EXHIBIT 10.1
PARKER DRILLING COMPANY
AND
THE GUARANTORS FROM TIME
TO TIME PARTIES HERETO
$150,000,000
SENIOR FLOATING RATE NOTES DUE 2010
----------------------------
INDENTURE
Dated as of September 2, 2004
----------------------------
----------------------------
JPMORGAN CHASE BANK
as Trustee
----------------------------
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE........................................... 1
Section 1.01. Definitions.................................................................... 1
Section 1.02. Other Definitions.............................................................. 18
Section 1.03. One Class of Securities........................................................ 18
Section 1.04. Trust Indenture Act............................................................ 18
Section 1.05. Rules of Construction.......................................................... 19
ARTICLE II THE NOTES........................................................................... 19
Section 2.01. Issuance of Additional Notes................................................... 19
Section 2.02. Payments by Company by Wire Transfer........................................... 20
Section 2.03. Form and Dating................................................................ 20
Section 2.04. Execution and Authentication................................................... 20
Section 2.05. Registrar, Paying Agent and Calculation Agent.................................. 21
Section 2.06. Paying Agent to Hold Money in Trust............................................ 21
Section 2.07. Holder Lists................................................................... 22
Section 2.08. Transfer and Exchange.......................................................... 22
Section 2.09. Replacement Notes.............................................................. 35
Section 2.10. Outstanding Notes.............................................................. 36
Section 2.11. Treasury Notes................................................................. 36
Section 2.12. Temporary Notes................................................................ 36
Section 2.13. Cancellation................................................................... 36
Section 2.14. Defaulted Interest............................................................. 37
Section 2.15. CUSIP Numbers.................................................................. 37
ARTICLE III REDEMPTION AND PREPAYMENT.......................................................... 37
Section 3.01. Notices to Trustee............................................................. 37
Section 3.02. Selection of Notes to Be Redeemed.............................................. 37
Section 3.03. Notice of Redemption........................................................... 38
Section 3.04. Effect of Notice of Redemption................................................. 39
Section 3.05. Deposit of Redemption Price.................................................... 39
Section 3.06. Notes Redeemed in Part......................................................... 39
Section 3.07. Optional Redemption............................................................ 39
Section 3.08. Mandatory Redemption........................................................... 40
Section 3.09. Offer to Purchase by Application of Excess Proceeds............................ 40
ARTICLE IV COVENANTS........................................................................... 42
Section 4.01. Payment of Notes............................................................... 42
Section 4.02. Maintenance of Office or Agency................................................ 42
Section 4.03. Reports........................................................................ 43
Section 4.04. Compliance Certificate......................................................... 44
Section 4.05. Taxes.......................................................................... 44
Section 4.06. Stay, Extension and Usury Laws................................................. 44
PAGE
Section 4.07. Restricted Payments............................................................ 45
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries................. 47
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock..................... 48
Section 4.10. Asset Sales.................................................................... 51
Section 4.11. Transactions with Affiliates................................................... 52
Section 4.12. Liens.......................................................................... 53
Section 4.13. Line of Business............................................................... 53
Section 4.14. Corporate Existence............................................................ 53
Section 4.15. Offer to Repurchase Upon Change of Control..................................... 53
Section 4.16. Limitation on Sale and Leaseback Transactions.................................. 55
Section 4.17. Payments for Consent........................................................... 55
ARTICLE V SUCCESSORS........................................................................... 55
Section 5.01. Merger, Consolidation, or Sale of Assets....................................... 55
Section 5.02. Successor Corporation Substituted.............................................. 56
ARTICLE VI DEFAULTS AND REMEDIES............................................................... 56
Section 6.01. Events of Default.............................................................. 56
Section 6.02. Acceleration................................................................... 58
Section 6.03. Other Remedies................................................................. 58
Section 6.04. Waiver of Past Defaults........................................................ 58
Section 6.05. Control by Majority............................................................ 59
Section 6.06. Limitation on Suits............................................................ 59
Section 6.07. Rights of Holders to Receive Payment........................................... 59
Section 6.08. Collection Suit by Trustee..................................................... 59
Section 6.09. Trustee May File Proofs of Claim............................................... 60
Section 6.10. Priorities..................................................................... 60
Section 6.11. Undertaking for Costs.......................................................... 61
ARTICLE VII TRUSTEE............................................................................ 61
Section 7.01. Duties of Trustee.............................................................. 61
Section 7.02. Rights of Trustee.............................................................. 62
Section 7.03. Individual Rights of Trustee................................................... 63
Section 7.04. Trustee's Disclaimer........................................................... 63
Section 7.05. Notice of Defaults............................................................. 63
Section 7.06. Reports by Trustee to Holders of the Notes..................................... 64
Section 7.07. Compensation and Indemnity..................................................... 64
Section 7.08. Replacement of Trustee......................................................... 65
Section 7.09. Successor Trustee by Merger, etc............................................... 66
Section 7.10. Eligibility; Disqualification.................................................. 66
Section 7.11. Preferential Collection of Claims Against Company.............................. 66
ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE.......................................... 66
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance....................... 66
Section 8.02. Legal Defeasance and Discharge................................................. 66
Section 8.03. Covenant Defeasance............................................................ 67
Section 8.04. Conditions to Legal or Covenant Defeasance..................................... 67
ii
PAGE
Section 8.05. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions.................................................... 68
Section 8.06. Repayment to Company........................................................... 69
Section 8.07. Reinstatement.................................................................. 69
ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER.................................................... 70
Section 9.01. Without Consent of Holders..................................................... 70
Section 9.02. With Consent of Holders........................................................ 70
Section 9.03. Compliance with Trust Indenture Act............................................ 72
Section 9.04. Revocation and Effect of Consents.............................................. 72
Section 9.05. Notation on or Exchange of Notes............................................... 72
Section 9.06. Trustee to Sign Amendments, etc................................................ 72
ARTICLE X SATISFACTION AND DISCHARGE........................................................... 73
Section 10.01. Satisfaction and Discharge.................................................... 73
Section 10.02. Deposited Cash and Government Securities...................................... 73
Section 10.03. Repayment to Company.......................................................... 74
Section 10.04. Reinstatement................................................................. 74
ARTICLE XI SUBSIDIARY GUARANTEES............................................................... 74
Section 11.01. Guarantee..................................................................... 74
Section 11.02. Subordination on Guarantor Liability.......................................... 75
Section 11.03. Guarantors May Consolidate, etc., on Certain Terms............................ 76
Section 11.04. Releases of Subsidiary Guarantee.............................................. 76
Section 11.05. Additional Subsidiary Guarantees.............................................. 77
ARTICLE XII MISCELLANEOUS....................................................................... 78
Section 12.01. Trust Indenture Act Controls.................................................. 78
Section 12.02. Notices....................................................................... 78
Section 12.03. Communication by Holders with Other Holders................................... 79
Section 12.04. Certificate and Opinion as to Conditions Precedent............................ 79
Section 12.05. Statements Required in Certificate or Opinion................................. 79
Section 12.06. Rules by Trustee and Agents................................................... 80
Section 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders...... 80
Section 12.08. Governing Law................................................................. 80
Section 12.09. No Adverse Interpretation of Other Agreements................................. 80
Section 12.10. Successors.................................................................... 80
Section 12.11. Severability.................................................................. 80
Section 12.12. Counterpart Originals......................................................... 80
Section 12.13. Table of Contents, Headings, etc.............................................. 80
iii
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
310(a)(1).................................................................... 7.10
(a)(2).................................................................. 7.10
(a)(3).................................................................. N.A.
(a)(4).................................................................. N.A.
(a)(5).................................................................. 7.10
(b)..................................................................... 7.10
(c)..................................................................... N.A.
311(a)....................................................................... 7.11
(b)..................................................................... 7.11
(c)..................................................................... N.A.
312(a)....................................................................... 2.07
(b)..................................................................... 12.03
(c)..................................................................... 12.03
313(a)....................................................................... 7.06
(b)(1).................................................................. 12.03
(b)(2).................................................................. 7.06, 7.07
(c)..................................................................... 7.06, 12.02
(d)..................................................................... 7.06
314(a)....................................................................... 4.03, 12.05
(b)..................................................................... N.A.
(c)(1).................................................................. 12.04
(c)(2).................................................................. 12.04
(c)(3).................................................................. N.A.
(d)..................................................................... N.A.
(e)..................................................................... 12.05
(f)..................................................................... N.A.
315(a)....................................................................... 7.01
(b)..................................................................... 7.05, 12.02
(c)..................................................................... 7.01
(d)..................................................................... 7.01
(e)..................................................................... 6.11
316(a) (last sentence)....................................................... 2.11
(a)(1)(A)............................................................... 6.05
(a)(1)(B)............................................................... 6.04
(a)(2).................................................................. N.A.
(b)..................................................................... 6.07
(c)..................................................................... 2.14
317(a)(1).................................................................... 6.08
(a)(2).................................................................. 6.09
(b)..................................................................... 2.06
318(a)....................................................................... 12.01
(b)..................................................................... N.A.
(c)..................................................................... 12.01
N.A. means not applicable
*This Cross-Reference Table is not part of the Indenture
iv
INDENTURE, dated as of September 2, 2004, between Parker Drilling
Company, a Delaware corporation (the "Company"), the subsidiary guarantors from
time to time parties hereto (collectively, the "Guarantors") and JPMorgan Chase
Bank, a New York banking corporation, as trustee (the "Trustee").
The parties listed above agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Senior
Floating Rate Notes due 2010 (the "Initial Notes") and the Senior Floating Rate
Notes due 2010 if and when issued in the Exchange Offer (the "New Notes" and,
together with the Initial Notes, the "Notes").
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions. "144A Global Note" means one or more
global notes in the form of Exhibit A hereto bearing the Global Note Legend and
the Private Placement Legend and deposited with or on behalf of, and registered
in the name of, the Depositary or its nominee that will represent the aggregate
principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person,
whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
"Additional Interest" means all additional interest then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Affiliate" of any specified Person means any other 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,"
as used with respect to any Person, means 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 that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Agent" means any Registrar, Paying Agent or Calculation Agent.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets or rights including by means of a merger,
consolidation or similar transaction; provided that the sale, conveyance or
other disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole will be governed by
Section 4.15 and/or Section 5.01 hereof and not by Section 4.10 hereof, and (ii)
the issuance of Equity Interests in any of the Company's Restricted Subsidiaries
or the sale of Equity Interests in any of its Subsidiaries (other than
directors' qualifying shares). Notwithstanding the preceding, the following
items shall not be deemed to be Asset Sales: (i) any single transaction or
series of related transactions that involves assets having a fair market value
of less than $2.0 million, (ii) a transfer of assets between or among the
Company and its Restricted Subsidiaries, (iii) an issuance of Equity Interests
by a Restricted Subsidiary to the Company or to another Restricted Subsidiary,
(iv) the sale or lease of equipment, inventory, accounts receivable, services or
other assets in the ordinary course of business or the sale of inventory to any
joint venture, in which the Company owns directly or indirectly at least 50% of
the Equity Interests, for resale by such joint venture to its customers in the
ordinary course of business of its business, (v) the sale or other disposition
of cash or Cash Equivalents, (vi) a Restricted Payment or Permitted Investment
that is permitted by Section 4.07 hereof, (vii) dispositions in connection with
Permitted Liens, (viii) the sale of a rig built by the Company or any of its
Restricted Subsidiaries for the purpose of sale to a customer where the sale
proceeds are recorded in the Company's consolidated financial statements as
operating income in accordance with generally accepted accounting principles in
the United States, (ix) sales of damaged, worn-out or obsolete equipment or
assets that, in the Company's reasonable judgment, are either (A) no longer used
or (B) no longer useful in the business of the Company or its Restricted
Subsidiaries, (x) any trade or exchange by the Company or any Restricted
Subsidiary of one or more drilling rigs for one or more other drilling rigs
owned or held by another Person, provided that (A) the fair market value of the
drilling rig or rigs traded or exchanged by the Company or such Restricted
Subsidiary (including any cash or Cash Equivalents to be delivered by the
Company or such Restricted Subsidiary) is reasonably equivalent to the fair
market value of the drilling rig or rigs (together with any cash or Cash
Equivalents) to be received by the Company or such Restricted Subsidiary, in
each case as determined as provided in the final paragraph of Section 4.07
hereof and (B) such exchange is approved by a majority of the disinterested
members of the Board of Directors of the Company and (xi) any transfer by the
Company or any Restricted Subsidiary to its customers of drill pipe, tools and
associated drilling equipment utilized in connection with a drilling contract
for the employment of a drilling rig in the ordinary course of business and
consistent with past practice.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such sale and leaseback transaction, including any period for which such
lease has been extended or may, at the option of the lessor, be extended. Such
present value shall be calculated using a discount rate equal to the rate of
interest implicit in such transaction, determined in accordance with GAAP.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in
Sections 13(d) and 14(d) of the Exchange Act), such "person" will be deemed to
have beneficial ownership of all securities that such "person" has the right to
acquire by conversion or exercise of other securities, whether such right is
currently
2
exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms "Beneficially Owns" and "Beneficially Owned" have
correlative meanings.
"Board of Directors" means (i) with respect to a corporation, the
board of directors of the corporation, (ii) with respect to a partnership, the
Board of Directors of the general partner of the partnership, and (iii) with
respect to any other Person, the board or committee of such Person serving a
similar function.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means each day, that is not a Saturday, Sunday or
other day on which banking institutions in New York, New York are authorized or
required by law to close.
"Calculation Agent" has the meaning provided in Section 2.05.
"Capital Lease Obligation" means, at the time any determination is
to be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government
(provided that the full faith and credit of the United States is pledged in
support of those securities) having maturities of not more than one year from
the date of acquisition, (iii) certificates of deposit and eurodollar time
deposits with maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with any lender party to the Credit Agreement (or any
affiliate of such lender party meeting such requirements) or with any commercial
bank organized under the laws of any country that is a member of the
Organization for Economic Cooperation and Development (or any affiliate of such
commercial bank meeting such requirements), having capital and surplus in excess
of $500.0 million and a Thomson Bank Watch Rating of "B" or better; (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above, (v) commercial paper having the highest rating obtainable from
Moody's Investors Service, Inc. or Standard & Poor's Rating Services and in each
case maturing within 270 days after the date of acquisition and (vi) money
market funds at least 95% of the assets of which constitute Cash Equivalents of
the kinds described in clauses (i) through (v) of this definition.
"Change of Control" means the occurrence of any of the following:
(i) the direct or indirect sale, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of
3
the Company and its Restricted Subsidiaries taken as a whole to any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act), (ii) the
adoption of a plan by the stockholders of the Company relating to the
liquidation or dissolution of the Company, (iii) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
result of which is that any "person" (as that term is used in Sections 13(d) and
14(d) under the Exchange Act) becomes the Beneficial Owner, directly or
indirectly, of more than 50% of the voting power of the Voting Stock of the
Company, or (iv) the first day on which a majority of the members of the Board
of Directors of the Company are not Continuing Directors.
"Clearstream" means Clearstream Banking S.A.
"Company" means Parker Drilling Company and any and all successors
thereto.
"Consolidated Cash Flow" means, with respect to any specified Person
for any period, the Consolidated Net Income of such Person for such period plus
(i) an amount equal to any extraordinary loss plus any net loss realized by such
Person or any of its Subsidiaries in connection with an Asset Sale, to the
extent such losses were deducted in computing such Consolidated Net Income; plus
(ii) provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, to the extent that such provision for
taxes was deducted in computing such Consolidated Net Income; plus (iii)
consolidated interest expense of such Person and its Restricted Subsidiaries for
such period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings), and net of the effect of all
payments made or received pursuant to Hedging Obligations incurred with respect
to Indebtedness, to the extent that any such expense was deducted in computing
such Consolidated Net Income; plus (iv) depreciation, amortization (including
amortization of intangibles but excluding amortization of prepaid cash expenses
that were paid in a prior period) and other non-cash expenses (including
impairment charges recorded in connection with the application of Financial
Accounting Standard No. 142 "Goodwill and Other Intangibles" but excluding any
such non-cash expense to the extent that it represents an accrual of or reserve
for cash expenses in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of such Person and its Subsidiaries for such
period to the extent that such depreciation, amortization and other non-cash
expenses were deducted in computing such Consolidated Net Income; plus (v) all
extraordinary, unusual or non-recurring items of loss or expense; minus (vi) all
extraordinary, unusual or non-recurring items of gain or revenue; minus (vii)
non-cash items increasing such Consolidated Net Income for such period, other
than the accrual of revenue in the ordinary course of business, in each case, on
a consolidated basis and determined in accordance with GAAP. Notwithstanding the
foregoing, amounts in clauses (i), (ii), (iv), (v) and (vi) relating to any
Restricted Subsidiary that is not a Guarantor will be added to Consolidated Net
Income to compute Consolidated Cash Flow only to the extent (and in the same
proportion) that the Net Income of such Restricted Subsidiary was included in
calculating Consolidated Net Income and only if a corresponding amount would be
permitted at the date of determination to be paid as a dividend to the Company
by such Restricted Subsidiary without any prior governmental approval (that has
not been obtained) and by operation of the terms of its charter and all
4
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Restricted Subsidiary or its
stockholders.
