EXHIBIT 4.3
EXECUTION COPY
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INDENTURE
AMETHYST FINANCIAL COMPANY LIMITED
as Issuer
$53,000,000
11 3/4% Senior Secured Notes due 2001
------------------------
WILMINGTON TRUST COMPANY
as Trustee
PRIDE INTERNATIONAL, INC.
as Guarantor
MARITIMA PETROLEO e ENGENHARIA LTDA.,
as procurer of a Letter of Credit
Dated as of November 1, 1999
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.......................... 1
SECTION 1.02. Other Definitions.................... 32
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act...................... 33
SECTION 1.04. Rules of Construction................ 33
ARTICLE II
THE SECURED NOTES
SECTION 2.01. Form and Dating...................... 34
SECTION 2.02. Execution and Authentication......... 38
SECTION 2.03. Registrar and Paying Agent........... 39
SECTION 2.04. Paying Agent to Hold Money in
Trust.............................. 40
SECTION 2.05. Holder Lists......................... 40
SECTION 2.06. Transfer and Exchange................ 40
SECTION 2.07. Replacement of Secured Noted......... 53
SECTION 2.08. Outstanding Secured Notes............ 54
SECTION 2.09. Treasury Secured Notes............... 54
SECTION 2.10. Temporary Secured Notes.............. 55
SECTION 2.11. Cancellation......................... 55
SECTION 2.12. Payment of Interest; Interest Rights
Preserved.......................... 55
SECTION 2.13. Computation of Interest.............. 57
SECTION 2.14. CUSIP Number......................... 57
ARTICLE III
REDEMPTION AND PREPAYMENT
SECTION 3.01. Notices to Trustee................... 57
SECTION 3.02. Selection of Secured Notes to be
Redeemed........................... 57
SECTION 3.03. Notice of Redemption................. 58
SECTION 3.04. Effect of Notice of Redemption....... 59
SECTION 3.05. Deposit of Redemption Price.......... 59
SECTION 3.06. Secured Notes Redeemed in Part....... 60
SECTION 3.07. Optional Redemptions................. 60
SECTION 3.08. Redemption Upon Loss of a Mortgaged
Rig................................ 63
SECTION 3.09. Redemption Upon Sale of a Mortgaged
Rig................................ 63
Contents p. 2
PAGE
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Secured Notes............. 64
SECTION 4.02. Maintenance of Office or Agency...... 65
SECTION 4.03. Corporate Existence.................. 65
SECTION 4.04. Maintenance of Properties and
Insurance.......................... 66
SECTION 4.05. Compliance With Laws................. 66
SECTION 4.06. Taxes and Other Claims............... 66
SECTION 4.07. Stay, Extension and Usury Laws....... 67
SECTION 4.08. Change of Control.................... 67
SECTION 4.09. Limitations on Indebtedness.......... 72
SECTION 4.10. Limitation on Liens.................. 74
SECTION 4.11. Limitation on Restricted Payments.... 74
SECTION 4.12. Limitation on Sale/Leaseback
Transactions....................... 77
SECTION 4.13. SEC Reports.......................... 77
SECTION 4.14. Limitation on Restrictions on
Distributions from Restricted
Subsidiaries....................... 78
SECTION 4.15. Limitation on Asset Sales............ 79
SECTION 4.16. Limitation on Asset Swaps............ 81
SECTION 4.17. Limitation on Affiliate
Transactions....................... 81
SECTION 4.18. Limitation on the Sale or Issuance of
Capital Stock of Restricted
Subsidiaries....................... 82
SECTION 4.19. Future Subsidiary Guarantors......... 83
SECTION 4.20. Impairment of Liens.................. 83
SECTION 4.21. Limitation on Issuer Activities...... 83
SECTION 4.22. Insurance............................ 84
SECTION 4.23. Amendments to Security Documents..... 84
SECTION 4.24. Use of Proceeds...................... 84
SECTION 4.25. Separate Corporate Entities.......... 84
SECTION 4.26. Compliance Certificate; Notice of
Default or Event of Default........ 85
SECTION 4.27. Prohibition on Issuer Becoming an
Investment Company................. 86
SECTION 4.28. Additional Amounts................... 86
ARTICLE V
CONSOLIDATION, MERGER, CONVEYANCE, LEASE OR TRANSFER
SECTION 5.01. Limitations on Mergers and
Consolidations..................... 89
Contents p. 3
PAGE
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.................... 91
SECTION 6.02. Acceleration......................... 94
SECTION 6.03. Other Remedies....................... 95
SECTION 6.04. Waiver of Past Defaults.............. 96
SECTION 6.05. Control By Majority.................. 96
SECTION 6.06. Limitation on Suits.................. 97
SECTION 6.07. Rights of Holders of Secured Notes to
Receive Payment.................... 97
SECTION 6.08. Collection Suit by Trustee........... 98
SECTION 6.09. Trustee May File Proofs of Claim..... 98
SECTION 6.10. Priorities........................... 100
SECTION 6.11. Undertaking For Costs................ 100
SECTION 6.12. Restoration of Rights and Remedies... 101
SECTION 6.13. Rights and Remedies Cumulative....... 101
SECTION 6.14. Delay or Omission Not Waiver......... 101
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee.................... 101
SECTION 7.02. Rights of Trustee.................... 103
SECTION 7.03. Individual Rights of Trustee......... 105
SECTION 7.04. Trustee's Disclaimer................. 105
SECTION 7.05. Notice of Defaults................... 105
SECTION 7.06. Reports by Trustee to Holders of the
Secured Notes...................... 106
SECTION 7.07. Compensation and Indemnity........... 106
SECTION 7.08. Replacement of Trustee............... 107
SECTION 7.09. Successor Trustee by Merger, etc. ... 109
SECTION 7.10. Eligibility; Disqualification........ 110
SECTION 7.11. Preferential Collection of Claims
Against the Issuer................. 110
SECTION 7.12. Other Offices........................ 110
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.01. Satisfaction and Discharge........... 111
SECTION 8.02. Application of Trust Money........... 112
SECTION 8.03. Repayment of the Issuer.............. 112
SECTION 8.04. Reinstatement........................ 113
Contents p. 4
PAGE
ARTICLE IX
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 9.01. Option To Effect Defeasance or
Covenant Defeasance................ 113
SECTION 9.02. Defeasance and Discharge............. 113
SECTION 9.03. Covenant Defeasance.................. 114
SECTION 9.04. Conditions to Defeasance or Covenant
Defeasance......................... 115
SECTION 9.05. Deposited Money and U.S. Government
Obligations To Be Held in Trust;
Other Miscellaneous Provisions..... 117
SECTION 9.06. Repayment to the Issuer.............. 118
SECTION 9.07. Reinstatement........................ 119
ARTICLE X
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 10.01. Without Consent of Holders of Secured
Notes.............................. 119
SECTION 10.02. With Consent of Holders of Secured
Notes.............................. 120
SECTION 10.03. Effect of Supplemental Indentures.... 123
SECTION 10.04. Compliance with Trust Indenture
Act................................ 123
SECTION 10.05. Revocation and Effect of Consents.... 124
SECTION 10.06. Notation on or Exchange of Secured
Notes.............................. 124
SECTION 10.07. Trustee To Sign Supplemental
Indentures......................... 124
SECTION 10.08. Payment for Consent.................. 126
ARTICLE XI
COLLATERAL AND SECURITY; GUARANTEES; LETTER OF CREDIT
SECTION 11.01. Security Agreements.................. 126
SECTION 11.02. Recording and Opinions............... 127
SECTION 11.03. Further Assurances and Security...... 128
SECTION 11.04. Possession and Use of Collateral..... 129
SECTION 11.05. Certificates of the Issuer........... 129
SECTION 11.06. Authorization of Actions To Be Taken
by the Trustee Under the Security
Agreements......................... 129
Contents p. 5
PAGE
SECTION 11.07. Authorization of Receipt of Funds by
the Trustee Under the Security
Agreements......................... 130
SECTION 11.08. Guarantees; Letter of Credit......... 130
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls......... 130
SECTION 12.02. Notices.............................. 130
SECTION 12.03. Communication By Holders of Secured
Notes With Other Holders of Secured
Notes.............................. 132
SECTION 12.04. Certificate and Opinion as to
Conditions Precedent............... 132
SECTION 12.05. Statements Required in a Certificate
or Opinion......................... 134
SECTION 12.06. Acts of Holders...................... 134
SECTION 12.07. Rules by Trustee and Agents.......... 136
SECTION 12.08. No Personal Liability of Directors,
Officers, Employees and
Stockholders....................... 136
SECTION 12.09. Governing Law........................ 136
SECTION 12.10. Agent for Service; Submission to
Jurisdiction; Waiver of
Immunities......................... 136
SECTION 12.11. No Adverse Interpretation of Other
Agreements......................... 138
SECTION 12.12. Successors........................... 138
SECTION 12.13. Severability......................... 138
SECTION 12.14. Counterpart Originals................ 138
SECTION 12.15. Table of Contents, Headings, etc. ... 138
SECTION 12.16. Judgment Currency.................... 138
ARTICLE XIII
PRIDE GUARANTEE
SECTION 13.01. Pride Guarantee...................... 139
SECTION 13.02. Limitation on Liability.............. 142
SECTION 13.03. Successors and Assigns............... 142
SECTION 13.04. No Waiver............................ 143
SECTION 13.05. Modification......................... 143
SECTION 13.06. Execution of Supplemental Indenture
for Future Subsidiary Guarantors... 144
SECTION 13.07. Nonimpairment........................ 144
SECTION 13.08. Pride Covenants...................... 145
Contents p. 6
EXHIBITS
Exhibit A..................... Form of Secured Note
Exhibit B-1................... Form of Certificate for Exchange or
Registration of Transfer from U.S.
Global Note to Regulation S Global
Note
Exhibit B-2................... Form of Certificate for Exchange or
Registration of Transfer from
Regulation S Global Note to U.S.
Global Note
Exhibit B-3................... Form of Certificate for Exchange or
Registration of Transfer of
Definitive Notes
Exhibit B-4................... Form of Certificate for Exchange or
Registration of Transfer from U.S.
Global Note or Regulation S
Permanent Global Note to Definitive
Note
Exhibit C..................... Form of Certificate From Acquiring
Institutional Accredited Investor
Exhibit D..................... Form of Subsidiary Guarantee
Exhibit E..................... Form of Letter of Credit
Schedule A.................... MARAD Documents
Schedule B.................... Mitsubishi Loan Agreements
Schedule C.................... Mitsubishi Loan Collateral Agreements
INDENTURE, dated as of November 1, 1999, among AMETHYST
FINANCIAL COMPANY LIMITED, a British Virgin Islands limited
liability company (the "Issuer"), PRIDE INTERNATIONAL, INC., a
Louisiana corporation ("Pride"), MARITIMA PETROLEO e
ENGENHARIA LTDA., a Brazilian company ("Maritima"), and
WILMINGTON TRUST COMPANY, as trustee (the "Trustee").
RECITALS
The Issuer has duly authorized the creation and issuance of its 11
3/4% Senior Secured Notes due 2001 (the "Initial Secured Notes") of the tenor
and amount hereinafter set forth; and to provide therefor and for, if and when
issued as further evidence of the Issuer's indebtedness and in substitution for
the Initial Secured Notes pursuant to this Indenture and the Registration Rights
Agreement (as defined herein), the Issuer's 11 3/4% Senior Secured Notes due
2001 (the "Exchange Secured Notes", and together with the Initial Secured Notes,
the "Secured Notes"), the Issuer has duly authorized the execution and delivery
of this Indenture.
All things necessary to make the Secured Notes, when executed by the
Issuer and authenticated and delivered by the Trustee hereunder and duly issued
by the Issuer, the valid obligations of the Issuer, and to make this Indenture a
valid instrument of the Issuer, Pride and Maritima, in accordance with their
respective terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that, for and in
consideration of the premises and the purchase of the Initial Secured Notes by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
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proportionate benefit of all Holders of the Secured Notes,
as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
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"ACQUIRED INDEBTEDNESS" means, with respect to any
specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or became a 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 Subsidiary of such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired
by such specified Person.
"ADDITIONAL ASSETS" means (i) any property or assets (other than
Indebtedness and Capital Stock) in a Related Business; (ii) the Capital Stock of
a Person that becomes a Restricted Subsidiary as a result of the acquisition of
such Capital Stock by the Issuer or another Restricted Subsidiary or (iii)
Capital Stock constituting a minority interest in any Person that at such time
is a Restricted Subsidiary; PROVIDED, HOWEVER, that any such Restricted
Subsidiary described in clause (ii) or (iii) above is primarily engaged in a
Related Business. Proceeds of insurance arising from damage for an asset shall
be deemed to have been invested in Additional Assets to the extent of the cost
of such repairs made to such asset.
"ADJUSTED NET ASSETS" of a Subsidiary Guarantor at any date means
the amount by which the fair value of the assets and property of such Subsidiary
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under its Subsidiary Guarantee, of such Subsidiary Guarantor at such
date.
"AFFILIATE" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of Voting Stock, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Affiliate" shall also mean any beneficial owner of Capital Stock representing
5% or more of the total voting power of the Voting Stock (on a fully diluted
basis) of such a Person or of rights or warrants to purchase such Capital Stock
(whether or not
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currently exercisable) and any Person who would be an Affiliate of any such
beneficial owner pursuant to the first sentence of this definition.
"AGENT" means any Registrar, Paying Agent or
coregistrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of beneficial interests in a Global Note, the rules and procedures of
the Depository and the Trustee that apply to such transfer and exchange.
"ASSET SALE" means any direct or indirect sale, capital lease,
transfer or other disposition (or series of related sales, capital leases,
transfers or dispositions) by the Issuer or any Restricted Subsidiary, including
any disposition by means of a merger, consolidation or similar transaction (each
referred to for the purposes of this definition as a "disposition") in one
transaction or a series of related transactions, of (i) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying shares or
shares required by applicable law to be held by a Person other than the Issuer
or a Restricted Subsidiary), (ii) any drill ship or drilling rig or all or
substantially all the assets of any division or line of business of the Issuer
or any Restricted Subsidiary or (iii) any other assets of the Issuer or any
Restricted Subsidiary outside of the ordinary course of business of the Issuer
or such Restricted Subsidiary (other than, in the case of (i), (ii) and (iii)
above, (u) a disposition by a Restricted Subsidiary to the Issuer or by the
Issuer or a Restricted Subsidiary to a Wholly Owned Restricted Subsidiary, (v)
for purposes of the covenant described under Section 4.15 hereof only, a
disposition that constitutes a Restricted Payment permitted by the covenant
described under Section 4.11 hereof, (w) Asset Swaps permitted under Section
4.16 hereof, (x) dispositions of Incidental Assets, (y) dispositions of
Temporary Cash Investments and (z) a disposition of assets with a fair market
value of less than $100,000).
"ASSET SWAP" means a substantially concurrent purchase and sale, or
exchange, of assets constituting Additional Assets described in clause (i) of
the definition thereof between the Issuer or any Restricted Subsidiary and
another Person or group of Persons; PROVIDED, HOWEVER, that the cash and other
assets to be received by the Issuer or such Restricted Subsidiary which do not
constitute Additional Assets do not constitute more than 25% of the total
consideration to be received by the Issuer or such Restricted Subsidiary in such
Asset Swap.
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"ATTRIBUTABLE INDEBTEDNESS," when used with respect to any
Sale/Leaseback Transaction, means, as at the time of determination, the present
value (discounted at the rate set forth or implicit in the terms of the lease
included in such transaction) of the total obligations of the lessee for rental
payments (other than amounts required to be paid on account of property taxes,
maintenance, repairs, insurance, assessments, utilities, operating and labor
costs and other items which do not constitute payments for property rights)
during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been extended).
"AVERAGE LIFE" means, as of the date of determination, with respect
to any Indebtedness or Preferred Stock, the quotient obtained by dividing (i)
the sum of the products of numbers of years from the date of determination to
the dates of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred Stock multiplied by
the amount of such payment by (ii) the sum of all such payments.
"BOARD OF DIRECTORS" means the Board of Directors of a Person or any
committee thereof duly authorized to act on behalf of such Board.
"BOARD RESOLUTION" means a copy of a resolution certified by a
Secretary or Assistant Secretary of a Person to have been duly adopted by the
Board of Directors thereof and to be in full force and effect on the date of
such certification and delivered to the Trustee.
"BUSINESS DAY" means each day which is not a Legal
Holiday.
"CAPITALIZED LEASE OBLIGATION" of any Person means any obligation of
such Person to pay rent or other amounts under a lease of property, real or
person, that is required to be capitalized for financial reporting purposes in
accordance with generally accepted accounting principles and the amount of such
obligation shall be the capitalized amount thereof determined in accordance with
GAAP.
"CAPITAL STOCK" means, with respect to any Person, any and all
shares, interests, rights to purchase, warrants or options (whether or not
currently exercisable), participations or other equivalents of or interests in
(however designated) the equity (which includes, but is not limited to, common
stock, preferred stock and partnership and joint venture interests) of such
Person (excluding any
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debt securities that are convertible into, or exchangeable for, such equity).
"CEDEL" means Cedel Bank, societe anonyme (or any successor
securities clearing agency).
"CERTIFICATED SECURED NOTES" means Secured Notes that are
substantially in the form of the Secured Note attached hereto as Exhibit A that
do not include the information or text called for by footnotes 1 and 4 thereto.
"CODE" means the Internal Revenue Code of 1986, as
amended.
"COLLATERAL" shall include, in each case as pledged and assigned to
the Collateral Agent, the Trustee or the Issuer, as applicable, pursuant to the
Security Agreements, (1) an undivided 53% participation interest in the Issuer
Loans, all of the Issuer's right, title and interest in and to (a) the
Mitsubishi Documents, (b) the security for the Issuer Loans provided for in the
Mitsubishi Loan Collateral Agreements, (c) all cash held by the Collateral Agent
and the Trustee pursuant to the Indenture or the Security Agreements and the
Reserve Account and all Reserve Account Property held pursuant to the Reserve
Account Agreement (including any cash collateral deposited therein by the
Issuer); and (2) all proceeds of any of the foregoing, including from any
policies and contracts of insurance taken out from time to time in respect each
of the Mortgaged Rigs.
"COLLATERAL AGENT" means Wilmington Trust Company, as collateral
agent under the Issuer Security Agreement until a successor replaces it in
accordance with the applicable provisions of the Issuer Security Agreement and
thereafter means the successor serving thereunder.
"COMMON STOCK" means Capital Stock other than
Preferred Stock.
"CONSOLIDATED EBITDA COVERAGE RATIO" as of any date of determination
means the ratio of (a) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters ending at least 45 days prior to the
date of such determination to (b) Consolidated Interest Expense for such four
fiscal quarters; PROVIDED, HOWEVER, that:
(a) if the Issuer or any Restricted Subsidiary has Incurred any
Indebtedness since the beginning of such period that remains outstanding
or if the transaction
7
giving rise to the need to calculate the Consolidated EBITDA Coverage
Ratio is an issuance of Indebtedness, or both, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving effect
on a pro forma basis to such Indebtedness as if such Indebtedness had been
issued on the first day of such period and the discharge of any other
Indebtedness repaid, repurchased, defeased or otherwise discharged with
the proceeds of such new Indebtedness as if such discharge had occurred on
the first day of such period;
(b) if since the beginning of such period the Issuer or any
Restricted Subsidiary shall have made any asset disposition, the EBITDA
for such period shall be reduced by an amount equal to the EBITDA (if
positive) directly attributable to the assets which are the subject of
such asset disposition for such period, or increased by an amount equal to
the EBITDA (if negative), directly attributable thereto for such period,
and Consolidated Interest Expense for such period shall be reduced by an
amount equal to the Consolidated Interest Expense directly attributable to
any Indebtedness of the Issuer or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the Issuer
and its continuing Subsidiaries in connection with such asset dispositions
for such period (or, if the Capital Stock of any Restricted Subsidiary is
sold, the Consolidated Interest Expense for such period directly
attributable to the Indebtedness of such Restricted Subsidiary to the
extent the Issuer and its continuing Subsidiaries are no longer liable for
such Indebtedness after such sale);
(c) if since the beginning of such period the Issuer or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person which becomes a
Restricted Subsidiary) or an acquisition of assets, including any
acquisition of assets occurring in connection with a transaction causing a
calculation to be made hereunder, which constitutes all or substantially
all of an operating unit of a business (which shall include the
acquisition or construction of a vessel or drilling rig, provided the
Issuer has paid 75% or more of the cost thereof and such vessel or
drilling rig is reasonably expected to be delivered within 90 days),
EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto (including the issuance
of any Indebtedness) as if such Investment or
8
acquisition occurred on the first day of such period; and
(d) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Issuer or any Restricted Subsidiary since the beginning of such period)
shall have made any asset disposition or any Investment that would have
required an adjustment pursuant to clause (2) or (3) above if made by the
Issuer or a Restricted Subsidiary during such period, EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto as if such asset disposition or Investment
occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be
given to an acquisition of assets, the amount of income or earnings relating
thereto, and the amount of Consolidated Interest Expense associated with any
Indebtedness issued in connection therewith, the pro forma calculations shall be
determined in good faith by a responsible financial or accounting officer of the
Issuer. If any Indebtedness bears a floating rate of interest and is being given
pro forma effect, the interest of such Indebtedness shall be calculated as if
the rate in effect on the date of determination had been the applicable rate for
the entire period (taking into account any Interest Rate Protection Agreement
applicable to such Indebtedness if such Interest Rate Protection Agreement has a
remaining term in excess of 12 months).
For purposes of this definition, in the case of the acquisition
since the beginning of such period of a drilling rig or drill ship (or of a
Restricted Subsidiary owning same) by the Issuer or by a Restricted Subsidiary
pursuant to a binding purchase agreement or the delivery during of such period
of a drilling rig or drill ship to the Issuer or a Restricted Subsidiary
pursuant to a binding construction contract, which drilling rig or drill ship
has been subject for at least one full fiscal quarter to a binding drilling
contract constituting a Qualifying Contract, then, for purposes of making the
pro forma calculations provided for in the first sentence of the preceding
paragraph, the financial or accounting officer of the Issuer shall give pro
forma effect to the earnings (losses) of such drilling rig or drill ship as if
such drilling rig or drill ship were acquired on the first day of such period,
by basing such earnings (losses) on the annualized (x) historical revenues
actually earned from such Qualifying Contract and (y) actual expenses related
thereto,
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in each case for each quarter during such period in which the Qualifying
Contract is in effect.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the total
interest expense of the Issuer and its consolidated Restricted Subsidiaries,
plus, to the extent not included in such interest expense:
(i) interest expense attributable to Capitalized
Lease Obligations;
(ii) amortization of debt discount and debt
issuance cost;
(iii) capitalized interest;
(iv) non-cash interest payments;
(v) commissions, discounts and other fees and
charges owed with respect to letters of credit and
bankers' acceptance financing;
(vi) net costs under Interest Rate Protection
Agreements (including amortization of fees);
(vii) dividends in respect of any Redeemable Stock
held by Persons other than the Issuer or a Restricted
Subsidiary;
(viii) interest expense attributable to deferred
payment obligations; and
(ix) interest expense on Indebtedness of another Person to the
extent that such Indebtedness is guaranteed by the Issuer or a Restricted
Subsidiary.
"CONSOLIDATED NET INCOME" means, for any period, the net income of
the Issuer and its consolidated subsidiaries; provided, however, that there
shall not be included in such Consolidated Net Income:
(a) any net income of any Person if such Person is not a Restricted
Subsidiary, except that (1) the Issuer's equity in the net income of any
such Person for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed by such
Person during such period to the Issuer or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or
other distribution to a Restricted Subsidiary, to the limitations
contained in clause (c) below) and
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(2) the Issuer's equity in a net loss of any such Person for such period
shall be included in determining such Consolidated Net Income;
(b) any net income of any Person acquired by the Issuer or a
Restricted Subsidiary in a pooling of interests transaction for any period
prior to the date of such acquisition;
(c) any net income of any Restricted Subsidiary to the extent such
Restricted Subsidiary is subject to restrictions, directly or indirectly,
on the payment of dividends or the making of distributions by such
Restricted Subsidiary, directly or indirectly, to the Issuer, except that
(1) the net income of a Restricted Subsidiary shall be included to the
extent such net income could be paid to the Issuer or a Restricted
Subsidiary by loans, advances, intercompany transfers, principal
repayments or otherwise; (2) the Issuer's equity in the net income of any
such Restricted Subsidiary for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Restricted Subsidiary during such period to the Issuer
or another Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution to another
Restricted Subsidiary, to the limitation contained in this clause) and (3)
the Issuer's equity in a net loss of any such Restricted Subsidiary for
such period shall be included in determining such Consolidated Net Income;
(d) any gain (but not loss) realized upon the sale or other
disposition of any property, plant or equipment of the Issuer or its
consolidated subsidiaries (including pursuant to any sale-and- leaseback
arrangement) which is not sold or otherwise disposed of in the ordinary
course of business and any gain (but not loss) realized upon the sale or
other disposition of any Capital Stock of any Person;
(e) extraordinary, unusual or nonrecurring
charges; and
(f) the cumulative effect of a change in
accounting principles.
"CONSOLIDATED NET WORTH" of a Person means the consolidated
stockholders' equity of such Person and its Subsidiaries, as determined in
accordance with GAAP.
11
"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 to the Issuer.
"DEFAULT" means any act, event or condition which is, or after
notice or passage of time or both would be, an Event of Default.
"DEPOSITARY" means, with respect to the Secured Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Secured Notes, until a successor
shall have been appointed and become such Depositary pursuant to the applicable
provision of this Indenture, and thereafter, "Depositary" shall mean or include
such successor.
"EBITDA" for any period means the Consolidated Net Income for such
period, plus the following (but without duplication) to the extent deducted in
calculating such Consolidated Net Income for such period: (a) income tax
expense, (b) Consolidated Interest Expense, (c) depreciation
expense and (d) amortization expense.
"EUROCLEAR" means the Euroclear System (or any
successor securities clearing agency).
"EVENT OF LOSS" is defined to mean any of the following events: (a)
the actual loss of a Mortgaged Rig (b) the agreed, arranged or constructive
total loss of a Mortgaged Rig, (c) requisition for title or other compulsory
acquisition of title of a Mortgaged Rig by any governmental or other competent
authority, agency or instrumentality otherwise than by requisition for hire, or
(d) capture, seizure, arrest, detention or confiscation of a Mortgaged
Rig by any government or Person acting or purporting to act on behalf of any
government unless such Mortgaged Rig is released and restored to the Mortgaged
Rig Owner from such capture, arrest or detention within six months after the
occurrence thereof or such other period as may be specified in the insurance
policies taken out or entered into in respect of the Mortgaged Rig.
"EVENT OF LOSS PROCEEDS" means all compensation, damages and other
payments (including insurance proceeds) received by any Mortgaged Rig Owner, the
Issuer, any Restricted Subsidiary, the security agent under the Mitsubishi Loan
Collateral Documents, the Collateral Agent or the Trustee, jointly or severally,
from any Person,
12
including any governmental authority, with respect to or in connection with an
Event of Loss.
"EXCHANGE ACT" means the Securities Exchange Act
of 1934, as amended.
"EXCHANGE GLOBAL NOTE" means one or more Global Notes that do not
and are not required to bear the Private Placement Legend.
"EXCHANGE OFFER" means the offer that may be made by the Issuer
pursuant to the Registration Rights Agreement to exchange Exchange Secured Notes
for Initial Secured Notes.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the
meaning set forth in the Registration Rights Agreement.
"EXCHANGE SECURED NOTES" has the meaning set forth in the Recitals
to this Indenture and more particularly means any Secured Notes authenticated
and delivered under this Indenture pursuant to the Exchange Offer.
"EXCHANGEABLE STOCK" means any Capital Stock which is exchangeable
or convertible into another security (other than Capital Stock of the Issuer
which is neither Exchangeable Stock nor Redeemable Stock).
"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 may be approved by a significant segment of
the accounting profession of the United States, as in effect from time to time.
"GLOBAL NOTE" means, individually and collectively, the Regulation S
Temporary Global Note, the Regulation S Permanent Note, the U.S. Global Note and
the Exchange Global Note.
"GUARANTEE" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation of such other Person (whether arising
by virtue of partnership arrangements, or by agreements to keep well,
13
to purchase assets, goods, securities or services, to take or pay or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Indebtedness of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); PROVIDED, HOWEVER, that the term "guarantee" shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "guarantee" used as a verb has a corresponding meaning. The
term "guarantor" shall mean any Person guaranteeing any obligation.
"GUARANTEES" means, collectively, the Pride Guarantee and any
Subsidiary Guarantee.
"GUARANTOR" means, collectively, Pride and any Subsidiary Guarantor.
"HEDGING OBLIGATIONS" of any Person means the net obligation (not
the notional amount) of such Person pursuant to any interest rate swap
agreement, foreign currency exchange agreement, interest rate collar agreement,
option or futures contract or other similar agreement or arrangement relating to
interest rates or foreign exchange rates.
"HOLDER" or "NOTEHOLDER" means the Person in whose name a Secured
Note is registered on the Registrar's books.
"INCIDENTAL ASSET" is defined to mean any equipment, outfit,
furniture, furnishings, appliances, spare or replacement parts or stores owned
by the Issuer or a Restricted Subsidiary that have become obsolete or unfit for
use or no longer useful, necessary or profitable in the conduct of the business
of the Issuer or such Restricted Subsidiary, as the case may be. In no event
shall the term "Incidental Asset" include a drilling rig or a drill ship or a
Mortgaged Rig.
"INCUR" means issue, assume, guarantee, incur or otherwise become
liable for, PROVIDED, HOWEVER, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary. The term "Incurrence" when used
as a noun shall have a correlative meaning.
14
"INDEBTEDNESS" of any Person at any date means, without duplication:
(a) all indebtedness of such Person for borrowed money (whether or
not the recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof);
(b) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments;
(c) all obligations of such Person in respect of letters of credit
or other similar instruments (or reimbursement obligations with respect
thereto), other than standby letters of credit and performance bonds
issued by such Person in the ordinary course of business, to the extent
not drawn or, to the extent drawn, if such drawing is reimbursed not later
than the third Business Day following demand for reimbursement;
(d) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services, except trade payables and accrued
expenses incurred in the ordinary course of business;
(e) all Capitalized Lease Obligations of such
Person;
(f) all Indebtedness of others secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such Person,
to the extent of the fair market value of all the assets of such Person
subject to such Lien;
(g) all Indebtedness of others guaranteed by such
Person to the extent of such guarantee;
(h) Redeemable Stock; and
(i) all Hedging Obligations of such Person.
For purposes of clause (h) of the preceding sentence, Redeemable Stock shall be
valued at the maximum fixed redemption, repayment or repurchase price, which
shall be calculated in accordance with the terms of such Redeemable Stock as if
such Redeemable Stock were repurchased on any date on which Indebtedness shall
be required to be determined pursuant to this Indenture; PROVIDED, HOWEVER, that
if such Redeemable Stock is not then permitted to be redeemed, repaid or
repurchased, the redemption, repayment or repurchase price shall be the book
value of such
15
Redeemable Stock. The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability of any guarantees at such date;
PROVIDED that for purposes of calculating the amount of any non-interest bearing
or other discount security, such Indebtedness shall be deemed to be the
principal amount thereof that would be shown on the balance sheet of the issuer
thereof dated such date prepared in accordance with GAAP but that such security
shall be deemed to have been Incurred only on the date of the original issuance
thereof. The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date.
"INDENTURE" means this Indenture, as amended or supplemented from
time to time by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof, including for all purposes of this
Indenture and any supplemental indenture the provisions of the Trust Indenture
Act that are deemed to be a part of and govern this Indenture and any
supplemental indenture.
