amount of Notes to which the Asset Sale Offer applies that may
be purchased out of the Excess Proceeds, at an offer price in cash in an amount
equal to 100% of the outstanding principal amount thereof plus accrued and
unpaid interest thereon to the date of purchase, in accordance with the
procedures set forth in Section 1013 of the Indenture. To the extent that the
aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Notes
surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased on a pro rata basis, based on the
aggregate principal amount (or accreted value, as applicable) thereof
surrendered in such Asset Sale Offer. Upon the completion of an Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes initially issued are in
the form of a permanent Global Certificate, except as provided in this
Indenture. Under certain circumstances described in the Indenture, Notes may
also be issued in the form of permanent certificated Notes in registered form
without coupons in minimum denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered as provided in the Indenture.
The Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Company need not register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, it need not register the transfer of any Notes for
a period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes. Without
notice to or consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's or any Subsidiary
Guarantor's obligations to Holders of the Notes in case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely
A-4
affect the legal rights under the Indenture of any such Holder, or to comply
with the requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act, to secure the
Notes or to add or release any Subsidiary Guarantor pursuant to the terms of the
Indenture; PROVIDED that such actions will not adversely affect the interests of
the Holders in any material respect.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest on the Notes; (ii) default in
payment when due of the principal of or premium, if any, on the Notes; (iii)
failure by the Company to comply with the provisions of Sections 801, 1013 and
1017 of the Indenture; (iv) failure by the Company or any Subsidiary Guarantor
for 30 days after notice from the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding to comply with any of
its other agreements in the Indenture or the Notes; (v) any Subsidiary Guarantee
shall for any reason cease to be, or be asserted by the Company or any
Subsidiary Guarantor, as applicable, not to be, in full force and effect (except
pursuant to the release of any such Subsidiary Guarantee in accordance with the
Indenture); (vi) failure by the Company or any of its Subsidiaries (other than
Non-Recourse Subsidiaries) to pay Indebtedness of the Company or any Subsidiary
(other than Non-Recourse Indebtedness or Limited Recourse Indebtedness) when due
within the applicable grace period, which Indebtedness exceeds $10 million;
(vii) the entry of a judgment in an uninsured or underdemnified aggregate amount
in excess of $10.0 million, which judgment is not paid or discharged for a
period of 60 days; and (viii) certain events of bankruptcy or insolvency with
respect to the Company or any of its Subsidiaries (other than NonRecourse
Subsidiaries) that constitute a Significant Subsidiary or any group of
Subsidiaries (other than Non-Recourse Subsidiaries) that, taken together, would
constitute a Significant Subsidiary. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, with respect to the
Company, any Subsidiary (other than a Non-Recourse Subsidiary) that constitutes
a Significant Subsidiary or any group of Subsidiaries (other than NonRecourse
Subsidiaries) that, taken together, would constitute a Significant Subsidiary,
all outstanding Notes will become due and payable without further action or
notice. Holders of the Notes may not enforce the Indenture or the Notes except
as provided in the Indenture. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the then outstanding Notes may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes. The Company is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture, and
the Company is required, upon becoming aware of any Default or Event of Default,
to deliver to the Trustee a statement specifying such Default or Event of
Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Indenture contains certain
limitations on the rights of the Trustee, should it become a creditor of the
Company, to obtain payment of claims in certain cases, or to realize on certain
property received in respect of any such claim as security or
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otherwise. The Trustee will be permitted to engage in other transactions;
however, if it acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue or resign.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Notes or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes, by accepting a Note, waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that such
a waiver is against public policy.
15. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
18. SINKING FUND; ADDITIONAL AMOUNTS. There shall not be any sinking
fund with respect to the Notes. The Company shall not be obligated to pay
Additional Amounts with respect to the Notes.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Pride Petroleum Services, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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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 Social Security or tax I.D. No.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
agent 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: /*/
------------------------
/*/ Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 1013 or 1017 of the Indenture, check the box below:
[ ] Section 1013 [ ] Section 1017
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 1013 or Section 1017 of the Indenture, state the
amount you elect to have purchased:
$_____________
Date: Your Signature:
(Sign exactly as your name appears on
the Note)
Tax Identification No.:
Signature Guarantee: /*/
---------------------
/*/ Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES OF DEFINITIVE NOTE
The following exchanges of a part of this Global Certificate for
Definitive Notes have been made:
Principal Amount of
Amount of decrease Amount of increase this Global Signature of
in Principal Amount in Principal Amount Certificate following authorized officer of
of this Global of this Global such decrease (or Trustee or Note
DATE OF EXCHANGE Certificate Certificate increase) Custodian
----------------------- ----------------------- ----------------------- ----------------------- ----------------------
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EXHIBIT B
FORM OF SUBSIDIARY GUARANTEE
Each of the Subsidiary Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of the Indenture, the Notes or the
obligations of the Company thereunder, that: (a) the principal of and premium
and interest on the Notes shall be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on premium and interest on the Notes, if any, if
lawful, and all other obligations of the Company to the Holders or the Trustee
thereunder shall be promptly paid in full or performed, all in accordance with
the terms thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same shall be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and
severally obligated to pay the same immediately.
The obligations of the Subsidiary Guarantors to the Holders of Notes
and to the Trustee pursuant to this Subsidiary Guarantee are expressly set forth
in Article 14 of the Indenture, and reference is hereby made to such Article for
the precise terms of this Subsidiary Guarantee. The terms of Article 14 of the
Indenture are incorporated herein by reference.
This is a continuing Subsidiary Guarantee and shall remain in full
force and effect and shall be binding upon each Subsidiary Guarantor and its
respective successors and assigns to the extent set forth in the Indenture until
full and final payment of all of the Company's obligations under the Notes and
the Indenture and shall inure to the benefit of the Trustee and the Holders of
Notes and their successors and assigns and, in the event of any transfer or
assignment of rights by any Holder of Notes or the Trustee, the rights and
privileges herein conferred upon that party shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
hereof. Notwithstanding the foregoing, the Subsidiary Guarantees may be
discharged in accordance with Article IV of the Indenture and any Subsidiary
Guarantor that satisfies the provisions of Section 14.04 of the Indenture shall
be released of its obligations hereunder. This is a Subsidiary Guarantee of
payment and not a guarantee of collection.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
For purposes hereof, each Subsidiary Guarantor's liability will be that
amount from time to time equal to the aggregate liability of such Subsidiary
Guarantor hereunder, but shall be limited to the lesser of (i) the aggregate
amount of the Obligations of the Company under the Notes and the Indenture and
(ii) the amount, if any, which would not have (A) rendered such Subsidiary
Guarantor "insolvent" (as such term is defined in the federal Bankruptcy Law and
in the Debtor and Creditor Law of the State of New York) or (B) left it with
unreasonably small capital at the time its Subsidiary Guarantee of the Notes was
entered into, after giving effect to the incurrence of existing Indebtedness
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immediately prior to such time; provided that, it shall be a presumption in any
lawsuit or other proceeding in which such Subsidiary Guarantor is a party that
the amount guaranteed pursuant to its Subsidiary Guarantee is the amount set
forth in clause (i) above unless any creditor, or representative of creditors of
such Subsidiary Guarantor, or debtor in possession or trustee in bankruptcy of
such Subsidiary Guarantor, otherwise proves in such a lawsuit that the aggregate
liability of such Subsidiary Guarantor is limited to the amount set forth in
clause (ii). The Indenture provides that, in making any determination as to the
solvency or sufficiency of capital of a Subsidiary Guarantor in accordance with
the previous sentence, the right of such Subsidiary Guarantor to contribution
from other Subsidiary Guarantors and any other rights such Subsidiary Guarantor
may have, contractual or otherwise, shall be taken into account.
Capitalized terms used herein have the same meanings given in that
certain Indenture dated as of May 1, 1997 between Pride Petroleum Services, Inc.
and The Chase Manhattan Bank, as Trustee, as supplemented by the First
Supplemented Indenture dated as of May __, 1997 between Pride Petroleum
Services, Inc. and the Chase Manhattan Bank, as Trustee, unless otherwise
indicated.
[Name of Subsidiary Guarantor]
By:
Name:
Title:
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