"Consolidated Net Income" means, with respect to any specified
Person for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis determined in
accordance with GAAP; provided that (i) the Net Income (but not loss) of any
Person that is not a Restricted Subsidiary or that is accounted for by the
equity method of accounting shall be included only to the extent of the amount
of dividends or distributions paid in cash to the specified Person or a
Restricted Subsidiary thereof, (ii) the Net Income of any Restricted Subsidiary
that is not a Guarantor will be excluded to the extent that the declaration or
payment of dividends or similar distributions by that Restricted Subsidiary of
that Net Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders, and (iii) the cumulative effect of a
change in accounting principles will be excluded.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date Notes are first issued under this Indenture or
(ii) was nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such
Board of Directors at the time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 12.02 hereof or such other address as to which
the Trustee may give notice in writing to the Company.
"Credit Agreement" means that certain Credit Agreement, dated as of
October 10, 2003, as amended, by and among the Company, certain subsidiaries of
the Company, the several banks and other financial institutions or entities from
time to time parties thereto, Lehman Brothers Inc. and Deutsche Bank Securities
Inc., as joint advisors, joint lead arrangers, and joint bookrunners, Deutsche
Bank Securities Inc., as syndication agent, Bank of America, N.A., as
documentation agent, Deutsche Bank Trust Company Americas, as collateral agent,
and Lehman Commercial Paper Inc., as administrative agent, providing for up to
$100.0 million of term loan borrowings and $50.0 million of revolving credit
borrowings, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith.
"Credit Facilities" means, one or more debt facilities (including,
without limitation, the Credit Agreement) or commercial paper facilities, in
each case with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables) or letters of credit, including any
related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time
(and whether or not with the original lender or lenders or another lender or
lenders and whether provided under the original Credit Facility or any other
credit or other agreement or indenture).
5
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.08 hereof, in the
form of Exhibit A hereto except that such Note shall not bear the Global Note
Legend and shall not have the "Schedule of Exchanges of Interests in the Global
Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, The Depository Trust Company and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
"Disqualified Stock" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the Capital Stock), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that
is 91 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a Change of
Control or an Asset Sale shall not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions prior to compliance by the
Company with the Change of Control Offer and Asset Sale Offer and unless such
repurchase or redemption complies with Section 4.07 hereof.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
that was formed under the laws of the United States or any state of the United
States or the District of Columbia.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private sale of Capital Stock
(other than Disqualified Stock) made for cash on a primary basis by the Company
after the date Notes are first issued.
"Euroclear" means Euroclear Bank S.A./N.V. (or its successor), as
operator of the Euroclear system.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
6
"Exchange Notes" means the Notes issued in the Exchange Offer
pursuant to Section 2.08(f) hereof.
"Exchange Offer" has the meaning set forth for such term in the
Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Registration
Statement relating to the Exchange Offer, including the related Prospectus.
"Existing Indebtedness" means any Indebtedness of the Company and
its Restricted Subsidiaries (other than any other Permitted Debt) in existence
on the date Notes are first issued, until such amounts are repaid.
"Fixed Charges" means, with respect to any specified Person for any
period, the sum, without duplication, of (i) the consolidated interest expense
of such Person and its Restricted Subsidiaries for such period, whether paid or
accrued (including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings), and net of the
effect of all payments made or received pursuant to Hedging Obligations incurred
with respect to Indebtedness; plus (ii) the consolidated interest of such Person
and its Restricted Subsidiaries that was capitalized during such period; plus
(iii) any interest expense on Indebtedness of another Person that is Guaranteed
by such Person or one of its Restricted Subsidiaries or secured by a Lien on
assets of such Person or one of its Restricted Subsidiaries, whether or not such
Guarantee or Lien is called upon; plus (iv) the product of (a) all dividends,
whether paid or accrued and whether or not in cash, on any series of
Disqualified Stock or preferred stock of such Person or any of its Restricted
Subsidiaries, other than dividends on Equity Interests payable solely in Equity
Interests of the Company (other than Disqualified Stock) or to the Company or a
Restricted Subsidiary of the Company, times (b) a fraction, the numerator of
which is one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with GAAP.
"Fixed Charge Coverage Ratio" means, with respect to any specified
Person for any four-quarter reference period, the ratio of the Consolidated Cash
Flow of such Person for such period to the Fixed Charges of such Person for such
period. In the event that the specified Person or any of its Subsidiaries
incurs, assumes, Guarantees, repays, repurchases or redeems any Indebtedness
(other than ordinary working capital borrowings) or issues, repurchases or
redeems any Disqualified Stock or preferred stock subsequent to the commencement
of the applicable four-quarter reference period and on or prior to the date on
which the event for which the calculation of the Fixed Charge Coverage Ratio is
made occurs (the "Calculation Date"), then the Fixed Charge Coverage Ratio will
be calculated giving pro forma effect to such incurrence, assumption, Guarantee,
repayment, repurchase or redemption of Indebtedness, or such issuance,
repurchase or redemption of Disqualified Stock or preferred stock, and the use
of the proceeds therefrom as if the same had occurred at the beginning of such
period. In addition, for purposes of calculating the Fixed Charge Coverage
Ratio: (i) acquisitions that have been made by the specified Person or any of
its Restricted Subsidiaries, including through mergers or
7
consolidations and including any related financing transactions, subsequent to
the commencement of the applicable four-quarter reference period and on or prior
to the Calculation Date will be given pro forma effect as if they had occurred
on the first day of such period including any pro forma expense and cost
reductions that have occurred or are reasonably expected to occur, in the
reasonable judgment of the chief financial officer of the Company (regardless of
whether those expense and cost reductions could then be reflected in pro forma
financial statements in accordance with Regulation S-X promulgated under the
Securities Act or any other regulation or policy of the Commission related
thereto); (ii) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, will be excluded; and (iii) the Fixed
Charges attributable to discontinued operations, as determined in accordance
with GAAP, and operations or businesses disposed of prior to the Calculation
Date, will be excluded, but only to the extent that the obligations giving rise
to such Fixed Charges will not be obligations of the specified Person or any of
its Restricted Subsidiaries following the Calculation Date.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the date the Notes are
first issued.
"Global Note Legend" means the legend set forth in Section
2.08(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Note and the Unrestricted Global Note, in the form of Exhibit
A hereto issued in accordance with Sections 2.03 and 2.08 hereof.
"Government Securities" means (i) direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States of
America is pledged and (ii) money market funds at least 95% of the assets of
which constitute Government Securities of the kinds described in clause (i) of
this definition.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect of all or any part of any Indebtedness in any manner
including, without limitation, by way of a pledge of assets or through letters
of credit or reimbursement agreements in respect thereof.
"Guarantors" means each of (i) the Company's Domestic Subsidiaries
in existence as of the date of this Indenture; (ii) Parker Drilling Offshore
International, Inc., but only for so long as it guarantees the Company's 10?%
Senior Notes due 2009; (iii) any other subsidiary that executes a Subsidiary
Guarantee in accordance with the provisions of this Indenture; and (iv) their
respective successors and assigns.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate
8
collar agreements; (ii) foreign exchange contracts and currency protection
agreements; (iii) any commodity futures contract, commodity option or other
similar agreement or arrangement and (iv) other similar agreements or
arrangements.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any indebtedness
of such Person, whether or not contingent (i) in respect of borrowed money; (ii)
evidenced by bonds, notes, debentures or similar instruments; (iii) in respect
of banker's acceptances or letters of credit (or reimbursement agreements in
respect thereof) or similar instruments; (iv) representing Capital Lease
Obligations; (v) representing the balance deferred and unpaid of the purchase
price of any property, except any such balance that constitutes an accrued
expense or trade payable or (vi) representing the net obligations of such Person
under any Hedging Obligations (the amount of any such obligations to be equal at
any time to the termination value of the agreement or arrangement giving rise to
such obligation that would be payable by such Person at such time) if and to the
extent any of the preceding items (other than letters of credit, Hedging
Obligations) would appear as a liability upon a balance sheet of the specified
Person prepared in accordance with GAAP. In addition, the term "Indebtedness"
includes all Indebtedness of others to the extent secured by a Lien on any asset
of the specified Person (whether or not such Indebtedness is assumed by the
specified Person) and, to the extent not otherwise included, the Guarantee by
the specified Person of any indebtedness of any other Person. The amount of any
Indebtedness outstanding as of any date will be (i) the accreted value of the
Indebtedness, in the case of any Indebtedness issued with original issue
discount; and (ii) the principal amount of the Indebtedness, together with any
interest on the Indebtedness that is more than 30 days past due, in the case of
any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" is defined in the preamble hereto.
"Interest Payment Date" shall have the meaning set forth in
paragraph 1 of each Note and, if applicable, any Additional Notes.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including Guarantees or other obligations), advances or
capital contributions (excluding (x) commission, travel and similar advances to
officers and employees made in the ordinary course of business and (y) advances
to customers in the ordinary course of business that are recorded as accounts
receivable on the balance sheet of the lender), purchases or other acquisitions
for consideration of Indebtedness, Equity Interests or other securities,
together with all items that are or would be classified as investments on a
balance sheet prepared in accordance with GAAP. If the Company or any Subsidiary
of the Company sells or otherwise disposes of any Equity Interests of any direct
or indirect Subsidiary of the Company such that, after giving effect to any such
sale or disposition, such Person is no longer a Subsidiary of the Company, the
Company will be deemed to have made an Investment on the date of any such sale
or disposition in an
9
amount equal to the fair market value of the Equity Interests of and other
Investments in such Subsidiary not sold or disposed of in an amount determined
as provided in the final paragraph of Section 4.07 hereof. The acquisition by
the Company or any Subsidiary of the Company of a Person that holds an
Investment in a third Person will be deemed to be an Investment made by the
Company or such Subsidiary in such third Person in an amount equal to the fair
market value of the Investment held by the acquired Person in such third Person
on the date of any such acquisition in an amount determined as provided in the
final paragraph of Section 4.07 hereof.
"Issue Date" means the date the Initial Notes are issued.
"Letter of Transmittal" means the letter of transmittal, or its
electronic equivalent in accordance with the Applicable Procedures, to be
prepared by the Company and sent to all Holders of the Initial Notes or any
Additional Notes for use by such Holders in connection with an Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in such asset and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain (but not loss), other than gains associated with reimbursements for lost or
damaged tools in the ordinary course of business, together with any related
provision for taxes on such gain (but not loss), realized in connection with:
(a) any Asset Sale; or (b) the disposition of any securities by such Person or
any of its Subsidiaries or the extinguishment of any Indebtedness of such Person
or any of its Subsidiaries; and (ii) any extraordinary gain (but not loss),
together with any related provision for taxes on such extraordinary gain (but
not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result of the Asset Sale, taxes paid or
payable as a result of the Asset Sale, in each case after taking into account
any available tax credits or deductions and any tax sharing arrangements, any
amounts required to be applied to the repayment of Senior Debt secured by a Lien
on the asset or assets that were the subject of such Asset Sale and any reserve
for adjustment in respect of the sale price of such asset or assets established
in accordance with GAAP.
"New Notes" is defined in the preamble hereto.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any
10
undertaking, agreement or instrument that would constitute Indebtedness), (b) is
directly or indirectly liable as a guarantor or otherwise, or (c) is the lender;
(ii) no default with respect to which (including any rights that the holders of
the Indebtedness may have to take enforcement action against an Unrestricted
Subsidiary) would permit upon notice, lapse of time or both any holder of any
other Indebtedness (other than the Notes) of the Company or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness or cause
the payment of the Indebtedness to be accelerated or payable prior to its stated
maturity; and (iii) as to which the lenders have been notified in writing that
they will not have any recourse to the stock or assets of the Company or any of
its Restricted Subsidiaries.
"Notes" has the meaning assigned to it in the preamble hereto.
"Obligations" means any principal, premium and Additional Interest,
if any, interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization, whether or not a claim for
post-filing interest is allowed in such proceeding), penalties, fees, charges,
expenses, indemnifications, reimbursement obligations, damages, guarantees, and
other liabilities or amounts payable under the documentation governing any
Indebtedness or in respect thereof.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel that meets
the requirements of Section 12.05 hereof. The counsel may be an employee of or
internal or other counsel to the Company or any Subsidiary of the Company.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream).
"Permitted Business" means the lines of business conducted by the
Company and its Restricted Subsidiaries on the date hereof and any business
incidental or reasonably related thereto or which is a reasonable extension
thereof as determined in good faith by the Company's Board of Directors.
"Permitted Investments" means (i) any Investment in the Company or
in a Restricted Subsidiary of the Company; (ii) any Investment in Cash
Equivalents; (iii) any Investment by the Company or any Subsidiary of the
Company in a Person, if as a result of such Investment: (a) such Person becomes
a Restricted Subsidiary of the Company; or (b) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Restricted
Subsidiary of the Company; (iv)
11
any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with the covenant
described above under Section 4.10 hereof; (v) any acquisition of assets solely
in exchange for the issuance of Equity Interests (other than Disqualified Stock)
of the Company; (vi) any Investments received (a) in satisfaction of judgments
or in compromise of obligations of trade creditors or customers that were
incurred in the ordinary course of business, including pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of any
trade creditor or customer or (b) as a result of a foreclosure by the Company or
any of its Restricted Subsidiaries with respect to any secured Investment in
default; (vii) guarantees (including Subsidiary Guarantees) of Indebtedness
permitted under the covenant described above under Section 4.09 hereof; (viii)
Hedging Obligations permitted to be incurred under the covenant described above
under Section 4.09 hereof; (ix) payroll, travel and similar advances to cover
matters that are expected at the time of such advances ultimately to be treated
as expenses for accounting purposes and that are made in the ordinary course of
business; (x) loans or advances to employees made in the ordinary course of
business consistent with past practices of the Company or such Restricted
Subsidiary not to exceed $2.0 million at any one time outstanding; (xi) other
Investments in any Person having an aggregate fair market value (measured on the
date each such Investment was made and without giving effect to subsequent
changes in value), when taken together with all other Investments made pursuant
to this clause (xi) that are at the time outstanding, not to exceed $35.0
million.
"Permitted Liens" means: (i) Liens securing Indebtedness and other
obligations under any Credit Facility permitted to be incurred under this
Indenture; (ii) Liens securing the Notes and Subsidiary Guarantees; (iii) Liens
existing on the date Notes are first issued; (iv) Liens in favor of the Company
or the Guarantors; (v) Liens to secure Indebtedness of any Restricted
Subsidiaries that are not Guarantors; provided that the Indebtedness is
permitted by the terms of this Indenture to be incurred; (vi) Liens on property
of a Person existing at the time such Person is merged with or into or
consolidated with the Company or any Restricted Subsidiary of the Company or
otherwise becomes a Restricted Subsidiary of the Company; provided that such
Liens were in existence prior to the contemplation of such merger or
consolidation or such Person becoming a Restricted Subsidiary of the Company and
do not extend to any assets other than those of such Person; (vii) Liens on
property existing at the time of acquisition of the property by the Company or
any Restricted Subsidiary of the Company; provided that such Liens were in
existence prior to the contemplation of such acquisition and do not extend to
any assets other than such acquired property; (viii) Liens to secure
Indebtedness (including Capital Lease Obligations) permitted by clause (iv) of
the second paragraph of Section 4.09 hereof covering only the assets acquired
with such Indebtedness; (ix) Liens securing Permitted Refinancing Indebtedness
Incurred to refinance Indebtedness that was previously so secured; provided that
any such Lien is limited to all or part of the same property or assets (plus
improvements, accessions, proceeds or distributions in respect thereof) that
secured or, under the written arrangements under which the original Lien arose,
could secure the Indebtedness being refinanced; (x) Liens on assets of
Unrestricted Subsidiaries that secure Non-Recourse Debt of Unrestricted
Subsidiaries; (xi) Liens securing Hedging Obligations related to Indebtedness
permitted under this Indenture; (xii) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (xiii)
statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen and other Liens imposed by law
12
incurred in the ordinary course of business for sums not delinquent or being
contested in good faith, if such reserve or other appropriate provision, if any,
as shall be required by GAAP shall have been made in respect thereof; (xiv)
Liens incurred or deposits made in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other types of social
security, or to secure the payment or performance of tenders, statutory or
regulatory obligations, surety and appeal bonds, bids, government contracts and
leases, performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money); (xv) judgment
Liens not giving rise to an Event of Default so long as any appropriate legal
proceedings which may have been duly 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; (xvi) Liens upon specific
items of inventory or other goods of any Person securing such Person's
obligations in respect of bankers acceptances issued or created for the account
of such Person to facilitate the purchase, shipment or storage of such inventory
or other goods; (xvii) Liens securing reimbursement obligations with respect to
commercial letters of credit that encumber documents and other property or
assets relating to such letters of credit and products and proceeds thereof;
(xviii) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual or warranty requirements of the Company or
any of its Restricted Subsidiaries, including rights of offset and set-off;
(xix) Liens for taxes, assessments or governmental charges or claims that are
not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted; provided that any
reserve or other appropriate provision as is required in conformity with GAAP
has been made therefor; and (xx) Liens incurred in the ordinary course of
business of the Company or any Subsidiary of the Company with respect to
obligations that do not exceed $10.0 million at any one time outstanding.