"INDIRECT PARTICIPANT" means a Person who holds an
interest through a Participant.
"INITIAL PURCHASER" means Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation.
"INITIAL SECURED NOTES" has the meaning set forth in the Recitals to
this Indenture and more particularly means any of the Secured Notes
authenticated and delivered under this Indenture other than Exchange Secured
Notes.
"INSTITUTIONAL ACCREDITED INVESTOR" means an entity which is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"INTEREST RATE PROTECTION AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect the Issuer or any Restricted Subsidiary against
fluctuations in interest rates.
"INVESTMENT" in any Person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of business that
are recorded as accounts receivable on the balance sheet of the lender) or other
extensions of credit (including by way of guarantee or
16
similar arrangement) or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Capital Stock,
Indebtedness or other similar instruments issued by such Person. For purposes of
the definition of "Unrestricted Subsidiary", the definition of "Restricted
Payment" and Section 4.11, (i) "Investment" shall include the portion
(proportionate to the Issuer's equity interest in such Subsidiary) of the fair
market value of the net assets of any Subsidiary of the Issuer at the time that
such Subsidiary is designated an Unrestricted Subsidiary; PROVIDED, HOWEVER,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the
Issuer shall be deemed to continue to have a permanent "Investment" in such
Subsidiary at the time of such redesignation equal to (x) the amount of such
Investment immediately prior to such redesignation less (y) the portion
(proportionate to the Issuer's equity interest in such Subsidiary) of the fair
market value of the net assets of such Subsidiary at the time of such
redesignation; and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Issuer's Board of
Directors.
"INVESTMENT GRADE RATING" means BBB- or above, in the case of S&P
(or its equivalent under any successor rating categories of S&P), Baa3 or above,
in the case of Moody's (or its equivalent under any successor rating categories
of Moody's), and the equivalent in respect of the ratings categories of any
Rating Agencies substituted for S&P or Moody's.
"ISSUE DATE" means the date on which the Secured Notes are
originally issued.
"ISSUER" means the Person named as such in the preamble of this
Indenture unless and until a successor replaces it pursuant to the applicable
provisions hereof and thereafter means such successor.
"ISSUER LOAN" means loans made under the Mitsubishi Loan Documents
purchased by the Issuer.
"ISSUER ORDER" means a written order or request signed in the name
of an Officer of the Issuer and delivered to the Trustee.
"ISSUER SECURITY AGREEMENT" means the Senior Secured Note Security
and Pledge Agreement of even date
17
herewith among the Issuer, the Trustee and the Collateral Agent.
"LEGAL HOLIDAY" means a Saturday, a Sunday or other day on which
commercial banks in The City of New York, Brazil, the Bahamas or the British
Virgin Islands or in the city of the corporate trust office of the Trustee are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday, payment may be made on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
"LETTER OF CREDIT" means the standby irrevocable letter of credit
issued by the Letter of Credit Provider to the Trustee in substantially the form
of Exhibit E.
"LETTER OF CREDIT PROVIDER" means Republic National Bank of New
York, together with its successors.
"LIEN" means any mortgage, pledge, hypothecation, charge,
assignment, deposit arrangement, encumbrance, security interest, lien (statutory
or other), or preference, priority or other security or similar agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any agreement to give or xxxxx x Xxxx or any lease, condition sale
or other title retention agreement having substantially the same economic effect
as any of the foregoing). For the purposes of this Indenture, the Issuer or any
of its Subsidiaries shall be deemed to own subject to a Lien any asset which the
Issuer or such Subsidiary has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capitalized Lease
Obligation or other title retention agreement relating to such asset.
"MARAD DOCUMENTS" means the documents listed on Schedule A hereto,
as the same may be amended or modified or refinanced from time to time.
"MARITIMA" means Maritima Petroleo e Engenharia Ltda.
"MITSUBISHI DOCUMENTS" means, collectively, the
Mitsubishi Loan Agreements and the Mitsubishi Loan
Collateral Documents.
"MITSUBISHI LOAN AGREEMENTS" means the documents listed on Schedule
B hereto, as the same may be amended or modified from time to time.
18
"MITSUBISHI LOAN COLLATERAL DOCUMENTS" means the documents listed on
Schedule C hereto, as the same may be amended or modified from time to time.
"MATURITY" means the date on which the principal of a Secured Note
becomes due and payable as provided therein or in this Indenture, whether at the
Stated Maturity or the Change of Control Payment Date or by declaration of
acceleration, call for redemption or otherwise.
"MOODY'S" means Xxxxx'x Investors Service, Inc., or if Xxxxx'x
Investors Services, Inc. shall cease rating the specified debt securities and
such ratings business with respect thereto shall have been transferred to a
successor Person, such successor Person.
"MORTGAGED RIG" means any Rig subject to the Lien of the Security
Documents.
"MORTGAGED RIG OWNER" means any owner of a Mortgaged Rig. The
"Mortgaged Rig Owners" as of the date of this Indenture are Petrodrill Six
Limited and Petrodrill Seven Limited.
"NET AVAILABLE CASH" from an Asset Sale means cash payments or
Temporary Cash Equivalents received therefrom (including any cash payments
received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise and proceeds from the sale or other
disposition of any securities received as consideration, but only as and when
received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Indebtedness or other obligations relating
to such properties or assets or received in any other noncash form), in each
case net of (i) all legal, title and recording tax expenses, commissions and
other fees and expenses incurred, and all federal, state, provincial, foreign
and local taxes required to be accrued as a liability under GAAP, as a
consequence of such Asset Sale, (ii) all payments made on any Indebtedness which
is secured by any assets subject to such Asset Sale, in accordance with the
terms of any Lien upon or other security agreement of any kind with respect to
such assets, or which must by its terms, or in order to obtain a necessary
consent to such Asset Sale, or by applicable law, be repaid out of the proceeds
from such Asset Sale, (iii) all distributions and other payments required to be
made to minority interest holders in Subsidiaries or joint ventures as a result
of such Asset Sale and (iv) the deduction of appropriate amounts provided by the
seller as a reserve, in accordance with GAAP, against any liabilities associated
with the
19
property or other assets disposed in such Asset Sale and retained by the Issuer
or any Restricted Subsidiary after such Asset Sale.
"NET CASH PROCEEDS" means, with respect to any issuance or sale of
Capital Stock, the cash proceeds of such issuance or sale net of attorneys'
fees, accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"NON-CONVERTIBLE CAPITAL STOCK" means, with respect to any Person,
any non-convertible Capital Stock of such Person and any Capital Stock of such
Person convertible solely into non-convertible common stock of such person;
PROVIDED, HOWEVER, that Non-Convertible Capital Stock shall not include any
Redeemable Stock or Exchangeable Stock.
"OBLIGATIONS" means, with respect to any Indebtedness, any
obligation thereunder, including, without limitation, principal, premium and
interest (including post petition interest thereon and, with respect to the
Secured Notes, Special Interest and Additional Amounts), penalties, fees, costs,
expenses, indemnifications, reimbursements, damages and other liabilities.
"OBLIGORS" means the Issuer, Pride and the Subsidiary Guarantors, if
any, collectively; "Obligor" means the Issuer, Pride or any Subsidiary
Guarantor.
"OFFERING MEMORANDUM" means the Offering Memorandum, dated October
28, 1999, relating to the Issuer's offering and placement of the Initial Secured
Notes.
"OFFERING" means the Offering of the Initial Secured Notes by the
Issuer.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, a Vice Chairman of the Board, the Chief Executive Officer, the President,
the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary, an Assistant Secretary or
any Vice President of such person.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman
of the Board, a Vice Chairman of the Board, the President, the Chief Executive
Officer or a Vice President, and by the Chief Financial Officer, the Chief
Accounting Officer, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Issuer or a
20
Subsidiary and delivered to the Trustee, which shall comply with this Indenture.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee that meets the requirements of Sections
12.04 and 12.05 hereof. The counsel may be an employee of or counsel to the
Issuer, any Subsidiary, Pride, Maritima or the Trustee.
"PARI PASSU INDEBTEDNESS" means any Indebtedness of the Issuer,
whether outstanding on the date on which the Secured Notes are originally issued
or thereafter created, incurred or assumed, unless, in the case of any
particular Indebtedness the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall be subordinated in right of payment to the Secured Notes.
"PARTICIPANT" means, with respect to DTC, Euroclear or Cedel, a
Person who has an account with DTC, Euroclear or Cedel, respectively (and, with
respect to DTC, shall include Euroclear and Cedel).
"PERMITTED HOLDER" means any Shareholder or any
Affiliate of a Shareholder.
"PERMITTED INVESTMENTS" means:
(a) certificates of deposit, bankers acceptances, time deposits,
Eurocurrency deposits and similar types of Investments routinely offered
by commercial banks with final maturities of one year or less issued by
commercial banks having capital and surplus in excess of $100,000,000;
(b) commercial paper issued by any corporation, if such commercial
paper has credit ratings of at least "A-1" by S&P and at least "P-1" by
Moody's;
(c) U.S. Government Obligations with a maturity of three years or
less;
(d) repurchase obligations of instruments of the type described in
clause (c);
(e) shares of money market mutual or similar funds having assets in
excess of $100,000,000;
(f) payroll advances in the ordinary course of business;
21
(g) other advances and loans to officers and employees of the Issuer
or any Restricted Subsidiary, so long as the aggregate principal amount of
such advances and loans does not exceed $1,000,000 at any one time
outstanding;
(h) Investments in any Person in the form of a capital contribution
of the Issuer's Common Stock;
(i) Investments made by the Issuer in its Restricted Subsidiaries
(or any Person that will be a Restricted Subsidiary as a result of such
Investment) or by a Restricted Subsidiary in the Issuer or in one or more
Restricted Subsidiaries (or any Person that will be a Restricted
Subsidiary as a result of such Investment);
(j) Investments in stock, obligations or securities received in
settlement of debts owing to the Issuer or any Restricted Subsidiary as a
result of bankruptcy or insolvency proceedings or upon the foreclosure,
perfection or enforcement of any Lien in favor of the Issuer or any
Restricted Subsidiary, in each case as to debt owing to the Issuer or any
Restricted Subsidiary that arose in the ordinary course of business of the
Issuer or any such Restricted Subsidiary;
(k) Investments made in exchange for Indebtedness
permitted by clause (b)(iv) of Section 4.09;
(l) Investments in a Person other than a Restricted Subsidiary for
the purpose of financing the construction or upgrade of new drilling rigs,
drillships or similar vessels and related equipment, in an aggregate
amount not to exceed at any time outstanding $100,000,000; PROVIDED,
HOWEVER, that at the time of such Investment, the Issuer or such Person
has entered into a Qualifying Contract with respect thereto; and
(m) Investment represented by that portion of the proceeds from
Asset Sales that is not required to be cash or Temporary Cash Equivalents
by the covenant in Section 4.15 hereof.
"PERMITTED LIENS" means, with respect to any Person, (a) pledges or
deposits by such Person under worker's compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of
22
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits of cash or United
States government bonds to secure surety or appeal bonds to which such Person is
a party, or deposits as security for contested taxes or import duties or for the
payment of rent, in each case Incurred in the ordinary course of business; (b)
Liens imposed by law, such as maritime, carriers', warehousemen's and mechanics'
Liens, in each case for sums not yet due or being contested in good faith by
appropriate proceedings or other Liens arising out of judgments or awards
against such Person with respect to which such Person shall then be proceeding
with an appeal or other proceedings for review; (c) Liens for property taxes not
yet subject to penalties for non-payment or which are being contested in good
faith and by appropriate proceedings; (d) Liens in favor of issuers of surety
bonds or letters of credit issued pursuant to the request of and for the account
of such Person in the ordinary course of its business; PROVIDED, HOWEVER, that
such letters of credit do not constitute Indebtedness; (e) minor survey
exceptions, minor encumbrances, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real property or Liens incidental to the conduct of the business
of such Person or to the ownership of its properties which were not Incurred in
connection with Indebtedness and which do not in the aggregate materially
adversely affect the value of said properties or materially impair their use in
the operation of the business of such Person; (f) Liens securing Indebtedness
Incurred to finance the construction, equipping, mobilization, transportation,
installation, purchase or lease of, or repairs, upgrades, improvements or
additions to, property of such Person; PROVIDED, HOWEVER, that the Lien may not
extend to any property owned by such Person or any of its Subsidiaries at the
time the Lien is Incurred other than the property so constructed, equipped,
mobilized, transported, installed, purchased, leased, repaired, upgraded,
improved or added to, and the Indebtedness (other than any interest thereon)
secured by the Lien may not be Incurred more than 180 days after the later of
the purchase, acquisition, completion of construction, equipping, mobilization,
transportation, installation, repair, improvement, addition or commencement of
full operation of the property subject to the Lien; (g) Liens existing on the
Issue Date; (h) Liens on property or shares of Capital Stock of another Person
at the time such other Person becomes a Subsidiary of such Person; PROVIDED,
HOWEVER, that such Liens are not created, incurred or assumed in connection
with, or in contemplation of, such
23
other Person becoming such a Subsidiary; PROVIDED FURTHER, HOWEVER, that such
Lien may not extend to any other property owned by such Person or any of its
Subsidiaries; (i) Liens on property at the time such Person or any of its
Subsidiaries acquires the property, including any acquisition by means of a
merger or consolidation with or into such Person or a Subsidiary of such Person;
PROVIDED, HOWEVER, that such Liens are not created, incurred or assumed in
connection with, or in contemplation of, such acquisition; PROVIDED FURTHER,
HOWEVER, that the Liens may not extend to any other property owned by such
Person or any of its Subsidiaries; (j) Liens securing Indebtedness or other
obligations of a Subsidiary of such Person owing to such Person or a wholly
owned Subsidiary of such Person; (k) Liens securing Hedging Obligations so long
as such Hedging Obligations relate to Indebtedness that is, and is permitted to
be under this Indenture, secured by a Lien on the same property securing such
Hedging Obligations; (l) any charter or Qualifying Contract; (m) judgment Liens
not giving rise to an Event of Default; (n) rights of off-set of banks and other
Persons; (o) deposits made to obtain insurance; (p) Liens or equitable
encumbrances deemed to exist by reason of a negative pledge or other
arrangements to refrain from permitting Liens or fraudulent transfer law; (q)
Liens to secure any Refinancing (or successive Refinancings) as a whole, or in
part, of any Indebtedness secured by any Lien referred to in the foregoing
clauses (f), (g), (h) and (i); PROVIDED, HOWEVER, that (x) such new Lien shall
be limited to all or part of the same property that secured the original Lien
(plus improvements to or on such property); and (y) the Indebtedness secured by
such Lien at such time is not increased to any amount greater than the sum of
(A) the outstanding principal amount or, if greater, committed amount of the
Indebtedness described under clauses (f), (g), (h) and (i) at the time the
original Lien became a Permitted Lien and (B) an amount necessary to pay any
fees and expenses, including premiums, related to such refinancing, refunding,
extension, renewal or replacement; and (r) Liens created under the MARAD
Documents or the Mitsubishi Documents. Notwithstanding the foregoing, "Permitted
Liens" will not include any Lien described in clauses (f), (h) or (i) above to
the extent such Lien applies to any Additional Assets acquired directly or
indirectly from Net Available Cash pursuant to Section 4.15. For purposes of
this definition, the term "Indebtedness" shall be deemed to include interest on
such Indebtedness.
"PERSON" means any individual, corporation, limited liability
company, limited or general partnership, joint venture, association, joint stock
company, trust,
24
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"PREFERRED STOCK", as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"PRIDE" means Pride International, Inc. and its
successors.
"PRIDE GUARANTEE" means the guarantee of the Secured Notes by Pride
pursuant to the provisions described in Article XIII hereof.
"PUBLIC EQUITY OFFERING" means an underwritten primary public
offering of common stock of the Issuer or a Shareholder pursuant to an effective
registration statement under the Securities Act or pursuant to applicable laws
of any jurisdiction outside the United States, in the case of a Shareholder,
only to the extent the net cash proceeds therefrom are contributed as equity
capital to the Issuer.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"QUALIFIED SUBSTITUTE OWNER" means, as of the date of acquisition of
beneficial ownership, directly or indirectly, of at least 26.4% of the total
voting power of the Voting Stock of the Issuer, a corporation (x) whose
long-term senior unsecured debt has an investment grade rating by either Xxxxx'x
or S&P and (y) which derived at least 50% of its revenue during the most recent
12-month period for which financial statements are publicly available from
offshore drilling operations.
"QUALIFYING CONTRACT" with respect to a drilling rig, drillship or
similar vessel means the charter or any other contract for the use thereof (i)
between the Issuer or a Restricted Subsidiary and a counterparty that, as
certified in an Officers' Certificate delivered to the Trustee in connection
therewith, is, or has a performance guarantee from a third party that is, (a) a
company that is either generally recognized as a major oil company, (b) an oil
company, a gas producer or an oil and gas service company, in each case at the
time such contract is executed having a Total Equity Market Capitalization of at
least
25
$1.0 billion if such entity is a public company, or if such entity is not a
public company, having a consolidated net worth of $500.0 million or (c) a
company that has an investment grade rating of its long-term debt from Xxxxx'x
or S&P, (ii) having a minimum term of three years and (iii) containing a minimum
day rate for such rig, drillship or similar vessel.
"RATING AGENCIES" means (a) S&P and Xxxxx'x or (b) if S&P or Xxxxx'x
or both of them are not making ratings of the Secured Notes publicly available,
a nationally recognized United States rating agency or agencies, as the case may
be, selected by the Issuer, which will be substituted for S&P or Xxxxx'x or
both, as the case may be.
"RECORD DATE" means, for the interest payment on any Interest
Payment Date, the date specified in Section 2.12 hereof.
"REDEEMABLE STOCK" means, with respect to any Secured Notes, 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 thereof), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, on or prior
to the date on which such Secured Notes mature. Notwithstanding the preceding
sentence, any Capital Stock that would constitute Redeemable Stock solely
because the holders thereof have the right to require the Issuer to repurchase
such Capital Stock upon the occurrence of a change of control or an asset sale
shall not constitute Redeemable Stock if the terms of such Capital Stock provide
that the Issuer may not repurchase or redeem any such Capital Stock pursuant to
such provisions unless such repurchase or redemption complies with the covenants
described in Sections 4.08, 4.11 and 4.15.
"REDEMPTION DATE" means, when used with respect to any Secured Note
or part thereof to be redeemed hereunder, the date fixed for redemption of such
Secured Notes pursuant to the terms of the Secured Notes and this Indenture.
"REDEMPTION PRICE" means, when used with respect to any Secured Note
or part thereof to be redeemed hereunder, the price fixed for redemption of such
Secured Note pursuant to the terms of the Secured Notes and this Indenture, plus
accrued and unpaid interest, if any, and Additional Amounts, if any, and Special
Interest, if any, thereon, to the Redemption Date.
26
"REFINANCE" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the date of this Indenture, by and between the Issuer and
the Initial Purchaser, as such agreement may be amended, modified or
supplemented from time to time.
"REGULATION S" means Regulation S under the Securities Act
(including any successor regulation thereto), as it may be amended from time to
time.
"REGULATION S GLOBAL NOTE" means a Regulation S Temporary Global
Note or Regulation S Permanent Global Note, as appropriate.
"REGULATION S PERMANENT GLOBAL NOTE" means, collectively, one or
more permanent global senior notes that contain the paragraph referred to in
footnote 1, the phrase referred to in footnote 4 and the additional schedule
referred to in footnote 5 to the form of the Secured Note attached hereto as
Exhibit A, and that are deposited with the Secured Note Custodian and registered
in the name of the Depositary or its nominee, representing the Initial Secured
Notes sold in reliance on Regulation S.
"REGULATION S TEMPORARY GLOBAL NOTE" means a single temporary global
senior note that contains the paragraphs referred to in footnote 1, the phrase
referred to in footnote 4 and the additional schedule referred to in footnote 4
to the form of the Senior Secured Note attached hereto as Exhibit A, in the form
of the Secured Note attached hereto as Exhibit A that is deposited with the
Secured Note Custodian and registered in the name of the Depositary or its
nominee, representing the Initial Secured Notes sold in reliance on Regulation
S.
"RELATED BUSINESS" means any business related, ancillary or
complementary to the businesses of the Issuer and the Restricted Subsidiaries on
the Issue Date.
"RESERVE ACCOUNT" means the reserve account established pursuant to
the Reserve Account Agreement.
"RESERVE ACCOUNT AGREEMENT" means the Seniorc Secured Note Reserve
Account Agreement of even date herewith
27
among the Issuer, the Trustee and Wilmington Trust Company as reserve account
agent.
"RESERVE ACCOUNT PROPERTY" means the funds and Investments
contained in the Reserve Account.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means
any officer of the Trustee with responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"RESTRICTED COLLATERAL" means (1) any Rig made subject to the Lien
of the Security Agreements, (2) the Capital Stock of each Restricted Subsidiary
owning a Mortgaged Rig, (3) each Qualifying Contract subject to the Lien of the
Security Agreements and (4) the Reserve Account and the cash and Investments
credited thereto.
"RESTRICTED SUBSIDIARY" means any Subsidiary other than an
Unrestricted Subsidiary.
"RULE 144A" means Rule 144A under the Securities Act (including any
successor regulation thereto), as it may be amended from time to time.
"S&P" is defined to mean Standard & Poors Ratings Group, a division
of XxXxxx-Xxxx Companies, Inc. and its successors.
"SALE/LEASEBACK TRANSACTION" means any arrangement with any Person
providing for the leasing by the Issuer or any of its Restricted Subsidiaries,
for a period of more than three years, of any real or tangible personal
property, which property has been or is to be sold or transferred by the Issuer
or such Restricted Subsidiary to such Person in contemplation of such leasing.
"SEC" or "COMMISSION" means the Securities and
Exchange Commission.
"SECURED NOTE CUSTODIAN" means the Trustee, as custodian for the
Depositary with respect to the Secured Notes in global form, or any successor
entity thereto.
"SECURED NOTES" has the meaning set forth in the Recitals of this
Indenture and more particularly means any of the Secured Notes authenticated and
delivered under this Indenture.
28
"SECURITIES ACT" means the U.S. Securities Act of
1933, as amended.
"SECURITY AGREEMENTS" means the Reserve Account Agreement, the
Issuer Security Agreement, the Mitsubishi Collateral Documents and any other
document that secures the
Secured Notes or an Issuer Loan.
"SENIOR INDEBTEDNESS" of any Person means (i) Indebtedness of such
Person, whether outstanding on the Issue Date or thereafter Incurred, and (ii)
accrued and unpaid interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Issuer to
the extent post filing interest is allowed in such proceeding) in respect of (A)
indebtedness for money borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which such
person is responsible or liable unless, in the case of (i) and (ii), in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such obligations are subordinate in right of
payment to the Secured Notes, the Issuer Loans or the Subsidiary Guarantees, as
applicable; PROVIDED, HOWEVER, that Senior Indebtedness shall not include (1)
any obligation of such Person to any Subsidiary of such Person, (2) any
liability for federal, state, local, foreign or other taxes owed or owing by
such Person, (3) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including guarantees thereof or
instruments evidencing such liabilities), (4) any Indebtedness of such Person
(and any accrued and unpaid interest in respect thereof) which is subordinate or
junior in any respect to any other Indebtedness or other obligation of such
Person or (5) that portion of any Indebtedness which at the time of Incurrence
is Incurred in violation of this Indenture.
"SHAREHOLDER" means any of the Shareholders.
"SHAREHOLDERS" means Drillpetro Inc., a company organized under the
laws of the Bahamas, Techdrill Inc., a company organized under the laws of the
Bahamas (each of the foregoing an Affiliate of Maritima), Westville Management
Corporation Inc., a company organized under the laws of the British Virgin
Islands (an indirect wholly owned subsidiary of Pride) and First Reserve
Corporation, individually or collectively as the context requires.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary Guarantor and any
other Restricted Subsidiary that would be a Significant Subsidiary of the Issuer
within the meaning of
29
Rule 1-02 under Regulation S-X promulgated by the SEC. For purposes of Section
6.01(g) and Section 6.01(h) hereof only, the term "Significant Subsidiary" shall
also include any group of Restricted Subsidiaries that, taken as a whole as of
the latest audited consolidated financial statements for the Issuer and its
Subsidiaries, would constitute a Significant Subsidiary.
"SPECIAL INTEREST" means all "special interest" owing pursuant to
the Registration Rights Agreement.
"SPECIAL RECORD DATE" means a date fixed by the Trustee pursuant to
Section 2.12 hereof for the payment of Defaulted Interest.
"STATED MATURITY" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"SUBORDINATED OBLIGATION" means any Indebtedness of the Issuer or a
Subsidiary Guarantor, as the case may be (whether outstanding on the Issue Date
or thereafter Incurred) which is subordinate or junior in right of payment to
the Secured Notes, the Issuer Loans or any Subsidiary Guarantee, as applicable,
whether pursuant to a written agreement to that effect or by operation of law.
"SUBSIDIARY" means, with respect to any Person:
(1) any corporation of which more than 50% of the total voting power
of all classes of the capital stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors is
owned by such Person directly or through one or more other Subsidiaries of
such Person, and
(2) any entity other than a corporation of which at least a majority
of the capital stock or other equity interest (however designated)
entitled (without regard to the occurrence of any contingency) to vote in
the election of the governing body, partners, managers or others that will
control the management of such entity is owned by such Person directly or
through one or more other Subsidiaries of such Person.
30
"SUBSIDIARY GUARANTOR" means each Subsidiary of the Issuer, whether
now owned or hereafter formed, which shall execute and deliver a Subsidiary
Guarantee.
"SUBSIDIARY GUARANTEE" means a guarantee in the form of Exhibit D
hereto of the Issuer's obligations with respect to the Secured Notes issued by a
Subsidiary of the Issuer.
"TANGIBLE PROPERTY" means all land, buildings, machinery and
equipment and leasehold interests and improvements which would be reflected on a
balance sheet of the Issuer prepared in accordance with GAAP, excluding (a) all
rights, contracts and other intangible assets of any nature whatsoever and (b)
all inventories and other current assets.
"TEMPORARY CASH INVESTMENTS" means Investments described in clauses
(a), (b), (c) and (d) of the definition of Permitted Investments.
"TOTAL EQUITY MARKET CAPITALIZATION" of any Person means, as of any
day of determination, the sum of (i) the product of (A) the aggregate number of
outstanding primary shares of common stock of such Person on such day (which
shall not include any options or warrants on, or securities convertible or
exchangeable into, shares of common stock of such Person) multiplied by (B) the
average closing price of such common stock over the 20 consecutive Business Days
immediately preceding such day, plus (ii) the liquidation value of any
outstanding shares of preferred stock of such Person on such day.
"TRANSFER RESTRICTED NOTES" means Secured Notes that bear or are
required to bear the Private Placement Legend.
"TRUST INDENTURE ACT" or "TIA" means the U.S. Trust Indenture Act of
1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of this Indenture,
PROVIDED that if the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" or "TIA" means, if so required by such amendment, the
Trust Indenture Act of 1939, as so amended.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
31
"UNRESTRICTED SUBSIDIARY" means:
(a) any Subsidiary of the Issuer that at the time of determination
will be designated an Unrestricted Subsidiary by the Board of Directors of
the Issuer as provided below; and
(b) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Issuer may designate any Subsidiary of
the Issuer as an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries (x) owns any Capital Stock or Indebtedness of, or holds any Lien on
any property of, the Issuer or any other Subsidiary of the Issuer that is not a
Subsidiary of the Subsidiary to be so designated or (y) owns any of the
Collateral; PROVIDED, HOWEVER, that either (A) the Subsidiary to be so
designated has total assets greater than $10,000 or less or (B) if such
Subsidiary has assets greater than $10,000, such designation would be permitted
under Section 4.11.
Any such designation by the Board of Directors of the Issuer shall
be evidenced to the Trustee by filing a resolution of the Board of Directors
with the Trustee giving effect to such designation. The Board of Directors of
the Issuer may designate any Unrestricted Subsidiary as a Restricted Subsidiary
if, immediately after giving effect to such designation, (A) no Default or Event
of Default shall have occurred and be continuing and (B) the Issuer could incur
$1.00 of additional Indebtedness under Section 4.09(a) hereof.
"U.S. GLOBAL NOTE" means, collectively, one or more permanent Global
Notes that contain the paragraphs referred to in footnote 1 or footnote 3, in
the phrase referred to in footnote 4 and the additional schedule referred to in
footnote 5 to the form of the Secured Note attached hereto as Exhibit A, and
that are deposited with the Secured Note Custodian and registered in the name of
the Depositary or its nominee, representing Secured Notes sold in reliance on
Rule 144A or in reliance on another exemption from the registration requirements
of the Securities Act.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
32
"U.S. PERSON" means (i) any individual resident in the United
States, (ii) any partnership or corporation organized or incorporated under the
laws of the United States, (iii) any estate of which an executor or
administrator is a U.S. person (other than an estate governed by foreign law and
of which at least one executor or administrator is a non U.S. Person who has
sole or shared investment discretion with respects to its assets), (iv) any
trust of which any trustee is a U.S. Person (other than a trust of which at
least one trustee is an non-U.S. Person who has sole or shared investment
discretion with respect to its assets and no beneficiary of the trust (and no
settler, if the trust is revocable) is a U.S. Person), (v) any agency or branch
of a foreign entity located in the United States, (vi) any nondiscretionary or
similar account (other than an estate or trust) held by a dealer or other
fiduciary for the benefit or account of a U.S. Person, (vii) any discretionary
or similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the United
States (other than such an account held for the benefit or account of a non U.S.
Person), (viii) any partnership or corporation organized or incorporated under
the laws of a foreign jurisdiction and formed by a U.S. Person principally for
the purpose of investing in securities not registered under the Securities Act
(unless it is organized or incorporated and owned, by "accredited investors"
within the meaning of Rule 501(a) under the Securities Act who are not natural
persons, estates or trusts); PROVIDED, HOWEVER, that the term "U.S. Person"
shall not include (A) a branch or agency of a U.S. Person that is located and
operating outside the United States for valid business purposes as a locally
regulated branch or agency engaged in the banking or insurance business, (B) any
employee benefit plan established and administered in accordance with the law,
customary practices and documentation of a foreign country and (C) the
international organizations set forth in Section 902(k)(vi) of Regulation S and
any other similar international organizations, and their agencies, affiliates
and pension plans.
"VOTING STOCK OF A PERSON" means all classes of Capital Stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" means a Restricted Subsidiary
all the Capital Stock of which (other
33
than directors' qualifying shares) is owned by the Issuer or one or more Wholly
Owned Restricted Subsidiaries.
SECTION 1.02. OTHER DEFINITIONS.
DEFINED
TERM IN SECTION
---- ----------
"Act".................................................... 12.06(a)
"Additional Amounts"..................................... 4.28(a)
"Affiliate Transaction".................................. 4.17(a)
"Change of Control"...................................... 4.08(a)
"Change of Control Offer"................................ 4.08(a)
"Change of Control Purchase Price"....................... 4.08(a)
"Change of Control Offer Period"......................... 4.08(b)
"Change of Control Payment Date"......................... 4.08(b)
"Covenant Defeasance".................................... 9.03
"DTC".................................................... 2.03
"Defaulted Interest"..................................... 2.12
"Defeasance"............................................. 9.02
"Event of Default"....................................... 6.01
"40-day restricted period"............................... 2.01(c)
"Guaranteed Indebtedness"................................ 4.19
"Interest Payment Date".................................. 2.12
"Make Whole Premium"..................................... 3.07
"Mortgaged Rig Asset".................................... 4.15(a)
"Paying Agent"........................................... 2.03
"Pride Indenture"........................................ 13.03(b)
"Private Placement Legend"............................... 2.06(f)(i)
"Process Agent".......................................... 12.10
"Registrar".............................................. 2.03
"Restricted Payment"..................................... 4.11(a)
"Secured Notes".......................................... 2.01(b)
"Securities Register".................................... 2.03
"Successor".............................................. 5.01(a)
"Tax Jurisdiction"....................................... 4.28(a)
34
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"indenture securities" means the Secured Notes;
"indenture security holder" means a Holder of a Secured Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Secured Notes means the Issuer or any other Obligor
on the Secured Notes.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by the Trust Indenture Act reference to another statute
or defined by Commission rule under the Trust Indenture Act have the meanings so
assigned to them therein.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) the words "herein," "hereof" and "hereunder", and other words of
similar import, refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(2) a term has the meaning assigned to it;
(3) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(4) "or" is not exclusive;
(5) words in the singular include the plural, and in the plural
include the singular;
(6) provisions apply to successive events and transactions;
(7) references to sections of or rules under the Securities Act
shall be deemed to include substitute,
35
replacement of successor sections or rules adopted by the Commission from
time to time;
(8) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared
in accordance with generally accepted accounting principles;
(9) when used with respect to the Secured Notes, the term "principal
amount" shall mean the principal amount thereof at Maturity;
(10) unless otherwise expressly provided herein, the principal
amount of any preferred stock shall be greater of (i) the maximum
liquidation value of such preferred stock or (ii) the maximum mandatory
redemption or mandatory repurchase price with respect to such preferred
stock; and
(11) all references to amounts of money or $ mean U.S. Dollars.
ARTICLE II
THE SECURED NOTES
SECTION 2.01. FORM AND DATING. (a) GENERAL. The Secured Notes,
together with the Trustee's certificate of authentication and Pride's notation
of the Pride Guarantee, shall be substantially in the form set forth in Exhibit
A hereto. The Secured Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Secured Note shall be dated the date
of its authentication. The Secured Notes shall be issued only in fully
registered form, without coupons, in denominations of $1,000 and integral
multiples thereof. The Initial Secured Notes and the Exchange Secured Notes will
be the same except that the Private Placement Legend and paragraph 21 will be
omitted from the Exchange Secured Notes.
The terms and provisions contained in the Secured Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Issuer, Pride, Maritima and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
36
(b) AUTHORIZED PRINCIPAL AMOUNT; TERMS. The aggregate principal
amount of Secured Notes which may be authenticated and delivered under this
Indenture is $53,000,000 issuable in a single series. All Secured Notes under
this Indenture shall in all respects be equally and ratably entitled to the
benefits hereof without preference, priority or distinction on account of the
actual time of the authentication and delivery of such Secured Notes.
There is created a series of Secured Notes with the following terms:
The title of the Secured Notes will be 11 3/4% Senior Secured Notes
due 2001 (the "Secured Notes"). The Secured Notes will be limited to (A)
Initial Secured Notes in an aggregate principal amount not to exceed
$53,000,000 (B) Exchange Secured Notes for issue only in the Exchange
Offer pursuant to the Exchange Offer Registration Statement for a like
principal amount of Initial Secured Notes exchanged in such Exchange
Offer, in each case upon the receipt of an Issuer Order directing the
Trustee to authenticate such Secured Notes and certifying that all
conditions precedent to the issuance of the relevant Secured Notes
contained herein have been complied with. The aggregate principal amount
of Secured Notes outstanding at any time may not exceed $53,000,000,
except as provided in Section 2.07 hereof. The Secured Notes will mature
on November 1, 2001.
(c) INITIAL SECURED NOTES. Initial Secured Notes, with the notation
of the Pride Guarantee endorsed thereon, shall be issued in the form of one or
more permanent Global Notes in definitive fully registered form without interest
coupons. Secured Notes offered and sold to QIBs in reliance on Rule 144A, shall
be issued initially in the form of the U.S. Global Note, which shall be
deposited on behalf of the purchasers of the Secured Notes represented thereby
with the Secured Note Custodian, and registered in the name of the Depositary or
a nominee of the Depositary, duly executed by the Issuer and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of the U.S.
Global Note may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary or its nominee as hereinafter
provided. Initial Secured Notes offered and sold in reliance on Regulation S
shall be issued initially in the form of the Regulation S Temporary Global Note,
which shall be deposited on behalf of the purchasers of the Secured Notes
represented thereby with the Secured Note Custodian, and registered in the name
of the Depositary or the nominee of the Depositary
37
for the accounts of designated agents holding on behalf of Euroclear or Cedel,
duly executed by the Issuer and authenticated by the Trustee as hereinafter
provided. The "40--day restricted period" (as defined in Regulation S) shall be
terminated upon the receipt by the Trustee of a written certificate from the
Depositary, together with copies of certificates from Euroclear and Cedel
certifying that they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Note (except to the extent of any beneficial owners thereof who
acquired an interest therein pursuant to another exemption from registration
under the Securities Act and who will take delivery of a beneficial ownership
interest in a 144A Global Note, all as contemplated by Section 2.06(a)(ii)
hereof). Following the termination of the 40--day restricted period, beneficial
interests in the Regulation S Temporary Global Note shall be exchanged for
beneficial interests in Regulation S Permanent Global Note pursuant to the
Applicable Procedures. Simultaneously with the authentication of Regulation S
Permanent Global Note, the Trustee shall cancel the Regulation S Temporary
Global Note. The aggregate principal amount of the Regulation S Temporary Global
Note and the Regulation S Permanent Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depository or its nominee, as the case may be, in connection with transfers of
interest as hereinafter provided.
Each Global Note shall represent such of the outstanding Secured
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate amount of outstanding Secured Notes from time to time
endorsed on Schedule A thereto and that the aggregate amount of outstanding
Secured Notes represented thereby may from time to time be reduced or increased,
as appropriate, to reflect exchanges, redemptions and transfers of interests.
Any endorsement of Schedule A of a Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Secured Notes represented
thereby shall be made by the Trustee or the Secured Note Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
The provisions of the "Operating Procedures of the Euroclear
Clearance System" and "Terms and Conditions Governing Use of Euroclear" and the
"Management Regulations" and "Instructions to Participants" of Cedel shall be
applicable to interests in the Regulation S Temporary Global Note and the
Regulation S Permanent Global Note that are
38
held by Participants through Euroclear or Cedel. The Trustee shall have no
obligation to notify Holders of any such procedures or to monitor or enforce
compliance with the same.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depositary
or to a successor of the Depositary or its nominee.
(d) BOOK-ENTRY PROVISIONS. This Section 2.01(d) shall apply only to
Global Notes deposited with or on behalf of the Depositary.
The Issuer shall execute and the Trustee shall, in accordance with
this Section 2.01(d), authenticate and deliver the Global Secured Notes that (i)
shall be registered in the name of the Depositary or the nominee of the
Depositary and (ii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instructions or held by the Secured Note Custodian.
Participants shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depositary or by the
Secured Note Custodian as custodian for the Depositary or under such Global
Note, and the Depositary may be treated by the Issuer, the Trustee and any agent
of the Issuer or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Participants, the
operation of customary practices of such Depositary governing the exercise of
the rights of an owner of a beneficial interest in any Global Note.
(e) CERTIFICATED SECURED NOTES. Secured Notes issued in certificated
form shall be substantially in the form of Exhibit A attached hereto (but
without including the text referred to in footnotes 1 and 4 thereto) and shall
be printed, typewritten, lithographed or engraved or produced by any combination
of these methods or may be produced by any other method permitted by the rules
of any securities exchange on which the Secured Notes may be listed, as
evidenced by the execution of such Secured Notes.
(f) PROVISIONS APPLICABLE TO FORMS OF SECURED NOTES. The Secured
Notes may also have such additional provisions, omissions, variations or
substitutions as are
39
not inconsistent with the provisions of this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with this Indenture,
any applicable law or with any rules made pursuant thereto or with the rules of
any securities exchange or governmental agency or as may be determined
consistently herewith by the Officers of the Issuer executing such Secured
Notes, as conclusively evidenced by their execution of such Secured Notes. All
Secured Notes will be otherwise substantially identical except as provided
herein.
Subject to the provisions of this Article II, a Holder of a Global
Note may grant proxies and otherwise authorize any Person to take any action
that a Holder is entitled to take under this Indenture or the Secured Notes.
SECTION 2.02. EXECUTION AND AUTHENTICATION. Two Officers shall sign
the Secured Notes for the Issuer by manual or facsimile signature; and one
officer of Pride shall sign the notation of the Pride Guarantee endorsed thereon
for Pride by manual or facsimile signature. All references herein to execution
of Secured Notes shall include references to Pride signing the notation of the
Pride Guarantee endorsed thereon.
If an Officer whose signature is on a Secured Note no longer holds
that office at the time a Secured Note is authenticated, the Secured Note shall
nevertheless be valid.
A Secured Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Secured Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Secured Notes shall be
substantially as set forth in Exhibit A hereto.
The Trustee shall authenticate (i) Initial Secured Notes for
original issue in an aggregate principal amount not to exceed $53,000,000 and
(ii) Exchange Secured Notes for issue only in the Exchange Offer pursuant to the
Exchange Offer Registration Statement for a like principal amount of Initial
Secured Notes exchanged in such Exchange Offer, in each case upon the receipt of
an Issuer Order directing the Trustee to authenticate such Secured Notes and an
Officers' Certificate certifying that all conditions precedent to the issuance
of the relevant Secured Notes contained herein have been complied with.
40
The aggregate principal amount of Secured Notes outstanding at any
time may not exceed $53,000,000, except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Issuer to authenticate Secured Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Secured 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 the Issuer or an Affiliate of the Issuer.
SECTION 2.03. REGISTRAR AND PAYING AGENT. The Issuer shall maintain
(i) an office or agency where Secured Notes may be presented for registration of
transfer or for exchange ("Registrar"), (ii) an office or agency where Secured
Notes may be presented for payment ("Paying Agent"), and (iii) and an office or
agency where notices or demands to or upon the Issuer and any Guarantor in
respect of the Secured Notes and this Indenture may be served. The Registrar
shall keep a register of the Secured Notes and of their transfer and exchange
(the "Securities Register"). The Issuer may appoint one or more co-registrars
and one or more additional paying agents except as otherwise provided in this
Indenture. The term "Registrar" includes any co-registrar and the term "Paying
Agent" includes any additional paying agent. The Issuer may change any Paying
Agent or Registrar without notice to any Holder. The Issuer shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Issuer fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Issuer or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Issuer initially appoints The Depository Trust Issuer ("DTC") to
act as Depositary with respect to the Global Secured Notes.
The Issuer initially appoints the Trustee (at the Corporate Trust
Office of the Trustee) to act as the Registrar and Paying Agent and to act as
Secured Note Custodian with respect to the Global Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. The Issuer 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
41
principal of, premium, if any, on, interest on, and Special Interest, if any,
and Additional Amounts, if any, on, the Secured Notes, and shall notify the
Trustee of any default by the Issuer 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 Issuer 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 Issuer, a Guarantor, or a Subsidiary or
Affiliate of any thereof) shall have no further liability for the money. If the
Issuer, a Guarantor or a Subsidiary or Affiliate of any thereof acts as 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 Issuer, the Trustee shall serve as
Paying Agent for the Secured Notes.
SECTION 2.05. 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 Issuer 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 of Secured Notes, and the Issuer shall otherwise comply with TIA
Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE. (a) TRANSFER AND EXCHANGE OF
GLOBAL SECURED NOTES. The transfer and exchange of beneficial interests in
Global Secured Notes shall be effected through the Depositary, in accordance
with this Indenture and the Applicable Procedures, which shall include
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. Beneficial interests in a Global Note may be
transferred to Persons who take delivery thereof in the form of a beneficial
interest in the same Global Note in accordance with the transfer restrictions
set forth in subsection (e) of this Section 2.06 and in the legend in subsection
(f) of this Section 2.06. Transfers of beneficial interests in the Global Notes
to Persons required to take delivery thereof in the form of an interest in
another Global Note shall be permitted as follows:
(i) U.S. GLOBAL NOTE TO REGULATION S GLOBAL NOTE. Prior to the
expiration of the 40-day restricted period, an owner of a beneficial
interest in the U.S.
42
Global Note deposited with the Depositary (or the Secured Note Custodian)
will not be permitted to transfer its interest to a Person who wishes to
take delivery thereof in the form of an interest in the Regulation S
Global Note. If, at any time after the expiration of the 40-day restricted
period, an owner of a beneficial interest in the U.S. Global Note
deposited with the Depositary (or the Secured Note Custodian) wishes to
transfer its beneficial interest in the U.S. Global Note to a Person who
is required or permitted to take delivery thereof in the form of an
interest in the Regulation S Global Note, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of such interest for
an equivalent beneficial interest in the Regulation S Global Note as
provided in this Section 2.06(a)(i). Upon receipt by the Trustee of (1)
instructions given in accordance with the Applicable Procedures from a
Participant directing the Trustee to credit or cause to be credited a
beneficial interest in the Regulation S Global Note in an amount equal to
the beneficial interest in the U.S. Global Note to be exchanged, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the Participant account of the Depositary
and the Euroclear or Cedel account to be credited with such increase, and
(3) a certificate in the form of Exhibit B-1 hereto given by the owner of
such beneficial interest stating that the transfer of such interest has
been made in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with Rule 903 or Rule 904
of Regulation S, then the Trustee, as Registrar, shall instruct the
Depositary to reduce or cause to be reduced the aggregate principal amount
at Maturity of the U.S. Global Note and to increase or cause to be
increased the aggregate principal amount at Maturity of the Regulation S
Global Note by the principal amount at Maturity of the beneficial interest
in the U.S. Global Note to be exchanged or transferred, to credit or cause
to be credited to the account of the Person specified in such
instructions, a beneficial interest in the Regulation S Global Note equal
to the reduction in the aggregate principal amount at Maturity of the U.S.
Global Note, and to debit, or cause to be debited, from the account of the
Person making such exchange or transfer the beneficial interest in the
U.S. Global Note that is being exchanged or transferred.
(ii) REGULATION S GLOBAL NOTE TO U.S. GLOBAL NOTE. Prior to the
expiration of the 40-day restricted
43
period, an owner of a beneficial interest in the Regulation S Global Note
deposited with the Depositary (or the Secured Note Custodian) will not be
permitted to transfer its interest to a Person who wishes to take delivery
thereof in the form of an interest in the U.S. Global Note. If, at any
time, after the expiration of the 40-day restricted period, an owner of a
beneficial interest in the Regulation S Global Note deposited with the
Depositary or with the Secured Note Custodian wishes to transfer its
beneficial interest in the Regulation S Global Note to a Person who is
required or permitted to take delivery thereof in the form of an interest
in the U.S. Global Note, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for an
equivalent beneficial interest in the U.S. Global Note as provided in this
Section 2.06(a)(ii). Upon receipt by the Trustee of (1) instructions from
Euroclear or Cedel, if applicable, and the Depositary, directing the
Trustee, as Registrar, to credit or cause to be credited a beneficial
interest in the U.S. Global Note equal to the beneficial interest in the
Regulation S Global Note to be exchanged, such instructions to contain
information regarding the Participant account with the Depositary to be
credited with such increase, (2) a written order given in accordance with
the Applicable Procedures containing information regarding the Participant
account of the Depositary and (3) a certificate in the form of Exhibit B-2
attached hereto given by the owner of such beneficial interest stating (A)
if the transfer is pursuant to Rule 144A, that the Person transferring
such interest in the Regulation S Global Note reasonably believes that the
Person acquiring such interest in the U.S. Global Note is a QIB and is
obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable blue sky or securities laws
of any state of the United States, (B) that the transfer complies with the
requirements of Rule 144 under the Securities Act, (C) if the transfer is
to an Institutional Accredited Investor that such transfer is in
compliance with the Securities Act and that a certificate in the form of
Exhibit C attached hereto is attached thereto, together with, if the
Issuer should so request or if the transfer is in respect of an aggregate
principal amount of Secured Notes less than $250,000, an Opinion of
Counsel in form reasonably acceptable to the Issuer and to the Registrar
that such transfer is in compliance with the Securities Act or (D) if the
transfer is pursuant to any other exemption from the registration
requirements of the Securities Act, that
44
the transfer of such interest has been made in compliance with the
transfer restrictions applicable to the Global Notes and pursuant to and
in accordance with the requirements of the exemption claimed, such
statement to be supported by an Opinion of Counsel from the transferee or
the transferor in form reasonably acceptable to the Issuer and to the
Registrar and, in each case, in accordance with any applicable securities
laws of any state of the United States or any other applicable
jurisdiction, then the Trustee, as Registrar, shall instruct the
Depositary to reduce or cause to be reduced the aggregate principal amount
at Maturity of the Regulation S Global Note and to increase or cause to be
increased the aggregate principal amount at Maturity of the U.S. Global
Note by the principal amount at Maturity of the beneficial interest in the
Regulation S Global Note to be exchanged or transferred, and the Trustee,
as Registrar, shall instruct the Depositary, concurrently with such
redemption, to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the U.S. Global
Note equal to the reduction in the aggregate principal amount at Maturity
of the Regulation S Global Note and to debit or cause to be debited from
the account of the Person making such transfer the beneficial interest in
the Regulation S Global Note that is being exchanged or transferred.
(iii) U.S. GLOBAL NOTES TO INSTITUTIONAL ACCREDITED INVESTOR. If, at
any time, an owner of a beneficial interest in the U.S. Global Note
deposited with the Depositary (or the Secured Note Custodian) wishes to
transfer its beneficial interest in such U.S. Global Note to a Person who
is an Institutional Accredited Investor, such owner shall, subject to the
Applicable Procedures and the other provisions of this Section 2.06,
exchange or cause the exchange of such interest for an equivalent
beneficial interest in a U.S. Global Note as provided in this Section
2.06(a) (iii). Upon receipt by the Trustee of (1) instructions given in
accordance with the Applicable Procedures from a Participant directing the
Trustee to credit or cause to be credited a beneficial interest in a U.S.
Global Note in an amount equal to the beneficial interest in the U.S.
Global Note to be exchanged, (2) a written order given in accordance with
the Applicable Procedures containing information regarding the Participant
account of the Depositary to be credited with such increase, and (3) a
certificate in the form of Exhibit C hereto given by the proposed
transferee,
45
and, if the Issuer should so request, an Opinion of Counsel provided by
the transferor or the transferee (a copy of which the Transferor attaches
to such certificate), in form reasonably acceptable to the Issuer and to
the Registrar, to the effect that such transfer is in compliance with the
Securities Act, then the Trustee, as Registrar, shall instruct the
Depositary to credit or cause to be credited to the account of the Person
specified in such instructions, a beneficial interest in the U.S. Global
Note equal to the aggregate principal amount being transferred, and to
debit, or cause to be debited, from the account of the Person making such
exchange or transfer the beneficial interest in the U.S. Global Note that
is being exchanged or transferred.
(b) TRANSFER AND EXCHANGE OF CERTIFICATED SECURED NOTES. When
Certificated Secured Notes are presented by a Holder to the Registrar with a
request to register the transfer of the Certificated Secured Notes or to
exchange such Certificated Secured Notes for an equal principal amount of
Certificated Secured Notes of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested only if the
Certificated Secured Notes are presented or surrendered for registration of
transfer or exchange, are endorsed and contain a signature guarantee or are
accompanied by a written instrument of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney and contains a
signature guarantee, duly authorized in writing and the Registrar received the
following documentation (all of which may be submitted by facsimile):
In the case of Certificated Secured Notes that are Transfer
Restricted Secured Notes, such request shall be accompanied by the
following additional information and documents, as applicable:
(i) if such Transfer Restricted Note is being delivered to the
Registrar by a Holder for registration in the name of such Holder,
without transfer, or such Transfer Restricted Note is being
transferred to the Issuer, a certification to that effect from such
Holder (in substantially the form of Exhibit B-3 hereto); or
(ii) if such Transfer Restricted Note is being transferred to
a QIB in accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance with Rule
144 under the Securities Act or in an
46
offshore transaction pursuant to and in compliance with Rule 904
under the Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to that effect
from such Holder (in substantially the form of Exhibit B-3 hereto);
or
(iii) if such Transfer Restricted Note is being transferred in
reliance on any other exemption from the registration requirements
of the Securities Act, a certification to that effect from such
Holder (in substantially the form of Exhibit B-3 hereto) and an
Opinion of Counsel from such Holder or the transferee in form
reasonably acceptable to the Issuer and to the Registrar to the
effect that such transfer is in compliance with the Securities Act.
(c) TRANSFER OF A BENEFICIAL INTERESTS IN GLOBAL NOTES FOR
CERTIFICATED SECURED NOTES. (i) The Global Notes that are Transfer Restricted
Notes or the Exchange Global Notes, as the case may be, shall be exchanged by
the Issuer for one or more Certificated Secured Notes representing Initial
Secured Notes or Exchange Secured Notes, as the case may be, if (x) the
Depositary (A) has notified the Issuer that it is unwilling or unable to
continue as, or ceases to be, a "Clearing Agency" registered under Section 17A
of the Exchange Act and (B) a successor to the Depositary registered as a
"Clearing Agency" under Section 17A of the Exchange Act is not able to be
appointed by the Issuer within 90 calendar days or (y) the Depositary is at any
time unwilling or unable to continue as Depositary and a successor to the
Depositary is not able to be appointed by the Issuer within 90 calendar days or
(C) the Issuer, at its option, delivers a notice in the form of an Officers'
Certificate that it elects to cause the issuance of Certificated Secured Notes.
If an Event of Default occurs and is continuing, the Issuer shall, at the
request of the Holder thereof, exchange all or part of a Global Note that is a
Transfer Restricted Note or an Exchange Global Note, as the case may be, for one
or more Certificated Secured Notes representing Initial Secured Notes or
Exchange Secured Notes, as the case may be; PROVIDED that the principal amount
of each of such Certificated Secured Notes, and such Global Note, after such
exchange, shall be $1,000 or an integral multiple thereof. Whenever a Global
Note is exchanged as a whole for one or more Certificated Secured Notes, it
shall be surrendered by the Holder thereof to the
47
Trustee for cancelation. Whenever a Global Note is exchanged in part for one or
more Certificated Secured Notes, it shall be surrendered by the Holder thereof
to the Trustee and the Trustee shall make the appropriate notations to Schedule
A thereof pursuant to Section 2.01 hereof. All Certificated Secured Notes or
Exchange Secured Notes, as the case may be, issued in exchange for a Global Note
or any portion thereof shall be registered in such names, and delivered, as the
Depositary shall instruct the Trustee. Any Certificated Secured Notes issued
pursuant to this Section 2.06(c)(i) shall include the Private Placement Legend,
except as otherwise provided for by this Section 2.06. Interests in a Global
Note may not be exchanged for Certificated Secured Notes other than as provided
in this Section 2.06. If a beneficial interest in a Transfer Restricted Note is
being transferred, the following additional documents and information must be
submitted (including by facsimile):
(A) if such beneficial interest is being transferred to the Person
designated by the Depositary as being the beneficial owner, a
certification to that effect from such Person (in substantially the form
of Exhibit B-4 hereto);
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act or pursuant to an
exemption from registration in accordance with Rule 144 under the
Securities Act or in an offshore transaction pursuant to and in compliance
with Rule 904 under the Securities Act or pursuant to an effective
registration statement under the Securities Act, a certification to that
effect from the transferor (in substantially the form of Exhibit B-4
hereto);
(C) if such beneficial interest is being transferred in reliance on
any other exemption from the registration requirements of the Securities
Act, a certification to that effect from the transferor (in substantially
the form of Exhibit B-4 hereto) and an Opinion of Counsel from the
transferee or the transferor in form reasonably acceptable to the Issuer
and to the Registrar to the effect that such transfer is in compliance
with the Securities Act, in which case the Trustee or the Secured Note
Custodian, at the direction of the Trustee, shall, in accordance with the
standing instructions and procedures existing between the Depositary and
the Secured Note Custodian, cause the aggregate principal amount of the
U.S. Global Note or Regulation S Permanent Global Note, as applicable, to
be reduced accordingly and, following such reduction, the Issuer shall
execute and, the Trustee shall authenticate and deliver to the transferee
a
48
Certificated Secured Note in the appropriate principal amount.
(ii) Certificated Secured Notes issued in exchange for a
beneficial interest in the U.S. Global Note or Regulation S
Permanent Global Note, as applicable, pursuant to this Section
2.06(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its
Participants or Indirect Participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Certificated Secured
Notes to the Persons in whose names such Secured Notes are so
registered. Following any such issuance of Certificated Secured
Notes, the Trustee, as Registrar, shall instruct the Depositary to
reduce or cause to be reduced the aggregate principal amount at
maturity of the applicable Global Note to reflect the transfer.
(d) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsections (e) and (f) of this Section 2.06), a Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. Any Holder of a
beneficial interest in a Global Note shall, by acceptance of such Global Note,
agree that transfers of beneficial interests in such Global Note may be effected
only through a book-entry system maintained by the Holder of such Global Note
(or its agent), and that ownership of a beneficial interest in the Secured Notes
represented thereby shall be required to be reflected in book-entry form.
Interests of beneficial owners in a Global Note may be transferred in accordance
with the rules and procedures of the Depositary (or its successors).
(e) CONTINUOUS RESTRICTIONS ON TRANSFER AND EXCHANGE OF SECURED
NOTES. Notwithstanding any other provision of this Indenture, the Secured Notes
may not at any time, including after consummation of the Exchange Offer, be
transferred to, or held by Persons other than QIBs or Institutional Accredited
Investors. Any Holder or beneficial owner of a Secured Note shall, by acceptance
of such Secured Note, agree that such Holder or owner will deliver to each
Person to whom a Secured Note or an interest therein is transferred a notice
provided for in the legend
49
specified in subsection (f) of this Section 2.06. No Secured Note may be
transferred by the Trustee or the Registrar in violation of the foregoing.
(f) LEGENDS. (i) Except as permitted by the following paragraphs
(iii), (iv) and (v), each Secured Note certificate evidencing Global Notes and
Certificated Secured Notes (and all Secured Notes issued in exchange therefor or
substitution thereof) shall bear a legend (the "Private Placement Legend") in
substantially the following form:
THIS SECURED NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. ACCORDINGLY, THIS SECURED NOTE MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE
NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"),
OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(A)(1), (2), (3) OR (7) UNDER REGULATION D UNDER THE
SECURITIES ACT (AN "IAI"));
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (I) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (II) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (III) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (IV) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE ACT, (V)
TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE ACT, (VI) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (VII) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT
50
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE
IN VIOLATION OF THE FOREGOING.
(ii) After the registration of the Exchange Secured Notes under the
Securities Act, the Secured Exchange Notes when issued, will bear a legend to
the following effect unless otherwise agreed by the Issuer and the holder
thereof.
THE HOLDER:
(A) REPRESENTS THAT (1) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB")
OR (2) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT (AN "IAI");
(B) AGREES THAT IT WILL NOT RESELL, OR OTHERWISE TRANSFER THIS
NOTE EXCEPT TO (1) A QIB OR (2) AN IAI;
(C) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND;
(D) THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE
TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING. THE INDENTURE ALSO CONTAINS A PROVISION REQUIRING THE
ISSUER TO EXERCISE REASONABLE CARE TO ENSURE THAT THE SECURED NOTES
ARE RESOLD OR OTHERWISE TRANSFERRED ONLY TO PURCHASERS MEETING THE
REQUIREMENTS SPECIFIED IN CLAUSE (B) ABOVE.
(iii) Upon any sale or transfer of a Transfer Restricted Note
(including any Transfer Restricted Note represented by a Global Note) pursuant
to Rule 144 under the
51
Securities Act or pursuant to a effective registration statement under the
Securities Act:
(a) in the case of any Transfer Restricted Note that is a
Certificated Secured Note, the Registrar shall permit the Holder thereof
to exchange such Transfer Restricted Note for a Certificated Secured Note
that does not bear the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted Note upon receipt
of a certification from the transferring Holder substantially in the form
of Exhibit B-4 hereto; and
(b) in the case of any Transfer Restricted Note represented by a
Global Note, such Transfer Restricted Note shall not be required to bear
the legend set forth in (i) above, but shall continue to be subject to the
provisions of Section 2.06(a) and (b) hereof; PROVIDED, HOWEVER, that with
respect to any request for an exchange of a Transfer Restricted Note that
is represented by a Global Note for a Certificated Secured Note that does
not bear the legend set forth in (i) above, which request is made in
reliance upon Rule 144, the Holder thereof shall certify in writing to the
Registrar that such request is being made pursuant to Rule 144 (such
certification to be substantially in the form of Exhibit B-4 hereto).
(iv) Upon any sale or transfer of a Transfer Restricted Note
(including any Transfer Restricted Note represented by a Global Note) in
reliance on any exemption from the registration requirements of the Securities
Act (other than exemptions pursuant to Rule 144A or Rule 144 under the
Securities Act) in which the Holder or the transferee provides an Opinion of
Counsel to the Issuer and the Registrar in form and substance reasonably
acceptable to the Issuer and the Registrar (which Opinion of Counsel shall also
state that the transfer restrictions contained in the legend are no longer
applicable):
(a) in the case of any Transfer Restricted Note that is a
Certificated Secured Note, the Registrar shall permit the Holder thereof
to exchange such Transfer Restricted Note for a Certificated Secured Note
that does not bear the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted Note; and
(b) in the case of any Transfer Restricted Note represented by a
Global Note, such Transfer Restricted Note shall not be required to bear
the legend set forth
52
in (i) above, but shall continue to be subject to the provisions of
Section 2.06(a) and (b) hereof.
(v) By its acceptance of any Initial Secured Note represented by a
certificate bearing the Private Placement Legend, each Holder of, and beneficial
owner of an interest in, such Initial Secured Note acknowledges the restrictions
on transfer of such Initial Secured Note set forth in the Private Placement
Legend and the legend specified in paragraph (ii) above and under the heading
"Notice to Investors" in the Offering Memorandum and agrees that it will
transfer such Initial Secured Note only in accordance with the Private Placement
Legend and the restrictions set forth under the heading "Notice to Investors" in
the Offering Memorandum.
(vi) Notwithstanding the foregoing, upon the occurrence of the
Exchange Offer in accordance with the Registration Rights Agreement, the Issuer
shall issue and, upon receipt of an authentication order in accordance with
Section 2.02 hereof, the Trustee shall authenticate (A) one or more Global Notes
in aggregate principal amount equal to the principal amount of the restricted
beneficial interests validly tendered and not properly withdrawn by Persons that
certify in the letter of transmittal delivered in the Exchange Offer that they
are not (x) broker-dealers, (y) persons participating in the distribution of the
Exchange Secured Notes or (z) persons who are affiliates (as defined in Rule 144
under the Securities Act) of the Issuer and accepted for exchange in the
Exchange Offer and (B) Certificated Secured Notes that do not bear the Private
Placement Legend but continue to bear the legend specified in clause (ii) of
this Section 2.06(f) in an aggregate principal amount equal to the principal
amount of the Certificated Secured Notes that are Transfer Restricted Notes
accepted for exchange in the Exchange Offer. Concurrently with the issuance of
such Secured Notes, the Trustee shall cause the aggregate principal amount of
the applicable Global Notes to be reduced accordingly and the Issuer shall
execute and the Trustee shall authenticate and deliver to the Persons designated
by the Holders of Certificated Secured Notes so accepted Certificated Secured
Notes in the appropriate principal amount.