Notwithstanding the foregoing, "Permitted Liens" will not include any Lien
described in clause (vi), (vii) or (viii) above to the extent such Lien applies
to any Additional Assets acquired directly or indirectly from Net Proceeds
pursuant to the covenant described above under Section 4.10 hereof. For purposes
of this definition, the term "Indebtedness" will be deemed to include interest
on such Indebtedness.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Subsidiaries issued in exchange for, or the net proceeds
of which are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of the Company or any of its Subsidiaries (other than intercompany
Indebtedness); provided that: (i) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the Indebtedness
extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued
interest on the Indebtedness and the amount of all expenses and premiums
incurred in connection therewith); (ii) such Permitted Refinancing Indebtedness
has a final maturity date later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (iii) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated in right of
payment to the Notes, such Permitted Refinancing Indebtedness is subordinated in
right of payment to, the Notes on terms at least as favorable to the Holders of
Notes as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and (iv) such
Permitted Refinancing Indebtedness is incurred either by (a) the Company or a
Guarantor or (b) by the
13
Subsidiary that is the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"Private Placement Legend" means the legend set forth in Section
2.08(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Prospectus" means the prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, among the Company, the Guarantors,
Lehman Brothers Inc. and Banc of America Securities LLC, as such agreement may
be amended, modified or supplemented from time to time and, with respect to any
Additional Notes, one or more registration rights agreements among the Company,
the Guarantors and the other parties thereto, as such agreement(s) may be
amended, modified or supplemented from time to time, relating to rights given by
the Company to the purchasers of Additional Notes to register such Additional
Notes, or exchange such Additional Notes for registered Notes, under the
Securities Act.
"Registration Statement" means any registration statement of the
Company relating to (a) an offering of New Notes pursuant to an Exchange Offer
or (b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, in each case, (i) that is filed pursuant to
the provisions of the Registration Rights Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the applicable date specified as a "Record Date" on the face
of the Note.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a Global Note in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee, issued in a denomination equal to the outstanding principal
amount of the Notes initially sold in reliance on Rule 903 of Regulation S.
"Responsible Officer" when used with respect to the Trustee, means
the officer in the Institutional Trust Services department of the Trustee having
direct responsibility for the administration of this Indenture.
14
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day period as defined in
Regulation S.
"Restricted Subsidiary" means any Subsidiary of the Company that is
not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means (i) all Indebtedness of the Company or any
Restricted Subsidiary outstanding under Credit Facilities and all Hedging
Obligations with respect thereto; (ii) any other Indebtedness of the Company or
any Restricted Subsidiary permitted to be incurred under the terms of this
Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is subordinated in right of payment to the Notes or
any Subsidiary Guarantee; and (iii) all Obligations with respect to the items in
the preceding clauses (i) and (ii). Notwithstanding anything to the contrary in
the preceding sentence, Senior Debt will not include (i) any liability for
federal, state, local or other taxes owed or owing by the Company; (ii) any
intercompany Indebtedness of the Company or any of its Subsidiaries to the
Company or any of its Affiliates; (iii) any trade payables; or (iv) any
Indebtedness that is incurred in violation of this Indenture.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that would
be a "significant subsidiary" as defined in Article 1, Rule 1-02(w) of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the date hereof; provided that all Unrestricted Subsidiaries
will be excluded from all calculations under Rule 1-02(w) of Regulation S-X.
"Specified Amount" means, as of any date, the Consolidated Cash Flow
of the Company for the most recently ended four-quarter period for which
financial statements have been filed with the SEC determined on a pro forma
basis after giving effect to all acquisitions or
15
Asset Sales made by the Company and its Restricted Subsidiaries from the
beginning of such four-quarter period through and including such date of
determination (including any related financing transactions) as if such
acquisitions and dispositions had occurred at the beginning of such four-quarter
period.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means with respect to any specified Person (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees of the corporation, association or other business entity is at the time
owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person (or a combination thereof); and (ii) any
partnership (a) the sole general partner or the managing partner of which is
such Person or a Subsidiary of such Person or (b) the only general partners of
which are that Person or one or more Subsidiaries of that Person (or any
combination thereof).
"Subsidiary Guarantee" means any Guarantee by a Guarantor of the
Company's payment Obligations under this Indenture and on the Notes, executed
pursuant to the provisions of this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Total Assets" means the total assets of the Company and its
Restricted Subsidiaries on a consolidated basis determined in accordance with
GAAP, as shown on the most recently available consolidated balance sheet of the
Company and its Restricted Subsidiaries.
"Transfer Restricted Securities" means each Note, until the earliest
to occur of (a) the date on which such Note has been exchanged by a person other
than a Broker-Dealer for an Exchange Note in the Exchange Offer, (b) following
the exchange by a Broker-Dealer in the Exchange Offer of such Note for one or
more Exchange Notes, the date on which such Exchange Notes are sold to a
purchaser who receives from such Broker-Dealer on or prior to the date of such
sale a copy of the prospectus contained in the Exchange Offer Registration
Statement, (c) the date on which such Note has been effectively registered under
the Securities Act and disposed of in accordance with the Shelf Registration
Statement or (d) the date on which such Note is eligible to be distributed to
the public pursuant to Rule 144 under the Securities Act.
"Trustee" means the party named as such in the preamble hereto until
a successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
16
"Unrestricted Definitive Note" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent Global Note in the form
of Exhibit A attached hereto that bears the Global Note Legend and that has the
"Schedule of Exchanges of Interests in the Global Note" attached thereto, and
that is deposited with or on behalf of and registered in the name of the
Depositary, representing Notes that do not bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company that
is designated by the Board of Directors as an Unrestricted Subsidiary pursuant
to a Board Resolution, but only to the extent that such Subsidiary: (i) has no
Indebtedness other than Non-Recourse Debt; (ii) is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company; (iii) is a Person with respect to which
neither the Company nor any of its Restricted Subsidiaries has any direct or
indirect obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause such Person
to achieve any specified levels of operating results; and (iv) has not
guaranteed or otherwise directly or indirectly provided credit support for any
Indebtedness of the Company or any of its Restricted Subsidiaries. Any
designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be
evidenced to the Trustee by filing with the Trustee a certified copy of the
Board Resolution giving effect to such designation and an officers' certificate
certifying that such designation complied with the preceding conditions and was
permitted under Section 4.07 hereof. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted
Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary will be
deemed to be incurred by a Restricted Subsidiary of the Company as of such date
and, if such Indebtedness is not permitted to be incurred as of such date under
the covenant described under Section 4.09 hereof, the Company will be in default
of such covenant. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation will be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation will only be permitted if (1) such
Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period and (2) no Default would be in existence following such
designation.
"U.S. Person" means a U.S. person as defined in Rule 902(a) under
the Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the Board
of Directors (or comparable body) of such Person.
17
"Weighted Average Life to Maturity" means when applied to any
Indebtedness or Disqualified Stock or preferred stock of a Guarantor at any
date, the number of years obtained by dividing: (i) the sum of the products
obtained by multiplying (a) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal, including
payment at final maturity, in respect of the Indebtedness or redemption or
similar payment in respect of the Disqualified Stock or preferred stock of a
Guarantor by (b) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment; by (ii) the
then outstanding principal amount of such Indebtedness.
Section 1.02. Other Definitions.
Defined in
Term Section
"Additional Notes" 2.01
"Affiliate Transaction" 4.11
"Asset Sale Offer" 3.09
"Asset Sale Offer Period" 3.09
"Asset Sale Payment Date" 3.09
"Authentication Order" 2.04
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.03
"DTC" 2.05
"Event of Default" 6.01
"Excess Proceeds" 4.10
"incur" 4.09
"Legal Defeasance" 8.02
"New Guarantor" 11.05
"Offer Amount" 3.09
"Other Indebtedness" 11.05
"Paying Agent" 2.05
"Payment Default" 6.01
"Permitted Debt" 4.09
"Registrar" 2.05
"Restricted Payments" 4.07
Section 1.03. One Class of Securities. The Initial Notes, the New
Notes and any Additional Notes shall vote and consent together on all matters as
one class and none of the Initial Notes or the New Notes shall have the right to
vote or consent as a separate class on any matter.
Section 1.04. Trust Indenture Act. Whenever this Indenture refers to
a provision of the TIA, the provision is incorporated by reference in and made a
part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
18
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the Notes means the Company and any successor obligor
upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.05. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections or
rules adopted by the SEC from time to time.
ARTICLE II
THE NOTES
Section 2.01. Issuance of Additional Notes. The Company may,
subject to Section 4.09 hereof, issue additional Notes ("Additional Notes")
under this Indenture which will have identical terms as the Initial Notes issued
on the Issue Date other than with respect to the date of issuance, issue price,
first payment of interest and rights under a related Registration Rights
Agreement, if any. The Initial Notes issued on the Issue Date, any Additional
Notes and all Exchange Notes issued in exchange therefor shall be treated as a
single class for all purposes under this Indenture.
With respect to any Additional Notes, the Company shall set forth in
a resolution of the Board of Directors and an Officers' Certificate, a copy of
each of which shall be delivered to the Trustee, the following information:
19
(a) the aggregate principal amount of such Additional Notes to
be authenticated and delivered pursuant to this Indenture;
(b) the issue price, the issue date and the CUSIP number of
such Additional Notes; and
(c) whether such Additional Notes shall be subject to the
restrictions on transfer set forth in Section 2.08 hereof relating to Restricted
Global Notes and Restricted Definitive Notes.
Section 2.02. Payments by Company by Wire Transfer. The Company
shall make all interest, premium, if any, and principal payments by wire
transfer to any Holder who shall have given written directions to the Company to
make such payments by wire transfer pursuant to the wire transfer instructions
supplied to the Company by such Holder.
Section 2.03. Form and Dating. The terms and provisions contained in
the Notes shall constitute, and are hereby expressly made, a part of this
Indenture and the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the
express provisions of this Indenture, the provisions of this Indenture shall
govern and be controlling. Notes shall be dated the date of their
authentication.
(a) Global Notes.
Notes issued in global form shall be substantially in the form of
Exhibit A attached hereto (including the Global Note Legend thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Notes
issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, as required by Section 2.08 hereof.
(b) Euroclear and Clearstream Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Clearstream" and "Customer Handbook" of Clearstream shall be
applicable to transfers of beneficial interests in the Regulation S Global Notes
that are held by Participants through Euroclear or Clearstream.
Section 2.04. Execution and Authentication. An Officer shall sign
the Notes for the Company by manual or facsimile signature.
20
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by an
Officer (an "Authentication Order"), authenticate Notes for original issue up to
the aggregate principal amount stated in paragraph 4 of the Notes. The aggregate
principal amount of Notes outstanding at any time may not exceed such amount
except as provided in Section 2.09 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.05. Registrar, Paying Agent and Calculation Agent. The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange and shall appoint an agent for such
purposes ("Registrar"). In addition, the Company shall maintain an office or
agency where Notes may be presented for payment and shall appoint an agent for
such purposes ("Paying Agent"). The Registrar shall keep a register of the Notes
and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. In addition, the Company shall appoint a calculation agent
("Calculation Agent") to determine the interest rate applicable to the Notes.
The Company may change any Paying Agent, Registrar or Calculation Agent without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent, Registrar or Calculation Agent.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.06. Paying Agent to Hold Money in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders or the Trustee all
money held by the Paying Agent for the payment of principal, premium or
Additional Interest, if any, or interest on the Notes, and will notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as
21
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy
or reorganization proceedings relating to the Company, the Trustee shall serve
as Paying Agent for the Notes.
Section 2.07. Holder Lists. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of all Holders and shall otherwise comply with TIA Section
312(a). If the Trustee is not the Registrar, the Company shall furnish to the
Trustee at least seven Business Days before each Interest Payment Date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of the Holders and the Company shall otherwise comply with TIA Section 312(a).
Section 2.08. Transfer and Exchange. (a) Transfer and Exchange of
Global Notes. A Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Notes will be exchanged by the Company for Definitive
Notes if (i) the Company delivers to the Trustee notice from the Depositary that
it is unwilling or unable to continue to act as Depositary or that it is no
longer a clearing agency registered under the Exchange Act and, in either case,
a successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary, (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the Trustee
or (iii) there shall have occurred and be continuing a Default or Event of
Default with respect to the Notes. Upon the occurrence of any of the preceding
events in (i), (ii) or (iii) above, Definitive Notes shall be issued in such
names as the Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.09 and
2.12 hereof. Except as specified above, every Note authenticated and delivered
in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant
to this Section 2.08 or Section 2.09 or 2.12 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.08(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.08(b), (c) or (f) hereof.
(a) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend and any Applicable
Procedures; provided, however, that prior to the expiration of the
Restricted Period,
22
transfers of beneficial interests in the Regulation S Global Note may not
be made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an Initial Purchaser or a "distributor" (as defined in Rule
902(d) of Regulation S)). Beneficial interests in any Unrestricted Global
Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note. Except as may be
required by Applicable Procedures, no written orders or instructions shall
be required to be delivered to the Registrar to effect the transfers
described in this Section 2.08(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.08(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) if permitted under
Section 2.08(a) hereof, (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary to
the Registrar containing information regarding the Person in whose name
such Definitive Note shall be registered to effect the transfer or
exchange referred to in (B)(1) above; provided that in no event shall
Definitive Notes be issued upon the transfer or exchange of beneficial
interests in the Regulation S Global Note prior to (x) the expiration of
the Restricted Period and (y) the receipt by the Registrar of any
certificates pursuant to Rule 903 under the Securities Act. Upon
consummation of an Exchange Offer by the Company in accordance with
Section 2.08(f) hereof, the requirements of this Section 2.08(b)(ii) shall
be deemed to have been satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal delivered by the
Holder of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant to
Section 2.08(h) hereof.
(iii) Transfer of Beneficial Interests in a Restricted Global Note
to Another Restricted Global Note. A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in
the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.08(b)(ii) above and
the Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item
(1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note,
then the transferor must
23
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note only if the exchange or
transfer complies with the requirements of Section 2.08(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with a Registration Rights
Agreement and the holder of the beneficial interest to
be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, makes any and all
certifications in the applicable Letter of Transmittal
or is deemed to have made such certifications if
delivery is made through the Applicable Procedures as
may be required by the Registration Rights Agreement;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a participating
Broker-Dealer pursuant to an Exchange Offer Registration
Statement in accordance with a Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in
an Unrestricted Global Note, a certificate from
such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a)
thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note, a
certificate from such holder in the form of
Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests, or the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with
the Securities Act.
24
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.04 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
(v) Transfer or Exchange of Beneficial Interests in Unrestricted
Global Notes for Beneficial Interests in Restricted Global Notes
Prohibited. Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the
form of, beneficial interests in a Restricted Global Note.
(b) Transfer or Exchange of Beneficial Interests in Global Notes for
Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. Subject to Section 2.08(a) hereof, if any holder of a
beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of
a Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities
Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being transferred to a
"non-U.S. Person" (as defined in Rule 902(k) of
Regulation S) in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect
set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration
requirements of the Securities Act in accordance with
Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
25
(F) if such beneficial interest is being transferred
pursuant to an effective registration statement under
the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications
in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.08(h) hereof,
and the Company shall execute and upon receipt of an Authentication Order
in accordance with Section 2.04 hereof, the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Restricted Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.08(c)(i) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from
the Depositary and the Participant or Indirect Participant. The Trustee
shall deliver such Restricted Definitive Notes to the Persons in whose
names such Notes are so registered. Any Restricted Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant
to this Section 2.08(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.
(ii) Notwithstanding Sections 2.08(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Global Note may not be exchanged
for a Definitive Note or transferred to a Person who takes delivery
thereof in the form of a Definitive Note prior to (x) the expiration of
the Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act, except in the case of a transfer pursuant to an exemption
from the registration requirements of the Securities Act other than Rule
903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. Subject to Section 2.08(a) hereof, a holder
of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may transfer
such beneficial interest to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with a Registration Rights
Agreement and the holder of such beneficial interest, in
the case of an exchange, or the transferee, in the case
of a transfer, makes any and all certifications in the
applicable Letter of Transmittal;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a participating
Broker-Dealer pursuant to an Exchange Offer Registration
Statement in accordance with a Registration Rights
Agreement; or
(D) the Registrar receives the following:
26
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for an Unrestricted Definitive
Note, a certificate from such holder in the form
of Exhibit C hereto, including the certifications
in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take
delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such holder in
the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests, or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with
the Securities Act.