(g) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as
all beneficial interests in Global Notes have been exchanged for Certificated
Secured Notes, redeemed, repurchased or cancelled, all Global Notes shall be
returned to or retained and cancelled by the Trustee in accordance with Section
2.11 hereof. At any time prior to such cancellation, if any beneficial interest
53
in a Global Note is exchanged for Certificated Secured Notes, redeemed,
repurchased or cancelled, the principal amount of Secured Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be made
on such Global Note, by the Trustee or the Secured Note Custodian, at the
direction of the Trustee, to reflect such reduction.
(h) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES. (i) To
permit registrations of transfers and exchanges, the Issuer shall execute and
the Trustee shall authenticate Global Notes and Certificated Secured Notes at
the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Issuer may require payment of a
sum sufficient to cover any stamp or transfer tax or similar governmental charge
payable in connection therewith (other than any such stamp or transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.06, 4.08, and 10.06 hereto).
(iii) All Global Notes and Certificated Secured Notes issued upon
any registration of transfer or exchange of Global Notes or Certificated Secured
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global Notes or
Certificated Secured Notes surrendered upon such registration of transfer or
exchange.
(iv) The Registrar shall not be required: (A) to issue, to register
the transfer of or to exchange Secured Notes during a period beginning at the
opening of 15 Business Days before the day of any selection of Secured Notes for
redemption under Article III hereof and ending at the close of business on the
day of selection, (B) to register the transfer of or to exchange any Secured
Note so selected for redemption in whole or in part, except the unredeemed
portion of any Secured Note being redeemed in part, or (C) to register the
transfer of or to exchange a Secured Note between a Record Date and the next
succeeding Interest Payment Date.
(v) Prior to due presentment for the registration of a transfer of
any Secured Note, the Trustee, any Agent and the Issuer may deem and treat the
Person in whose name any Secured Note is registered as the absolute owner of
such Secured Note for the purpose of receiving payment of principal of and
interest on such Secured Notes and for all other purposes, and neither the
Trustee, any Agent nor the Issuer shall be affected by notice to the contrary.
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(vi) The Trustee shall authenticate Global Notes and Certificated
Secured Notes in accordance with the provisions of Section 2.02 hereof.
Notwithstanding anything herein to the contrary, as to any
certifications or certificates delivered to the Trustee or Registrar pursuant to
this Section 2.06, the Trustee's or the Registrar's duties shall be limited to
confirming that any such certifications and certificates delivered to it are in
the form of Exhibits B-1 through B-4 and C attached hereto. The Trustee or
Registrar shall not be responsible for confirming the truth or accuracy of
representations made in any such certifications or certificates.
SECTION 2.07. REPLACEMENT OF SECURED NOTES. If any mutilated Secured
Note is surrendered to the Trustee or the Issuer and the Trustee and the Issuer
receive evidence to their satisfaction of the destruction, loss or theft of any
Secured Note, the Issuer shall issue, and the Trustee, upon the receipt of an
Issuer Order, shall authenticate, a replacement Secured Note if the Trustee's
requirements are met. If required by the Trustee or the Issuer, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Issuer to protect the Issuer, each Guarantor, the Trustee, any
Agent and any authenticating agent from any loss that any of them may suffer if
a Secured Note is replaced. The Issuer may charge for its expenses in replacing
a Secured Note.
Every replacement Secured Note is an additional obligation of the
Issuer and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Secured Notes duly issued hereunder. The
provisions of this Section 2.07 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of
mutilated, destroyed, lost or stolen Secured Notes.
SECTION 2.08. OUTSTANDING SECURED NOTES. The Secured Notes
outstanding at any time are all the Secured Notes authenticated by the Trustee
except for those cancelled 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 2.09 hereof, a Secured Note does
not cease to be outstanding because the Issuer or an Affiliate of the Issuer
holds the Secured Note.
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If a Secured Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Secured Note is held by a bona fide purchaser.
If the principal amount of any Secured Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest (including Special
Interest and Additional Amounts, if any), on it ceases to accrue.
If the Paying Agent (other than the Issuer, a Guarantor, or a
Subsidiary or an Affiliate of any thereof), holds, on a Redemption Date or at
Maturity, money sufficient to pay Secured Notes payable on that date, then on
and after that date such Secured Notes shall be deemed to be no longer
outstanding and shall cease to accrue interest (including Special Interest and
Additional Amounts, if any).
SECTION 2.09. TREASURY SECURED NOTES. In determining whether the
Holders of the required principal amount of Secured Notes have concurred in any
direction, waiver or consent, Secured Notes owned by the Issuer, a Subsidiary, a
Guarantor, or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Issuer, a Subsidiary or any
Guarantor, 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 Secured Notes that a Responsible Officer
knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY SECURED NOTES. Until definitive Secured
Notes are ready for delivery, the Issuer may prepare and the Trustee shall
authenticate temporary Secured Notes upon a Issuer Order. Temporary Secured
Notes shall be substantially in the form of definitive Secured Notes but may
have variations that the Issuer considers appropriate for temporary Secured
Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable
delay, the Issuer shall prepare and the Trustee shall authenticate definitive
Secured Notes in exchange for temporary Secured Notes.
Holders of temporary Secured Notes shall be entitled to all of the
benefits of this Indenture.
SECTION 2.11. CANCELLATION. The Issuer at any time may deliver
Secured Notes to the Trustee for cancellation. The Registrar and Paying Agent
shall forward to the Trustee any Secured Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee
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and no one else shall cancel all Secured Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall upon the
written request of the Issuer, return such cancelled Secured Notes to the
Issuer. The Issuer may not issue new Secured Notes to replace Secured Notes that
it has paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest (including Additional Amounts, if any, and Special Interest, if any),
on any Secured Note which is payable, and is punctually paid or duly provided
for, on any June 30 or December 30 or on November 1, 2001 (each an "Interest
Payment Date"), commencing on December 30, 1999, shall be paid to the Person in
whose name such Secured Note is registered at the close of business on the
Record Date for such interest payment, which shall be the June 15 or December 15
or, in the case of the November 1, 2001 Interest Payment Date, October 15, 2001
(in each case, whether or not a Business Day) immediately preceding such
Interest Payment Date.
Any interest on any Secured Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Record Date, and, except as hereinafter
provided, such Defaulted Interest and any interest payable on such Defaulted
Interest may be paid by the Issuer, at its election, as provided in clause (a)
or (b) below:
(a) The Issuer may elect to make payment of any Defaulted Interest,
and any interest payable on such Defaulted Interest, to the Persons in
whose names the Secured Notes are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Issuer shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on the Secured Notes and the date of the proposed payment, and at the same
time the Issuer shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest (including Additional Amounts, if any, and Special Interest, if
any), or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as provided in this clause (a). Thereupon the
Trustee shall fix a Special Record Date for the payment
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of such Defaulted Interest which shall be not more than 15 calendar days
and not less than 10 calendar days prior to the date of the proposed
payment and not less than 10 calendar days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Issuer of such Special Record Date and, in the name and at the
expense of the Issuer, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be sent, first
class mail, postage prepaid, to each Holder at such Holder's address as it
appears in the Securities Register, not less than 10 calendar days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Secured Notes are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause (b).
(b) The Issuer may make payment of any Defaulted Interest (including
Additional Amounts, if any, and Special Interest, if any), and any
interest payable on such Defaulted Interest, on the Secured Notes in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Secured Notes may be listed, and upon
such notice as may be required by such exchange, if, after notice given by
the Issuer to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.12, each
Secured Note delivered under this Indenture upon registration of transfer of, or
in exchange for, or in lieu of, or in substitution for, any other Secured Note,
shall carry the rights to interest (Additional Amounts, if any, and Special
Interest, if any), accrued and unpaid, and to accrue, which were carried by such
other Secured Note.
SECTION 2.13. COMPUTATION OF INTEREST. Interest on the Secured
Notes shall be computed on the basis of a 360-day year comprised of twelve
30-day months.
SECTION 2.14. CUSIP NUMBER. The Issuer in issuing the Secured Notes
may use a "CUSIP" number, and if it does so, the Trustee shall use the CUSIP
number in notices of redemption or exchange as a convenience to Holders;
PROVIDED that any such notice may state that no
58
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Secured Notes and that reliance may be placed
only on the other identification numbers printed on the Secured Notes. The
Issuer shall promptly notify the Trustee of any change in the CUSIP number.
ARTICLE III
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE. If the Issuer elects to redeem
Secured Notes pursuant to the optional redemption provisions of Section 3.07
hereof and of the Secured Notes, it shall furnish to the Trustee, at least 45
days (unless a shorter period is acceptable to the Trustee) but not more than 60
days before a Redemption Date, 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 Secured Notes to be redeemed and
(iv) the Redemption Price.
SECTION 3.02. SELECTION OF SECURED NOTES TO BE REDEEMED. In the
case of any partial redemption provided for in Section 3.07 hereof, selection of
the Secured Notes for redemption will be made by the Trustee on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion
shall deem to be fair and appropriate, although no Secured Note of $1,000 in
then outstanding principal amount or less shall be redeemed in part. If any
Secured Note is to be redeemed in part only, the notice of redemption relating
to such Secured Note shall state the portion of the principal amount thereof to
be redeemed. A new Secured Note in principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Secured Note. Partial Redemptions provided for in
Section 3.08 and Section 3.09 hereof will be applied to all Secured Notes on a
pro rata basis, although no Secured Note of $1,000 in then outstanding principal
amount shall be redeemed in part.
The Trustee shall promptly notify the Issuer in writing of the
Secured Notes selected for redemption and, in the case of any Secured Note
selected for partial redemption, the portion of the principal amount thereof to
be redeemed. Secured Notes and portions of Secured Notes selected shall be in
amounts of $1,000 or integral multiples of $1,000, except that if all of the
Secured Notes of a Holder are to be redeemed, the entire outstanding amount of
Secured Notes held by such Holder, even if not an integral
59
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Secured Notes called for
redemption also apply to portions of Secured Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not more
than 60 days before a Redemption Date, the Issuer shall mail or cause to be
mailed, by first class mail, a notice of redemption to each Holder whose Secured
Notes are to be redeemed at its registered address as it appears in the
Securities Register.
The notice shall identify the Secured Notes to be redeemed including
CUSIP number and shall state:
(a) the Redemption Date;
(b) the Redemption Price and the method of calculating such
Redemption Price pursuant to this Indenture;
(c) if any Secured Note is being redeemed in part, the portion of
the principal amount of such Secured Note to be redeemed and that, after
the Redemption Date upon surrender of such Secured Note, a new Secured
Note or Secured Notes in principal amount equal to the unredeemed portion
shall be issued upon cancellation of the original Secured Note;
(d) the name and address of the Paying Agent;
(e) that Secured Notes called for redemption (other than a Global
Note) must be surrendered to the Paying Agent to collect the Redemption
Price;
(f) that, unless the Issuer defaults in making such redemption
payment, interest (including Additional Amounts, if any, and Special
Interest, if any), on Secured Notes (or portions thereof) called for
redemption cease to accrue on and after the Redemption Date;
(g) the paragraph of the Secured Notes or Section of this Indenture
pursuant to which the Secured 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
Secured Notes.
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At the Issuer's request, the Trustee shall give the notice of
redemption in the Issuer's name and at its expense; PROVIDED, HOWEVER, that the
Issuer shall have delivered to the Trustee, at least 45 days prior to the
Redemption Date (unless a shorter time is acceptable to the Trustee), an
Officers' Certificate requesting that the Trustee give such notice 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, Secured Notes
called for redemption become irrevocably due and payable on the Redemption Date
at the Redemption Price including interest, including Special Interest, if any,
and Additional Amounts, if any, accrued and unpaid on the Redemption Date. Upon
surrender to the Paying Agent, such Secured Notes shall be paid at the
Redemption Price stated in such notice. Failure to give notice or any defect in
the notice to any Holder shall not affect the validity of the notice to any
other Holder. A notice of redemption may not be conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. On or prior to the
Redemption Date, the Issuer shall deposit with the Trustee or with the Paying
Agent immediately available funds sufficient to pay the Redemption Price of and
accrued and unpaid interest, if any, on (and Special Interest, if any, and
Additional Amounts, if any), on all Secured Notes to be redeemed on that date.
The Trustee or the Paying Agent shall promptly return to the Issuer any money
deposited with the Trustee or the Paying Agent by the Issuer in excess of the
amounts necessary to pay the Redemption Price of, and accrued interest
(including Special Interest, if any, and Additional Amounts, if any), on all
Secured Notes to be redeemed.
If the Issuer complies with the provisions of the preceding
paragraph, on and after the Redemption Date, interest (including Special
Interest, if any, and Additional Amounts, if any), shall cease to accrue on the
Secured Notes or the portions of Secured Notes called for redemption. If a
Secured Note is redeemed on or after a Record Date but on or prior to the
related Interest Payment Date, then any accrued and unpaid interest (including
Special Interest, if any, and Additional Amounts, if any), shall be paid to the
Person in whose name such Secured Note was registered at the close of business
on such Record Date. If any Secured Note called for redemption shall not be so
paid upon surrender for redemption because of the failure of the Issuer to
comply with the preceding paragraph, interest (including Special Interest, if
any, and Additional Amounts, if any),
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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 Secured Notes and in
Section 4.01 hereof.
SECTION 3.06. SECURED NOTES REDEEMED IN PART. Upon surrender of a
Secured Note that is redeemed in part, the Issuer shall issue and, upon the
Issuer's written request, the Trustee shall authenticate for the Holder at the
expense of the Issuer a new Secured Note equal in principal amount to the
unredeemed portion of the Secured Note surrendered. The records of the Registrar
and the Depositary shall reflect any partial redemption of any Global Note.
SECTION 3.07. OPTIONAL REDEMPTIONS. (a) The Secured Notes will be
redeemable, at the Issuer's option, in whole or from time to time in part upon
not less than 30 and not more than 60 days' prior notice mailed by first class
mail to each Holder's registered address appearing in the Securities Register on
any date prior to Maturity at a price equal to 100% of the principal amount
thereof plus accrued and unpaid interest (including Special Interest, if any,
and Additional Amounts, if any), to the Redemption Date (subject to the right of
Holders of record on the relevant Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date), plus the
Make-Whole Premium. In no event will the Redemption Price ever be less than
100% of the principal amount of the Secured Notes to be redeemed plus accrued
and unpaid interest (including Special Interest, if any, and Additional Amounts,
if any), to the Redemption Date.
The amount of the Make-Whole Premium with respect to any Secured
Notes (or portion thereof) to be redeemed will be equal to the excess, if any,
of:
(i) the sum of the present values, calculated as
of the Redemption Date, of:
(1) each interest payment that, but for such redemption, would
have been payable on the Secured Notes (or portion thereof) being
redeemed on each Interest Payment Date occurring after the
Redemption Date (excluding any accrued and unpaid interest for the
period prior to the Redemption Date); and
(2) the principal amount that, but for such redemption, would
have been payable at the final
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maturity of the Secured Notes (or portion thereof) being redeemed,
over
(ii) the principal amount of the Secured Notes (or portion thereof)
being redeemed.
The present values of interest and principal payments referred to in
clause (i) above will be determined in accordance with generally accepted
principles of financial analysis. Such present values will be calculated by
discounting the amount of each payment of interest or principal from the date
that each such payment would have been payable, but for the redemption, to the
Redemption Date at a discount rate equal to the Treasury Rate (as defined below)
plus 50 basis points.
The Make-Whole Premium will be calculated by the Independent
Investment Banker.
For purposes of this Section 3.07 and Section 3.09, the following
definitions apply:
"TREASURY RATE" is defined to mean, with respect to any Redemption
Date, the rate per annum equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
"COMPARABLE TREASURY ISSUE" is defined to mean the United States
Treasury security selected by an Independent Investment Banker as having a
maturity comparable to the weighted average maturity of the remaining term of
the Secured Notes outstanding that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to such weighted average
maturity of such Secured Notes. "Independent Investment Banker" means the
Reference Treasury Dealer appointed by the Trustee after consultation with the
Issuer.
"COMPARABLE TREASURY PRICE" is defined to mean, with respect to any
Redemption Date, the average of the Reference Treasury Dealer Quotations for
such Redemption Date. The "Reference Treasury Dealer Quotations" means, with
respect to the Reference Treasury Dealer and any Redemption Date, the average,
as determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by the
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Reference Treasury Dealer at 5:00 p.m. (New York City time) on the third
business day preceding such Redemption Date.
"REFERENCE TREASURY DEALER" is defined to mean each of Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation and its successors; PROVIDED, HOWEVER,
that if Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation shall cease to be a
primary U.S. government securities dealer in New York City (a "Primary Treasury
Dealer"), the Issuer shall substitute therefor another Primary Treasury Dealer.
(b) The Secured Notes may be redeemed, at the option of the Issuer,
at any time as a whole but not in part, on not less than 30 nor more than 60
days' prior notice mailed by first class mail to each Holder's registered
address appearing in the Securities Register, at a price equal to 100% of the
principal amount thereof plus accrued and unpaid interest (including Special
Interest, if any, and Additional Amounts, if any), to the Redemption Date
(subject to the right of Holders of record on the relevant Record Date to
receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date), in the event the Issuer has become or would become obligated
to pay (and the Issuer cannot avoid such obligation by taking reasonable
measures available to it), on the next date on which any amount would be payable
with respect to the Secured Notes, any Additional Amounts as a result of a
change in or an amendment to the laws (including nay regulations promulgated
thereunder) of a Tax Jurisdiction, or any change in or amendment to any official
position regarding the application or interpretation of such laws or
regulations, which change or amendment is announced or becomes effective on or
after the Issue Date; PROVIDED, HOWEVER, that such redemption shall be
conditioned upon the Issuer being actually obligated to pay such Additional
Amounts on the relevant payment date.
Prior to giving of the notice of redemption described in the
preceding paragraph, the Issuer shall deliver to the Trustee an Officers'
Certificate (together with a copy of an Opinion of Counsel from counsel that is
independent from the Issuer to the effect that the Issuer will be or will become
obligated to pay Additional Amounts), stating that the Issuer is entitled to
effect such redemption in accordance with this Indenture and setting forth in
reasonable detail a statement of the facts relating thereto.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
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SECTION 3.08. REDEMPTION UPON LOSS OF A MORTGAGED RIG. If an Event
of Loss occurs at any time with respect to a Mortgaged Rig, the Issuer shall
redeem 50% of the Secured Notes (or 100% of the Secured Notes in the case of an
Event of Loss with respect to both Mortgaged Rigs or it Secured Notes have
previously been redeemed pursuant to this Section 3.08 or Section 3.09) on the
earlier to occur of (A) 30 days after the receipt of any Event of Loss Proceeds
by the Issuer from the applicable Mortgaged Rig Owner and (B) 180 days after the
date on which such Event of Loss occurred, at a Redemption Price equal to 100%
of their principal amount, plus accrued and unpaid interest (including
Additional Amounts, if any, and Special Interest, if any), to the Redemption
Date (subject to the right of Holders of record on the relevant Record Date to
receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date).
SECTION 3.09. REDEMPTION UPON SALE OF A MORTGAGED RIG. If a
Mortgaged Rig or the Capital Stock of a Restricted Subsidiary then owning a
Mortgaged Rig is sold in compliance with the terms of this Indenture, the Issuer
shall redeem 50% of the Secured Notes (or 100% of the Secured Notes in the case
of a sale of both Mortgaged Rigs or the Capital Stock of both Restricted
Subsidiaries then owning Mortgaged Rigs or if Secured Notes have previously
been redeemed pursuant to this Section 3.08 or Section 3.09) on the earlier to
occur of (A) 30 days after the receipt by the Issuer of Net Available Cash from
such sale and (B) 60 days after the date of such sale at a Redemption Price
equal to 100% of their principal amount, plus accrued and unpaid interest
(including Additional Amounts, if any, and Special Interest, if any), to the
Redemption Date (subject to the right of Holders of record on the relevant
Record Date to receive interest due on an Interest Payment Date that is on or
prior to the Redemption Date), plus the Make-Whole Premium. In no event will the
Redemption Price ever be less than 100% of the principal amount of the Secured
Notes to be redeemed plus accrued and unpaid interest (including Special
Interest, if any, and Additional Amounts, if any), to the Redemption Date.
ARTICLE IV
COVENANTS
SECTION 4.01. PAYMENT OF SECURED NOTES. The Issuer shall pay or
cause to be paid the principal of, premium, if any, and interest (including
Special Interest, if any, and Additional Amounts, if any), on the Secured
65
Notes on the dates and in the manner provided in the Secured Notes and in this
Indenture. Principal, premium, if any, and interest (including Special Interest,
if any, and Additional Amounts, if any), shall be considered paid on the date
due if the Trustee or the Paying Agent, if other than the Issuer, a Guarantor or
a Subsidiary or Affiliate of any thereof, holds as of noon, New York time, on
the due date money deposited by the Issuer in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest (including Special Interest, if any, and Additional Amount, if any),
then due. The Issuer shall pay all Special Interest, if any, in the same manner
on the dates and in the amounts set forth in the Registration Rights Agreement.
The Issuer will promptly notify the Trustee of a Registration Default (as
defined in the Registration Rights Agreement) under the Registration Rights
Agreement and any cure thereof.
The Issuer shall pay interest (including post-petition interest in
any proceeding under any applicable Federal, state or foreign bankruptcy law) on
Defaulted Interest and Special Interest, if any, 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 Issuer 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 Secured Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Issuer in
respect of the Secured Notes and this Indenture may be served. The Issuer shall
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuer 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 Issuer may also from time to time designate one or more other
offices or agencies where the Secured 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 Issuer of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Issuer shall
give prompt written notice to the Trustee of
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any such designation or rescission and of any change in the location of any such
other office or agency.
The Issuer hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Issuer in accordance with Section
2.03 hereof.
SECTION 4.03. CORPORATE EXISTENCE. Subject to the provisions of
Article V hereof, the Issuer shall do or cause to be done all things necessary
to preserve and keep in full force and effect (i) its company existence, and the
company, corporate, partnership or other existence of each of the Restricted
Subsidiaries, in accordance with the respective organizational documents (as the
same may be amended from time to time) of each of the Issuer or any such
Restricted Subsidiary of the Issuer and (ii) the rights (charter and statutory),
licenses and franchises of each of the Issuer and the Restricted Subsidiaries of
the Issuer; PROVIDED, HOWEVER, that the Issuer shall not be required to preserve
any such right, license or franchise, or the company, corporate, partnership or
other existence of any of the Restricted Subsidiaries, if the Board of Directors
of the Issuer or the Restricted Subsidiary so concerned, or of an officer (or
other agent employed by the Issuer or of the Subsidiary so concerned) of the
Issuer or a Restricted Subsidiary having managerial responsibility for any such
properties or assets, shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Issuer and the Restricted
Subsidiaries taken as a whole and that the loss thereof is not adverse in any
material respect to the Holders of the Secured Notes.
SECTION 4.04. MAINTENANCE OF PROPERTIES AND INSURANCE. (a) The
Issuer shall cause all material properties and assets owned by or leased by it
or any of the Restricted Subsidiaries useful and necessary to the conduct of its
business or the business of any of its Restricted Subsidiaries to be maintained
and kept in good condition, repair and working order (reasonable wear and tear
excepted) and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in its judgment may
be necessary, so that the business carried on in connection therewith may be
properly conducted at all times; PROVIDED, HOWEVER, that nothing in this Section
4.04 shall prevent the Issuer or any of the Restricted Subsidiaries from
discontinuing the use, operation or maintenance of any of such properties and
assets, or disposing of any of them, if such discontinuance or disposal is, in
the judgment of the Board of Directors of the Issuer or the Restricted
Subsidiary so concerned, or of an officer (or other agent employed by the Issuer
or of the
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Subsidiary so concerned) of the Issuer or a Restricted Subsidiary having
managerial responsibility for any such properties or assets, desirable in the
conduct of the business of the Issuer or such Restricted Subsidiary of the
Issuer, and if such discontinuance or disposal is not adverse in any material
respect to the Holders.
(b) To the extent available at commercially reasonable rates, the
Issuer shall maintain, and shall cause the Restricted Subsidiaries, to the
extent such Restricted Subsidiaries maintain operations, to maintain, insurance
with responsible carriers against such risks and in such amounts, and with such
deductibles, retentions, self-insured amounts and coinsurance provisions, as are
customarily carried by similar businesses of similar size.
SECTION 4.05. COMPLIANCE WITH LAWS. The Issuer shall comply, and
shall cause each of the Subsidiaries of the Issuer to comply, with all
applicable statutes, rules, regulations, orders and restrictions in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as would not in the aggregate have a
material adverse effect on the financial condition or results of operations of
the Issuer and the Restricted Subsidiaries taken as a whole.
SECTION 4.06. TAXES AND OTHER CLAIMS. The Issuer shall pay, and
shall cause each of the Restricted Subsidiaries to pay, prior to delinquency,
(a) all material taxes, assessments, and governmental charges levied or imposed
upon the Issuer or any of the Restricted Subsidiaries or upon the income,
profits or property or assets of the Issuer or any of the Restricted
Subsidiaries and (b) all lawful claims for labor, materials and supplies, which,
if unpaid, might by law become a Lien upon the property or assets of the Issuer
or any of the Restricted Subsidiaries, 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 Secured Notes and
for which adequate reserves in accordance with GAAP or other appropriate
provisions have been made.
SECTION 4.07. STAY, EXTENSION AND USURY LAWS. The Issuer and each of
the Guarantors covenant (to the extent that they may lawfully do so) that they
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 Issuer and each of
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the Guarantors (to the extent that they may lawfully do so) hereby expressly
waive all benefit or advantage of any such law, and covenant that they shall
not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law has been enacted.
SECTION 4.08. CHANGE OF CONTROL. (a) Upon the occurrence of any of
the following events (each a "Change of Control"), the Issuer shall make an
offer to repurchase all outstanding Secured Notes (the "Change of Control
Offer") at a purchase price (the "Change of Control Purchase Price") in cash
equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid
interest thereon, if any, (including Additional Amounts, if any, and Special
Interest, if any), to the date of purchase (subject to the right of Holders of
record on the relevant Record Date to receive interest (including Special
Interest, if any, and Additional Amounts, if any), due on the relevant Interest
Payment Date):
(i) any "person" or "group" (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable),
other than a Shareholder (or any Affiliate thereof) is or becomes
the "beneficial owner" (as defined in Section 13(d) of the Exchange Act,
except that a person will be deemed to have "beneficial ownership" of all
shares that any such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of more than 26.4% of the total voting power of the Voting
Stock of the Issuer; PROVIDED, HOWEVER, for purposes of this clause (i)
there shall not be a Change of Control with respect to Pride's "beneficial
ownership" of the Voting Stock of the Issuer unless (A) any "person" or
"group" (as such terms are used for purposes of Sections 13(d) and 14(d)
of the Exchange Act, whether or not applicable), is or becomes the
"beneficial owner" (as defined in Section 13(d) of the Exchange Act,
except that a person will be deemed to have "beneficial ownership" of all
shares that any such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of more than 50% of the total voting power of the Voting Stock
of Pride, and (B) within 25 days after the closing of any such transaction
either Xxxxx'x or S&P lowers the credit ratings for any outstanding debt
of Pride or, in the
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event Pride has no outstanding rated debt, the ratings of Pride;
(ii) individuals who on the Issue Date constituted the board of
directors of the Issuer (together with any new directors whose election by
such board of directors or whose nomination for election by the
shareholders of the Issuer was approved by a vote of 66 2/3% of the
directors of the Issuer, then still in office who were either directors on
the Issue Date or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of the board of
directors of the Issuer then in office;
(iii) the adoption of a plan relating to the liquidation or
dissolution of the Issuer;
(iv) the merger or consolidation of any Shareholder or the Issuer
with or into another Person (other than in the case of a Shareholder, a
Person controlled by a Permitted Holder) or the merger of another Person
(other than in the case of a Shareholder, a Person controlled by a
Permitted Holder) with or into any Shareholder or the Issuer, as the case
may be, or the sale of all or substantially all the assets of any
Shareholder or the Issuer to another Person (other than in the case of a
Shareholder, a Person controlled by a Permitted Holder), and, in the case
of any such merger or consolidation, the securities of such Shareholder or
the Issuer, as the case may be, that are outstanding immediately prior to
such transaction and which represent 100% of the aggregate voting power of
the Voting Stock of such Shareholder or the Issuer, as the case may be,
are changed into or exchanged for cash, securities or property, unless
pursuant to such transaction such securities are changed into or exchanged
for, in addition to any other consideration, securities of the surviving
corporation that represent immediately after such transaction, at least a
majority of the aggregate voting power of the Voting Stock of the
surviving corporation; or
(v) prior to any Public Equity Offering of the Issuer, (x) Pride or
a Qualified Substitute Owner ceases for any reason for more than 10 days
to be the beneficial owner, directly or indirectly, of at least 26.4% of
the total voting power of the Voting Stock of
the Issuer.
(b) The Change of Control Offer will remain open for a period of at
least 30 days following its commencement
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but no longer than 60 days, except to the extent that a longer period is
required by applicable law (the "Change of Control Offer Period"). On the first
Business Day after the termination of the Change of Control Offer Period (the
"Change of Control Payment Date"), the Issuer will purchase all Secured Notes
validly tendered and not properly withdrawn pursuant to the Change of Control
Offer. Payment for any Secured Notes so purchased will be made in the same
manner as interest payments are made on the Secured Notes. If the Change of
Control Payment Date is on or after a Record Date and on or before the related
Interest Payment Date, any accrued and unpaid interest including Special
Interest, if any and Additional Amounts, if any (to the extent involving
interest that is due and payable on such Interest Payment Date), shall be paid
to the Person in whose name a Secured Note is registered at the close of
business on such Record Date, and no additional interest (including Additional
Amounts, if any, or Special Interest, if any) (to the extent involving interest
that is due and payable on such Interest Payment Date), shall be payable to
Holders who validly tender Secured Notes pursuant to the Change of Control
Offer.
(c) Within 30 days following any Change of Control, the Issuer or
the Trustee (at the expense of the Issuer) shall mail by first class mail, a
notice to each Holder, with a copy of such notice to the Trustee. The notice,
which shall govern the terms of the Change of Control Offer, shall state:
(i) that a Change of Control has occurred and a Change of Control
Offer is being made as provided for herein that each Holder has the right
to require the Issuer to purchase such Holder's Secured Notes at the
Change of Control Purchase Price, and that, although Holders are not
required to tender their Secured Notes, all Secured Notes that are validly
tendered shall be accepted for payment;
(ii) the circumstances and relevant facts regarding such Change of
Control (including information with respect to pro forma historical
income, cash flow and capitalization after giving effect to such Change of
Control);
(iii) the Change of Control Purchase Price and the Change of Control
Payment Date, which will be no earlier than 30 days and no later than 60
days after the date such notice is mailed;
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(iv) that any Secured Note accepted for payment pursuant to the
Change of Control Offer (and duly paid for on the Change of Control
Payment Date) shall cease to accrue interest (including Special Interest
and Additional Amounts, if applicable), after the Change of Control
Payment Date;
(v) that any Secured Notes (or portions thereof) not validly
tendered shall continue to accrue interest, including Special Interest and
Additional Amounts, if applicable;
(vi) that any Holder electing to have a Secured Note purchased
pursuant to any Change of Control Offer shall be required to surrender the
Secured Note, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Secured Note completed, or transfer by book-entry
transfer, to the Issuer, a depositary, if appointed by the Issuer, or a
Paying Agent at the address specified in the notice at least one Business
Day before the Change of Control Purchase Date;
(vii) that Holders shall be entitled to withdraw their election if
the Issuer, the depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Change of Control Offer
Period, a telegram, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Secured Note the Holder
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Secured Note purchased; and
(viii) the instructions and any other information necessary to
enable Holders to tender their Secured Notes (or portions thereof) and
have such Secured Notes (or portions thereof) purchased pursuant to the
Change of Control Offer.