Upon satisfaction of the conditions of any of the clauses of this Section
2.08(c)(iii), the Company shall execute, and, upon receipt of an
Authentication Order in accordance with Section 2.04 hereof, the Trustee
shall authenticate and deliver to the Person designated in the
instructions an Unrestricted Definitive Note in the appropriate principal
amount, and the Trustee shall cause the aggregate principal amount of the
applicable Restricted Global Note to be reduced in a corresponding amount
pursuant to Section 2.08(h) hereof.
(iv) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. Subject to Section 2.08(a) hereof, if any
holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for an Unrestricted Definitive Note or
to transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note, then, upon
satisfaction of the applicable conditions set forth in Section 2.08(b)(ii)
hereof, the Trustee shall cause the aggregate principal amount of the
applicable Unrestricted Global Note to be reduced accordingly pursuant to
Section 2.08(h) hereof, and the Company shall execute and, upon receipt of
an Authentication Order in accordance with Section 2.04 hereof, the
Trustee shall authenticate and deliver to the person designated in the
instructions an Unrestricted Definitive Note in the appropriate principal
amount. Any Unrestricted Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.08(c)(iv) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Unrestricted
Definitive Notes to the Persons in whose names such Notes are so
registered. Any Unrestricted Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.08(c)(iv) shall not bear
the Private Placement Legend.
27
(c) Transfer and Exchange of Definitive Notes for Beneficial
Interests in Global Notes.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Restricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest
in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred
to a QIB in accordance with Rule 144A, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred
to a "non-U.S. Person" (as defined in Rule 902(k) of
Regulation S) in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect
set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration
requirements of the Securities Act in accordance with
Rule 144, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred
to the Company or any of its Subsidiaries, a certificate
to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(b) thereof; or
(F) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under
the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications
in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause
to be increased the aggregate principal amount of, in the case of clause
(A) above, the appropriate Restricted Global Note, in the case of clause
(B) above, the 144A Global Note, and in the case of clause (C) above, the
Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial
28
interest in an Unrestricted Global Note or transfer such Restricted
Definitive Note to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with a Registration Rights
Agreement and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, makes any and
all certifications in the applicable Letter of
Transmittal;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a participating
Broker-Dealer pursuant to an Exchange Offer Registration
Statement in accordance with a Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial
interest in an Unrestricted Global Note, a
certificate from such Holder in the form of
Exhibit C hereto, including the certifications in
item (1)(c) thereof; or
(2) if the Holder of such Restricted Definitive Note
proposes to transfer such Note to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global
Note, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with
the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.08(d)(ii), the Trustee shall cancel such Restricted
Definitive Note and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Unrestricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
29
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
(iv) Transfer or Exchange of Unrestricted Definitive Notes to
Beneficial Interests in Restricted Global Notes Prohibited. An Unrestricted
Definitive Note may not be exchanged for, or transferred to Persons who take
delivery thereof in the form of, beneficial interests in a Restricted Global
Note.
(v) Issuance of Unrestricted Global Notes. If any such exchange or
transfer from a Definitive Note to a beneficial interest in an Unrestricted
Global Note is effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.04 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(d) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.08(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by such Holder's attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.08(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Restricted
Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item
(1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the
Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including
the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
30
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes.
Any Restricted Definitive Note may be exchanged by the Holder thereof for
an Unrestricted Definitive Note or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Definitive Note only
if:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with a Registration Rights
Agreement and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, makes any and
all certifications in the applicable Letter of
Transmittal;
(B) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with a Registration
Rights Agreement;
(C) any such transfer is effected by a participating
Broker-Dealer pursuant to an Exchange Offer Registration
Statement in accordance with a Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an
Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d)
thereof; or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph
(D), an Opinion of Counsel in form reasonably acceptable
to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses of Section
2.08(e)(ii), the Trustee shall cancel the prior Restricted Definitive Note
and the Company shall execute, and, upon receipt of an Authentication
Order in accordance with Section 2.04 hereof, the Trustee shall
authenticate and deliver to the Person designated in the instructions an
Unrestricted Definitive Note in the appropriate principal amount.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to
31
register such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(e) Exchange Offer. Upon the occurrence of an Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.04, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the applicable Restricted Global Notes tendered for acceptance by
Persons that make any and all certifications in the applicable Letter of
Transmittal or are deemed to have made such certifications if delivery is made
through the Applicable Procedures as may be required by such Registration Rights
Agreement, and accepted for exchange in the Exchange Offer and (ii) Unrestricted
Definitive Notes in an aggregate principal amount equal to the principal amount
of the Restricted Definitive Notes tendered for acceptance by Persons who made
the foregoing certifications and accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of
Unrestricted Definitive Notes so accepted Definitive Notes in the appropriate
principal amount.
(f) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Note and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form.
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR OTHER
SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE RE-OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING ITS NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904
OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT
32
WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT
OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR
THE LAST DAY ON WHICH PARKER DRILLING COMPANY (THE "COMPANY") OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION
DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT THE COMPANY, THE TRUSTEE AND THE REGISTRAR SHALL HAVE
THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM
AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THE NOTE IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(iii),
(c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) of this Section
2.08 (and all Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
33
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 DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH
NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF A
SUCCESSOR DEPOSITARY, OR ANY NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. TRANSFERS OF THE GLOBAL NOTE
SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES
OF CEDE & CO., OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE, AND TRANSFERS OF PORTIONS OF THE GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 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 IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(g) Cancellation and/or Adjustment of Global Notes.
At such time as all beneficial interests in a particular Global Note
have been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.13 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note by the Trustee or by the Depositary at the direction of
the Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order.
34
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.12, 3.06, 3.09, 4.10, 4.15 and 9.05).
(iii) The Registrar shall not be required to register the transfer
of or to exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer
or exchange.
(v) The Registrar shall not be required (A) to issue, to register
the transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business
on the day of selection or (B) to register the transfer of or to exchange
any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(vi) The Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.04 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.08 to
effect a registration of transfer or exchange may be submitted by
facsimile.
(ix) The Trustee is hereby authorized and directed to enter into a
letter of representation with the Depositary in the form provided by the Company
and to act in accordance with such letter.
Section 2.09. Replacement Notes. If any mutilated Note is
surrendered to the Trustee or the Company and the Trustee receives evidence to
its satisfaction of the destruction, loss or theft of any Note, the Company
shall issue and the Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Note if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them
35
may suffer if a Note is replaced. The Company and the Trustee may charge for its
expenses in replacing a Note.
Every replacement Note issued in accordance with this Section 2.09
is an additional obligation of the Company and shall be entitled to all of the
benefits of this Indenture equally and proportionately with all other Notes duly
issued hereunder.
Section 2.10. Outstanding Notes. The Notes outstanding at any time
are all the Notes authenticated by the Trustee except for those canceled by it,
those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof,
and those described in this Section as not outstanding. Except as set forth in
Section 2.11 hereof, a Note does not cease to be outstanding because the Company
or an Affiliate of the Company holds the Note; however, Notes held by the
Company or a Subsidiary of the Company shall not be deemed to be outstanding for
purposes of Section 3.07(b) hereof.
If a Note is replaced pursuant to Section 2.09 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.11. Treasury Notes. In determining whether the Holders of
the required principal amount of Notes have concurred in any direction, waiver
or consent, Notes owned by the Company, or by any Affiliate of the Company,
shall be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded.
Section 2.12. Temporary Notes. Until certificates representing Notes
are ready for delivery, the Company may prepare and the Trustee, upon receipt of
an Authentication Order, shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of certificated Notes but may have variations
that the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Notes in exchange
for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits
of this Indenture equally and proportionately with all other Notes duly issued
hereunder.
Section 2.13. Cancellation. The Company at any time may deliver
Notes to the Trustee for cancellation. The Registrar and Paying Agent shall
forward to the Trustee any Notes
36
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of
such canceled Notes (subject to the record retention requirement of the Exchange
Act in its customary manner). The Company may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.14. Defaulted Interest. If the Company defaults in a
payment of interest on the Notes, it shall pay the defaulted interest in any
lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in
each case at the rate provided in the Notes and in Section 4.01 hereof. The
Company shall notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Note and the date of the proposed payment. The
Company shall fix or cause to be fixed each such special record date and payment
date; provided that no such special record date shall be less than 10 days prior
to the related payment date for such defaulted interest. At least 15 days before
the special record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company) shall mail
or cause to be mailed to Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
Section 2.15. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
ARTICLE III
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee. If the Company elects to redeem
Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it
shall furnish to the Trustee, at least 60 days before a redemption date (or such
shorter period as allowed by the Trustee), an Officers' Certificate setting
forth (i) the clause of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
Section 3.02. Selection of Notes to Be Redeemed. If less than all of
the Notes are to be redeemed or purchased in an offer to purchase at any time,
the Trustee shall select the Notes to be redeemed or purchased among the Holders
of the Notes in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a pro rata basis, by lot or in accordance with any other
method the Trustee considers fair and appropriate; provided that no Notes of
$1,000 or less shall be redeemed in part. In the event of partial redemption by
lot, the particular Notes to be
37
redeemed shall be selected, unless otherwise provided herein, not less than 30
nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the notice
is issued in connection with a defeasance of the Notes or a satisfaction and
discharge pursuant to Article 10 hereof.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption, except that redemption notices
may be mailed more than 60 days prior to a redemption date if the notice is
issued in connection with a defeasance of the Notes or a satisfaction and
discharge pursuant to Article 10 hereof. Notices of redemption may not be
conditional.
Section 3.03. Notice of Redemption. Subject to the provisions of
Section 3.09 hereof, at least 30 days but not more than 60 days before a
redemption date, the Company shall mail or cause to be mailed, by first class
mail, a notice of redemption to each Holder whose Notes are to be redeemed at
its registered address.
The notice shall identify the Notes (including CUSIP numbers) to be
redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
38
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 60 days prior to the
redemption date (or such shorter period as allowed by the Trustee), an Officers'
Certificate requesting that the Trustee give such notice (in the name and at the
expense of the Company) and setting forth the information to be stated in such
notice as provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption shall become irrevocably due and payable on the redemption date at
the redemption price. A notice of redemption may not be conditional.
Section 3.05. Deposit of Redemption Price. One Business Day prior to
any redemption date, the Company shall deposit with the Trustee or with the
Paying Agent money sufficient to pay the redemption price of and, if applicable,
accrued interest and Additional Interest, if any, on all Notes to be redeemed on
that date. The Trustee or the Paying Agent shall promptly return to the Company
any money deposited with the Trustee or the Paying Agent by the Company in
excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after a Regular Record Date but on or prior to the related Interest
Payment Date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such Regular
Record Date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part. Upon surrender of a Note that
is redeemed in part, the Company shall issue and, upon the Company's written
request, the Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
Section 3.07. Optional Redemption. Except as set forth in clause
(b) of this Section 3.07, the Company shall not have the option to redeem the
Notes pursuant to this Section 3.07 prior to September 1, 2006. On or after
September 1, 2006, the Company may redeem all or part of the Notes 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 and Additional Interest, if any, thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on September 1 of the
years indicated below:
Year Percentage
2006 ...................................................... 102.00%
2007 ...................................................... 101.00%
2008 and thereafter ....................................... 100.00%
39
(a) Notwithstanding the foregoing, at any time prior to September 1,
2006, the Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount of Notes (which includes Additional Notes, if any)
originally issued under this Indenture at a redemption price of 100.00% of the
principal amount thereof, plus a premium equal to the interest rate per annum
applicable on the date on which the notice of redemption is given, plus accrued
and unpaid interest and Additional Interest, if any, to the redemption date,
with the net cash proceeds of one or more Equity Offerings; provided that (i) at
least 65% of the aggregate principal amount of Notes (which includes Additional
Notes, if any) originally issued remains outstanding immediately after the
occurrence of each such redemption (excluding the Notes held by the Company and
its Subsidiaries); and (ii) any such redemption shall occur within 120 days of
the date of the closing of each such Equity Offering.
(b) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
(c) If the optional redemption date is on or after an Regular Record
Date and on or before the related Interest Payment Date, the accrued and unpaid
interest, if any, will be paid to the Person in whose name the Note is
registered at the close of business on such Regular Record Date, and no
additional interest will be payable to Holders whose Notes will be subject to
redemption by the Company.
Section 3.08. Mandatory Redemption. Except as set forth in Sections
4.10 and 4.15, the Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
Section 3.09. Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company shall be
required to commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of at least 20
Business Days following its commencement and not more than 30 Business Days,
except to the extent that a longer period is required by applicable law (the
"Asset Sale Offer Period"). No later than three Business Days after the
termination of the Asset Sale Offer Period (the "Asset Sale Payment Date"), the
Company shall apply all Excess Proceeds to purchase the principal amount of
Notes and other pari passu Indebtedness required to be purchased pursuant to
Section 4.10 hereof (the "Offer Amount") or, if less than the Offer Amount has
been tendered, all Notes and other pari passu Indebtedness tendered in response
to the Asset Sale Offer. Payment for any Notes and other pari passu Indebtedness
so purchased shall be made in the same manner as interest payments are made.
If the Asset Sale Payment Date is on or after an Regular Record Date
and on or before the related Interest Payment Date, any accrued and unpaid
interest and Additional Interest, if any, shall be paid to the Person in whose
name a Note is registered at the close of business on such Regular Record Date,
and no additional interest shall be payable to Holders who tender Notes pursuant
to the Asset Sale Offer.
40
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders. The
notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer
shall be made to all Holders. The notice, which shall govern the terms of the
Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer
shall remain open;
(b) the Offer Amount, the purchase price and the Asset Sale Payment
Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Asset Sale Payment Date;
(e) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer may only elect to have all of such Note purchased and may
not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Asset Sale Payment
Date;
(g) that Holders shall be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Asset Sale Offer Period, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount or less than all of the Notes tendered
pursuant to the Asset Sale Offer are accepted for payment by the Company
for any reason consistent with this Indenture, the Company shall select
the Notes to be purchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Company so that only Notes in
denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).
On or before the Asset Sale Payment Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes and other pari passu Indebtedness or portions thereof
tendered pursuant to the Asset Sale
41
Offer, or if less than the Offer Amount has been tendered or less than all of
the Notes tendered pursuant to the Asset Sale Offer are accepted for payment by
the Company for any reason consistent with this Indenture, all Notes and other
pari passu Indebtedness tendered or accepted, and shall deliver to the Trustee
an Officers' Certificate stating that such Notes and other pari passu
Indebtedness or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than three Business Days after the termination of the Asset Sale Offer Period)
mail or deliver to each tendering Holder an amount equal to the purchase price
of the Notes properly tendered by such Holder and accepted by the Company for
purchase, and the Company shall promptly issue a new Note, and the Trustee, upon
written request from the Company shall promptly authenticate and mail (or cause
to be transferred by book entity) such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered, if any. Any
Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company shall publicly announce the results of the Asset
Sale Offer on the Asset Sale Payment Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
ARTICLE IV
COVENANTS
Section 4.01. Payment of Notes. The Company shall pay or cause to be
paid the principal of, premium, if any, and interest and Additional Interest, if
any, on the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest and Additional Interest, if any, shall
be considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due
date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest and Additional Interest, if any, then due. If the maturity date of the
Notes falls on a day that is not a Business Day, the required payment of
principal, premium, if any, interest and Additional Interest, if any, will be
made on the next succeeding Business Day as if made on the date such payment was
due, and no interest or Additional Interest, if any, will accrue on such payment
for the period from and after the maturity date to the date of such payment on
the next succeeding Business Day.
The Company will pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the then applicable interest rate on the Notes to
the extent lawful; if applicable, it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest, if any, (without regard to any applicable
grace period) at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency. The Company shall
maintain in the Borough of Manhattan, the City of New York, an office or agency
(which may be an office of the Trustee or an affiliate of the Trustee, Registrar
or co-registrar) where Notes may be surrendered for registration of transfer or
for exchange and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such
42
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.05.
Section 4.03. Reports. (a) Whether or not required by the rules and
regulations of the SEC, so long as any Notes are outstanding, the Company shall
furnish to the Holders and the Trustee (i) all quarterly and annual financial
information that would be required to be contained in a filing with the SEC on
Forms 10-Q and 10-K if the Company were required to file such forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of operations of
the Company and its consolidated Subsidiaries and, with respect to the annual
information only, a report on the annual financial statements by the Company's
independent registered public accounting firm and (ii) all current reports that
would be required to be filed with the SEC on Form 8-K if the Company were
required to file such reports, in each case, within the time periods specified
in the SEC's rules and regulations. In addition, following the consummation of
an Exchange Offer, whether or not required by the rules and regulations of the
SEC, the Company shall file a copy of all of the information and reports
referred to in clauses (i) and (ii) with the SEC for public availability within
the time periods specified in the SEC's rules and regulations (unless the SEC
will not accept such a filing) and make such information available to securities
analysts and prospective investors upon request. The Company shall at all times
comply with TIA Section 314(a). The Company intends to file its annual and
quarterly financial information with the SEC in electronic form pursuant to
Regulation S-T of the SEC using the SEC's Electronic Data Gathering, Analysis
and Retrieval ("EDGAR") system. The Company shall notify the Trustee in the
manner prescribed herein of each such annual and quarterly filing. The Trustee
is hereby authorized to access the EDGAR system for purposes of retrieving the
financial information so filed. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to conclusively rely exclusively on Officers' Certificates).
(b) For so long as any Notes remain outstanding, the Company and the
Guarantors shall also furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
43
Section 4.04. Compliance Certificate. The Company shall deliver to
the Trustee, within 90 days after the end of each fiscal year, an Officers'
Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred and is continuing, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action the
Company is taking or proposes to take with respect thereto) and that to the best
of his or her knowledge no event has occurred and remains in existence by reason
of which payments on account of the principal of or interest, if any, on the
Notes is prohibited or if such event has occurred, a description of the event
and what action the Company is taking or proposes to take with respect thereto.
(a) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 shall be accompanied by a written
statement of the Company's independent registered public accounting firm (who
shall be a firm of established national reputation) that in connection with the
audit for certification of such financial statements contained in such reports,
nothing has come to their attention that would lead them to believe that the
Company has failed to comply with any provisions of Article 4 or Article 5
hereof insofar as the provisions relate to accounting matters or, if any such
violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accounting firm shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation.
(b) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
Section 4.05. 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 4.06. Stay, Extension and Usury Laws. The Company 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 the Company (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.
44
Section 4.07. Restricted Payments. The Company shall not, and shall
not permit any of its Restricted Subsidiaries to, directly or indirectly: (i)
declare or pay any dividend or make any other payment or distribution on account
of any Equity Interests of the Company or any of its Restricted Subsidiaries
(including, without limitation, any payment in connection with any merger or
consolidation involving the Company or any of its Restricted Subsidiaries) or to
the direct or indirect holders of any Equity Interests of the Company or any of
its Restricted Subsidiaries in their capacity as such (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of the
Company or to the Company or a Restricted Subsidiary of the Company); (ii)
purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the
Company) any Equity Interests of the Company or any direct or indirect parent of
the Company; (iii) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Notes or the Subsidiary Guarantees, except a payment of
interest or principal at the Stated Maturity thereof; or (iv) make any
Restricted Investment (all such payments and other actions set forth in clauses
(i) through (iv) above being collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after October 10, 2003 (excluding Restricted Payments permitted by
clauses (ii), (iii), (iv) and (vi) of the next succeeding paragraph) is less
than, at the date of determination, the sum, without duplication, of (A) 50% of
the Consolidated Net Income of the Company for the period (taken as one
accounting period) from October 1, 2003 to the end of the Company's most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such deficit), plus (B) 100%
of the aggregate net cash proceeds (or the fair market value of any Permitted
Business or assets used or useful in a Permitted Business to the extent acquired
in consideration of Equity Interests (other than Disqualified Stock) of the
Company) received by the Company since October 10, 2003 as a contribution to its
common equity capital or from the issue or sale of Equity Interests of the
Company (other than Disqualified Stock) or from the issue or sale of convertible
or exchangeable Disqualified Stock or convertible or exchangeable debt
securities of the Company that have been converted into or exchanged for such
Equity Interests (other than Equity Interests (or Disqualified Stock or debt
securities) sold to a Subsidiary of the Company), plus (C) to the extent that
any Restricted Investment that was made after October 10, 2003 is sold for cash
or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of
capital with respect to such Restricted Investment, including without limitation
repayment of principal of any Restricted Investment constituting a loan or
advance (less the cost of disposition,
45
if any) and (ii) the initial amount of such Restricted Investment, plus (D) to
the extent that any Unrestricted Subsidiary of the Company is redesignated as a
Restricted Subsidiary after October 10, 2003, the lesser of (i) the fair market
value of the Company's Investment in such Subsidiary as of the date of such
redesignation or (ii) the aggregate fair market value of the Company's
Investment in such Subsidiary as of the date on which such Subsidiary was
originally designated as an Unrestricted Subsidiary and all Investments made by
the Company or any Restricted Subsidiary in such Unrestricted Subsidiary that
were treated as Restricted Payments since such designation, in each case as of
the date of such Investment.
The preceding provisions shall not prohibit: (i) the payment of any
dividend or distribution within 60 days after the date of declaration of the
dividend or distribution, if at the date of declaration the dividend payment or
distribution within 60 days would have complied with the provisions of this
Indenture; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of the Company or any Guarantor or
of any Equity Interests of the Company or any of its Restricted Subsidiaries in
exchange for, or out of the net cash proceeds of the substantially concurrent
sale (other than to a Subsidiary of the Company) of, Equity Interests of the
Company (other than Disqualified Stock); provided that the amount of any such
net cash proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition shall be excluded from clause (c)(B)
of the preceding paragraph; (iii) the defeasance, redemption, repurchase or
other acquisition of subordinated Indebtedness or Disqualified Stock of the
Company or any Guarantor with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness; (iv) the payment of any dividend or
distribution by a Restricted Subsidiary of the Company to the holders of its
Equity Interests on a pro rata basis; (v) so long as no Default has occurred and
is continuing or would be caused thereby, the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of the Company or
any Restricted Subsidiary of the Company held by any existing or former employee
of the Company (or any of its Restricted Subsidiaries) pursuant to any equity
subscription agreement, stock option agreement or similar agreement; provided
that the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests may not exceed $2.0 million in any twelve-month period;
(vi) so long as no Default has occurred and is continuing or would be caused
thereby, the declaration and payment of dividends to holders of any class or
series of Disqualified Stock of the Company issued in accordance with the terms
of this Indenture to the extent such dividends are included in the definition of
"Fixed Charges"; (vii) the acquisition of Equity Interests by the Company in
connection with the exercise of stock options or stock appreciation rights by
way of cashless exercise or in connection with the satisfaction of withholding
tax obligations; and (viii) so long as no Default has occurred and is continuing
or would be caused thereby, other Restricted Payments in an aggregate amount
since the Issue Date not to exceed $20.0 million.
The amount of all Restricted Payments (other than cash) will be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any assets or securities that are required to be valued
by this covenant will be determined in good faith by the Board of Directors,
whose resolution with respect thereto will be delivered to the Trustee. The
Board of Directors' determination must be based upon an opinion or appraisal
issued by an accounting, appraisal or investment banking firm of national
standing if the fair market value exceeds $10.0 million. Not
46
later than the date of making any Restricted Payment, the Company will deliver
to the Trustee an Officers' Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
this "Restricted Payments" covenant were computed, together with a copy of any
fairness opinion or appraisal required by this Indenture.
The Board of Directors may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if that designation would not cause a Default. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate
fair market value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Subsidiary properly designated will be deemed to
be an Investment made as of the time of the designation and will reduce the
amount available for Restricted Payments under the first or second paragraph of
this Section 4.07, as determined by the Company. That designation will only be
permitted if the Investment would be permitted at that time and if the
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary
to be a Restricted Subsidiary if the redesignation would not cause a Default.
Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries. The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (i)(a) pay dividends or make any other distributions on
its Capital Stock to the Company or any of its Restricted Subsidiaries, or with
respect to any other interest or participation in, or measured by, its profits,
or (b) pay any Indebtedness owed to the Company or any of its Restricted
Subsidiaries, (ii) make loans or advances to the Company or any of its
Restricted Subsidiaries or (iii) transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries. However, the preceding
restrictions will not apply to encumbrances or restrictions existing under or by
reason of (1) agreements governing Existing Indebtedness and Credit Facilities
as in effect on the Issue Date and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of
those agreements, provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings are
no more restrictive, taken as a whole, with respect to such dividend and other
payment restrictions than those contained in those agreements on the Issue Date;
(2) This Indenture, the Notes and the Subsidiary Guarantees; (3) applicable law
or any applicable rule, regulation or order of any court or governmental
authority; (4) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such Indebtedness
or Capital Stock was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired; provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Indenture to
be incurred; (5) customary non-assignment provisions in any contract or lease
entered into in the ordinary course of business and consistent with past
practices; (6) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions on that property of the nature
described in clause (iii) of this Section 4.08; (7) any agreement for the sale
or other disposition of a Restricted Subsidiary that restricts distributions by
that Restricted Subsidiary pending its sale or other disposition; (8) Permitted
Refinancing Indebtedness; provided that the
47
encumbrances or restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are no more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness being
refinanced; (9) Liens securing Indebtedness otherwise permitted to be incurred
under the provisions of Section 4.12 hereof that limit the right of the debtor
to dispose of the assets subject to such Liens; (10) provisions with respect to
the disposition or distribution of assets or property in joint venture
agreements, asset sale agreements, stock sale agreements and other similar
agreements entered into in the ordinary course of business; (11) restrictions on
cash or other deposits or net worth imposed by customers under contracts entered
into in the ordinary course of business; and (12) secured Indebtedness otherwise
permitted to be incurred pursuant to the provisions of Section 4.12 hereof that
limit the right of the debtor to dispose of the assets securing the
Indebtedness.
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred
Stock. The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt), and the Company shall not issue any Disqualified Stock and shall not
permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided, however, that the Company and any Restricted Subsidiary may
incur Indebtedness (including Acquired Debt) and the Company may issue
Disqualified Stock, if the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock is issued would have been at
least 2.0 to 1, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been incurred or Disqualified Stock had been issued, as the case may be, at
the beginning of such four quarter period.
The first paragraph of this covenant will not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Company and any Restricted Subsidiary of
Indebtedness and letters of credit under one or more Credit Facilities in
an aggregate principal amount at any one time outstanding under this
clause (i) (with letters of credit being deemed to have a principal amount
equal to the maximum potential liability of the Company and its
Subsidiaries thereunder) not to exceed $175.0 million;
(ii) the incurrence by the Company and its Restricted Subsidiaries
of Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Notes issued on the Issue Date and the
Exchange Notes, including, in each case, the related Subsidiary Guarantees
to be issued pursuant to the registration rights agreement and Subsidiary
Guarantees of any additional Notes that may be issued in the future in
accordance with this covenant;
(iv) the incurrence by the Company and any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case, incurred
for the purpose of financing all or any part of
48
the purchase price or cost of construction or improvement of property,
plant or equipment used in the business of the Company or such Restricted
Subsidiary, in an aggregate principal amount, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (iv), not to exceed $5.0
million at any time outstanding;
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace
Indebtedness (other than intercompany Indebtedness) that was permitted by
this Indenture to be incurred under the first paragraph of this covenant
or clauses (ii), (iii), (v) or (xiv) of this paragraph;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries; provided that: (a) if the Company or
any Guarantor is the obligor on such Indebtedness, such Indebtedness must
be expressly subordinated to the prior payment in full in cash of all
Obligations with respect to the Notes, in the case of the Company, or the
Subsidiary Guarantee, in the case of a Guarantor; and (b) any subsequent
issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted
Subsidiary of the Company will be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or a Restricted Subsidiary,
as the case may be, that was not permitted by this clause (vi);
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations in the normal course of business and
not for speculative purposes, designed to protect the Company or its
Restricted Subsidiary against fluctuations in interest rates or currency
exchange rates with respect to Indebtedness incurred or against
fluctuations in the price of commodities used by that entity at the time;
(viii) the Guarantee by the Company or any of the Guarantors of
Indebtedness of the Company or any Restricted Subsidiary that was
permitted to be incurred by another provision of this covenant; provided
that in the event the Indebtedness that is being Guaranteed is
subordinated in right of payment to the Notes or a Subsidiary Guarantee,
then the Guarantee of that Indebtedness by the Company or the Guarantor
shall be subordinated in right of payment to the Notes or the Guarantor's
Subsidiary Guarantee, as the case may be;
(ix) the accrual of interest, the accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in
the form of additional Indebtedness with the same terms, and the payment
of dividends on Disqualified Stock in the form of additional shares of the
same class of Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this
covenant; provided, in each such case, that the amount thereof is included
in Fixed Charges of the Company as accrued;
49
(x) the incurrence by the Company's Unrestricted Subsidiaries of
Non-Recourse Debt; provided that if any such Indebtedness ceases to be
Non-Recourse Debt of an Unrestricted Subsidiary, such event will be deemed
to constitute an incurrence of Indebtedness by a Restricted Subsidiary of
the Company that was not permitted by this clause (x);
(xi) Indebtedness incurred in respect of workers' compensation
claims, self-insurance obligations, bid, performance, surety and similar
bonds and completion guarantees provided by the Company or a Restricted
Subsidiary in the ordinary course of business;
(xii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument (except in
the case of daylight overdrafts) drawn against insufficient funds in the
ordinary course of business; provided that such Indebtedness is
extinguished within five Business Days of incurrence;
(xiii) Indebtedness represented by agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of
purchase price or similar obligations, in each case, incurred or assumed
in connection with the disposition of any business, assets or Capital
Stock of the Company or any Restricted Subsidiary; provided that the
maximum aggregate liability in respect of all such Indebtedness shall at
no time exceed the gross proceeds actually received by the Company and its
Restricted Subsidiaries in connection with such disposition;
(xiv) Indebtedness of a Restricted Subsidiary incurred and
outstanding on the date on which such Restricted Subsidiary was acquired
by the Company (other than Indebtedness incurred in connection with, or in
contemplation of, such acquisition); provided that at the time such
Restricted Subsidiary is acquired by the Company, the Company would have
been able to incur $1.00 of additional Indebtedness pursuant to the first
paragraph of this covenant after giving effect to the incurrence of such
Indebtedness pursuant to this clause (xiv); and
(xv) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause (xv), not to
exceed $30.0 million.
For purposes of determining compliance with this Section 4.09, in
the event that an item of Indebtedness (including Acquired Debt) at any time
meets the criteria of more than one of the categories of Permitted Debt
described in clauses (i) through (xv) above or is entitled to be incurred
pursuant to the first paragraph of this Section 4.09, the Company will be
permitted to classify (and later reclassify) in whole or in part, in its sole
discretion such item of Indebtedness in any manner that complies with this
Section 4.09.
For purposes of determining compliance with any U.S.
dollar-denominated restriction on the incurrence of Indebtedness, the U.S.
dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency will be calculated based on the relevant
50
currency exchange rate in effect on the date such Indebtedness was incurred, in
the case of term Indebtedness, or first committed, in the case of revolving
credit Indebtedness; provided that if such Indebtedness is incurred to refinance
other Indebtedness denominated in the same foreign currency, and such
refinancing would cause the applicable U.S. dollar-denominated restriction to be
exceeded if calculated at the relevant currency exchange rate in effect on the
date of such refinancing, the U.S. dollar-denominated restriction will be deemed
not to have been exceeded so long as the principal amount of the refinancing
Indebtedness does not exceed the principal amount of the Indebtedness being
refinanced. Notwithstanding any other provision of this Section 4.09, the
maximum amount of Indebtedness that the Company may incur pursuant to this
covenant will not be deemed to be exceeded solely as a result of fluctuations in
the exchange rate of currencies.
Section 4.10. Asset Sales. The Company shall not, and shall not
permit any of its Restricted Subsidiaries to consummate an Asset Sale unless (i)
the Company (or the Restricted 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 assets or Equity Interests issued or sold or otherwise disposed of;
(ii) the fair market value is determined by (a) an executive officer of the
Company if the value is less than $10.0 million and evidenced by an officer's
certificate delivered to the Trustee or (b) the Company's Board of Directors if
the value is $10.0 million or more and evidenced by a resolution of such Board
of Directors delivered to the Trustee; and (iii) at least 75% of the
consideration received in the Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash or Cash Equivalents or any combination
thereof. For purposes of this Section 4.10 each of the following shall be deemed
to be cash: (a) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet) of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by
the transferee of any such assets pursuant to a customary novation agreement
that releases the Company or such Restricted Subsidiary from further liability
and (b) any securities, notes or other obligations received by the Company or
such Restricted Subsidiary from such transferee that are converted by the
Company or such Restricted Subsidiary into cash or Cash Equivalents within 180
days following the closing of such Asset Sale, to the extent of the cash or Cash
Equivalents received in that conversion.
Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply such Net Proceeds at its option (i) to repay,
repurchase, redeem, defease or otherwise acquire or retire Senior Debt of the
Company or any Indebtedness of a Restricted Subsidiary; (ii) to acquire all or
substantially all of the assets of, or a majority of the Voting Stock of,
another Permitted Business; (iii) to make a capital expenditure in a Permitted
Business; or (iv) to acquire other long-term assets that are used or useful in a
Permitted Business. Pending the final application of any such Net Proceeds, the
Company may temporarily reduce revolving credit borrowings or otherwise invest
such Net Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested
as provided in the preceding paragraph will constitute "Excess Proceeds." When
the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company will
be required to make an offer (an "Asset Sale Offer") to all Holders and to the
extent required, to all holders of other Indebtedness
51
of the Company that is pari passu with the Notes containing provisions similar
to those set forth in this Indenture with respect to offers to purchase or
redeem with the proceeds of sales of assets, to purchase the maximum principal
amount of Notes (in integral multiples of $1,000) and such other pari passu
Indebtedness of the Company that may be purchased out of the Excess Proceeds.