(d) On or before the Change of Control Payment Date, the Issuer
shall, to the extent lawful, (1) accept for payment all Secured Notes or
portions thereof validly tendered and not properly withdrawn pursuant to the
Change of Control Offer, (2) deposit by noon, New York City time, on such date
with the Paying Agent an amount equal to the Change of Control Purchase Price in
respect of all Secured Notes or portions thereof so validly tendered and not
properly withdrawn and (3) deliver or cause to be delivered to the Trustee the
Secured Notes so accepted together with an Officers' Certificate stating the
aggregate principal
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amount of Secured Notes or portions thereof being purchased by the Issuer. The
Paying Agent shall promptly (but in any case not later than five days after the
Change of Control Payment Date) mail to each Holder of Secured Notes so validly
tendered and not properly withdrawn the Change of Control Purchase Price for
such Secured Notes.
(e) Upon surrender and cancellation of a Certificated Secured Note
that is purchased in part pursuant to the Change of Control Offer, the Issuer
shall promptly issue and the Trustee shall authenticate and mail (or cause to be
transferred by book entry) to the surrendering Holder of such Certificated
Secured Note, a new Certificated Secured Note equal in principal amount to the
unpurchased portion of such surrendered Certificated Secured Note; PROVIDED that
each such new Certificated Secured Note shall be in a principal amount of $1,000
or an integral multiple thereof. Upon surrender of a Global Note that is
purchased in part pursuant to a Change of Control Offer, the Paying Agent shall
forward such Global Note to the Trustee who shall make a notation on Schedule A
thereof to reduce the principal amount of such Global Note to an amount equal to
the unpurchased portion of such Global Note, as provided in Section 2.06 hereof.
The Issuer shall publicly announce the results of the Change of Control Offer on
the Change of Control Payment Date. For purposes of this Section 4.08, the
Trustee shall act as the Paying Agent.
(f) The Issuer shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of the Secured Notes as a result of a Change of Control. To the
extent that the provisions of any securities laws or regulations conflict with
the other provisions of this Section 4.08, the Issuer shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under the other provisions of this Section 4.08.
SECTION 4.09. LIMITATIONS ON INDEBTEDNESS. (a) The Issuer will not,
and will not permit any Restricted Subsidiary to, Incur, directly or indirectly,
any Indebtedness; PROVIDED, HOWEVER, that the Issuer may Incur Indebtedness if
the Consolidated EBITDA Coverage Ratio at the date of such Incurrence and after
giving effect thereto exceeds 2.25 to 1.0.
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(b) Notwithstanding paragraph (a), the following Indebtedness may be
Incurred:
(i) Indebtedness of the Issuer or a Restricted Subsidiary owed to
and held by a Restricted Subsidiary or Indebtedness of a Restricted
Subsidiary owed to and held by the Issuer; PROVIDED, HOWEVER, that (a) any
subsequent issuance or transfer of any Capital Stock that results in such
Restricted Subsidiary to whom Indebtedness is owed ceasing to be a
Restricted Subsidiary or any transfer of such Indebtedness (other than to
the Issuer or another Restricted Subsidiary) shall be deemed, in each
case, to constitute the Incurrence of such Indebtedness and (b) if the
Issuer is the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all obligations with
respect to the Secured Notes;
(ii) the Initial Secured Notes and the Exchange Secured Notes;
(iii) the Subsidiary Guarantees, if any, the Issuer Loans and
Indebtedness incurred in exchange for, or the proceeds of which are used
to Refinance any Indebtedness permitted by this clause (iii); PROVIDED,
HOWEVER, that (A) the principal amount of the Indebtedness so Incurred
shall not exceed the principal amount of the Indebtedness so Refinanced
(plus the amount of reasonable fees and expenses incurred in connection
therewith, including any premium or defeasance costs) and (B) the
Indebtedness so Incurred (1) shall not mature prior to the Stated Maturity
of the Indebtedness so Refinanced and (2) shall have an Average Life equal
to or greater than the remaining Average Life of the Indebtedness so
Refinanced;
(iv) Indebtedness of the Issuer or any Restricted Subsidiary (other
than Indebtedness described in clause (i), (ii) or (iii) above) (x)
outstanding on the Issue Date and (y) Indebtedness Incurred in exchange
for, or the proceeds of which are used to Refinance, any Indebtedness
permitted by this clause (iv) or permitted by clause (a) above; PROVIDED,
HOWEVER, that (A) the principal amount of the Indebtedness so Incurred
shall not exceed the principal amount of the Indebtedness Refinanced (plus
the amount of reasonable fees and expenses incurred in connection
therewith, including any premium or defeasance costs); and (B) the
Indebtedness so Incurred (1) shall not mature prior to the Stated Maturity
of the Indebtedness so Refinanced
74
and (2) shall have an Average Life equal to or greater than the remaining
Average Life of the Indebtedness so Refinanced;
(v) Obligations of the Issuer or a Restricted Subsidiary under
performance or surety bonds relating to building contracts for the
construction, repair or improvement of drilling rigs, drillships or
similar vessels or contracts for the installation of related equipment;
(vi) Hedging Obligations;
(vii) Indebtedness of Restricted Subsidiaries or the Issuer under
the Mitsubishi Loan Agreements and the MARAD Documents; and
(viii) Indebtedness of the Issuer or any Restricted Subsidiary in an
aggregate principal amount which, together with all other Indebtedness of
the Issuer then outstanding (other than Indebtedness permitted by clauses
(i) through (vii) of this paragraph (b) or paragraph (a)) does not exceed
$20,000,000.
(c) Notwithstanding paragraphs (a) and (b), neither the Issuer nor
any Restricted Subsidiary shall issue any Indebtedness if the proceeds thereof
are used, directly or indirectly, to repay, prepay, redeem, defease, retire,
refund or refinance any Subordinated Obligations unless such Indebtedness shall
be subordinated to the Secured Notes or the Issuer Loans, as applicable, to at
least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with the foregoing
covenant, (i) in the event that an item of Indebtedness meets the criteria of
more than one of the types of Indebtedness described above, the Issuer, in its
sole discretion, will classify such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of the above clauses and
(ii) an item of Indebtedness may be divided and classified in more than one of
the types of Indebtedness described above.
SECTION 4.10. LIMITATION ON LIENS. The Issuer shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, Incur or permit
to exist any Lien of any nature whatsoever on any of its properties (including
Capital Stock of a Restricted Subsidiary), whether owned at the Issue Date or
thereafter acquired unless, in the case of property or assets not consisting of
Collateral, contemporaneously therewith effective provision
75
is made to secure the Secured Notes equally and ratably with (or prior to) the
obligations so secured for so long as such obligations are so secured; in each
case other than Permitted Liens.
SECTION 4.11. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Issuer will not, and will not permit any Restricted
Subsidiary, directly or indirectly, to:
(i) declare or pay any dividend or make any distribution on or in
respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving the Issuer) or to the direct or indirect
holders of its Capital Stock, except:
(A) dividends or distributions payable solely in its
Non-Convertible Capital Stock or in options, warrants or other
rights to purchase its Non-Convertible Capital Stock;
(B) dividends or distributions payable to the Issuer or a
Restricted Subsidiary; and
(C) pro rata dividends or distributions on the Capital Stock
of a Restricted Subsidiary held by minority stockholders;
(ii) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Issuer or of any direct or indirect parent of the
Issuer, or any Restricted Subsidiary (except Capital Stock held by the
Issuer or a Restricted Subsidiary);
(iii) purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, prior to scheduled maturity, scheduled repayment or
scheduled sinking fund payment, any Subordinated Obligation (other than
the purchase, repurchase or other acquisition of Subordinated Obligations
purchased in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year
of the date of acquisition); or
(iv) make any Investment other than a Permitted Investment (any such
dividend, distribution, purchase, redemption, repurchase, defeasance,
other acquisition, retirement or Investment being herein referred to as a
"Restricted Payment"),
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if at the time the Issuer or such Restricted Subsidiary makes such Restricted
Payment:
(1) a Default shall have occurred and be continuing (or would result
therefrom); or
(2) the Issuer would not be permitted to Incur an additional $1 of
Indebtedness pursuant to Section 4.09(a) after giving pro forma effect to
such Restricted Payment; or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the Issue Date would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from the beginning of the
fiscal quarter during which the Secured Notes were originally issued
to the end of the most recent fiscal quarter ending at least 45 days
prior to the date of such Restricted Payment (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of such
deficit);
(B) 100% of the aggregate net proceeds (including the fair
market value of noncash proceeds, which shall be determined in good
faith by the Board of Directors of the Issuer) received by the
Issuer from the issue or sale of its Capital Stock (other than
Redeemable Stock or Exchangeable Stock) subsequent to the Issue Date
(other than an issuance or sale to a Restricted Subsidiary or an
employee stock ownership plan or similar trust);
(C) the amount by which Indebtedness of the Issuer is reduced
on the Issuer's balance sheet upon the conversion or exchange (other
than by a Restricted Subsidiary) subsequent to the Incurrence of any
Indebtedness of the Issuer convertible or exchangeable for Capital
Stock (other than Redeemable Stock or Exchangeable Stock) of the
Issuer (less the amount of any cash, or other property, distributed
by the Issuer upon such conversion or exchange); and
(D) to the extent not otherwise included in Consolidated Net
Income, the net reduction in Investments in Unrestricted
Subsidiaries resulting from dividends, repayments of loans or
advances,
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or other transfers of assets, in each case to the Issuer or any
Restricted Subsidiary after the Issue Date from any Unrestricted
Subsidiary or from the redesignation of an Unrestricted Subsidiary
as a Restricted Subsidiary (valued in each case as provided in the
definition of Investment), not to exceed in the case of any
Restricted Subsidiary the total amount of Investments (other than
Permitted Investments) in such Restricted Subsidiary made by the
Issuer and its Restricted Subsidiaries in such Unrestricted
Subsidiary after the Issue Date.
(b) The provisions of Section (a) shall not prohibit:
(i) any purchase or redemption of Capital Stock or Subordinated
Obligations of the Issuer made by exchange for, or out of the proceeds of
the substantially concurrent sale of, Capital Stock of the Issuer (other
than Redeemable Stock or Exchangeable Stock and other Capital Stock issued
or sold to a Restricted Subsidiary or an employee stock ownership plan);
PROVIDED, HOWEVER, that (A) such purchase or redemption shall be excluded
in the calculation of the amount of Restricted Payments and (B) the Net
Cash Proceeds from such sale shall be excluded from clauses (3)(B) and
(3)(C) of Section (a);
(ii) any purchase or redemption of Subordinated Obligations of the
Issuer made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Indebtedness of the Issuer which is permitted to be
issued pursuant to Section 4.09 hereof; PROVIDED, HOWEVER, that such
purchase or redemption shall be excluded in the calculation of the amount
of Restricted Payments;
(iii) dividends paid within 60 days after the date of declaration if
at such date of declaration such dividend would have complied with this
provision; PROVIDED, HOWEVER, that at the time of payment of such
dividend, no other Default shall have occurred and be continuing (or would
result therefrom); PROVIDED FURTHER, HOWEVER, that such dividend shall be
included in the calculation of the amount of Restricted Payments (unless
already included in determining the amount of Restricted Payments
previously made upon the declaration of such dividend).
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SECTION 4.12. LIMITATION ON SALE/LEASEBACK TRANSACTIONS. The Issuer
will not, and will not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with any Person (other than the Issuer or a
Restricted Subsidiary) unless:
(a) the Issuer or such Restricted Subsidiary would be entitled to
incur Indebtedness, in a principal amount equal to the Attributable
Indebtedness with respect to such Sale/Leaseback Transaction, secured by a
Lien on the property subject to such Sale/Leaseback Transaction pursuant
to Section 4.10 above without equally and ratably securing the Secured
Notes pursuant to such Section;
(b) the net proceeds received by the Issuer or any Restricted
Subsidiary in connection with such Sale/Leaseback Transaction are at least
equal to the fair value (as determined by the Board of Directors) of such
property; and
(c) the Issuer applies the proceeds of such transaction in
compliance with Section 4.15. Notwithstanding the foregoing, the Issuer
shall not and shall not permit any Restricted Subsidiary to enter into or
otherwise became liable with respect to any Sale/Leaseback Transaction
involving any Restricted Collateral.
SECTION 4.13. SEC REPORTS. Notwithstanding that the Issuer may not
be required to remain subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Issuer shall file with the SEC and provide
the Trustee and Noteholders with such annual reports and such information,
documents and other reports specified in Sections 13 and 15(d) of the Exchange
Act.
In addition, whether or not required by the rules and regulations of
the Commission, the Issuer will file a copy of all such information and reports
with the Commission for public availability (unless the Commission will not
accept such filing). In addition, the Issuer shall furnish to the Noteholders
and to prospective investors, upon the requests of such Noteholders, any
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act so long as the Secured Notes are not freely transferable under
the Securities Act.
SECTION 4.14. LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM
RESTRICTED SUBSIDIARIES. The Issuer shall not, and shall not permit any
Restricted Subsidiary
79
to, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) pay dividends or make any other distributions, in cash or
otherwise, on its Capital Stock to the Issuer or any Restricted Subsidiary or
pay any Indebtedness owed to the Issuer or any Restricted Subsidiary, (b) make
any loans or advances to the Issuer or any Restricted Subsidiary or (c) transfer
any of its property or assets to the Issuer or any Restricted Subsidiary,
except:
(i) any encumbrance or restriction pursuant to an agreement in
effect or entered into on the Issue Date;
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Acquired Indebtedness
or Preferred Stock Incurred by such Restricted Subsidiary on or prior to
the date on which such Restricted Subsidiary became a Restricted
Subsidiary or was acquired by the Issuer (other than Indebtedness or
Preferred Stock Incurred as consideration in, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Restricted Subsidiary became a Restricted Subsidiary or was acquired by
the Issuer or otherwise Incurred in anticipation of such acquisition) and
outstanding on such date;
(iii) any encumbrance or restriction relating to any assets acquired
after the Issue Date, so long as such encumbrance or restriction relates
only to the assets so acquired and is not or was not created in
anticipation of such acquisition;
(iv) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness or Preferred Stock Incurred
pursuant to an agreement referred to in clause (i), (ii) or (iii) of this
Section or this clause (iv) or contained in any amendment to an agreement
referred to in clause (i), (ii) or (iii) of this Section or this clause
(iv); PROVIDED, HOWEVER, that the encumbrances and restrictions with
respect to such Restricted Subsidiary contained in any such refinancing
agreement or amendment are in the aggregate no less favorable to the
Holders of Secured Notes than the encumbrances and restrictions with
respect to such Restricted Subsidiary contained in such predecessor
agreements;
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(v) any such encumbrance or restriction consisting of customary
nonassignment provisions in leases governing leasehold interests or in
license agreements to the extent such provisions restrict the assignment
of such agreement and any rights granted or property leased thereunder;
(vi) in the case of clause (iii) above, restrictions contained in
security agreements or mortgages securing Indebtedness of a Restricted
Subsidiary to the extent such restrictions restrict the transfer of the
property subject to such security agreements or mortgages; and
(vii) any temporary encumbrance or restriction with respect to a
Restricted Subsidiary imposed pursuant to an agreement entered into for
the sale or disposition of all or substantially all the Capital Stock or
assets of such Restricted Subsidiary pending the closing of such sale or
disposition.
Nothing contained in this covenant shall prevent the Issuer or any
Restricted Subsidiary from entering into any agreement permitting the incurrence
of Liens otherwise permitted by Section 4.10 hereof.
SECTION 4.15. LIMITATION ON ASSET SALES. (a) The Issuer shall not,
and shall not permit any Restricted Subsidiary to, sell, assign, convey,
transfer or otherwise dispose of a Mortgaged Rig or any other portion of the
Collateral (other than an Incidental Asset or Temporary Cash Investments in the
Reserve Account and other than a transfer of a Mortgaged Rig to a Wholly Owned
Restricted Subsidiary that becomes a Subsidiary Guarantor); PROVIDED, HOWEVER,
that the Issuer or a Restricted Subsidiary may sell a Mortgaged Rig or the
Issuer may sell all the Capital Stock of a Restricted Subsidiary owning a
Mortgaged Rig (any such asset proposed to be sold is referred to herein as a
"Mortgaged Rig Asset") if such sale of a Mortgaged Rig Asset shall be made in
compliance with each of the following conditions:
(i) no Default shall have occurred and be
continuing;
(ii) the sale shall be effected in a commercially
reasonable manner as determined by the Board of
Directors and evidenced by a Board Resolution;
(iii) the entire consideration for such sale shall be at least equal
to the fair market value of the
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Mortgaged Rig Asset (as determined in good faith by the Issuer's Board of
Directors);
(iv) at least 85% of the consideration received
shall be in the form of cash or Temporary Cash
Equivalents; and
(v) the Issuer shall have complied with the other provisions of this
Indenture applicable to such sale, including Section 3.09.
(b) The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in any Asset Sales (other than Asset Sales permitted by
Section 4.15(a) and foreclosures, deeds-in-lieu of foreclosure or similar
transactions) unless (i) the Issuer or the applicable 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 sold or otherwise disposed of (as
determined in good faith by the Issuer's Board of Directors), and (ii) at least
85% of the consideration received by the Issuer or the Restricted Subsidiary, as
the case may be, from such Asset Sale at the time of such disposition shall be
in the form of cash or Temporary Cash Equivalents. If the Issuer or a Restricted
Subsidiary engages in an Asset Sale in compliance with the previous sentence or
a foreclosure, deed-in-lieu of foreclosure or similar transaction, then the
Issuer shall or shall cause a Restricted Subsidiary to apply an amount equal to
such excess Net Available Cash within 360 days of the Asset Sale either (i) to
repay Senior Indebtedness of the Issuer or of a Restricted Subsidiary (other
than in each case Indebtedness owed to an Affiliate of the Issuer), (ii)
to invest in Additional Assets or (iii) pay (no later than the end of such
360-day period) such excess Net Available Cash (to the extent not applied
pursuant to clauses (i) or (ii) above) directly to the Trustee for deposit in
the Reserve Account. Pending application of Net Available Cash pursuant to this
Section, such Net Available Cash shall be invested in Permitted Investments or
to temporarily reduce Indebtedness.
SECTION 4.16. LIMITATION ON ASSET SWAPS. The Issuer will not, and
will not permit any Restricted Subsidiary to, engage in any Asset Swap, unless:
(i) at the time of entering into the agreement with respect thereto
and immediately after giving effect to the proposed Asset Swap, no Default
shall have occurred and be continuing;
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(ii) the aggregate fair market values of the Additional Assets and
other consideration to be received by the Issuer or the applicable
Restricted Subsidiary is, at the time the Asset Swap is agreed to,
substantially equal to the aggregate fair market of the property being
disposed of by the Issuer or the applicable Restricted Subsidiary (to be
determined in good faith by the Board of Directors of the Issuer and to be
evidenced by a resolution of such Board set forth in an Officers'
Certificate delivered to the Trustee); and
(iii) the cash payments, if any, received by the Issuer or such
Restricted Subsidiary in connection with such Asset Swap are treated as
Net Available Cash received from an Asset Sale.
SECTION 4.17. LIMITATION ON AFFILIATE TRANSACTIONS. (a) The Issuer
shall not, and shall not permit any Restricted Subsidiary to, enter into or
permit to exist any transaction (including the purchase, sale, lease or exchange
of any property, employee compensation arrangements or the rendering of any
service) with any Affiliate of the Issuer (an "Affiliate Transaction") unless
the terms thereof (i) are no less favorable to the Issuer or such Restricted
Subsidiary than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate, (ii) if such
Affiliate Transaction involves an amount in excess of $500,000, (A) are set
forth in writing and (B) have been approved by a majority of the members of the
Board of Directors of the Issuer having no personal stake in such Affiliate
Transaction and (iii) if such Affiliate Transaction involves an amount in excess
of $10,000,000, have been determined by an investment banking firm of national
reputation or, in the case of the sale or transfer of assets subject to
valuation, an appropriate independent qualified appraiser of national
reputation, given the size and nature of the transaction, to be fair, from a
financial standpoint, to the Issuer and its Restricted Subsidiaries.
(b) The provisions of the foregoing paragraph (a) shall not prohibit
(i) any Restricted Payment permitted to be paid pursuant to the covenant
described under Section 4.11 hereof, (ii) any issuance of securities, or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements of the Issuer, stock options, stock
ownership and other employee benefit plans approved by the Board of Directors of
the Issuer, (iii) the grant of stock options or similar rights to employees,
officers and directors of the
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Issuer pursuant to plans approved by its Board of Directors, (v) the payment of
reasonable fees to directors of the Issuer and its Restricted Subsidiaries who
are not employees of the Issuer or its Restricted Subsidiaries and any Affiliate
Transaction between the Issuer and a Wholly Owned Restricted Subsidiary or
between Wholly Owned Restricted Subsidiaries, and (vi) transactions pursuant to
agreements in effect on the Issue Date and disclosed in the Offering Memorandum.
(c) The Issuer shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, Incur or permit to exist any Indebtedness
of the Issuer or any Restricted Subsidiary owed to a Shareholder unless (i) such
Indebtedness is subordinated to the Secured Notes, in the case of the Issuer, or
the Issuer Loans, in the case of a Restricted Subsidiary, and (ii) all payments
of principal, premium, if any, and interest in respect of the Secured Notes or
the Issuer Loans, as applicable, is required to be paid before any amounts shall
be payable in respect of such Indebtedness and, prior to such time, the holder
of such Indebtedness shall not have any claim against the Issuer or such
Restricted Subsidiary in respect of such Indebtedness; PROVIDED, HOWEVER, that
payments and prepayments thereof may be made if permitted under Section 4.11.
SECTION 4.18. LIMITATION ON THE SALE OR ISSUANCE OF CAPITAL STOCK OF
RESTRICTED SUBSIDIARIES. The Issuer shall not sell or otherwise dispose of any
Capital Stock of a Restricted Subsidiary, and shall not permit any such
Restricted Subsidiary, directly or indirectly, to issue or sell or otherwise
dispose of any of its Capital Stock except (i) to the Issuer or a Wholly Owned
Restricted Subsidiary, (ii) if, immediately after giving effect to such
issuance, sale or other disposition, neither the Issuer nor any of its
Subsidiaries own any Capital Stock of such Restricted Subsidiary, (iii)
directors' qualifying shares or (iv) other than with respect to shares of
Capital Stock of a Restricted Subsidiary which owns a Mortgaged Rig, if,
immediately after giving effect to such issuance, sale or other disposition,
such Restricted Subsidiary would no longer constitute a Restricted Subsidiary
and any Investment in such Person remaining after giving effect thereto would
have been permitted to be made under the covenant described under Section 4.11
if made on the date of such issuance, sale or other disposition.
SECTION 4.19. FUTURE SUBSIDIARY GUARANTORS. The Issuer may not
permit any Restricted Subsidiary, directly or indirectly, to guarantee any
Indebtedness of the Issuer or any other Obligor ("Guaranteed Indebtedness")
unless
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(i) such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture to this Indenture providing for a Subsidiary Guarantee of
payment of the Secured Notes by such Restricted Subsidiary and (ii) such
Restricted Subsidiary waives and will not in any manner whatsoever claim or take
the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Issuer or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Subsidiary Guarantee.
SECTION 4.20. IMPAIRMENT OF LIENS. The Issuer shall not, and the
Issuer shall not permit any Restricted Subsidiary to, take or omit to take, any
action which action or omission might or would have the result of materially
impairing the Liens with respect to the Collateral for the benefit of the
Trustee and the Holders of the Secured Notes or the Liens granted by the
Mortgaged Rig Owners pursuant to the Mitsubishi Loan Collateral Documents, and
except as permitted by this Indenture and the Security Agreements, the Issuer
shall not, and shall not permit any Restricted Subsidiary to, grant to any
Person other than the Trustee, for the benefit of the Trustee and the Holders of
the Secured Notes, any interest whatsoever in any of the Collateral.
SECTION 4.21. LIMITATION ON ISSUER ACTIVITIES. The Issuer will not
engage in any business activity or undertake any activity, except any activity
(i) relating to the offering, sale or issuance of the Secured Notes or the use
of the proceeds of such sale of Secured Notes to acquire the Issuer Loans, or
(ii) undertaken with the purpose of, and directly related to, exercising its
rights under, and fulfilling the obligations of the Issuer or the Restricted
Subsidiaries under, the Secured Notes, this Indenture, the Issuer Loans, the
Mitsubishi Documents and Security Agreements.
SECTION 4.22. INSURANCE. The Issuer shall, or shall cause the
Mortgaged Rig Owner owning a Mortgaged Rig to, carry and maintain with respect
to each Mortgaged Rig owned by it insurance payable in United States Dollars in
amounts, against risks and in a form which is substantially equivalent to the
coverage carried by other responsible and experienced companies engaged in the
operation of drilling rigs similar to the Mortgaged Rigs and with insurance
companies, underwriters, funds, mutual insurance associations or clubs of
recognized standing. Total property insurance for the Mortgaged Rigs shall be in
an aggregate amount not less than the sum of the aggregate outstanding principal
amount, subject to customary
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deductibles, retentions or self-insurance, of the Secured Notes and the
aggregate principal amount of all other Indebtedness secured by a Lien on the
Collateral.
SECTION 4.23. AMENDMENTS TO SECURITY DOCUMENTS. The Issuer shall
not, and the Issuer shall not permit any of its Restricted Subsidiaries to,
amend, modify or supplement, or permit or consent to any amendment, modification
or supplement of, the Security Agreements in any way that would be adverse to
the Holders of the Notes.
SECTION 4.24. USE OF PROCEEDS. The Issuer shall use the net
proceeds of the offering of the Secured Notes to acquire the Issuer Loans.
SECTION 4.25. SEPARATE CORPORATE ENTITIES. The Issuer shall, and
shall cause each of its Subsidiaries to, and each Shareholder shall, conduct its
business in its own name so as to avoid the appearance of conducting its
business on behalf of any other Person or that the assets of the Issuer or any
such Subsidiaries or any Shareholder (the "Applicable Entities") are available
to pay the creditors of any of the other applicable Entities. Without limiting
the generality of the foregoing,
(1) each Applicable Entity shall maintain corporate records and
books of account separate from those of the other Applicable Entities;
(2) each Applicable Entity shall comply with its constitutive
documents, including by obtaining proper authorization from its board of
directors of all corporate action requiring such authorization and
holding meetings of its board of directors as required
by its constitutive documents;
(3) operating expenses and liabilities of each Applicable Entity
shall not be paid from the funds of the other Applicable Entities except
to the extent such funds have been contributed as equity or constitute
loans and, in each case, documented appropriately;
(4) each Applicable Entity shall maintain an arm's-length
relationship with the other Applicable Entities and shall not hold itself
out as being liable for the debts of the other Applicable Entities; and
(5) each Applicable Entity shall keep its assets and its liabilities
wholly separate from the other applicable Entities except that operating
assets may be
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pooled in the ordinary course of the Applicable Entity's drilling
business.
The foregoing, however, shall not be violated by reason of this Indenture, the
Guarantees or the Security Agreements or any permitted Indebtedness or permitted
Lien under the Indenture.
The Issuer shall cause each Unrestricted Subsidiary to provide in
any Indebtedness Incurred by such Unrestricted Subsidiary that the holder of
such Indebtedness will not have any recourse to the Issuer or any of its
Restricted Subsidiaries with respect to such Indebtedness.
SECTION 4.26. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT OR EVENT OF
DEFAULT. (a) The Issuer and each Subsidiary Guarantor shall deliver to the
Trustee, within 90 days after the end of each fiscal year, an Officers'
Certificate (which shall be signed by Officers satisfying the requirements of
Section 314 of the Trust Indenture Act) stating that a review of the activities
of the Issuer and the Restricted Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Issuer 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 Issuer
has kept, observed, performed and fulfilled in all material respects 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, describing
all such Defaults or Events of Default of which he or she may have knowledge
and what action the Issuer 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,
interest, if any (including Special Interest, if any, and Additional Amounts, if
any), on the Secured Notes is prohibited or if such event has occurred, a
description of the event and what action the Issuer is taking or proposes to
take with respect thereto.
(b) The year-end financial statements delivered pursuant to Section
4.13 hereof shall be accompanied by a written statement of the independent
public accountants of the Issuer (who shall be a firm of established national
reputation) that in making the examination necessary for certification of such
financial statements, nothing has come to their attention that would lead them
to believe that the
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Issuer has violated any provisions of Article 4 or Article 5 hereof (except
that, such written statement need not address the Issuer's compliance with the
provisions of Sections 4.2, 4.5, 4.7, 4.8, 4.17 or 4.27 hereof) or, if any such
violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Issuer shall, so long as any of the Secured Notes are
outstanding, deliver to the Trustee, forthwith upon, but in any event within
five Business Days after any Officer's becoming aware of any Default or Event of
Default, an Officers' Certificate specifying such Default or Event of Default
and what action the Issuer is taking or proposes to take with respect thereto.
(d) For purposes of this Section 4.26, compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 4.27. PROHIBITION ON ISSUER BECOMING AN INVESTMENT COMPANY.
The Issuer shall not become an "Investment Company" as defined in the Investment
Company Act of 1940, as amended.
SECTION 4.28. ADDITIONAL AMOUNTS. (a) Except to the extent required
by any applicable law, regulation or governmental policy, any and all payments
of, or in respect of, any Secured Note shall be made free and clear of and
without deduction for or on account of any and all present or future taxes,
levies, imposts, deduction, charges or withholdings and all liabilities with
respect thereto imposed by the British Virgin Islands, Brazil, the United
States of America or any other jurisdiction with which the Issuer, Pride or any
Subsidiary Guarantor has some connection (including any jurisdiction from or
through which payments under the Secured Notes, the Pride Guarantee or the
Subsidiary Guarantees (if any) are made or in which the Mortgaged Rigs are
located) or any political subdivision of or any taxing authority in any such
jurisdiction (collectively, "Taxes" and any such jurisdiction or political
subdivision or taxing authority, a "Tax Jurisdiction"). If the Issuer, Pride or
any Subsidiary Guarantor shall be required by law to withhold or deduct any
Taxes from or in respect of any sum payable under the Secured Notes, the Pride
Guarantee or a Subsidiary Guarantee, the sum payable by the Issuer under the
Secured Notes shall be increased by the amount ("Additional Amounts") necessary
so that after making all required withholdings and deductions, the Holder or
beneficial owner
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of a Secured Note shall receive an amount equal to the sum that it would have
received had not such withholdings and deductions been made; PROVIDED that any
such sum shall not be paid to a Holder (an "Excluded Holder") (i) in respect of
any Taxes resulting from the beneficial owner of such Secured Note carrying on
business or being deemed to carry on business in or through a permanent
establishment or fixed base in the relevant taxing jurisdiction or having any
other connection with the relevant taxing jurisdiction or any political
subdivision thereof or any taxing authority therein other than the mere holding
or owning of such Secured Note, being a beneficiary of the Pride Guarantee or
any applicable Subsidiary Guarantee, the receipt of any income or payments in
respect of such Secured Note, the Pride Guarantee or any applicable Subsidiary
Guarantee or the enforcement of such Secured Note, the Pride Guarantee or any
applicable Subsidiary Guarantee, (ii) in respect of any Taxes that would not
have been imposed but for the presentation (where presentation is required) of
such Secured Note for payment more than 180 days after the date such payment
became due and payable or was duly provided for, whichever occurs later, or
(iii) in respect of United States federal income Taxes, if such Holder fails to
provide to the Issuer, within 30 days of a request by the Issuer, a complete and
valid IRS Form W-8 or other form establishing an exemption from United States
withholding Taxes. The Issuer, Pride or the Subsidiary Guarantors, as
applicable, will also (i) make such withholding or deduction and (ii) remit the
full amount deducted or withheld to the relevant authority in accordance with
applicable law, and, in any such case, the Issuer will furnish to each Holder on
whose behalf an amount was so remitted, within 30 calendar days after the date
the payment of any Taxes is due pursuant to applicable law, certified copies of
tax receipts evidencing such payment by the Issuer, Pride or the Subsidiary
Guarantors, as applicable. The Issuer will, upon written request of each Holder
(other than an Excluded Holder), reimburse each such Holder for the amount of
(i) any Taxes so levied or imposed and paid by such Holder as a result of
payments made under or with respect to any Secured Notes, and (ii) any Taxes so
levied or imposed with respect to any reimbursement under the foregoing clause
(i) so that the net amount received by such Holder (net of payments made under
or with respect to such Secured Notes, the Pride Guarantee or the applicable
Subsidiary Guarantees) after such reimbursement will not be less than the net
amount the Holder would have received if Taxes on such reimbursement had not
been imposed.