The offer price in any Asset Sale Offer will be equal to 100% of the principal
amount of Notes and other pari passu Indebtedness to be purchased or the lesser
amount required under agreements governing such other pari passu Indebtedness,
plus accrued and unpaid interest and Additional Interest, if any, to the date of
purchase, and will be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Excess Proceeds
for any purpose not otherwise prohibited by this Indenture. If the aggregate
principal amount of Notes and other pari passu Indebtedness tendered into such
Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select
the Notes and such other pari passu Indebtedness to be purchased on a pro rata
basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds
will be reset at zero.
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 Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with provisions of
this covenant, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under this
covenant by virtue of such conflict.
Section 4.11. Transactions with Affiliates. The Company shall not,
and shall not permit any of its Restricted Subsidiaries to, make any payment to,
or sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate (each, an "Affiliate Transaction"),
unless (i) such Affiliate Transaction is on terms that are no less favorable to
the Company or the relevant Restricted Subsidiary than those that would have
been obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) the Company delivers to the Trustee
(a) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, a
resolution of the Board of Directors of the Company set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with this
Section 4.11 and that such Affiliate Transaction has been approved by a majority
of the disinterested members of the Board of Directors of the Company and (b)
with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $20.0 million, an
opinion issued by an accounting, appraisal or investment banking firm of
national standing as to the fairness to the Holders of such Affiliate
Transaction from a financial point of view or that the terms of the Affiliate
Transaction are no less favorable to the Company or the relevant Restricted
Subsidiary than terms that would have been obtained in a comparable transaction
with an unrelated person or entity. Notwithstanding the foregoing, the following
items shall not be deemed to be Affiliate Transactions: (i) any employment
agreement entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business and consistent with past practices, (ii)
transactions between or among the Company and/or its Restricted Subsidiaries,
(iii) transactions with a Person that is an Affiliate of the Company solely
because the Company owns an Equity
52
Interest in, or controls, such Person; (iv) payment of reasonable directors fees
to Persons who are not otherwise Affiliates of the Company (v) sales of Equity
Interests (other than Disqualified Stock) to Affiliates of the Company, (vi)
Restricted Payments that are permitted by Section 4.07 hereof, (vii) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements or stock
option or stock ownership plans approved by the Board of Directors, (viii) loans
or advances to employees in the ordinary course of business and consistent with
past practices, but in any event not to exceed $2.0 million in the aggregate
outstanding at any one time, (ix) indemnification agreements with, and payments
made, to officers, directors and employees of the Company or any of its
Restricted Subsidiaries pursuant to charter, bylaw, statutory or contractual
provisions, and (x) the performance of obligations of the Company or any of its
Restricted Subsidiaries under the terms of any agreement to which the Company or
any of its Restricted Subsidiaries is a party as of or on the Issue Date, and
any amendments, modifications, supplements, extensions or renewals of those
agreements; provided that the amendments, modifications, supplements, extensions
or renewals are no more disadvantageous, taken as a whole, to the Holders of the
Notes than the terms of the agreements in effect on the Issue Date.
Section 4.12. Liens. The Company shall not, and shall not permit any
of its Restricted Subsidiaries to, create, incur, assume or otherwise cause or
suffer to exist or become effective any Lien of any kind (other than Permitted
Liens) securing Indebtedness, Attributable Debt or trade payables upon any of
their property or assets, now owned or hereafter acquired, or any income or
profits therefrom or assign or convey any right to receive income therefrom,
unless all payments due under this Indenture and the Notes are secured on an
equal and ratable basis (or on a senior basis to, in the case of obligations
subordinated in right of payment to the Notes or Subsidiary Guarantee, as the
case may be) with the obligations so secured until such time as such obligations
are no longer secured by a Lien.
Section 4.13. Line of Business. The Company shall not, and shall not
permit any Restricted Subsidiary to, engage in any business other than Permitted
Businesses, except to such extent as would not be material to the Company and
its Subsidiaries taken as a whole.
Section 4.14. Corporate Existence. Subject to Article 5 hereof, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in accordance with
the respective organizational documents (as the same may be amended from time to
time) of the Company or any such Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Subsidiaries;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any of its Subsidiaries, if the Board of Directors of the Company or such
Subsidiary, as applicable, shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Notes.
Section 4.15. Offer to Repurchase Upon Change of Control. (a) Upon
the occurrence of a Change of Control, the Company shall make an offer (a
"Change of Control Offer") to each Holder of Notes to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes at an
offer price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Additional Interest, if any,
53
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 each
Holder stating: (1) that the Change of Control Offer is being made pursuant to
this Section 4.15 and that all Notes tendered will be accepted for payment; (2)
the purchase price and the purchase date, which shall be no earlier than 30 days
and no later than 60 days from the date such notice is mailed (the "Change of
Control Payment Date"); (3) that any Note not tendered will 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 after the Change of Control Payment
Date; (5) that Holders electing to have any Notes purchased pursuant to a Change
of Control Offer will 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 third Business Day preceding the Change of Control Payment Date;
(6) that Holders will 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 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 will 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. 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 Notes as a
result of a Change of Control.
(a) On the Change of Control Payment Date, the Company will, to the
extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) 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 (3) 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 will promptly mail to each Holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee will 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 will be in a principal
amount of $1,000 or an integral multiple thereof. The Company will publicly
announce the results of the Change of Control Offer on or as soon as practicable
after the Change of Control Payment Date.
If the Change of Control Payment Date is on or after an Regular
Record Date and on or before the related Interest Payment Date, any accrued and
unpaid interest will be paid to the Person in whose name a Note is registered at
the close of business on such Regular Record Date, and no additional interest
will be payable to Holders who tender in the Change of Control Offer.
The Company shall fix the Change of Control Payment Date no earlier
than 30 days and no later than 60 days after the Change of Control Offer is
mailed as set forth above. Prior to complying with the provisions of the
preceding sentence, but in any event within 90 days
54
following a Change of Control, the Company shall either repay all of its and its
Subsidiaries' outstanding Indebtedness or obtain the requisite consents, if any,
under all agreements governing all such outstanding Indebtedness to the extent
necessary to permit the repurchase of Notes required by this Section 4.15.
Notwithstanding the foregoing, 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 4.15 and purchases
all Notes validly tendered and not withdrawn under such Change of Control Offer.
To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.15, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.15, by virtue
thereof.
Section 4.16. Limitation on Sale and Leaseback Transactions. The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
enter into any sale and leaseback transaction; provided that the Company or any
Restricted Subsidiary may enter into a sale and leaseback transaction if (i) the
Company or that Restricted Subsidiary, as applicable, could have (a) incurred
Indebtedness in an amount equal to the Attributable Debt relating to such sale
and leaseback transaction pursuant to Section 4.09 hereof and (b) incurred a
Lien to secure such Indebtedness pursuant to Section 4.12 hereof, (ii) the gross
cash proceeds of such sale and leaseback transaction are at least equal to the
fair market value (as determined in good faith by the Board of Directors and set
forth in an Officers' Certificate delivered to the Trustee) of the property that
is the subject of such sale and leaseback transaction and (iii) the transfer of
assets in such sale and leaseback transaction is permitted by, and the Company
or such Restricted Subsidiary applies the proceeds of such transaction in
compliance with, Section 4.10 hereof.
Section 4.17. Payments for Consent. The Company shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly, pay or cause to
be paid any consideration, to or for the benefit of any Holder of Notes for or
as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid and is paid to all Holders of the Notes that consent, waive or agree
to amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.
ARTICLE V
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets. The Company
shall not, directly or indirectly consolidate or merge with or into another
Person (whether or not the Company is the surviving corporation) or sell,
assign, transfer, convey or otherwise dispose of all or substantially all of the
properties or assets of the Company and its Restricted Subsidiaries taken as a
whole, in one or more related transactions, to another Person unless (i) either
(a) the Company is the surviving corporation; or (b) the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, conveyance or other disposition has been
made is a corporation organized or existing under the
55
laws of the United States, any state of the United States or the District of
Columbia; (ii) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all the
obligations of the Company under the Notes, this Indenture and the Registration
Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default exists; and (iv) immediately
after such transaction after giving pro forma effect thereto and any related
financing transactions as if the same had occurred at the beginning of the
applicable four-quarter period, either the Company or the Person formed by or
surviving any such consolidation or merger (if other than the Company), or to
which such sale, assignment, transfer, conveyance or other disposition has been
made would be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof or the Fixed Charge Coverage Ratio of the
Company or the surviving Person, as applicable, or of the Person to which such
sale, assignment, transfer, conveyance or other disposition has been made, would
not be less than the Fixed Charge Coverage Ratio of the Company immediately
prior to the transaction.
In addition, the Company may not, directly or indirectly, lease all
or substantially all of its properties or assets, in one or more related
transactions, to any other Person.
Notwithstanding the preceding clause (iv), (a) any Restricted
Subsidiary of the Company may consolidate with, merge into or sell, assign,
transfer or convey all or part of its properties and assets to the Company and
(b) the Company may merge with an Affiliate that has no significant assets or
liabilities and was formed solely for the purpose of changing the jurisdiction
of organization of the Company to another state of the United States so long as
the amount of the Company's Indebtedness and the Indebtedness of the Restricted
Subsidiaries is not increased thereby.
Section 5.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01 hereof, the Person formed by such consolidation or
into or with which the Company is merged or to which such sale, assignment,
transfer, lease, conveyance or other disposition is made shall succeed to, and
be substituted for (so that from and after the date of such consolidation,
merger, sale, lease, conveyance or other disposition, the provisions of this
Indenture referring to the "Company" shall refer instead to such Person and not
to the Company), and may exercise every right and power of the Company under
this Indenture with the same effect as if such Person had been named as the
Company herein; provided, however, that the Company shall not be relieved from
the obligation to pay the principal of and interest on the Notes except in the
case of a sale of all of the Company's assets that meets the requirements of
Section 5.01 hereof.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01. Events of Default. Each of the following is an "Event
of Default":
(a) default for 30 days in the payment when due of interest on, or
Additional Interest with respect to, the Notes;
56
(b) default in payment when due of the principal of, or premium, if
any, on the Notes;
(c) failure by the Company or any of its Restricted Subsidiaries to
comply with the provisions of Section 4.15 or Section 5.01 hereof;
(d) failure by the Company or any of its Restricted Subsidiaries for
30 days after notice to comply with the provisions of Sections 4.07, 4.09 or
4.10 hereof;
(e) failure by the Company or any of its Restricted Subsidiaries for
60 days after notice to comply with any of the other agreements in this
Indenture;
(f) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries) whether such Indebtedness or guarantee now exists, or
is created after the Issue Date, if that default (i) is caused by a failure to
pay principal of, or interest or premium, if any, on such Indebtedness prior to
the expiration of the grace period provided in such Indebtedness on the date of
such default (a "Payment Default"); or (ii) results in the acceleration of such
Indebtedness prior to its Stated Maturity, and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $15.0 million or more;
(g) failure by the Company or any of its Subsidiaries to pay final
judgments aggregating in excess of $15.0 million, which judgments are not paid,
discharged or stayed for a period of 60 days;
(h) except as permitted by this Indenture, any Subsidiary Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid or shall
cease for any reason (other than in accordance with the terms of that Guarantee
and this Indenture) to be in full force and effect or any Guarantor, or any
Person acting on behalf of any Guarantor, shall deny or disaffirm its
obligations under its Subsidiary Guarantee; and
(i) the Company, pursuant to or within the meaning of Bankruptcy
Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of any receiver, trustee,
assignee, liquidator, sequestrator, custodian or similar
official of the Company under any Bankruptcy Law or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors,
(v) generally is not paying its debts as they become due, or
57
(j) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief in an involuntary case against the Company
or any Restricted Subsidiary that constitutes a
Significant Subsidiary or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary;
(ii) appoints any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official of the
Company under any Bankruptcy Law or any Restricted
Subsidiary that constitutes a Significant Subsidiary or
any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary, for
all or substantially all of the property of the Company
or any such Restricted Subsidiary; or
(iii) orders the liquidation of the Company or any Restricted
Subsidiary that constitutes a Significant Subsidiary or
any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
Section 6.02. Acceleration. If any Event of Default (other than an
Event of Default specified in clause (i) or (j) of Section 6.01 hereof) with
respect to the Company occurs and is continuing, either 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. Upon any such
declaration, the Notes shall become due and payable immediately. Notwithstanding
the foregoing, if an Event of Default specified in clause (i) or (j) of Section
6.01 hereof occurs with respect to the Company all outstanding Notes shall
become due and payable without further action or notice. The Holders of a
majority in aggregate principal amount of the then outstanding Notes by notice
to the Trustee may on behalf of all of the Holders rescind an acceleration and
its consequences, if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived.
Section 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal, premium and Additional Interest, if any, and interest on the Notes
or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults. Holders of not less than a
majority in aggregate principal amount of the then outstanding Notes by notice
to the Trustee may on behalf
58
of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium and Additional Interest, if
any, or interest on, the Notes (including in connection with an offer to
purchase) (provided, however, that the Holders of a majority in aggregate
principal amount of the then outstanding Notes may rescind an acceleration and
its consequences, including any related payment default that resulted from such
acceleration). Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 6.05. Control by Majority. Holders of a majority in
principal amount of the then outstanding Notes may direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of other
Holders or that may involve the Trustee in personal liability.
Section 6.06. Limitation on Suits. A Holder of a Note may pursue a
remedy with respect to this Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
Section 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium and Additional Interest, if any, and
interest on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(a) or (b) hereof occurs and is continuing, the Trustee
is authorized to recover
59
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal of, premium on and Additional Interest, if
any, and interest remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim. The Trustee is
authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Holders of the Notes allowed in any
judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities. If the Trustee collects any money pursuant
to this Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct in writing.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 6.10.
60
Section 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
ARTICLE VII
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions which by
any provision hereof are specifically required to be furnished to the
Trustee to determine whether or not they substantially conform to the
requirements of this Indenture but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
61
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02. Rights of Trustee. The Trustee may conclusively rely
upon any document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in such document.
(a) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(b) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent or attorney
appointed with due care.
(c) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(d) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against the costs, expenses
and liabilities that might be incurred by it in compliance with such request or
direction.
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice,
62
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney at the sole cost of the
Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.
(g) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
(i) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
(j) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specific actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificates.
Section 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or any Affiliate of the Company with the
same rights it would have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest it must eliminate such conflict within
90 days, apply to the SEC for permission to continue as trustee or resign. Any
Agent may do the same with like rights and duties. The Trustee is also subject
to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes or any money paid to the Company or upon the
Company's direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying Agent
other than the Trustee, and it shall not be responsible for any statement or
recital herein or any statement in the Notes or any other document in connection
with the sale of the Notes or pursuant to this Indenture other than its
certificate of authentication.
Section 7.05. Notice of Defaults. If a Default or Event of Default
occurs and is continuing and if it is actually known to a Responsible Officer of
the Trustee, the Trustee shall mail to Holders a notice of the Default or Event
of Default within 90 days after it occurs. Except in the case of a Default or
Event of Default in payment of principal of, premium on, or Additional Interest,
if any, or interest on any Note, the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
63
Section 7.06. Reports by Trustee to Holders of the Notes. Within 60
days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail
to the Holders of the Notes a brief report dated as of such reporting date that
complies with TIA Section 313(a) (but if no event described in TIA Section
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA Section
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders
shall be mailed to the Company and filed with the SEC and each stock exchange on
which the Notes are listed, if any, in accordance with TIA Section 313(d). The
Company shall promptly notify the Trustee if the Notes are listed on any stock
exchange or delisted therefrom.
Section 7.07. Compensation and Indemnity. The Company shall pay to
the Trustee from time to time such compensation as the Company and the Trustee
shall from time to time agree in writing for its acceptance of this Indenture
and services hereunder. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation for
its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee or any predecessor
Trustee and their agents for, and hold them harmless against any and all losses,
liabilities, damages, claims or expenses including reasonable attorneys' fees
and expenses and taxes (other than taxes based upon, measured by or determined
by the income of the Trustee) incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture,
including the costs and expenses of enforcing this Indenture against the Company
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense shall have
been caused by its own negligence or bad faith. The Trustee shall notify the
Company promptly of any claim of which a Responsible Officer receives written
notice for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture and the resignation or removal
of the Trustee.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
64
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(i) or (j) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee. A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of a majority
in principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a receiver, trustee, assignee, liquidator, sequestrator,
custodian or similar officer of the Company under any Bankruptcy Law or public
officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee (at the expense of
the Company), the Company, or the Holders of at least 10% in principal amount of
the then outstanding Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who
has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
65
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, etc. If the Trustee
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification. There shall at all
times be a Trustee hereunder that is a corporation, bank or banking association
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b). In determining whether the Trustee has a conflicting
interest as defined in Section 310(b) of the TIA with respect to this Indenture
or the Notes, the following shall be deemed to be specifically described in this
Indenture for purposes of clause (i) of the first proviso contained in Section
310(b)(1) of the TIA: (1) the indenture, dated as of May 2, 2002, by and among
the Company, the subsidiary guarantors named therein, and the Trustee, as
trustee, and (2) the indenture, dated as of October 10, 2003, by and among the
Company, the subsidiary guarantors named therein, and the Trustee, as trustee.