(b) At least 30 calendar days prior to each date on which any
payment under or with respect to the Secured
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Notes is due and payable, if the Issuer will be obligated to pay Additional
Amounts with respect to such payment, the Issuer will deliver to the Trustee an
Officers' Certificate stating the fact that such Additional Amounts will be
payable and the amounts so payable and will set forth such other information
necessary to enable the Trustee to pay such Additional Amounts to Holders on the
payment date.
(c) If any Holder or beneficial owner of any Secured Note receives a
refund of Taxes after the Issuer, Pride or any Subsidiary Guarantor, as
applicable, has paid any Additional Amounts, such Holder or beneficial owner
shall reimburse the Issuer, Pride or any Subsidiary Guarantor, as applicable,
for any amount of such refund.
(d) The Issuer will pay any present or future stamp, issue,
registration, documentary or other similar taxes and duties, including interest
and penalties, in respect of the creation, issue and offering of the Secured
Notes payable in the United States, the British Virgin Islands, Brazil or any
political subdivision thereof or taxing authority of or in the foregoing. The
Issuer will also pay and indemnify the Trustee and the Holders of the Secured
Notes from and against all court fees and taxes or other taxes and duties,
including interest and penalties, paid by any of them in any jurisdiction in
connection with any action permitted to be taken by the Holders or the Trustee
to create Liens on the Collateral or to enforce the Obligations of Issuer, Pride
or the Subsidiary Guarantors under the Secured Notes, this Indenture, the Pride
Guarantee, the Subsidiary Guarantees, the Issuer Loans or the Security
Agreements.
(e) Whenever there is mentioned, in any context, the payment of
principal, premium or interest in respect of any Secured Note or the net
proceeds received on the sale or exchange of any Secured Note, such mention
shall be deemed to include the payment of Additional Amounts or Special Interest
provided for in this Indenture to the extent that, in such context, Additional
Amounts or Special Interest are, were or would be payable in respect thereof
pursuant to this Indenture.
ARTICLE V
CONSOLIDATION, MERGER, CONVEYANCE, LEASE OR TRANSFER
SECTION 5.01. LIMITATIONS ON MERGERS AND CONSOLIDATIONS. (a) Neither
the Issuer nor any Subsidiary Guarantor (other than any Subsidiary Guarantor
that shall
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have been released from its Subsidiary Guarantee pursuant to the provisions of
this Indenture) will consolidate with or merge into any Person, continue in
another jurisdiction, or sell, lease, convey, transfer or otherwise dispose of
all or substantially all of its assets to any Person, unless:
(i) the Person formed by or surviving such consolidation or merger
(if other than the Issuer or such Subsidiary Guarantor, as the case may
be), or to which such sale, lease, conveyance, transfer or other
disposition shall be made (collectively, the "Successor"), is a
corporation organized and existing under the laws of the Bahamas, the
British Virgin Islands or Panama (such jurisdiction of organization, the
"Relevant Jurisdiction"), and the Successor assumes by supplemental
indenture in a form satisfactory to the Trustee all of the applicable
Obligations of the Issuer or such Subsidiary Guarantor, as the case may
be, under this Indenture, the Security Agreements, the Subsidiary
Guarantees and the Secured Notes;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing;
(iii) in the case of the Issuer, immediately after giving effect to
such transactions, the resulting, surviving or transferee Person would be
able to incur at least $1 of Indebtedness pursuant to Section 4.09(a)
hereof;
(iv) immediately after giving effect to such transaction, the
Successor shall have a Consolidated Net Worth in an amount that is not
less than the Consolidated Net Worth of the Issuer or Subsidiary Guarantor
as the case may be, immediately prior to such transaction;
(v) the Issuer shall have delivered, or caused to be delivered to
the Trustee, in form and substance reasonably satisfactory to the Trustee,
an Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, continuance, sale, assignment, conveyance or
transfer and the supplemental indenture in respect thereto comply with the
provisions of this Indenture and that all conditions precedent in this
Indenture relating to such transactions have been complied with;
(vi) the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders
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will not recognize income, gain or loss for U.S. Federal income tax
purposes as a result of such transaction and will be subject to U.S.
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such transaction had not occurred;
and
(vii) the Issuer shall have delivered to the Trustee an Opinion of
Counsel in the Relevant Jurisdiction to the effect that(A) any payment of
interest, principal or premiums (if any) on the Secured Notes by the
Issuer to a Holder or by a Subsidiary Guarantor on its Subsidiary
Guarantee, as applicable, will, after the consolidation, merger,
conveyance, transfer or lease of assets be exempt from withholding tax in
the Relevant Jurisdiction and (B) no other taxes on income (including
taxable capital gains) will be payable under the law of the Relevant
Jurisdiction by a Holder who is or who is deemed to be a nonresident of
the Relevant Jurisdiction in respect of the acquisition, ownership or
disposition of the Secured Notes, including the receipt of interest,
principal or premiums thereon.
(b) Upon any transaction or series of transactions that are of the
type described in, and are effected in accordance with, this Section 5.01, the
Successor shall succeed to, and be substituted for, and may exercise every right
and power of, the Issuer or Subsidiary Guarantor, as applicable, under this
Indenture and the Secured Notes with the same effect as if such Successor had
been named as the Issuer or Subsidiary Guarantor, as applicable, in this
Indenture; and when a Successor duly assumes all of the Obligations and
covenants of the Issuer or a Subsidiary Guarantor pursuant to this Indenture and
the Secured Notes, except in the case of a conveyance, transfer or lease, the
predecessor Person shall be relieved of all such Obligations.
(c) For all purposes of this Indenture and the Secured Notes,
Subsidiaries of any Successor will, upon such transaction or series of
transactions, become Restricted Subsidiaries or Unrestricted Subsidiaries as
provided pursuant to this Indenture and all Indebtedness, and all Liens on the
property or assets, of the Successor and its Restricted Subsidiaries immediately
prior to such transaction or series of transactions shall be deemed to have been
incurred upon such transaction or series of transactions.
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. Each of the following is an
"Event of Default" hereunder:
(a) default in the payment of interest (including Special Interest,
if any, and Additional Amounts, if any), on the Secured Notes or an Issuer
Loan when due, continued for 30 days;
(b) (i) default in the payment of principal of, or premium, if any,
on, any Secured Note or Issuer Loan when due at its Stated Maturity, upon
redemption, required repurchase, declaration of acceleration or otherwise;
or
(ii) the failure to redeem or purchase Secured Notes or the Issuer
Loans when required pursuant to this Indenture or the Mitsubishi Loan
Agreements;
(c) the failure by the Issuer to comply with its obligations under
Sections 3.08, 3.09, 4.08, 4.15 or 5.01;
(d) the failure by the Issuer and the Subsidiary Guarantors to
comply with its other agreements contained in this Indenture or in the
Security Agreements and such failure or event of default continues for 60
days after notice; PROVIDED, HOWEVER, that a default under this clause (d)
will not constitute an Event of Default until the Trustee provides written
notice to the Issuer, or the Holders of 25% in aggregate principal amount
of the outstanding Secured Notes provide a written notice to the Issuer
and the Trustee, of the default, and the Issuer does not cure such default
within 60 days after receipt of such notice;
(e) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness by the Issuer or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by the Issuer or any of its Restricted
Subsidiaries) whether such Indebtedness or guarantee now exists, or is
created after the date of this Indenture, which default (i) is caused by a
failure to pay principal of or premium, if any, or interest on such
Indebtedness prior to the expiration of the grace period provided in such
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Indebtedness on the date of such default unless being contested in good
faith by appropriate proceedings (a "Payment Default"), (ii) results in
the acceleration of such Indebtedness prior to its express 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 $10,000,000 or more or (iii) occurs under a Mitsubishi Loan
Agreement or Mitsubishi Loan Collateral Agreement, is not a Payment
Default and is not cured or waived within 120 days; PROVIDED, HOWEVER,
that a default under this clause (e) will not constitute an Event of
Default until the Trustee provides a written notice to the Issuer, or the
Holders of 25% in aggregate principal amount of the outstanding Secured
Notes provide a written notice to the Issuer and the Trustee, of the
default;
(f) failure by the Issuer or any of its Restricted Subsidiaries to
pay final judgments aggregating in excess of $10,000,000, which judgments
are not paid, discharged or stayed for a period of 30 days;
(g) the entry by a court having jurisdiction in the premises of (i)
a decree or order for relief in respect of the Issuer, Pride or any
Significant Subsidiary in an involuntary case or proceeding under United
States bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal, state, or foreign bankruptcy, insolvency, or other
similar law or (ii) a decree or order adjudging the Issuer, Pride or any
Significant Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Issuer, Pride or any Significant
Subsidiary under United States bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal, state or foreign bankruptcy,
insolvency, or similar law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Issuer, Pride or any Significant Subsidiary or of any substantial part
of the property or assets of the Issuer, Pride or any Significant
Subsidiary, or ordering the winding up or liquidation of the affairs of
the Issuer, Pride or any Significant Subsidiary, and the continuance of
any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days;
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(h) (i) the commencement by the Issuer, Pride or any Significant
Subsidiary of a voluntary case or proceeding under United States
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal, state or foreign bankruptcy, insolvency or other similar law or
of any other case or proceeding to be adjudicated a bankrupt or insolvent;
or (ii) the consent by the Issuer, Pride or any Significant Subsidiary to
the entry of a decree or order for relief in respect of the Issuer, Pride
or any Significant Subsidiary in an involuntary case or proceeding under
United States bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal, state, or foreign bankruptcy, insolvency or
other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against the Issuer, Pride or any Significant
Subsidiary; or (iii) the filing by the Issuer, Pride or any Significant
Subsidiary of a petition or answer or consent seeking reorganization or
relief under U.S. bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal, state or foreign bankruptcy, insolvency or other
similar law; or (iv) the consent by the Issuer, Pride or any Significant
Subsidiary to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Issuer, Pride or any Significant
Subsidiary or of any substantial part of the Property or assets of the
Issuer, Pride or any Significant Subsidiary, or the making by the Issuer,
Pride or any Significant Subsidiary of an assignment for the benefit of
creditors; or (v) the admission by the Issuer, Pride or any Significant
Subsidiary in writing of its inability to pay its debts generally as they
become due; or (vi) the taking of corporate action by the Issuer, Pride or
any Significant Subsidiary in furtherance of any such action; or
(i) the Pride Guarantee or any Subsidiary Guarantee ceases to be in
full force and effect (other than in accordance with the terms of this
Indenture and such Subsidiary Guarantee) or Pride or a Subsidiary
Guarantor denies or disaffirms its obligations under the Pride Guarantee
or its Subsidiary Guarantee, as applicable; or
(j) the Letter of Credit ceases to be in full force and effect or
the Letter of Credit Provider denies or disaffirms its obligations under
the Letter of Credit; or
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(k) the Liens under the Security Agreements shall, at any time,
cease to be in full force and effect for any reason (other than by
operation of the provisions of this Indenture and the Security Agreements)
other than the satisfaction in full of all obligations under this
Indenture and discharge of this Indenture, or any Lien created thereunder
shall be declared invalid or unenforceable or the Issuer or any Mortgaged
Rig Owner shall assert, in any pleading in any court of competent
jurisdiction, that any such Lien is invalid or unenforceable.
SECTION 6.02. ACCELERATION. If any Event of Default (other than an
Event of Default specified in clause (g) or (h) of Section 6.01) occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% of the outstanding aggregate principal amount at Stated Maturity of the
Secured Notes, may declare the principal amount at Stated Maturity of, premium,
if any, and any accrued and unpaid interest (including Additional Amounts, if
any, and Special Interest, if any), on all such Secured Notes then outstanding
to be immediately due and payable by a notice in writing to the Issuer (and to
the Trustee if given by Holders of such Secured Notes), and upon any such
declaration all amounts payable in respect of the Secured Notes will become and
be immediately due and payable. If any Event of Default specified in clause (g)
or (h) of Section 6.01 occurs, the principal amount at Stated Maturity of,
premium, if any, and any accrued and unpaid interest (including Additional
Amounts, if any, and Special Interest, if any), on, the Secured Notes then
outstanding shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder of such Secured Notes.
After any such acceleration, but before a judgment or decree based
on acceleration, Holders of a majority in principal amount at Stated Maturity of
the outstanding Secured Notes by notice to the Issuer and the Trustee may
rescind an acceleration and its consequences if:
(a) the Issuer, Pride or any Subsidiary Guarantor
has paid or deposited with the Trustee a sum sufficient
to pay
(i) all money paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursement and advances of
the Trustee, its agents and counsel, and any other amounts due to
the Trustee under Section 7.07;
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(ii) all overdue installments of interest (including
Additional Amounts, if any, and Special Interest, if any), on, and
any other amounts due in respect of, all Secured Notes;
(iii) the principal of (and premium, if any, on) any Secured
Notes that have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed
therefor in the Secured Notes and this Indenture; and
(iv) to the extent that payment of such interest is lawful,
interest upon Defaulted Interest at the rate or rates prescribed
therefor in the Secured Notes and this Indenture;
(b) all Events of Default, other than the nonpayment of principal of
Secured Notes which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.04;
(c) the annulment of such acceleration would not conflict with any
judgment or decree of a court of competent jurisdiction; and
(d) the Issuer has delivered an Officers' Certificate to the Trustee
to the effect of clauses (b) and (c) of this sentence.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
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 of, premium, on, if any, any interest (including Special Interest,
if any, and Additional Amounts, if any), on, and any other amounts owing and
unpaid on, the Secured Notes or to enforce the performance of any provision of
the Secured Notes, the Security Agreements, the Guarantees or this Indenture or
may draw under the Letter of Credit.
The Trustee may maintain a proceeding even if it does not possess
any of the Secured 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.
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SECTION 6.04. WAIVER OF PAST DEFAULTS. Subject to Section 6.07
hereof, Holders of not less than a majority in aggregate principal amount of the
then outstanding Secured Notes by notice to the Trustee may on behalf of the
Holders of all of the Secured Notes waive an existing Default or Event of
Default and its consequences hereunder, except (i) an existing Default or Event
of Default in the payment of the principal of, premium, if any, on, or interest
(including Additional Interest and Special Interest, if any), on, the Secured
Notes (including in connection with an offer to purchase) or (ii) an existing
Default or Event of Default in respect of a provision that under Section 10.02
cannot be amended without the consent of each Holder affected thereby. 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
and the Security Agreements; but no such waiver shall extend to any subsequent
or other Default or impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in
aggregate principal amount of the Secured Notes then outstanding 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 or the Security Agreements or, subject to Section 7.01 hereof,
that the Trustee determines may be unduly prejudicial to the rights of other
Holders of Secured Notes or that may involve the Trustee in personal liability;
PROVIDED that the Trustee may take any other action deemed by the Trustee that
is not inconsistent with such direction. Prior to taking any action hereunder,
the Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such
action.
SECTION 6.06. LIMITATION ON SUITS. No Holder of any Secured Note
shall have the right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, the Pride Guarantee, the Subsidiary Guarantees, the
Letter of Credit, the Secured Notes or the Security Agreements, or for the
appointment of a receiver or a trustee, or for any other remedy, unless:
(a) the Holder of a Secured Note has given to the Trustee written
notice of a continuing Event of Default;
(b) a Holder or Holders of at least 25% in principal amount of the
then outstanding Secured Notes
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make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Secured Note or Holders of Secured 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 principal
amount of the Secured Notes then outstanding do not give the Trustee a
direction inconsistent with the request;
in any event, it being understood and intended that no one or more Holders of
Secured Notes shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture or the Security Agreements to
affect, disturb or prejudice the rights of any Holders of Secured Notes, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture or the Security Agreements,
except in the manner herein provided and for the equal and ratable benefit of
all Holders of Secured Notes.
A Holder of a Secured Note may not use this Indenture or any
Security Agreement to prejudice the rights of another Holder of a Secured Note
or to obtain a preference or priority over another Holder of a Secured
Note.
SECTION 6.07. RIGHTS OF HOLDERS OF SECURED NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of, premium, if any, on, and interest (including
Additional Amounts, if any, and Special Interest, if any), on, the Secured Notes
held by such Holder, on or after the respective due dates expressed in the
Secured Note or this Indenture (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; except that no Holder shall have the right to institute any such
suit, if and to the extent that the institution or prosecution thereof or the
entry of judgment therein would under applicable law result in the surrender,
impairment,
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waiver, or loss of the Liens of the Security Agreements upon any property or
assets subject to the Liens.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee is
authorized to recover judgment in its own name and as trustee of an express
trust against the Issuer for the whole amount of principal of, premium, if any,
on, interest (including Special Interest, if any, and Additional Amounts, if
any), remaining unpaid on, the Secured 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, and any other amounts due to the Trustee under Section
7.07.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee shall be
entitled and empowered, without regard to whether the Trustee or any Holder
shall have made any demand or performed any other act pursuant to the provisions
of this Article and without regard to whether the principal of the Secured Notes
shall then be due and payable as therein expressed or by declaration or
otherwise, by intervention in any proceedings relative to the Issuer, Pride, any
Subsidiary Guarantor, the Letter of Credit Provider or any Obligor upon the
Secured Notes, or to the creditors or property or assets of the Issuer, Pride,
any Subsidiary Guarantor, the Letter of Credit Provider or any other Obligor or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be entitled and empowered in such
instances:
(a) to file and prove a claim or claims for the whole amount of
principal (and premium, if any), interest (including Additional Amounts,
if any, and Special Interest, if any), and any other amounts owing and
unpaid in respect of the Secured Notes, and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including all amounts owing to the Trustee and each
predecessor Trustee pursuant to Section 7.07 hereof) and of the Holders
allowed in any judicial proceedings relative to the Issuer, Pride, any
Subsidiary Guarantor, the Letter of Credit Provider or other Obligor upon
the Secured Notes, or to the creditors or property of the Issuer, Pride,
any Subsidiary
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Guarantor, the Letter of Credit Provider or any such other Obligor;
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Secured Notes in any election of a trustee or
a standby trustee in arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceedings or Person performing similar
functions in comparable proceedings; and
(c) to collect and receive any moneys or other property or assets
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Holders and of the Trustee on
their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Holders to make
payments to the Trustee, and, in the event that the Trustee shall consent
to the making of payments directly to the Holders, to pay to the Trustee
such amounts as shall be sufficient to cover all amounts owing to the
Trustee and each predecessor Trustee pursuant to Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Secured Notes or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
person.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Secured Notes, and it shall not be necessary to make any Holders
of the Secured Notes parties to any such proceedings.
SECTION 6.10. PRIORITIES. If the Trustee collects any money or
property pursuant to this Article (including funds received from collateral
agents and escrow agents pursuant to the Security Agreements), it shall pay out
the money or property in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including
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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 of Secured Notes for amounts due and unpaid on
the Secured Notes for principal, premium, if any, and interest (including
Special Interest, if any, and Additional Amounts, if any), ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Secured Notes for principal (premium, if any), and
interest (including Special Interest, if any, and Additional Amounts, if
any), respectively; and
Third: to the Issuer, Pride or the Subsidiary Guarantors or to such
other party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Secured Notes pursuant to this Section 6.10. At least 15 days
before such record date, the Issuer shall mail to each Holder and the Trustee a
notice that states the record date, the payment date and amount to be paid. The
Trustee may mail such notice in the name and at the expense of the Issuer.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture and the Security Agreements 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,
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 Secured Note
pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
aggregate principal amount of the then outstanding Secured Notes.
SECTION 6.12. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder of Secured Notes has instituted any proceeding to enforce any right
or remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case the Issuer, the Trustee and the Holders
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions
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hereunder, and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding has been instituted.
SECTION 6.13. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided in Section 2.07 hereof, no right or remedy conferred herein, or in the
Security Agreements, upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.14. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder of any Secured Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article VI, by the Security Agreements, or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
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 their exercise, as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's 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 the
Security Agreements to which it was a party and no others, and no implied
covenants or obligations shall
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be read into this Indenture or such Security Agreements, as the case
maybe, 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 or the
Security Agreements to which it is a party. However, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture or such Security Agreements,
as the case may be.
(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
(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 or the Security Agreements to which the Trustee is a party 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 or the Security Agreements 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 or the Security Agreements at the request of any Holders,
unless such Holders 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 Issuer. Money
held in trust by the
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Trustee need not be segregated from other funds except to the extent required by
law.
(g) Every provision of this Indenture or the Security Agreements
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section and to the
provisions of the Trust Indenture Act.
SECTION 7.02. RIGHTS OF TRUSTEE. (a) Subject to the provisions of
Section 7.01(a) hereof, the Trustee may 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 the document.
(b) 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 and the oral or written advice of such counsel or any Opinion of Counsel
with respect to legal matters relating to this Indenture, the Security
Agreements, the Secured Notes, the Letter of Credit and any Guarantee 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
accordance with the advice or opinion of such counsel.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any attorney or agent
appointed with due care.
(d) 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; PROVIDED, HOWEVER, that the
Trustee's conduct does not constitute willful misconduct or negligence.
(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 against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
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(f) Except with respect to Section 4.02 hereof, the Trustee shall
have no duty to inquire as to the performance of the Issuer's covenants in
Article IV hereof. In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (i) any Event of Default
occurring pursuant to Sections 6.01(a) (except that the Trustee shall not be
deemed to have knowledge of a default in the payment of Special Interest or
Additional Amounts) or 6.01(b), or (ii) any Default or Event of Default of which
a Responsible Officer of the Trustee shall have received written notification
from the Issuer, any Guarantor or any Holder; PROVIDED that the Trustee shall
comply with the "automatic stay" provisions contained in U.S. bankruptcy laws,
if applicable. As used herein, the term "knowledge" means the actual fact or
statement of knowing, without any duty to make any investigation with regard
thereto.
(g) Prior to the occurrence of an Event of Default hereunder and
after the curing and waiving of all Events of Default, 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,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document unless requested in writing to do so by
the Holders of not less than a majority in aggregate principal amount of the
Secured Notes then outstanding; PROVIDED that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; the reasonable expenses of
every such examination shall be paid by the Issuer or, if advanced by the
Trustee, shall be repaid by the Issuer upon demand. The Trustee shall not be
bound to ascertain or inquire as to the performance or observance of any
covenants, conditions, or agreements on the part of the Issuer, except as
otherwise set forth herein, but the Trustee may, in its discretion, 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 Issuer personally or by agent or attorney.
(h) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
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(i) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Secured
Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with
the same rights it would have if it were not Trustee. However, in the event that
the Trustee acquires any conflicting interest (as defined in the Trust Indenture
Act) it must eliminate such conflict within 90 days, apply to the Commission 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, the Security Agreements, the Pride Guarantee, the Letter of
Credit, any Subsidiary Guarantee or the Secured Notes, it shall not be
accountable for the Issuer's use of the proceeds from the Secured Notes or any
money paid to the Issuer or upon the Issuer'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 Secured
Notes or any other document in connection with the sale of the Secured Notes,
any Security Agreement or pursuant to this Indenture or the Security Agreements,
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 known to the Trustee, the Trustee shall
mail to Holders of Secured Notes 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, if any, or interest on any Secured
Note (including payments pursuant to the mandatory repurchase provisions of such
Secured Notes, if any), 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 Secured Notes.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE SECURED NOTES.
Within 60 days after each May 15 beginning with the May 15 following the date of
this Indenture, and for so long as Secured Notes remain
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outstanding, the Trustee shall mail to the Holders of the Secured 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). 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 of
Secured Notes shall be mailed to the Issuer and filed with the Commission and
each stock exchange on which the Secured Notes are listed in accordance with TIA
Section 313(d). The Issuer shall promptly notify the Trustee whenever the
Secured Notes become listed on any stock exchange and of any delisting thereof.
SECTION 7.07 COMPENSATION AND INDEMNITY. The Issuer shall pay to the
Trustee promptly from time to time such compensation for its acceptance of this
Indenture and services hereunder as agreed to by the parties from time to time.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it, including the costs of collection, 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 Issuer shall indemnify the Trustee against any and all losses,
liabilities or expenses (including reasonable attorneys' fees) 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 Issuer (including this Section 7.07) and defending itself
against any claim (whether asserted by the Issuer 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 may be attributable to its negligence or bad faith. The Trustee shall
notify the Issuer promptly of any claim for which it may seek indemnity. Failure
by the Trustee to so notify the Issuer shall not relieve the Issuer of its
respective obligations hereunder. The Issuer shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Issuer shall pay the reasonable fees and expenses of such counsel. The
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Issuer need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.
The obligations of the Issuer under this Section 7.07 shall survive
the resignation or removal of the Trustee and the satisfaction and discharge of
this Indenture.
To secure the Issuer's payment obligations in this Section, the
Trustee shall have a Lien prior to the Secured Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal of,
and premium, if any, interest (including Additional Amounts, if any, and Special
Interest, if any), on particular Secured Notes. Such Lien shall be a Lien
permitted by this Indenture and shall survive the satisfaction and discharge of
this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Sections 6.01(g) or 6.01(h) 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 applicable bankruptcy laws.
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 Issuer. The Holders of Secured
Notes of a majority in principal amount of the then outstanding Secured Notes
may remove the Trustee by so notifying the Trustee and the Issuer in writing. If
at any time:
(a) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act after written request thereof by the Issuer or by any
Holder who has been a bona fide Holder of a Secured Note for at least six
months, unless the Trustee's duty to resign is stayed in accordance with
the provisions of TIA Section 310(b); or
(b) the Trustee shall cease to be eligible under Section 7.10 hereof
and shall fail to resign after
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written request therefor by the Issuer or by any Holder; or
(c) the Trustee shall become incapable of acting or a decree or
order for relief by a court having jurisdiction in the premises shall have
been entered in respect of the Trustee in an involuntary case under the
United States bankruptcy laws, as now or hereinafter constituted, or a
decree or order by a court having jurisdiction in the premises shall have
been entered for the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Trustee
or of its property and assets or affairs, or any public officer shall take
charge or control of the Trustee or of its property and assets or affairs
for the purpose of rehabilitation, conservation, winding-up or
liquidation; or
(d) the Trustee shall commence a voluntary case under the United
States bankruptcy laws, as now or hereafter constituted, or shall consent
to the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Trustee or of its property and assets or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action; or
(e) the Trustee becomes incapable of acting, then, in any such case,
(i) the Issuer by a Board Resolution may remove the Trustee with respect
to the Secured Notes, or (ii) subject to Section 6.11 hereof, any Holder
who has been a bona fide Holder of a Secured Note for at least six months
may, on behalf of such Holder and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee for the Secured Notes.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuer 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 Secured Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Issuer.
If a successor Trustee does not take office within 60 days after the
retiring Trustee notifies the Issuer of
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its resignation or is removed, the retiring Trustee, the Issuer, or the Holders
of Secured Notes of at least 10% in principal amount of the then outstanding
Secured 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 Secured
Note who has been a Holder of a Secured Note for at least six months, fails to
comply with Section 7.10, such Holder of a Secured 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 Issuer. 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
succession to Holders of the Secured Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
that 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 Issuer'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 entity
without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Secured Notes shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Secured Notes so
authenticated; and in case at that time any of the Secured Notes shall not have
been authenticated, any successor to the Trustee may authenticate such Secured
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Secured Notes or in this Indenture
provided that the certificate of the Trustee shall have.
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SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. There shall at all times
be a Trustee hereunder that is a corporation 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 $75,000,000 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 shall comply
with TIA Section 310(b), subject to the penultimate paragraph thereof; PROVIDED,
HOWEVER, that there shall be excluded from the operation of TIA Section
310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER.
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.
SECTION 7.12. OTHER OFFICES. The Trustee is
hereby authorized to act as Collateral Agent or Reserve
Account Agent.
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.01SATISFACTION AND DISCHARGE. This Indenture and the
Guarantees shall upon the request of the Issuer cease to be of further effect
(except as to surviving rights of registration of transfer, substitution or
exchange of Secured Notes herein expressly provided for, the Issuer's
obligations under Sections 7.07 and 8.04 hereof, the Issuer's rights of optional
redemption under Article III hereof, and the Issuer's, the Trustee's and the
Paying Agent's obligations under Section 8.03 hereof) and the Trustee, at the
expense of the Issuer, shall execute proper
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instruments acknowledging satisfaction and discharge of this Indenture when:
(a) either
(i) all outstanding Secured Notes have been delivered to the
Trustee for cancellation; or
(ii) all such Secured Notes not theretofore delivered to the
Trustee for cancellation have become due and payable, will become
due and payable within one year or are to be called for redemption
within one year under irrevocable arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the
name and at the expense of the Issuer, and the Issuer has
irrevocably deposited or caused to be deposited with the Trustee
funds in an amount sufficient to pay and discharge the entire debt
on the Secured Notes not theretofore delivered to the Trustee for
cancellation, for principal of (premium, if any, on) and interest
(including Additional Amounts and Special Interest, if any), to the
date of Maturity or date of redemption;
(b) the Issuer has paid or caused to be paid all sums then due and
payable by the Issuer under this Indenture; and
(c) the Issuer has delivered an Officers' Certificate and an Opinion
of Counsel relating to compliance with the conditions set forth in this
Indenture.
Notwithstanding the satisfaction and discharge of this Indenture,
the Issuer's obligations in Sections 2.02, 2.04, 2.06, 2.07, 2.11, 2.13, 4.24,
7.07, 7.08, 8.02, 8.03, and 8.04, and the Trustee's and Paying Agent's
obligations in Section 8.03 shall survive until the Secured Notes are no longer
outstanding. Thereafter, only the Issuer's obligations in Sections 7.07, 8.03
and 8.04 and the Trustee's and Paying Agent's obligations in Section 8.03 shall
survive.
In order to have money available on a payment date to pay principal
(and premium, if any, on) or interest (including Additional Amounts, if any, and
Special Interest, if any), on the Secured Notes, the U.S. Government Obligations
referred to in Section 8.02 shall be payable as to principal (and premium, if
any) or interest (including Additional Amounts, if any, and Special Interest, if
any), at least one Business Day before such payment date in such
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amounts as will provide the necessary money. U.S. Government Obligations shall
not be callable at the Issuer's option.
SECTION 8.02. APPLICATION OF TRUST MONEY. All money deposited with
the Trustee pursuant to Section 8.01 shall be held in trust and, at the written
direction of the Issuer, be invested prior to maturity in noncallable U.S.
Government Obligations, and applied by the Trustee in accordance with the
provisions of the Secured Notes and this Indenture, to the payment, either
directly or through any Paying Agent as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and interest
(including Additional Amounts, if any, and Special Interest, if any), for the
payment of which money has been deposited with the Trustee; but such money need
not be segregated from other funds except to the extent required by law.
SECTION 8.03. REPAYMENT OF THE ISSUER. The Trustee and the Paying
Agent shall promptly pay to the Issuer upon written request any excess money or
securities held by them at any time, such excess to be determined on the related
Opinion of Counsel received under Section 8.01(c).
The Trustee and the Paying Agent shall pay to the Issuer upon
written request any money held by them for the payment of principal or interest
that remains unclaimed for two years after the date upon which such payment
shall have become due; PROVIDED that the Issuer shall have either caused notice
of such payment to be mailed to each Holder of the Secured Notes entitled
thereto no less than 30 days prior to such repayment or within such period shall
have published such notice in a financial newspaper of widespread circulation
published in The City of New York, including, without limitation, The Wall
Street Journal (national edition). After payment to the Issuer, Holders entitled
to the money must look to the Issuer for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
SECTION 8.04. REINSTATEMENT. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
Section 8.02 by reason of any legal proceeding or by reason of any order or
judgment of any court of governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuer's, Prime's, Maritima's and
Subsidiary Guarantor's obligations under this Indenture, the Secured Notes, the
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Security Agreements, the Prime Guarantee and the Subsidiary Guarantees shall be
revived and reinstated as though no deposit has occurred pursuant to Section
8.01 until such time as the Trustee or Paying Agent is permitted to apply all
such money or U.S. Government Obligations in accordance with Section 8.02;
PROVIDED, HOWEVER, that if the Issuer, Pride or a Subsidiary Guarantor has made
any payment of interest (including Special Interest, if any, and Additional
Amounts, if any), on or principal of any Secured Notes because of the
reinstatement of their Obligations, the Issuer, Pride or such Subsidiary
Guarantor shall be subrogated to the rights of the Holders of such Secured Notes
to receive such payment from the money or U.S. Government Obligations held by
the Trustee or Paying Agent.
ARTICLE IX
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 9.01 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE. The
Issuer may, at the option of its Board of Directors evidenced by a Board
Resolution, at any time, elect to have either Section 9.02 or 9.03 hereof be
applied to all outstanding Secured Notes upon compliance with the conditions set
forth below in this Article IX.
SECTION 9.02. DEFEASANCE AND DISCHARGE. Upon the Issuer's exercise
under Section 9.01 hereof of the option applicable to this Section 9.02, the
Issuer, Pride and the Subsidiary Guarantors, if any, shall, subject to the
satisfaction of the conditions set forth in Section 9.04 hereof, be deemed to
have been discharged from their respective Obligations with respect to all
outstanding Secured Notes, this Indenture, the Pride Guarantee and the
Subsidiary Guarantees, if any, on the date the conditions set forth below are
satisfied (hereinafter, "Defeasance"). For this purpose, Defeasance means that
the Issuer shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Secured Notes and the Issuer, Pride and the
Subsidiary Guarantors shall be deemed to have satisfied all of their obligations
under such Secured Notes, this Indenture, the Security Agreements and the
Subsidiary Guarantees (and the Trustee, at the expense of the Issuer, shall
execute proper instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of such Secured Notes to receive, solely
from the trust fund described in Section 9.04 hereof and as more fully set
forth in
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Section 9.04, payments in respect of the principal and of and any premium
and interest (including Special Interest, if any, and Additional Amounts,
if any), on such Secured Notes when payments are due (but not a Redemption
upon an Event of Loss or the Change of Control Purchase Price);
(b) the Issuer's obligations with respect to such Secured Notes
under Sections 2.06, 2.07, 2.10, and 4.02 hereof;
(c) the rights, powers, trusts, duties and immunities of the Trustee
under this Indenture;
(d) Article III hereof other than Section 3.08 and Section 3.09; and
(e) this Article IX.
Subject to compliance with this Article IX the Issuer may exercise
its option under this Section 9.02 notwithstanding the prior exercise of its
option under Section 9.03 hereof.
SECTION 9.03 COVENANT DEFEASANCE. Upon the Issuer's exercise under
Section 9.01 hereof of the option applicable to this Section 9.03, (i) the
Issuer shall, subject to the satisfaction of the conditions set forth in Section
9.04 hereof, be released from its obligations under the covenants contained in
Sections 3.08, 3.09, 4.04, 4.06, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15,
4.16, 4.17, 4.18, 4.19, 4.20, 4.21, 4.22, 4.23, 4.24 and Sections 5.01(a)(iii)
and 5.01(a)(iv) hereof and any covenant added to this Indenture subsequent to
the Issue Date pursuant to Section 10.01 hereof with respect to the outstanding
Secured Notes and (ii) the occurrence of any event specified in Section 6.01(c)
or 6.01(d) hereof, with respect to any of Sections 4.04, 4.06, 4.08, 4.09, 4.10,
4.11, 4.12, 4.12, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21, 4.22, 4.23,
4.24 and Sections 5.01(a)(iii) and 5.01(a)(iv) hereof and any covenant added to
this Indenture subsequent to the Issue Date pursuant to Section 10.01 hereof,
shall be deemed not to be or result in an Event of Default, in each case with
respect to such Secured Notes as provided in this Section 9.03 on and after the
date on which the conditions set forth in Section 9.04 hereof are satisfied, and
the Secured 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
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hereunder (it being understood that such Secured Notes shall not be deemed
outstanding for accounting purposes). For this purpose, "Covenant Defeasance"
means that, with respect to the outstanding Secured Notes, the Issuer, Pride and
the Subsidiary Guarantors may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant (to
the extent so specified in the case of Section 6.01(c) or 6.01(d) hereof),
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, the Security
Agreements, the Pride Guarantee, the Subsidiary Guarantees and the Secured Notes
shall be unaffected thereby.
SECTION 9.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to the application of either Section 9.02 or
9.03 hereof to the outstanding Secured Notes:
In order to exercise either Defeasance or Covenant Defeasance:
(a) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to the benefits of the Holders of such Secured Notes, (i)
money in an amount, or (ii) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one Business Day
before the due date of any payment, money in an amount, or (iii) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and
discharge the principal of (premium, if any, on) and any installment of
interest (including Additional Amounts, if any, and Special Interest, if
any), on the Secured Notes at the Maturity thereof or Redemption Date
therefor in accordance with the terms of this Indenture and the Secured
Notes;
(b) in the case of an election under Section 9.02 hereof, the Issuer
shall have delivered to the Trustee an Opinion of Counsel confirming that
(A) the Issuer
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has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this Indenture, there has been a
change in the applicable United States 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 Secured Notes will not
recognize income, gain or loss for United States Federal income tax
purposes as a result of such Defeasance and will be subject to United
States federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Defeasance had not
occurred;
(c) in the case of an election under Section 9.03 hereof, the Issuer
shall have delivered to the Trustee an Opinion of Counsel confirming that
the Holders of the outstanding Secured Notes will not recognize income,
gain or loss for United States Federal income tax purposes as a result of
such Covenant Defeasance and will be subject to U.S. 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 on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Indebtedness all or a portion of
the proceeds of which will be used to defease the Secured Notes pursuant
to this Article IX concurrently with such incurrence) or insofar as
Section 6.01(g) or 6.01(h) hereof is concerned, shall have occurred at any
time on or prior to the 91st day after the date of such deposit and be
continuing on such 91st day (it being understood that this condition shall
not be deemed satisfied until after such 91st day);
(e) such 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 Issuer or
any of the Issuer's Subsidiaries is a party or by which the Issuer, the
Issuer or any of the Issuer's Subsidiaries is bound;
(f) such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming for the purpose of this clause (f) that all
Secured Notes are in default within the meaning of such Act);
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(g) such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment Issuer within
the meaning of the Investment Issuer Act of 1940, as amended, unless such
trust shall be registered under such Act or exempt from registration
thereunder;
(h) the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that on 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;
(i) the Issuer shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Issuer with the
intent of preferring the Holders over any other creditors of the Issuer or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Issuer; and
(j) the Issuer 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 Defeasance or the Covenant
Defeasance have been complied with.
SECTION 9.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to Section 9.06 hereof,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 9.05, the "Trustee") pursuant to Section 9.04 hereof in
respect of the outstanding Secured Notes shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Secured Notes and this
Indenture, to the payment, either directly or through any such Paying Agent as
the Trustee may determine, to the Holders of such Secured Notes of all sums due
and to become due thereon in respect of principal, premium, if any, and interest
(including Additional Amounts, if any, and Special Interest, if any), but such
money need not be segregated from other funds except to the extent required by
law.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or U.S. Government
Obligations deposited pursuant to Section 9.04 hereof or the principal and
interest received in respect thereof.
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Anything in this Article IX to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon the request of
the Issuer any money or U.S. Government Obligations held by it as provided in
Section 9.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
9.04(a) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Defeasance or Covenant Defeasance.
SECTION 9.06. REPAYMENT TO THE ISSUER. Any money deposited with the
Trustee or any Paying Agent, or then held by the Issuer, in trust for the
payment of the principal of, premium, if any, or interest (including Additional
Amounts, if any, and Special Interest, if any), on, any Secured Note and
remaining unclaimed for two years after such principal, and premium, if any, or
interest on, (including Additional Amounts, if any, and Special Interest, if
any), has become due and payable shall be paid to the Issuer on its request or
(if then held by the Issuer) shall be discharged from such trust; and the Holder
of such Secured Note shall thereafter, as a creditor, look only to the Issuer
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer 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
Issuer 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 Issuer.
SECTION 9.07. REINSTATEMENT. If the Trustee or Paying Agent is
unable to apply any United States dollars or U.S. Government Obligations in
accordance with Section 9.02 or 9.03 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 Issuer's
Obligations under this Indenture and the Secured Notes and the Guarantors'
obligations under their respective Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to Section 9.02 or 9.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 9.02 or 9.03 hereof, as the case may be; PROVIDED,
HOWEVER, that, if the Issuer makes
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any payment of principal of, premium, if any, interest, (including Additional
Amounts, if any, and Special Interest, if any), on any Secured Note following
the reinstatement of its Obligations, the Issuer shall be subrogated to the
rights of the Holders of such Secured Notes to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE X
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 10.01. WITHOUT CONSENT OF HOLDERS OF SECURED NOTES.
Notwithstanding Section 10.02 of this Indenture, the Issuer and the Trustee may
amend or supplement this Indenture or the Secured Notes without the consent of
any Holder of a Secured Note:
(a) to evidence the succession of another Person to the Issuer and
the assumption by such successor of the covenants and Obligations of the
Issuer under this Indenture and contained in the Secured Notes or the
Security Agreements;
(b) to add to the covenants of the Issuer, for the benefit of
Holders, or to surrender any right or power conferred upon the Issuer by
this Indenture or the Security Agreements;
(c) to add any additional Events of Default;
(d) to provide for uncertificated Secured Notes in addition to or in
place of Certificated Secured Notes (provided that the uncertificated
Secured Notes are issued in registered form for purposes of Section 163(f)
of the Code, or in a manner such that the uncertificated Secured Notes are
described in Section 163(f)(2)(B) of the Code);
(e) to evidence and provide for the acceptance of
appointment under this Indenture by the successor
Trustee;
(f) to add additional security for the Secured Notes or to secure or
add additional security for the Pride Guarantee or the Subsidiary
Guarantees;
(g) to cure any ambiguity, to correct or supplement any provision in
this Indenture or the Security Agreements which may be inconsistent with
any other provision herein or therein or to add any other
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provisions with respect to matters or questions arising under this
Indenture or the Security Agreements, provided that such actions will not
adversely affect the interests of Holders in any material respect;
(h) to add or release any Subsidiary Guarantor pursuant to the terms
of this Indenture; or
(i) to comply with the requirements of the SEC to effect or maintain
the qualification of this Indenture under the Trust Indenture Act.
Upon the request of the Issuer accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 10.07 hereof,
the Trustee shall join with the Issuer 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 affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 10.02. WITH CONSENT OF HOLDERS OF SECURED NOTES. Except as
provided below in this Section 10.02, the Issuer and the Trustee may amend or
supplement this Indenture and the Secured Notes may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal
amount at Stated Maturity of the Secured Notes then outstanding (including
consents obtained in connection with a tender offer or exchange offer for the
Secured 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, or, interest (including Special
Interest, if any, and Additional Amounts, if any), on, the Secured Notes, except
a payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of this Indenture, the Security Agreements or the
Secured Notes may be waived with the consent of the Holders of a majority in
aggregate principal amount at Stated Maturity of the then outstanding Secured
Notes (including consents obtained in connection with a tender offer or exchange
offer for the Secured Notes).
Upon the request of the Issuer accompanied by a Board Resolution
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
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consent of the Holders of Secured Notes as aforesaid, and upon receipt by the
Trustee of the documents described in Section 10.07 hereof, the Trustee shall
join with the Issuer in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture 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 of Secured
Notes under this Section 10.02 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 Issuer shall mail to the Holders of Secured Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Issuer 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 Secured Notes then
outstanding may waive compliance in a particular instance by the Issuer with any
provision of this Indenture or the Secured Notes. However, without the consent
of each Holder affected, an amendment or waiver may not (with respect to any
Secured Notes held by a non-consenting Holder):
(a) reduce the amount of Secured Notes whose Holders must consent to
an amendment;
(b) reduce the rate of or extend the time for payment of interest
(including Additional Amounts, if any, and Special Interest, if any), on
any Secured Note or any Issuer Loan;
(c) reduce the principal of or extend the Stated Maturity of any
Secured Note or any Issuer Loan;
(d) modify the obligations of Issuer to make mandatory redemptions
or otherwise reduce the premium payable upon the redemption of any Secured
Note or change the time at which any Secured Note may be or is required to
be redeemed as described under Article III;
(e) modify the obligations of Pride to make payments under the Pride
Guarantee or modify the
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obligations of the Letter of Credit Provider under the Letter of Credit;
(f) make any Secured Note payable in money other than that stated in
the Secured Note;
(g) impair the right of any Holder of the Secured Notes to receive
payment of principal of and interest (including Additional Amounts, if
any, and Special Interest, if any), on such Holder's Secured Notes on or
after the due dates therefor or to institute suit for the enforcement of
any payment on or with respect to such Holder's Secured Notes;
(h) make any change in the amendment provisions which require each
Holder's consent or in the waiver provisions;
(i) (x) make any change in the Pride Guarantee, the Subsidiary
Guarantees, if any, the Letter of Credit or any Security Agreement or
Mitsubishi Loan Agreement (in the case of the Mitsubishi Documents, if the
Issuer has the right to consent to any such change) that would materially
adversely affect the Noteholders or (y) terminate the Lien of this
Indenture or any Security Agreement (other than in accordance with the
terms hereof or thereof) on any property at any time subject thereto or
deprive the Holders of the security afforded by the Lien of this Indenture
or the Security Agreements or the Issuer of the Liens securing the Issuer
Loans;
(j) modify the Obligations of the Issuer to make offers to purchase
Secured Notes upon a Change of Control;
(k) subordinate in right of payment the Secured Notes, the Pride
Guarantee or the Subsidiary Guarantees to any other Indebtedness;
(l) amend, supplement or otherwise modify the provisions of this
Indenture relating to the Pride Guarantee, any Subsidiary Guarantee or the
Letter of Credit; or
(m) make any change in Sections 6.04 or 6.07 or modify any of the
provisions of this Section 10.02 (except to increase any percentage set
forth therein or herein).
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Upon the request of the Issuer accompanied by a Board Resolution of
the Issuer 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 of Secured Notes as aforesaid, and upon
receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee shall join with the Issuer in the execution of such amended or
supplemental Indenture unless such amended or supplemental Indenture 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 of Secured
Notes under this Section 10.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
SECTION 10.03. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any supplemental indenture under this Article X, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Secured Notes
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby. After a supplemental indenture becomes effective, the Issuer shall mail
to Holders a notice briefly describing such amendment. The failure to give such
notice to all Holders, or any defect therein, shall not impair or affect the
validity of an amendment under this Section.
SECTION 10.04. COMPLIANCE WITH TRUST INDENTURE ACT. Every
amendment or supplement to this Indenture or the Secured Notes shall be set
forth in an amended or supplemental Indenture that complies with the Trust
Indenture Act as then in effect.
SECTION 10.05. REVOCATION AND EFFECT OF CONSENTS. (a) Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Secured Note is a continuing consent by the Holder of a Secured Note and
every subsequent Holder of a Secured Note or portion of a Secured Note that
evidences the same debt as the consenting Holder's Secured Note, even if
notation of the consent is not made on any Secured Note. However, any such
Holder of a Secured Note or subsequent Holder of a Secured Note may revoke the
consent as to its Secured Note if the Trustee receives written notice of
revocation before the date the
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waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every
Holder.
(b) The Issuer may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding subsection, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 10.06. NOTATION ON OR EXCHANGE OF SECURED NOTES. The Trustee
may place an appropriate notation about an amendment, supplement or waiver on
any Secured Note thereafter authenticated. The Issuer in exchange for all
Secured Notes may issue and the Trustee shall authenticate new Secured Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Secured Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 10.07. TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee
shall sign any supplemental Indenture authorized pursuant to this Article X if
the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. Neither the Issuer nor any Subsidiary
Guarantor may sign a supplemental Indenture until the Board of Directors of such
Person approves it. In executing any supplemental indenture, the Trustee shall
be entitled to receive indemnity reasonably satisfactory to it and to receive
and (subject to Section 7.01) shall be fully protected in relying upon, in
addition to the documents required by Section 12.04, an Officers' Certificate
and an Opinion of Counsel stating that:
(a) such supplemental indenture is authorized or permitted by this
Indenture and that all conditions precedent to the execution, delivery and
performance of such supplemental indenture have been satisfied;
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(b) the Issuer and the Subsidiary Guarantors, if any, have all
necessary corporate power and authority to execute and deliver the
supplemental indenture and that the execution, delivery and performance of
such supplemental indenture has been duly authorized by all necessary
corporate action of the Issuer and the Subsidiary Guarantors, if any;
(c) the execution, delivery and performance of the supplemental
indenture do not conflict with, or result in the breach of or constitute a
default under any of the terms, conditions or provisions of (i) this
Indenture, (ii) the charter documents and By-laws of the Issuer or any
Subsidiary Guarantor, or (iii) any material agreement or instrument to
which the Issuer or any Subsidiary Guarantor is subject and of which such
counsel is aware;
(d) to the knowledge of legal counsel writing such Opinion of
Counsel, the execution, delivery and performance of the supplemental
indenture do not conflict with, or result in the breach of any of the
terms, conditions or provisions of (i) any law or regulation applicable to
the Issuer or any Subsidiary Guarantor, or (ii) any material order, writ,
injunction or decree of any court or governmental instrumentality
applicable to the Issuer or any Subsidiary Guarantor;
(e) such supplemental indenture has been duly and validly executed
and delivered by the Issuer and the Subsidiary Guarantors, if any, and
this Indenture together with such supplemental indenture constitutes a
legal, valid and binding obligations of the Issuer and the Subsidiary
Guarantors, if any, enforceable against the Issuer and the Subsidiary
Guarantors, if any, as applicable, in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar
laws affecting the enforcement of creditors' rights generally and general
equitable principles (whether considered in a proceeding at law or in
equity) and commercial reasonableness; and
(f) this Indenture together with such amendment or supplement
complies with the Trust Indenture Act.
SECTION 10.08. PAYMENT FOR CONSENT. Neither the Issuer, Pride, nor
any Affiliate of the Issuer or Pride shall, directly or indirectly, pay or cause
to be paid any consideration, whether by way of interest, fee or otherwise,
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to any Holder for or as an inducement to any consent, waiver or amendment of any
of the terms or provisions of this Indenture, the Secured Notes or the Security
Agreements unless such consideration is offered to be paid to all Holders that
so consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
ARTICLE XI
COLLATERAL AND SECURITY; GUARANTEES;
LETTER OF CREDIT
SECTION 11.01. SECURITY AGREEMENTS. The due and punctual payment of
the principal of, premium, if any, interest (including Additional Amounts, if
any, and Special Interest, if any) on, and any other amounts due in respect of,
the Secured Notes when and as the same shall be due and payable, whether on an
Interest Payment Date, at Stated Maturity, by acceleration, call for redemption,
upon a Change of Control Offer, purchase or otherwise, and interest on the
overdue principal of and interest (including Additional Amounts, if any, and
Special Interest, if any) (to the extent permitted by law), on the Secured Notes
and performance of all other obligations of the Issuer to the Holders of the
Secured Notes or the Trustee under this Indenture, the Secured Notes and the
Security Agreements, according to the terms hereunder or thereunder, shall be
secured as provided in the Security Agreements, (i) by a pledge to the
Collateral Agent in favor of the Trustee for its benefit and the Holders of
Secured Notes, of an undivided 53% interest in the Issuer Loans and all the
Issuer's right, title and interest in and to the Mitsubishi Documents and the
security for the Issuer Loans provided for in the Mitsubishi Loan Collateral
Agreements; and (ii) by a pledge to the Reserve Account Agent in favor of the
Trustee for its benefit and the benefit of the Holders of Secured
Notes, of interest in the Reserve Account and the Reserve Account Property and
any other cash of the Issuer that is required by the terms of this Indenture or
any Security Agreement to be deposited with the Trustee or the Reserve Account
Agent.
Each Holder, by its acceptance of a Secured Note, consents and
agrees to the terms of the Security Agreements (including, without limitation,
the provisions providing for foreclosure and release of Collateral) as the same
may be in effect or may be amended from time to time in accordance with the
terms thereof and hereof and authorizes and directs the Trustee to enter into
each of the Security Agreements to
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which it is expressed to be a party and to perform its respective obligations
and exercise its respective rights thereunder in accordance therewith. The
Issuer will do or cause to be done all such acts and things as may be necessary
or proper, or as may be required by the provisions of the Security Agreements,
to assure and confirm to the Collateral Agent, the Reserve Account Agent and the
Trustee the Liens in the Collateral contemplated hereby and by the Security
Agreements, as from time to time constituted, so as to render the same available
to the fullest extent permitted by law for the security and benefit of this
Indenture and of the Secured Notes, as applicable, according to the intent and
purposes herein and therein expressed. The Issuer shall to the fullest extent
permitted by law take, upon request of the Trustee, any and all actions
reasonably required to cause the Security Agreements to create and maintain, as
security for the Obligations of the Issuer under this Indenture, the Secured
Notes and the Security Agreements to be valid and enforceable, perfected (except
as expressly provided herein and therein), Liens in and on all the Collateral in
favor of the Trustee, the Reserve Account Agent or a Collateral Agent, as
applicable, for the benefit of the Trustee and for the equal and ratable benefit
of the Holders of the Secured Notes.
SECTION 11.02. RECORDING AND OPINIONS. (a) The Issuer represents
that it has caused or will promptly cause to be executed and delivered, filed
and recorded and covenants that it will promptly cause to be executed and
delivered and filed and recorded, all instruments and documents, and represents
that it has done and will do or will cause to be done all such acts and other
things, at the Issuer's expense as are necessary to subject the applicable
Collateral to valid Liens and to perfect those Liens, all to the fullest extent
permitted by law. The Issuer shall, as promptly as practicable, cause to be
executed and delivered, filed and recorded all instruments and do all acts and
other things as may be required by law to perfect, maintain and
protect the Liens under the applicable Security Agreements (except as otherwise
expressly provided herein and therein), all to the fullest extent permitted by
law.
(b) The Issuer shall furnish to the Trustee promptly after the
execution and delivery of this Indenture an Opinion of Counsel either (i)
stating that in the opinion of such counsel all action has been taken with
respect to the recording, registering and filing of this Indenture, financing
statements or other instruments or otherwise necessary to make effective the
Liens intended to be created by the Security Agreements and reciting the details
of such action, or (ii) stating that, in the opinion of such
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counsel, no such action is necessary to make such Lien effective. Such opinion
of counsel shall cover the necessity for recordings, registrations and filings
required in all relevant jurisdictions.
(c) The Issuer shall furnish to the Trustee within three months
after each anniversary of the Issue Date, an Opinion of Counsel, dated as of
such date, stating either that (i) in the opinion of such counsel, all action
has been taken with respect to the recording, registering, filing, rerecording,
reregistering and refiling of all supplemental indentures, financing statements,
continuation statements or other instruments of further assurance or otherwise
as is necessary to maintain the effectiveness of the Liens intended to be
created by the Security Agreements and reciting the details of such action or
(ii) in the opinion of such counsel, no such action is necessary to maintain the
effectiveness of such Liens. Such opinion of counsel shall cover the necessity
of recordings, registrations, filing, rerecordings, reregistrations and
refilings in all relevant jurisdictions.
(d) The Issuer shall otherwise comply with the provisions of Section
314(b) and, as applicable Sections 314(c), (d) and (e) of the Trust Indenture
Act.
SECTION 11.03. FURTHER ASSURANCES AND SECURITY. The Issuer will
execute, acknowledge and deliver to the Trustee, at the Issuer's expense, at any
time and from time to time such further assignments, transfers, assurances or
other instruments as may be reasonably required to effectuate the terms of this
Indenture and the Security Agreements, and will at any time and from time to
time do or cause to be done all such acts and things as may be necessary or
proper, or as may be reasonably required by the Trustee, to assure and confirm
to the Trustee the Liens in the Collateral contemplated hereby and by the
Security Agreements, all to the fullest extent permitted by law. The
Trustee shall have no duty to determine whether any filing or recording is
necessary hereunder or under any Collateral Document.
SECTION 11.04. POSSESSION AND USE OF COLLATERAL. To the extent set
forth in the Security Agreements, all funds deposited in the Reserve Account
constitute Collateral and will, at the direction of the Issuer except during the
continuance of a Default or an Event of Default and at the direction of the
Trustee during the continuance of a Default or an Event of Default, be invested
in Temporary Cash Equivalents (such cash and Temporary Cash Equivalents,
together with interest, dividends and distributions thereof,
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the "Reserve Account Property"), in the manner provided for in the Reserve
Account Agreement. No funds shall be released from the Reserve Account except as
provided herein and in the Reserve Account Agreement. The Reserve Account
Account and the Reserve Property shall be pledged to, and be under the sole
dominion and control of the Trustee acting for its benefit and the benefit of
the Holders of Secured Notes.
SECTION 11.05. CERTIFICATES OF THE ISSUER. Except as otherwise
provided in the Reserve Account Agreement, the Issuer will furnish to the
Trustee prior to each proposed release of Collateral pursuant to the Security
Agreements all documents required by Section 314(d) of the Trust Indenture Act.
The Trustee may, to the extent permitted by Sections 7.01 and 7.02 hereof,
accept as conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such instruments. Any certificate or opinion
required by Section 314(d) of the Trust Indenture Act may be made by an Officer
of the Issuer, except in cases where Section 314(d) of the Trust Indenture Act
requires that such certificate or opinion be made by an independent engineer,
appraiser or other expert within the meaning of Section 314(d) of the Trust
Indenture Act.
SECTION 11.06. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE
UNDER THE SECURITY AGREEMENTS. The Trustee may, in its sole discretion and
without the consent of the Holders, on behalf of the Holders, take all actions
it deems necessary or appropriate in order to (a) enforce any of the terms of
the Security Agreements and (b) collect and receive any and all amounts payable
in respect of the obligations of the Issuer hereunder. The Trustee shall have
the power to institute and to maintain such suits and proceedings as it may
reasonably deem expedient to prevent any impairment of the Collateral by any
acts that may be unlawful or in violation of the Security Agreements, or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
government enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the security interest hereunder or be prejudicial to the interests
of the Holders or of the Trustee).
SECTION 11.07. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE
UNDER THE SECURITY AGREEMENTS. The Trustee
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is authorized to receive any funds for the benefit of the Holders distributed
under the Security Agreements, and to make further distributions of such funds
to the Holders according to the provisions of this Indenture and the Security
Agreements.
SECTION 11.08. GUARANTEES; LETTER OF CREDIT. The Trustee shall make
demands under the Pride Guarantee and the Subsidiary Guarantees, if any, and
make drawings under the Letter of Credit, in such order as the Trustee shall, in
its sole discretion, determine, in respect of any amounts due on the Secured
Notes or under this Indenture that have not been remitted to the Trustee by or
on behalf of the Issuer.
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, or
with another provision included in this Indenture by operation of Sections 310
to 318, inclusive, of the Trust Indenture Act, such imposed duties or
incorporated provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that can be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
SECTION 12.02. NOTICES. Any notice or communication by the Issuer,
Pride, Maritima, any Subsidiary Guarantor or the Trustee to the others is duly
given if in writing and delivered in person or mailed by first class mail
(registered or certified, return receipt requested), telecopier or overnight air
courier guaranteeing next-day delivery, to the others' address:
If to the Issuer or any Subsidiary Guarantor:
Amethyst Financial Company Limited
x/x Xxxxx Xxxxxxx xxx
Xxxxxxx Xxxxx Xx. XXX Limited
000 Xxxxxxxxxx Xxxxx,
Xxxx Xxxxx Xxxxxxxx, 0xx Xxxxx
Xxxxxxx'x Lay Road,
Tortola, British Virgin Islands
Attention:
Telephone No.:
Telecopier No.:
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If to Pride:
Pride Internationa, Inc.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention:
Telephone No.: (000) 000-0000
Telecopier No.:
If to Maritima:
Maritima Petroleo e Engenharia Ltda.
Avenido Almirante Borraso
52 Grupo 3400
20031-000 Centro Rio de Janeiro, Brazil
Attention:
Telephone No.:
Telecopier No.:
If to the Trustee:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
The Issuer, Pride, Maritima, any Subsidiary Guarantor 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 deemed to have been duly given: at the time delivered by hand, if
personally delivered; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the
Securities Register kept by the Registrar and shall be given if so sent within
the time prescribed. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the Trust
Indenture Act. Failure to mail a notice or communication to
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a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it; a notice or communication, however, shall not be effective unless,
in the case of the Issuer, Pride, Maritima, any Subsidiary Guarantor or the
Trustee, actually received.
If the Issuer mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give notice by mail to
Holders, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 12.03. COMMUNICATION BY HOLDERS OF SECURED NOTES WITH OTHER
HOLDERS OF SECURED NOTES. Holders may communicate pursuant to TIA Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Secured Notes. The Issuer, 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 Issuer or a Guarantor to the Trustee to
take any action under this Indenture, the Letter of Credit, the Guarantees or
the Security Agreements, the Issuer or such Guarantor, as the case may be, upon
request, shall furnish to the Trustee, to the extent required by this Indenture
or the Trust Indenture Act:
(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,
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all such conditions precedent and covenants have been satisfied.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Issuer or any
Subsidiary Guarantor may be based, insofar as it relates to legal matters, upon
a certificate or opinion of, or representations by, counsel, unless such Officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, and may state that it is so based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an Officer or Officers of the Issuer, or such Subsidiary Guarantor stating
that the information with respect to such factual matters is in the possession
of the Issuer or such Subsidiary Guarantor, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 12.05. STATEMENTS REQUIRED IN A 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 Persons making such certificate or opinion
have read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the
135
statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Persons, they have made
such examination or investigation as is necessary to enable them 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
Persons, such condition or covenant has been satisfied.
SECTION 12.06. ACTS OF HOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by a specified percentage of Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are received
by the Trustee and, where it is hereby expressly required, by the Issuer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 7.01 and 7.02) conclusive in favor of the
Trustee, the Issuer and the Guarantor, if made in the manner provided in this
Section. Any electronic or other transmission pursuant to the Applicable
Procedures will be considered an instrument executed by the Holder of the Global
Notes held by the Depository for purposes of this Section 12.06.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems
136
sufficient, including the execution of such instrument or writing without more.
(c) The ownership, principal amount and serial numbers of Secured
Notes held by any Person, and the date of holding the same, shall be proved by
the Securities Register.
(d) If the Issuer shall solicit from the Holders of Secured Notes
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Issuer may, at its option, by or pursuant to Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Issuer shall have no obligation to do so. Such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be a
date not earlier than the date 30 days prior to the first solicitation is
completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of outstanding Secured Notes have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
outstanding Secured Notes shall be computed as of such record date; PROVIDED
that no such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become pursuant to the provisions
of this Indenture not later than eleven months after the record date.