Section 7.11. Preferential Collection of Claims Against Company. The
Trustee is subject to TIA Section 311(a), excluding any creditor relationship
listed in TIA Section 311(b). A Trustee who has resigned or been removed shall
be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance. The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge. Upon the Company's
exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company and each of the Guarantors shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from their obligations with respect to all outstanding Notes
(including the Guarantees) on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance
means that the Company and the Guarantors shall be deemed to have paid and
discharged the entire Indebtedness represented by
66
the outstanding Notes (including the Guarantees), which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in (a) through (d) below, and to
have satisfied all their other obligations under such Notes, the Guarantees and
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, Additional Interest, if any, and interest on such Notes when such payments
are due, (b) the Company's obligations with respect to such Notes under Article
2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and the Company's obligations in connection therewith
and (d) this Article 8. Subject to compliance with this Article 8, the Company
may exercise its option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance. Upon the Company's exercise under
Section 8.01 hereof of the option applicable to this Section 8.03, the Company
and the Guarantors shall, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, be released from each of their obligations under
the covenants contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13,
4.15, 4.16 and 4.17 hereof, clause (iv) of Section 5.01 hereof and Article XI
hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and Guarantees, the Company and any Guarantor may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes and Gurantees shall be unaffected
thereby. In addition, upon the Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.03 hereof, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, Sections 6.01(d) through
6.01(f) hereof shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance. The
following shall be the conditions to the application of either Section 8.02 or
8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of an independent registered public accounting firm,
to pay the principal of, premium, if any, Additional Interest, if
67
any, and interest on the outstanding Notes on the Stated Maturity or on the
applicable redemption date, as the case may be, and the Company must specify
whether the Notes are being defeased to maturity or to a particular redemption
date;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the Issue Date,
there has been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States confirming that the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing, either (x) on the date of such deposit (other than a Default or
Event of Default resulting from the borrowing of funds to be applied to such
deposit); or (y) insofar as Sections 6.01(g) or 6.01(h) hereof is concerned, at
any time in the period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture) to which the Company or any of its
Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel (which may be subject to customary exceptions) to the effect that after
the 91st day following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over the other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company or others; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions. Subject to Section 8.06 hereof, all
money and non-callable Government Securities (including the proceeds thereof)
deposited with the Trustee (or other
68
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium on , if any, Additional
Interest, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the written
request of the Company any money or non-callable Government Securities held by
it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized independent registered public accounting firm expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Company. Any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of, premium on, if any, Additional Interest, if any, or
interest on any Note and remaining unclaimed for two years after such principal,
and premium, if any, or interest or Additional Interest, if any, has become due
and payable shall be paid to the Company on its written request or (if then held
by the Company) shall be discharged from such trust; and the Holder of such Note
shall thereafter, as an unsecured creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 8.07. Reinstatement. If the Trustee or Paying Agent is
unable to apply any United States dollars or non-callable Government Securities
in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium on, if
any, Additional Interest, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
69
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders. Notwithstanding Section
9.02 of this Indenture, the Company, the Guarantors and the Trustee may amend or
supplement this Indenture or the Notes without the consent of any Holder of a
Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(c) to provide for the assumption of the Company's obligations to
the Holders of the Notes in the case of a merger or consolidation or sale of all
or substantially all of the Company's assets pursuant to Article 5 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights hereunder of any Holder of the Note;
(e) to provide for the issuance of Additional Notes pursuant to
Section 2.01 hereof;
(f) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(g) to add any Restricted Subsidiary as an additional Guarantor as
provided in Section 11.05 hereof or to evidence the succession of another Person
to any Guarantor pursuant to Section 11.03 hereof and the assumption by any such
successor of the covenants and agreements of such Guarantor contained herein and
in the Subsidiary Guarantee of such Guarantor; or
(h) to release a Guarantor from its obligations under this Indenture
and its Subsidiary Guarantee pursuant to Section 11.05.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company and the Guarantors in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that adversely
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02. With Consent of Holders.
Except as provided below in this Section 9.02, the Company and the
Guarantors and the Trustee may amend or supplement this Indenture (including
Sections 3.09, 4.10 and 4.15 hereof) and the Notes with the consent of the
Holders of at least a majority in principal amount
70
of the Notes then outstanding (including, without limitation, consents obtained
in connection with a purchase of, or tender offer or exchange offer for, the
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, Additional Interest, if any, or interest on the
Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this 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 (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, the Notes). Section 2.10 hereof shall determine which Notes are considered
to be "outstanding" for purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company and the Guarantors in the execution of such amended or
supplemental Indenture unless such amended or supplemental Indenture directly
adversely affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amended or supplemental Indenture
or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority
in aggregate principal amount of the Notes then outstanding may waive compliance
in a particular instance by the Company with any provision of this Indenture or
the Notes. However, without the consent of each Holder affected, an amendment or
waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter any of the provisions with respect to the redemption of the Notes
except as provided above with respect to Sections 3.09, 4.10 and 4.15 hereof;
(c) reduce the rate of or change the time for payment of interest on
any Note;
(d) waive a Default or Event of Default in the payment of principal
of, or interest or premium, if any, Additional Interest, if any, on the Notes
(except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes and a
waiver of the payment default that resulted from such acceleration);
71
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders to receive payments of
principal of or premium, if any, Additional Interest, if any, or interest on the
Notes;
(g) waive a redemption payment with respect to any Note (other than
a payment required by Sections 3.09, 4.10 or 4.15 hereof);
(h) make any change in the ranking or priority of any Note that
would adversely affect the Holder;
(i) release any Guarantor from any of its obligations under its
Subsidiary Guarantee or this Indenture, except in accordance with the terms of
this Indenture; or
(j) make any change in the foregoing amendment and waiver
provisions.
Section 9.03. Compliance with Trust Indenture Act. Every amendment
or supplement to this Indenture or the Notes shall be set forth in an amended or
supplemental indenture that complies with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder of a Note is
a continuing consent by the Holder of a Note and every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. However,
any such Holder of a Note or subsequent Holder of a Note may revoke the consent
as to its Note if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes. The Trustee may
place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue
and the Trustee shall, upon receipt of an Authentication Order, authenticate new
Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. Trustee to Sign Amendments, etc. The Trustee shall
sign any amended or supplemental Indenture authorized pursuant to this Article 9
if the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company may not sign an amendment
or supplemental Indenture until the Board of Directors of the Company approves
it. In executing any amended or supplemental indenture, the Trustee shall be
entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon an Officer's Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
72
ARTICLE X
SATISFACTION AND DISCHARGE
Section 10.01. Satisfaction and Discharge
This Indenture will be discharged and will cease to be of further
effect, except as to surviving rights of registration of transfer or exchange of
the Notes, as to all Notes issued hereunder, when:
(a) either:
(i) all Notes that have been authenticated (except lost, stolen or
destroyed Notes that have been replaced or paid and Notes for whose
payment money has been deposited in trust and is thereafter repaid to the
Company) have been delivered to the Trustee for cancellation; or
(ii) all Notes that have not been delivered to the Trustee for
cancellation (A) have become due and payable or (B) will become due and
payable or will become due and payable within one year by reason of the
mailing of a notice of redemption or otherwise and the Company or any
Guarantor has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust solely for the benefit of the Holders,
cash in U.S. dollars, non-callable Government Securities, or a combination
of cash in U.S. dollars and non-callable Government Securities, in amounts
as will be sufficient, without consideration of any reinvestment of
interest, to pay and discharge the entire Indebtedness on the Notes not
delivered to the Trustee for cancellation for principal, premium and
Additional Interest, if any, and accrued interest to the date of maturity
or redemption;
(b) no Default or Event of Default has occurred and is continuing on
the date of such deposit or will occur as a result of such deposit and such
deposit will not result in a breach or violation of, or constitute a default
under, any other instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;
(c) the Company or any Guarantor has paid or caused to be paid all
other sums payable by it under this Indenture; and
(d) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the payment of
the Notes at maturity or the redemption date, as the case may be.
In addition, the Company must deliver an Officers' Certificate and
an Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
Section 10.02. Deposited Cash and Government Securities. Subject to
Section 10.03 hereof, all cash and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 10.02, the "Trustee") pursuant to
Section 10.01 hereof in respect of the outstanding Notes shall
73
be held in trust and applied by the Trustee, in accordance with the provisions
of such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, and interest and Additional
Interest, if any, but such cash and securities need not be segregated from other
funds except to the extent required by law.
Section 10.03. Repayment to Company. Any cash or non-callable
Government Securities deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, or interest or Additional Interest, if any, on, any Note and remaining
unclaimed for two years after such principal, and premium, if any, or interest
or Additional Interest, if any, has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged from
such trust; and the Holder shall thereafter, as an unsecured creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such cash and securities, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in The New York
Times and The Wall Street Journal (national edition), notice that such cash and
securities remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such cash and securities then remaining
will be repaid to the Company.
Section 10.04. Reinstatement. If the Trustee or Paying Agent is
unable to apply any United States dollars or non-callable Government Securities
in accordance with Sections 10.01 and 10.02, as the case may be, by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Sections 10.01 and 10.02 hereof
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Sections 10.01 and 10.02 hereof, as the case may be;
provided, however, that, if the Company makes any payment of principal of,
premium on, if any, or interest or Additional Interest, if any, on any Note
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE XI
SUBSIDIARY GUARANTEES
Section 11.01. Guarantee. Subject to this Article 11, each of the
Guarantors hereby, jointly and severally, unconditionally and irrevocably
guarantee 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 this Indenture, the Notes or the obligations of the
Company hereunder or thereunder, that: (a) the principal of, premium or
Additional Interest, if any, and interest on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of, premium, and interest on the Notes, if
any, if lawful, and all other obligations of the Company to the Holders or
74
the Trustee hereunder or thereunder will 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 same will 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
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor agrees that this Subsidiary Guarantee is a general unsecured
obligation of such Guarantor and it is a guarantee of payment and not a
guarantee of collection.
The 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 of the Notes 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 guarantor. Each 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 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, the Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either the Company or the
Guarantors, any amount paid by the Company or a Guarantor either to the Trustee
or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the 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 6 hereof
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 6 hereof, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Subsidiary Guarantee. The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under this Subsidiary Guarantee.
Section 11.02. Subordination on Guarantor Liability. Each Guarantor,
and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Subsidiary Guarantee of such Guarantor
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy
Law or federal and state laws relating to fraudulent conveyances or transfers or
the insolvency of debtors the extent applicable to any Subsidiary Guarantee. To
effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of such Guarantor will be limited
to such maximum
75
amount as will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such
laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article 11, result
in the obligations of such Guarantor under its Subsidiary Guarantee not
constituting a fraudulent transfer or conveyance.
Section 11.03. Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 11.05, a Guarantor may not sell or
otherwise dispose of all or substantially all of its assets to, or consolidate
with or merge with or into (whether or not such Guarantor is the surviving
Person) another Person, other than the Company or another Guarantor, unless:
(a) immediately after giving effect to that transaction, no Default
exists; and
(b) either:
(i) subject to Section 11.05 hereof, the Person acquiring the
property in any such sale or disposition or the Person formed by or surviving
any such consolidation or merger (if other than a Guarantor or the Company)
assumes all the obligations of that Guarantor under the Notes, this Indenture
(including its Subsidiary Guarantee) and the Registration Rights Agreement on
the terms set forth herein or therein pursuant to a supplemental indenture; or
(ii) the Net Proceeds of such sale or other disposition are applied
in accordance with the applicable provisions of this Indenture.
In case of any such consolidation, merger, sale or other disposition
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee, of the Subsidiary Guarantee and the due
and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Guarantor, such successor Person shall succeed
to and be substituted for the Guarantor with the same effect as if it had been
named herein as a Guarantor. 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 4 and 5 hereof, and notwithstanding
clauses (a) and (b) above, any Guarantor may merge with another Subsidiary that
has no significant assets or liabilities and was incorporated solely for the
purpose of reincorporating that Guarantor in another jurisdiction so long as the
amount of the Company's Indebtedness and the Indebtedness of the Restricted
Subsidiaries is not increased as a result of the merger.
Section 11.04. Releases of Subsidiary Guarantee. The Subsidiary
Guarantee of a Guarantor will be released and the Guarantor will be relieved of
any obligations under the Notes, this Indenture and the Registration Rights
Agreement:
(a) in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including by way of merger or
consolidation) to a Person that is not
76
(either before or after giving effect to such transaction) a Subsidiary of the
Company, if the sale or other disposition complies with Section 4.10;
(b) in connection with any sale of such amount of Capital Stock as
would result in such Guarantor no longer being a Subsidiary to a Person that is
not (either before or after giving effect to such transaction) a Subsidiary of
the Company, if the sale complies with Section 4.10;
(c) if the Company designates any Restricted Subsidiary that is a
Guarantor as an Unrestricted Subsidiary in accordance with the applicable
provisions of this Indenture; or
(d) upon Legal Defeasance or Covenant Defeasance pursuant to Article
8 of this Indenture.
In addition, the Subsidiary Guarantee of Parker Drilling Offshore
International, Inc. shall be automatically released and terminated upon the
release and termination of Parker Drilling Offshore International, Inc.'s
guarantee of the Company's 10 1/8% Senior Notes due 2009.
Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel together to the effect that all conditions
precedent set forth in this Section 11.04 to the release of the Subsidiary
Guarantee of a Guarantor have been satisfied, to the extent such conditions can
be satisfied as of such date, the Trustee shall execute any documents reasonably
required in order to evidence the release of any Guarantor from its obligations
under its Subsidiary Guarantee.
Any Guarantor not released from its obligations under its Subsidiary
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under this Indenture
as provided in this Article 11.
Section 11.05. Additional Subsidiary Guarantees. If any Restricted
Subsidiary of the Company that is not a Guarantor (the "New Guarantor")
guarantees, assumes or in any other manner becomes liable with respect to
Indebtedness of the Company or any Guarantor (the "Other Indebtedness"), then
the New Guarantor shall, within ten Business Days of the date of the New
Guarantor's guarantee or assumption of the Other Indebtedness, execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall become a Guarantor and guarantee the obligations of the Company
under this Indenture and the Notes; provided that the foregoing shall not apply
to any Subsidiary that has properly been designated as an Unrestricted
Subsidiary in accordance with this Indenture. Concurrently with the execution
and delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such New Guarantor, and that, subject to the application of bankruptcy,
insolvency, moratorium, fraudulent conveyance or transfer or other similar laws
relating to creditors' rights generally and to the principles of equity, whether
considered in a proceeding at law or in equity, and other customary exceptions,
such New Guarantor's Subsidiary Guarantee is a legal, valid and binding
obligation of such New Guarantor. Upon the release, termination or satisfaction
of the New Guarantor's Subsidiary Guarantee or assumption of the Other
Indebtedness, the New Guarantor's Subsidiary Guarantee
77
shall automatically be released and terminated. Upon request of the New
Guarantor, the Trustee will provide written evidence of such release and
termination.
ARTICLE XII
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies or conflicts with the duties imposed by TIA
Section 318(c), the imposed duties shall control.
Section 12.02. Notices. Any notice or communication by the Company
or the Trustee to the others is duly given if in writing (which may be via
facsimile) and delivered in Person or mailed by first class mail.
If to the Company:
Parker Drilling Company
1401 Enclave Parkway, Suite 600
Houston, TX 77077
Attention: Chief Financial Officer
Facsimile number: (281) 406-2001
Telephone number: (281) 406-2000
With a copy to (which copy shall not constitute notice):
Bracewell & Patterson, L.L.P.
711 Louisiana Street, Suite 2900
Houston, TX 77002
Attention: William S. Anderson
Facsimile number: (713) 221-1212
78
If to the Trustee:
JPMorgan Chase Bank
600 Travis Street, Suite 1150
Houston, TX 77002-3009
Attention: Institutional Trust Services
Facsimile number: (713) 216-6590
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be in writing and shall be deemed to have been duly given when received.
Any notice or communication to a Holder shall be mailed by first
class mail to its address shown on the register kept by the Registrar. Any
notice or communication shall also be so mailed to any Person described in TIA
Section 313(c), to the extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders with Other Holders. Holders
may communicate pursuant to TIA Section 312(b) with other Holders with respect
to their rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA Section 312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e)
and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
79
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 12.06. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Registrar or
Paying Agent may make reasonable rules and set reasonable requirements for its
functions.
Section 12.07. No Personal Liability of Directors, Officers,
Employees and Stockholders. No past, present or future director, officer,
employee, incorporator or stockholder of the Company or any Guarantor, as such,
shall have any liability for any obligations of the Company or the Guarantors
under the Notes, this Indenture, the Subsidiary Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
Section 12.08. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE NOTES.
Section 12.09. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 12.10. Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successors.
Section 12.11. Severability. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 12.12. Counterpart Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
Section 12.13. Table of Contents, Headings, etc. The Table of
Contents, Cross-Reference Table and Headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
80
[Signatures on following page]
81
SIGNATURES
Dated as of September 2, 2004
PARKER DRILLING COMPANY
By:____________________________________________
Name:
Title:
GUARANTORS:
ANACHORETA, INC.
CANADIAN RIG LEASING, INC.
CHOCTAW INTERNATIONAL RIG CORP.
CREEK INTERNATIONAL RIG CORP.
DGH, INC.
INDOCORP OF OKLAHOMA, INC.
PARDRIL, INC.
PARKER AVIATION, INC.
PARKER DRILLING (KAZAKSTAN), LTD.
PARKER DRILLING COMPANY EASTERN HEMISPHERE, LTD.
PARKER DRILLING COMPANY INTERNATIONAL, INC.
PARKER DRILLING COMPANY INTERNATIONAL LIMITED
PARKER DRILLING COMPANY LIMITED (NEVADA)
PARKER DRILLING COMPANY NORTH AMERICA, INC.
PARKER DRILLING COMPANY OF ARGENTINA, INC.
PARKER DRILLING COMPANY OF BOLIVIA, INC.
PARKER DRILLING COMPANY OF NEW GUINEA, INC.
PARKER DRILLING COMPANY OF NIGER
PARKER DRILLING COMPANY OF OKLAHOMA, INCORPORATED
PARKER DRILLING COMPANY OF SINGAPORE, LTD.
PARKER DRILLING COMPANY OF SOUTH AMERICA, INC.
PARKER DRILLING OFFSHORE CORPORATION
PARKER DRILLING OFFSHORE INTERNATIONAL, INC.
PARKER NORTH AMERICA OPERATIONS, INC.
PARKER TECHNOLOGY, INC.
PARKER TECHNOLOGY, L.L.C.
PARKER USA DRILLING COMPANY
PARKER-VSE, INC.
QUAIL USA, LLC
SELECTIVE DRILLING CORPORATION
UNIVERSAL RIG SERVICE CORP.
By:____________________________________________
Name: David W. Tucker
Title: Vice President
82
PARKER DRILLING COMPANY OF MEXICO, L.L.C.
PARKER DRILLING OFFSHORE USA, LLC
By:______________________________________________
Name: Bruce J. Korver
Title: Vice President
PARKER DRILLING MANAGEMENT SERVICES, INC.
By:______________________________________________
Name: David W. Tucker
Title: President
PARKER OFFSHORE RESOURCES, L.P.
By:______________________________________________
Name: David W. Tucker
Title: President, Parker Drilling Management
Services, Inc., General Partner
PARKER TOOLS, L.L.C.
By:______________________________________________
Name: Tom Junk
Title: President
PARKER USA RESOURCES, L.L.C.
By:______________________________________________
Name: Tom Junk
Title: President
83
PD MANAGEMENT RESOURCES, L.P.
By:______________________________________________
Name: David W. Tucker
Title: President, Parker Drilling Management
Services, Inc., General Partner
QUAIL TOOLS, L.P.
By:______________________________________________
Name: David W. Tucker
Title: Vice President, Quail USA, LLC,
General Partner
84
JPMORGAN CHASE BANK
as Trustee
By:______________________________________________
Name:
Title:
85
EXHIBIT A
CUSIP_____
[Face of Note]
[Insert the Global Note Legend, if applicable, pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable, pursuant to the provisions
of the Indenture]
Senior Floating Rate Notes due 2010
No. ____ Principal Amount $_________
PARKER DRILLING COMPANY
promises to pay to CEDE & CO., or registered assigns, the principal sum of
______________ DOLLARS ($_____________) on September 1, 2010.
Interest Payment Dates: March 1, June 1, September 1 and December 1, commencing
__________ __, 20__.
Record Dates: February 15, May 15, August 15 and November 15.
Dated: __________ __, 20__
PARKER DRILLING COMPANY
By: ___________________________________
Name:
Title:
This is one of the Global Notes referred to in the within-mentioned Indenture:
JPMORGAN CHASE BANK
as Trustee
By: ______________________________
Authorized Signatory
A-1
[Back of Note]
Senior Floating Rate Notes due 2010
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. Interest. Parker Drilling Company, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note
quarterly in arrears on March 1, June 1, September 1 and December 1 of each year
(each an "Interest Payment Date"), at the rate per annum, reset quarterly, equal
to LIBOR (as defined below) plus 4.75%; provided that if any Interest Payment
Date other than the maturity date is not a Payment Business Day, such Interest
Payment Date will be postponed to the next succeeding Payment Business Day,
except that if such Payment Business Day falls in the next succeeding calendar
month, such Interest Payment Date will be the immediately preceding Payment
Business Day. 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 and
including _______ __, 20__. Interest on the Notes will be computed on the basis
of the actual number of days in the applicable Interest Period divided by 360,
as further described below.
"Payment Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which commercial banks are
authorized or required by law, regulation or executive order to close in New
York City and that is a London Banking Day.
"LIBOR" with respect to an Interest Period, will be the rate
(expressed as a percentage per annum) for deposits in United States dollars for
a three-month period beginning on the second London Banking Day after the
Determination Date that appears on Telerate Page 3750 as of 11:00 a.m., London
time, on the Determination Date. If Telerate Page 3750 does not include such a
rate or is unavailable on a Determination Date, the Calculation Agent will
request the principal London office of each of four major banks in the London
interbank market, as selected by the Calculation Agent, to provide such bank's
offered quotation (expressed as a percentage per annum), as of approximately
11:00 a.m., London time, on such Determination Date, to prime banks in the
London interbank market for deposits in a Representative Amount in United States
dollars for a three-month period beginning on the second London Banking Day
after the Determination Date. If at least two such offered quotations are so
provided, LIBOR for the Interest Period will be the arithmetic mean of such
quotations. If fewer than two such quotations are so provided, the Calculation
Agent will request each of three major banks in New York City, as selected by
the Calculation Agent, to provide such bank's rate (expressed as a percentage
per annum), as of approximately 11:00 a.m., New York City time, on such
Determination Date, for loans in a Representative Amount in United States
dollars to leading European banks for a three-month period beginning on the
second London Banking Day after the Determination Date. If at least two such
rates are so provided, LIBOR for the Interest Period will be the arithmetic mean
of such rates. If fewer than two such rates are so provided, then LIBOR for the
Interest Period will be LIBOR in effect with respect to the immediately
preceding Interest Period.
A-2
"Interest Period" means the period commencing on and including an
Interest Payment Date and ending on and including the day immediately preceding
the next succeeding Interest Payment Date, with the exception that the first
Interest Period shall commence on the date the Notes are first issued.
"Determination Date" with respect to an Interest Period, will be the
second London Banking Day preceding the first day of the Interest Period.
"London Banking Day" is any day in which dealings in United States
dollars are transacted or, with respect to any future date, are expected to be
transacted in the London interbank market.
"Representative Amount" means a principal amount of not less than
U.S. $1,000,000 for a single transaction in the relevant market at the relevant
time.
"Telerate Page 3750" means the display designated as "Page 3750" on
the Moneyline Telerate service (or such other page as may replace Page 3750 on
that service).
The amount of interest for each day that the Notes are outstanding
(the "Daily Interest Amount") will be calculated by dividing the interest rate
in effect for such day by 360 and multiplying the result by the principal amount
of the Notes. The amount of interest to be paid on the Notes for each Interest
Period will be calculated by adding the Daily Interest Amounts for each day in
the Interest Period.
All percentages resulting from any of the above calculations will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point being rounded upwards
(e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)) and all
dollar amounts used in or resulting from such calculations will be rounded to
the nearest cent (with one-half cent being rounded upwards).
The interest rate on the Notes will in no event be higher than the
maximum rate permitted by New York law as the same may be modified by United
States law of general application.
The Calculation Agent will, upon the request of the Holder of any
Note, provide the interest rate then in effect with respect to the Notes. All
calculations made by the Calculation Agent in the absence of manifest error will
be conclusive for all purposes and binding on the Company and the Holders of the
Notes.
2. Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) and Additional Interest, if any, to the Persons who
are registered Holders at the close of business on the Record Date preceding the
Interest Payment Date, even if such Notes are canceled after such Record Date
and on or before such Interest Payment Date, except as provided in Section 2.14
of the Indenture with respect to defaulted interest. The Notes will be payable
as to principal, premium, if any, Additional Interest, if any, and interest at
the office or agency of the Company maintained for such purpose within or
without The City and State of New York, or, at the option of the Company,
payment of interest and Additional Interest, if any, may be made by check mailed
to the Holders at their addresses set forth in the register of
A-3
Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest and Additional
Interest, if any, and premium on, the Global Note and all other Notes the
Holders of which shall have provided wire transfer instructions to the Company
or the paying agent on or prior to the applicable Record Date. 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, Registrar and Calculation Agent. Initially,
JPMorgan Chase Bank, the Trustee under the Indenture, will act as Paying Agent
and Registrar. The Company may change any Paying Agent, Registrar or Calculation
Agent without notice to any Holder. The Company or any of its Subsidiaries may
act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture, dated
as of September 2, 2004 (the "Indenture"), among the Company, the guarantors
party thereto and the Trustee. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 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. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling. The Notes are obligations of the
Company initially in the aggregate principal amount of $150.0 million. Subject
to compliance with Section 2.01 of the Indenture, the Company is permitted to
issue Additional Notes under the Indenture in an unlimited principal amount. Any
such Additional Notes that are actually issued will be treated as issued and
outstanding Notes (and as the same class as the initial Notes) for all purposes
of the Indenture, unless the context clearly indicated otherwise.
5. Optional Redemption. (a) Except as set forth in subparagraph (b)
of this Paragraph 5, the Company shall not have the option to redeem the Notes
prior to September 1, 2006. On or after September 1, 2006, the Company shall
have the option to redeem the Notes, 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 and Additional Interest, if any, thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on September 1 of the
years indicated below:
Year Percentage
2006...................................... 102.00%
2007...................................... 101.00%
2008 and thereafter....................... 100.00%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to September 1, 2006, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
(which includes Additional Notes, if any) originally issued under the Indenture
at a redemption price of 100.00% of the principal amount thereof, plus a premium
equal to the interest rate per annum applicable on the date on which the notice
of redemption is given, plus accrued and unpaid interest and Additional
Interest, if any, to the redemption date with the net cash proceeds of one or
more Equity Offerings; provided that at least 65% of the aggregate principal
amount of Notes (which includes Additional Notes, if any)
A-4
originally issued remains outstanding immediately after the occurrence of each
such redemption (excluding Notes held by the Company and its Subsidiaries); and
provided further, that any such redemption shall occur within 120 days of the
date of the closing of each such Equity Offering.
6. Mandatory Redemption. Except as set forth in paragraph 7 below,
the Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
7. Repurchase at Option of Holder. (a) If there is a Change of
Control, the Company shall be required to make an offer (a "Change of Control
Offer") to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Notes at a purchase price in cash equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest and
Additional 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 each Holder setting forth the procedures governing the
Change of Control Offer as required by the Indenture.
(b) If the Company or a Restricted Subsidiary consummates any Asset
Sales, when the aggregate amount of Excess Proceeds exceeds $20.0 million, the
Company shall commence an offer to all Holders (as "Asset Sale Offer") pursuant
to Section 4.10 of the Indenture to purchase the maximum principal amount of
Notes and such other Indebtedness of the Company that is pari passu with the
Notes containing provisions similar to those set forth in the Indenture with
respect to offers to purchase or redemptions with the proceeds of sales of
assets, that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the principal amount thereof plus accrued and
unpaid interest and Additional Interest, if any, thereon, to the date fixed for
the closing of such offer, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes and other
indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company (or such Subsidiary) may use such deficiency for any
purpose not otherwise prohibited by the Indenture. If the aggregate amount of
Notes and other indebtedness surrendered by Holders thereof exceeds the amount
of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro
rata basis. Holders that are the subject of an offer to purchase will receive an
Asset Sale Offer from the Company prior to any related purchase date and may
elect to have such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Notes.
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 are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate
A-5
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 exchange or 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, the Company need not exchange or 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 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 (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, notes). Without the 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
obligations to Holders of the Notes in case of a merger or consolidation or sale
of all or substantially all of the Company's assets, to make any change that
would provide any additional rights or benefits to the Holders of the Notes or
that does not adversely affect the legal rights under the Indenture of any such
Holder, to provide for the issuance of additional Notes in accordance with the
provisions set forth in the Indenture or to comply with the requirements of the
SEC in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act.
12. Defaults and Remedies. Events of Default include: (i) default
for 30 days in the payment when due of interest on, or Additional Interest with
respect to, the Notes; (ii) default in payment when due of principal of or
premium, if any, on the Notes (iii) failure by the Company or any of its
Restricted Subsidiaries to comply with the provisions of Section 4.15 or Section
5.01 of the Indenture; (iv) failure by the Company or any of its Restricted
Subsidiaries for 30 days after notice to comply with the provisions of Sections
4.07, 4.09 or 4.10 of the Indenture; (v) failure by the Company or any of its
Restricted Subsidiaries for 60 days after notice to comply with any of the other
agreements in the Indenture; (vi) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Restricted Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the Issue Date, if that default (a) is caused by a
failure to pay principal of, or interest or premium, if any, on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default"); or (b) results
in the acceleration of such Indebtedness prior to its Stated Maturity, and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$15.0 million or more; (vii) failure by the Company or any of its Subsidiaries
to pay
A-6
final judgments aggregating in excess of $15.0 million, which judgments are not
paid, discharged or stayed for a period of 60 days; (viii) except as permitted
by the Indenture, any Subsidiary Guarantee shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason (other
than in accordance with the terms of that guarantee and the Indenture) to be in
full force and effect or any Guarantor, or any Person acting on behalf of any
Guarantor, shall deny or disaffirm its obligations under its Subsidiary
Guarantee; and (ix) certain events of bankruptcy or insolvency with respect to
the Company or any of its Restricted Subsidiaries. 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, all
outstanding Notes will become due and payable without further action or notice.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in 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 or Additional 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 Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not 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 by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
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 NET (=
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
A-7
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.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Parker Drilling Company
1401 Enclave Parkway, Suite 600
Houston, TX 77077
Attention: General Counsel
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
________________________________________________________________________________
(Insert assignee's soc. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
________________________________________________________________________________
Date: ______________
Your Signature: ____________________________
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee.
(Participant in a Recognized Signature
Guarantee Medallion Program)
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
[_] Section 4.10 [_] Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$_________
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)
A-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(1)
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of of this Global Note Signature of
decrease in Amount of increase following such authorized officer
Principal Amount in Principal Amount decrease (or of Trustee or
Date of Exchange of this Global Note of this Global Note increase) Custodian
- ---------------- ------------------- ------------------- --------- ---------
- ---------------
(1) Insert this table only in a Global Note.
A-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Parker Drilling Company
1401 Enclave Parkway, Suite 600
Houston, TX 77077
[Registrar address block]
Re: Senior Floating Rate Notes Due 2010
Reference is hereby made to the Indenture, dated as of September 2,
2004 (the "Indenture"), among Parker Drilling Company, as issuer (the
"Company"), the guarantors party thereto and JPMorgan Chase Bank, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to __________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
1.[ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2.[ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling
B-1
efforts have been made in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S under the Securities Act (iii) the transaction is
not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S Global Note and/or the Definitive
Note and in the Indenture and the Securities Act.
3. [ ] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b)[ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c)[ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
B-2
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
_______________________________________
[Insert Name of Transferor]
By: ___________________________________
Name:
Title:
Dated: _________, ____
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
4. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a)[ ] a beneficial interest in the :
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(b)[ ] a Restricted Definitive Note.
5. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ________), or
(ii) [ ] Regulation S Global Note (CUSIP ________), or
(iii) [ ] Unrestricted Global Note (CUSIP ________); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Parker Drilling Company
1401 Enclave Parkway, Suite 600
Houston, TX 77077
[Registrar address block]*
Re: Senior Floating Rate Notes due 2010
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of September 2,
2004 (the "Indenture"), among Parker Drilling Company, as issuer (the
"Company"), the guarantors party thereto and JPMorgan Chase Bank, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance
C-1
with the Securities Act and (iv) the Definitive Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED
GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [ ]CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] 144A Global Note, Regulation S Global Note, with an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued will be subject
to the restrictions on transfer enumerated
C-2
in the Private Placement Legend printed on the relevant Restricted Global Note
and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
_______________________________________
[Insert Name of Transferor]
By: ___________________________________
Name:
Title:
Dated: _________, ____
C-3