(e) Except to the extent otherwise expressly provided in this
Indenture, any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Secured Note in connection with this
Indenture, the Security Agreements, the Letter of Credit or the Guarantees shall
bind every future Holder of the same Secured Note and the Holder of every
Secured Note issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Secured Note.
(f) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action with regard to any particular Secured Note may do so
with regard to all or
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any part of the principal amount of such Secured Note or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any different part of such principal amount.
SECTION 12.07. 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; provided that no such rule shall conflict with the terms of this
Indenture or the Trust Indenture Act.
SECTION 12.08. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS. No director, officer, employee, incorporator or
stockholder of the Issuer, Pride, Maritima or any Subsidiary Guarantor, as such,
shall have any liability for any obligations of the Issuer, Pride, Maritima or
any Subsidiary Guarantor under the Secured Notes, this Indenture, the Pride
Guarantee, 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
Secured Note waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Secured Notes.
SECTION 12.09. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE SECURED NOTES,
WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 12.10. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER
OF IMMUNITIES. By the execution and delivery of this Indenture or any amendment
or supplement hereto, each of the Issuer, Pride, each Subsidiary Guarantor and
Maritima (i) acknowledges that it has, by separate written instrument,
designated and appointed CT Corporation System (the "Process Agent") currently
located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized
agent upon which process may be served in any suit, action or proceeding with
respect to, arising out of, or relating to, this Indenture, the Pride Guarantee,
the Subsidiary Guarantees or the Secured Notes or brought under United States
Federal or state securities laws, may be instituted in any United States Federal
or state court located in The City of New York, New York, and acknowledges that
the Process Agent has accepted such designation, (ii) irrevocably submits to the
jurisdiction of any such court in any such suit, action or proceeding and
irrevocably waives, to the fullest extent that it may effectively and lawfully
do so, any obligation to the laying of venue of any such suit, action or
proceeding and the defense of an
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inconvenient forum to the maintenance of any such suit action or proceeding in
such court, and (iii) agrees, to the extent permitted by law, that service of
process upon the Process Agent shall be deemed in every respect effective
service of process upon the Issuer, Pride, such Subsidiary Guarantor or Maritima
in any such suit, action or proceeding. The Issuer, Pride, each Subsidiary
Guarantor and Maritima further agree to take any and all action, including the
execution and filing of any and all such documents and instruments as may be
necessary to continue such designation and appointment of the Process Agent in
full force and effect so long as this Indenture shall be in full force and
effect; PROVIDED that the Issuer, Pride, each Subsidiary Guarantor and Maritima
may and shall (to the extent the Process Agent ceases to be able to be served on
the basis contemplated herein), by written notice to the Trustee, designate such
additional or alternative agents for service of process under this Section 12.10
that (i) maintains an office located in the Borough of Manhattan, The City of
New York in the State of New York, (ii) are either (a) counsel for the Issuer,
Pride, a Subsidiary Guarantor or Maritima or (b) a corporate service company
which acts as agent for service of process for other persons in the ordinary
course of its business and for other persons in the ordinary course of its
business and (iii) agrees to act as agent for service of process in accordance
with this Section 12.10. Such notice shall identify the name of such agent for
process and the address of such agent for process in the Borough of Manhattan,
The City of New York, State of New York. Upon the request of any Holder of a
Secured Note, the Trustee shall deliver such information to such Holder.
Notwithstanding the foregoing, there shall, at all times, be at least one agent
for service of process for the Issuer, Pride, each Subsidiary Guarantor and
Maritima appointed and acting in accordance with this Section 12.10.
To the extent that the Issuer, Pride, any Subsidiary Guarantor or
Maritima has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service of notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, each of the Issuer, Pride, such Subsidiary
Guarantor and Maritima hereby irrevocably waives such immunity in respect of its
Obligations under this Indenture, the Pride Guarantee, the Subsidiary Guarantees
and the Secured Notes, to the extent permitted by law.
SECTION 12.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Issuer or the
139
Issuer's Subsidiaries or of any other Person. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 12.12. SUCCESSORS. All agreements of the Issuer, Pride,
Maritima and the Subsidiary Guarantors in this Indenture, the Secured Notes and
the Pride Guarantee and the Subsidiary Guarantees shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 12.13. SEVERABILITY. In case any provision in this Indenture
or in the Secured 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 12.14. COUNTERPART ORIGINALS. The parties may sign any
number of copies of this Indenture and by the parties thereto in separate
counterparts. Each of which when signed shall be deemed to be an original, but
all of them together represent the same agreement.
SECTION 12.15. 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.
SECTION 12.16. JUDGMENT CURRENCY. The Issuer and the Guarantors
agree, to the fullest extent that they may effectively do so under applicable
law, that (a) if for the purpose of obtaining judgment in any court it is
necessary to convert the sum due in respect of the principal of, or premium, if
any, or interest (including Additional Amounts, if any, and Special Interest, if
any), on the Secured Notes (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a New York Banking Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the New York
Banking Day preceding the day on which final unappealable judgment is entered
and (b) their obligations under this Indenture to make payments
140
in the Required Currency (i) shall not be discharged or satisfied by any tender,
or any recovery pursuant to any judgment (whether or not entered in accordance
with subsection (a)), in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be
payable in respect of such payments, (ii) shall be enforceable as an alternative
or additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of New York or a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to close.
ARTICLE XIII
PRIDE GUARANTEE
SECTION 13.01. PRIDE GUARANTEE. (a) Pride hereby irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety, to
each Holder and to the Trustee and its successors and assigns (i) the full and
punctual payment when due, whether at Stated Maturity, by acceleration, by
redemption or otherwise, of all obligations of the Issuer under this Indenture
(including obligations to the Trustee), the Secured Notes and the Security
Agreements, whether for payment of principal of, and premium, if any, and
interest (including Additional Amounts, if any, and Special Interest, if any)
on, the Secured Notes and all other monetary obligations of the Issuer under
this Indenture, the Secured Notes and the Security Agreements and (ii) the full
and punctual performance within applicable grace periods of all other
obligations of the Issuer whether for fees, expenses, indemnification or
otherwise under this Indenture, the Secured Notes and the Security Agreements
(all the foregoing being hereinafter collectively called the "Guaranteed
Obligations"). Pride further agrees that the Guaranteed Obligations may be
extended or renewed, in whole or in part, without notice or further assent from
Pride, and that Pride shall remain bound under this Article XIII notwithstanding
any extension or renewal of any Guaranteed Obligation.
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(b) To the extent permitted by applicable law, Pride waives
presentation to, demand of payment from and protest to the Issuer of any of the
Guaranteed Obligations and also waives notice of protest for nonpayment. Pride
waives notice of any default under the Secured Notes, the Security Agreements or
the Guaranteed Obligations. To the extent permitted by applicable law, the
obligations of Pride hereunder shall not be affected by (i) the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any right or
remedy against the Issuer or any other Person under this Indenture, the Secured
Notes, the Security Agreements or any other agreement or otherwise; (ii) any
extension or renewal of any thereof; (iii) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Indenture, the Secured
Notes, the Security Agreements or any other agreement; (iv) the release of any
security held by any Holder or the Trustee for the Guaranteed Obligations or any
of them; (v) the failure of any Holder or Trustee to exercise any right or
remedy against any other guarantor of the Guaranteed Obligations; or (vi) any
change in the ownership of Pride.
(c) Pride hereby waives any right to which it may be entitled to
have its obligations hereunder divided among Pride and any Subsidiary
Guarantors, such that Pride's obligations would be less than the full amount
claimed. Pride hereby waives any right to which it may be entitled to have the
assets of the Issuer first be used and depleted as payment of the Issuer's or
Pride's obligations hereunder prior to any amounts being claimed from or paid by
Pride hereunder. Pride hereby waives any right to which it may be entitled to
require that the Company be sued prior to an action being initiated against
Pride.
(d) To the extent permitted by applicable law, Pride further agrees
that its Guarantee herein constitutes a guarantee of payment, performance and
compliance when due (and not a guarantee of collection) and waives any right to
require that any resort be had by any Holder or the Trustee to any security held
for payment of the Guaranteed Obligations.
(e) The Guarantee of Pride shall rank pari passu with principal of
and premium, if any, and interest on all unsecured Senior Indebtedness of Pride.
(f) Except as expressly set forth in Section 9.02, to the extent
permitted by applicable law, the obligations of Pride hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender,
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alteration or compromise, and shall not be subject to any defense of setoff,
counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Guaranteed Obligations or
otherwise. Without limiting the generality of the foregoing, to the extent
permitted by applicable law, the obligations of Pride herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder or the
Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Secured Notes, the Security Agreements or any other agreement, by
any waiver or modification of any thereof, by any default, failure or delay,
wilful or otherwise, in the performance of the obligations, or by any other act
or thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of Pride or would otherwise operate as
a discharge of Pride as a matter of law or equity.
(g) Subject to Section 9.02, Pride agrees that its Guarantee shall
remain in full force and effect until payment in full of the lesser of the Pride
Limit and all the Guaranteed Obligations. Pride further agrees that its
Guarantee herein shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of or interest
(including Additional Amounts, if any, and Special Amounts, if any), on, or any
other amount in respect of, any Guaranteed Obligation is rescinded or must
otherwise be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Issuer or otherwise.
(h) In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against
Pride by virtue hereof, upon the failure of the Company to pay the principal of
or interest (including Additional Amounts, if any, and Special Amounts, if any),
on any Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, by redemption or otherwise, or to perform or comply
with any other Guaranteed Obligation, Pride hereby promises to and shall, upon
receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in
cash, to the Holders or the Trustee an amount equal to the lesser of (x) the sum
of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued
and unpaid interest on such Guaranteed Obligations (but only to the extent not
prohibited by law) and (iii) all other monetary obligations of the Issuer to the
Holders and the Trustee and (y) the Pride Limit.
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(i) Pride agrees that it shall not be entitled to exercise any right
of subrogation in relation to the Holders in respect of any Guaranteed
Obligations guaranteed hereby until payment in full of all Guaranteed
Obligations. After all the Guaranteed Obligations have been paid in full, the
Trustee agrees to execute any documents and to take any actions reasonably
requested by Pride to enforce such subrogation. Pride further agrees that, as
between it, on the one hand, and the Holders and the Trustee, on the other hand,
(i) the maturity of the Guaranteed Obligations guaranteed hereby may be
accelerated as provided in Article VI for the purposes of any Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations guaranteed hereby, and
(ii) in the event of any declaration of acceleration of such Guaranteed
Obligations as provided in Article VI, such Guaranteed Obligations (whether or
not due and payable) shall forthwith become due and payable by Pride for the
purposes of this Section 13.01.
(j) Pride also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees and expenses) incurred by the Trustee or
any Holder in enforcing any rights under this Section 13.01.
(k) Upon request of the Trustee, Pride shall execute and deliver
such further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purpose of this Indenture.
SECTION 13.02. LIMITATION ON LIABILITY. Any term or provision of
this Indenture to the contrary notwithstanding, the maximum aggregate amount of
the Guaranteed Obligations guaranteed hereunder by Pride shall not exceed
$30,000,000.00 (the "Pride Limit").
SECTION 13.03. SUCCESSORS AND ASSIGNS. (a) This Article XIII shall
be binding upon Pride and its successors and assigns and shall inure to the
benefit of the successors and assigns of the Trustee and the Holders and, in the
event of any transfer or assignment of rights by any Holder or the Trustee, the
rights and privileges conferred upon that party in this Indenture, in the
Secured Notes and in the Security Agreements shall automatically extend to and
be vested in such transferee or assignee, all subject to the terms and
conditions of this Indenture.
(b) Pride will not, in any transaction or series of transactions,
consolidate with or merge into any other Person (other than a merger of a
Subsidiary of Pride into Pride in which Pride is the continuing Person), or
sell,
144
convey, assign, transfer, lease or otherwise dispose of all or
substantially all of the property and assets of Pride and its Subsidiaries,
taken as a whole, to any Person, unless
(i) either (x) Pride shall be the continuing Person or (y) the
Person (if other than Pride) formed by such consolidation or into which
Pride is merged, or the Person which acquires, by sale, assignment,
conveyance, transfer, lease or other disposition, all or substantially all
of the property and assets of Pride and its Subsidiaries, taken as a whole
(such corporation or Person, the "Surviving Entity"), shall expressly
assume, by a supplemental Indenture, the due and punctual payment and
performance of Pride's covenants and obligations under this Indenture,
including the Pride Guarantee; and
(ii) the Surviving Entity shall be a permitted successor to Pride
under the Indenture dated as of May 1, 1997, as amended and supplemented
by the Second Supplemental Indenture thereto dated as of May 26, 1999,
between Pride and The Chase Manhattan Bank, as
trustee (the "Pride Indenture").
SECTION 13.04. NO WAIVER. Neither a failure nor a delay on the part
of either the Trustee or the Holders in exercising any right, power or privilege
under this Article XIII shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article XIII at
law, in equity, by statute or otherwise.
SECTION 13.05. MODIFICATION. No modification, amendment or waiver
of any provision of this Article XIII, nor the consent to any departure by Pride
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Trustee, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. No notice to
or demand on Pride in any case shall entitle Pride to any other or further
notice or demand in the same, similar or other circumstances.
SECTION 13.06. EXECUTION OF SUPPLEMENTAL INDENTURE FOR FUTURE
SUBSIDIARY GUARANTORS. Each Subsidiary which is required to become a Subsidiary
Guarantor pursuant to Section 4.19 shall promptly execute and deliver to the
145
Trustee a supplemental indenture in the form of Exhibit D hereto pursuant to
which such Subsidiary shall become a Subsidiary Guarantor under this Indenture
and shall guarantee the Guaranteed Obligations (as defined in such form of
supplemental indenture). Concurrently with the execution and delivery of such
supplemental indenture, the Issuer 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 Subsidiary
and that, subject to the application of bankruptcy, insolvency, moratorium,
fraudulent conveyance or transfer and other similar laws relating to creditors'
rights generally and to the principles of equity, whether considered in a
proceeding at law or in equity, the Subsidiary Guarantee of such Subsidiary
Guarantor is a legal, valid and binding obligation of such Subsidiary Guarantor,
enforceable against such Subsidiary Guarantor in accordance with its terms and
or to such other matters as the Trustee may reasonably request.
SECTION 13.07. NONIMPAIRMENT. The failure to endorse a Guarantee
on any Secured Note shall not affect or impair the validity thereof.
SECTION 13.08. PRIDE COVENANTS. Pride agrees, for the benefit of
the Holders of the Secured Notes, to comply with all its covenants in the Pride
Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
AMETHYST FINANCIAL COMPANY
LIMITED
by /s/ XXXX X. XXXXXX
Name: Xxxx X. XxXxxx
Title: Treasurer
WILMINGTON TRUST COMPANY
by /s/ XXXXX X. X'XXXX
Name: Xxxxx X. X'Xxxx
Title: Authorized Signer
146
Each of the following entities as Guarantor:
PRIDE INTERNATIONAL, INC.
by /s/ XXXX X. XXXXXX
Name: Xxxx X. XxXxxx
Title: Vice President
Each of the following entities as
procurer of a Letter of Credit:
MARITIMA PETROLEO e ENGENHARIA LTDA.
by /s/ XXXXXX XXXXXXXXXX
Name: Xxxxxx Xxxxxxxxxx
Title: President
Exhibit A
(Face of Note)
[THIS GLOBAL NOTE IS A GLOBAL NOTE WITHIN THE
MEANING OF THE INDENTURE REFERRED TO ON THE REVERSE THEREOF.
UNLESS THIS SECURED NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO AMETHYST FINANCIAL COMPANY LIMITED (THE "ISSUER") OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURED NOTE
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 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 HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.06 OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS GLOBAL NOTE IS EXCHANGEABLE FOR A SECURED NOTE IN DEFINITIVE,
FULLY REGISTERED FORM, WITHOUT INTEREST COUPONS, IF (A) DTC NOTIFIES THE ISSUER
THAT IT IS UNWILLING OR UNABLE TO CONTINUE AS DEPOSITORY FOR THIS GLOBAL NOTE OR
IF AT ANY TIME DTC CEASES TO BE A "CLEARING AGENCY" REGISTERED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, AND A SUCCESSOR DEPOSITORY IS NOT
APPOINTED BY THE ISSUER WITHIN 90 DAYS OF SUCH NOTICE, (B) THE ISSUER EXECUTES
AND DELIVERS TO THE TRUSTEE A NOTICE THAT THIS GLOBAL NOTE SHALL BE SO
TRANSFERABLE, REGISTRABLE, AND EXCHANGEABLE, AND SUCH TRANSFER SHALL BE SO
REGISTRABLE, OR (C) AN EVENT OF DEFAULT (AS HEREINAFTER DEFINED) HAS OCCURRED
AND IS CONTINUING WITH RESPECT TO THE SECURED NOTES.]1
[THIS SECURED NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. ACCORDINGLY, THIS SECURED NOTE MAY NOT BE OFFERED,
--------
(1) These paragraphs should be included if the Secured Notes are issued in
global form.
2
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) UNDER REGULATION D UNDER THE SECURITIES ACT (AN "IAI")),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (I) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (II) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (III) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (IV) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE ACT, (V) TO AN IAI THAT, PRIOR TO
SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE
FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS
IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000,
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE ACT, (VI) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) OR (VII) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR
AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE
TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.]2
--------
(2) These paragraphs (the Private Placement Legend) should be replaced upon
the exchange of Initial Secured Notes for Exchange Secured Notes in the Exchange
Offer or upon the registration of Initial Secured Notes pursuant to the
Registration Rights Agreement by the paragraphs referred to in Footnote 3.
3
[THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AN "IAI") OR (C) IT
IS A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER OR AN
AFFILIATE (AS DEFINED IN RULE 405 UNDER THE SECURITIES ACT) OF THE ISSUER,
(2) AGREES THAT IT WILL NOT RESELL, OR OTHERWISE TRANSFER THIS NOTE
EXCEPT TO (A) A QIB, (B) AN IAI, OR (C) A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER OR AN AFFILIATE (AS DEFINED IN
RULE 405 UNDER THE SECURITIES ACT) OF THE ISSUER, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR
AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE
TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING. THE
INDENTURE ALSO CONTAINS A PROVISION REQUIRING THE ISSUER TO EXERCISE REASONABLE
CARE TO ENSURE THAT THE SECURED NOTES ARE RESOLD OR OTHERWISE TRANSFERRED ONLY
TO PURCHASERS MEETING THE REQUIREMENTS SPECIFIED IN CLAUSE (2) ABOVE.](3)
--------
(3) This should be included on all Exchange Secured Notes or upon
registration of Initial Secured Notes pursuant to the Registration Rights
Agreement.
11 3/4% Secured Notes due 2001
AMETHYST FINANCIAL COMPANY LIMITED
No.
CUSIP No.
$_____________________
AMETHYST FINANCIAL COMPANY LIMITED promises to pay to
_______________________ or registered assigns, the principal sum of
___________________ United States Dollars, [or such greater or lesser amount as
may from time to time be endorsed on Schedule A hereto]4 on November 1, 2001.
Interest Payment Dates: June 30, December 30 and
November 1, 2001
Record Dates: June 15 and December 15 or, with respect to the
November 1, 2001 Interest Payment Date, October 15, 2001
Reference is hereby made to the further provisions of this Secured
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authorization hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Secured Note shall not be
--------
(4) This is included on Global Notes only.
2
entitled to any benefit of this Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed as of the date written below.
AMETHYST FINANCIAL COMPANY
LIMITED
by
_________________________
Name:
Title:
by
_________________________
Name:
Title:
Date:___________________
Certificate of Authentication:
This is one of the Secured Notes
referred to in the within-mentioned
Indenture:
WILMINGTON TRUST COMPANY,
as Trustee,
by
___________________________________
Authorized Signatory
(Reverse of Note)
11 3/4% Secured Note due 2001
Capitalized terms used herein shall have the meanings assigned to
them in this Indenture referred to below unless otherwise indicated.
SECTION 1. INTEREST. Amethyst Financial Company Limited, a British
Virgin Islands limited liability company (such company, and its successors and
assigns under the Indenture hereinafter referred to, being called the "Issuer"),
promises to pay interest on the principal amount of this Secured Note at 11 3/4%
per annum until Maturity and shall pay Additional Amounts (as defined), if any,
and Special Interest, if any, payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Issuer will pay interest, if any, and
Additional Amounts, if any, and Special Interest, if any, semi-annually in
arrears on June 30 and December 30 of each year and on November 1, 2001 (each,
an "Interest Payment Date"), or if any such day is not a Business Day, on the
next succeeding Business Day. Interest on the Secured Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the Issue Date; provided that if there is no existing Default in the
payment of interest, and if this Secured Note is authenticated between a Record
Date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from the next June 30 or December 30, as the case
may be. The Issuer shall pay interest (including post-petition interest in any
proceeding under any applicable Federal, State or foreign bankruptcy law) on
overdue installments of interest ("Defaulted Interest"), Additional Amounts, if
any, and Special Interest, if any (without regard to any applicable grace
periods), from time to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 2. METHOD OF PAYMENT. The Issuer will pay interest on the
Secured Notes (except Defaulted Interest), Additional Amounts, if any, and
Special Interest, if any, to the Persons who are registered Holders of Secured
Notes at the close of business on June 15 or December 15 or, with respect to the
November 1, 2001, Interest Payment Date, October 15, 2001 immediately preceding
the Interest Payment Date (each, a "Record Date"), even if such Secured Notes
are cancelled after such Record Date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
Defaulted Interest. The
2
Secured Notes will be payable as to principal, premium, interest, Additional
Amounts and Special Interest at the office or agency of the Issuer maintained
for such purpose within the City and State of New York, or, at the option of the
Issuer, payment of interest and Additional Amounts and Special Interest may be
made by check mailed to the Holders at their addresses set forth in the register
of Holders, provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, premium, if
any, and Additional Amounts, if any, and Special Interest, if any, on, all
Global Notes and all other Secured Notes the Holders of which shall have
provided wire transfer instructions to the Issuer and the Paying Agent prior to
the applicable Record Date for such payment. 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.
SECTION 3. ADDITIONAL AMOUNTS. Except to the extent required by any
applicable law, regulation or governmental policy, any and all payments of, or
in respect of, any Secured Note shall be made free and clear of and without
deduction for or on account of any and all present or future taxes, levies,
imposts, deduction, charges or withholdings and all liabilities with respect
thereto imposed by the British Virgin Islands, Brazil, the United States of
America or any other jurisdiction with which the Issuer, Pride or any Subsidiary
Guarantor has some connection (including any jurisdiction from or through which
payments under the Secured Notes, the Pride Guarantee or the Subsidiary
Guarantees (if any) are made or in which the Mortgaged Rigs are located) or any
political subdivision of or any taxing authority in any such jurisdiction
(collectively, "Taxes" and any such jurisdiction or political subdivision or
taxing authority, a "Tax Jurisdiction"). If the Issuer, Pride or any Subsidiary
Guarantor shall be required by law to withhold any Taxes from or in respect of
any sum payable under the Secured Notes, the Pride Guarantee or a Subsidiary
Guarantee, the sum payable by the Issuer under the Secured Notes shall be
increased by the amount ("Additional Amounts") necessary so that after making
all required withholdings and deductions, the Holder or beneficial owner of a
Secured Note shall receive an amount equal to the sum that it would have
received had not such withholdings and deductions been made; PROVIDED that any
such sum shall not be paid to a Holder (an "Excluded Holder") (i) in respect of
any Taxes resulting from the beneficial owner of such Secured Note carrying on
business or being deemed to carry on business in or through a permanent
establishment or fixed base in the relevant taxing jurisdiction or having any
other connection with the
3
relevant taxing jurisdiction or any political subdivision thereof or any taxing
authority therein other than the mere holding or owning of such Secured Note,
being a beneficiary of the Pride Guarantee or any applicable Subsidiary
Guarantee, the receipt of any income or payments in respect of such Secured
Note, the Pride Guarantee or any applicable Subsidiary Guarantee or the
enforcement of such Secured Note, the Pride Guarantee or any applicable
Subsidiary Guarantee, (ii) in respect of any Taxes that would not have been
imposed but for the presentation (where presentation is required) of such
Secured Note for payment more than 180 days after the date such payment became
due and payable or was duly provided for, whichever occurs later, or (iii) in
respect of United States federal income Taxes, if such Holder fails to provide
to the Issuer, within 30 days of a request by the Issuer, complete and valid IRS
Form W-8 or other form establishing an exemption from United States withholding
Taxes. The Issuer, Pride or the Subsidiary Guarantors, as applicable, will also
(i) make such withholding or deduction and (ii) remit the full amount deducted
or withheld to the relevant authority in accordance with applicable law, and, in
any such case, the Issuer will furnish to each Holder on whose behalf an amount
was so remitted, within 30 calendar days after the date the payment of any
Taxes, is due pursuant to applicable law, certified copies of tax receipts
evidencing such payment by the Issuer, Pride or the Subsidiary Guarantors, as
applicable. The Issuer will, upon written request of each Holder (other than an
Excluded Holder), reimburse each such holder for the amount of (i) any Taxes so
levied or imposed and paid by such holder as a result of payments under or with
respect to any Secured Notes, and (ii) any Taxes so levied or imposed with
respect to any reimbursement under the foregoing clause (i) so that the net
amount received by such Holder (net of payments made under or with respect to
such Secured Notes, the Pride Guarantee or the applicable Subsidiary Guarantees
after such reimbursement will not be less than the net amount the Holder would
have received if Taxes on such reimbursement had not been imposed.
At least 30 calendar days prior to each date on which any payment
under or with respect to the Secured Notes is due and payable, if the Issuer
will be obligated to pay Additional Amounts with respect to such payment, the
Issuer will deliver to the Trustee an Officers' Certificate stating the fact
that such Additional Amounts will be payable and the amounts so payable and will
set forth such other information necessary to enable the Trustee to pay such
Additional Amounts to Holders on the payment date.
4
If any Holder or beneficial owner of any Secured Note receives a
refund of Taxes after the Issuer, Pride or any Subsidiary Guarantor, as
applicable, has paid any Additional Amounts, such Holder or beneficial owner
shall reimburse the Issuer, Pride or any Subsidiary Guarantor, as applicable,
for any amount of such refund.
In addition, the Issuer will pay any present or future stamp, issue,
registration, documentary or other similar taxes and duties, including interest
and penalties, in respect of the creation, issue and offering of the Secured
Notes payable in the United States, the British Virgin Islands, Brazil or any
political subdivision thereof or taxing authority of or in the foregoing. The
Issuer will also pay and indemnify the Trustee and the Holders of the Secured
Notes from and against all court fees and taxes or other taxes and duties,
including interest and penalties, paid by any of them in any jurisdiction in
connection with any action permitted to be taken by the Holders or the Trustee
to create Liens on the Collateral or to enforce the Obligations of the Issuer,
Pride or the Subsidiary Guarantors under the Secured Notes, the Indenture, the
Pride Guarantee, the Subsidiary Guarantees, the Issuer Loans or the Security
Agreements.
Whenever there is mentioned, in any context, the payment of
principal, premium or interest in respect of any Secured Note or the net
proceeds received on the sale or exchange of any Secured Note, such mention
shall be deemed to include the payment of Additional Amounts or Special Interest
provided for in the Indenture to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to the
Indenture.
SECTION 4. PAYING AGENT AND REGISTRAR. Initially, the Trustee under
this Indenture will act as Paying Agent and Registrar. The Issuer may change any
Paying Agent or Registrar without notice to any Holder. In certain situations,
the Issuer or any of its Subsidiaries may act in any such capacity.
SECTION 5. INDENTURE. The Issuer issued the Secured Notes under an
Indenture dated as of November 1, 1999 ("Indenture") between the Issuer, Pride
International, Inc. ("Pride") acting as guarantor, Maritima Petroleo e
Engenharia Ltda. ("Maritima") as procurer of the Letter of Credit and Wilmington
Trust Company as trustee (the "Trustee," which term includes any successor
trustee under the Indenture). The terms of the Secured Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
U.S. Trust Indenture Act of
5
1939, as amended (15 U.S. Code xx.xx. 77aaa-77bbbb) as in effect on the date of
the Indenture. The Secured Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. The
Secured Notes are secured obligations of the Issuer issuable in a single series,
consisting of 11 3/4% Senior Secured Notes due 2001 (the "Secured Notes")
limited to $53,000,000 aggregate principal amount (subject to Section 2.07 of
the Indenture). This Secured Note is one of the Secured Notes referred to in the
Indenture.
SECTION 6. OPTIONAL REDEMPTIONS. (a) Under the terms of the
Indenture, the Secured Notes will be redeemable, at the Issuer's option at any
time in whole or from time to time in part upon not less than 30 and not more
than 60 days' prior notice mailed by first class mail to the Holders of the
Secured Notes, on any date prior to Maturity at a price equal to 100% of the
principal amount thereof plus accrued and unpaid interest (including Special
Interest, if any, and Additional Amounts, if any), to the Redemption Date plus
the Make-Whole Premium.
(b) Under the terms of the Indenture, the Secured Notes may be
redeemed, at the option of the Issuer, at any time as a whole but not in part,
on not less than 30 nor more than 60 days' prior notice mailed by first class
mail to the Holders of the Secured Notes, at a price equal to 100% of the
principal amount thereof plus accrued and unpaid interest (including Special
Interest, if any, and Additional Amounts, if any), to the Redemption Date, in
the event the Issuer has become or would become obligated to pay (and the Issuer
cannot avoid such obligation by taking reasonable measures available to it), on
the next date on which any amount would be payable with respect to the Secured
Notes, any Additional Amounts as a result of a change in or an amendment to the
laws (including any regulations promulgated thereunder) of a Tax Jurisdiction,
or any change in or amendment to any official position regarding the application
or interpretation of such laws or regulations, which change or amendment is
announced or becomes effective on or after the Issue Date; PROVIDED, HOWEVER,
that such redemption shall be conditioned upon the Issuer being actually
obligated to pay such Additional Amounts on the relevant payment date.
Prior to the giving of the notice of redemption described in the preceding
paragraph, the Issuer shall deliver to the Trustee an Officers' Certificate
(together with a copy of an Opinion of Counsel from counsel that is independent
from the Issuer to the effect that the Issuer will be or will become obligated
to pay Additional Amounts),
6
stating that the Issuer is entitled to effect such redemption in accordance with
the Indenture and setting forth in reasonable detail a statement of the facts
relating thereto.
(c) Notices of redemption will be mailed by first class mail at
least 30 days but not more than 60 days before the Redemption Date to each
Holder whose Secured Notes are to be redeemed at its registered address. Secured
Notes in denominations larger than $1,000 may be redeemed in part but only in
integral multiples of $1,000, unless all of the Secured Notes held by a Holder
are to be redeemed. Unless the Issuer defaults in making such redemption
payment, on and after the Redemption Date interest (including Special Interest,
if any and Additional Amounts, if any), ceases to accrue on Secured Notes or
portions thereof called for redemption.
SECTION 7. REDEMPTION UPON LOSS OF A RIG. If an Event of Loss occurs
at any time with respect to a Mortgaged Rig, the Issuer shall redeem 50% of the
Secured Notes (or 100% of the Secured Notes in the case of an Event of Loss with
respect to both Mortgaged Rigs or if Secured Notes were previously redeemed
pursuant to this section 7 or Section 8) on the earlier to occur of (A) 30 days
after the receipt of the related Event of Loss Proceeds by the Issuer from the
applicable Mortgaged Rig Owner and (B) 180 days after the date on which such
Event of Loss occurred, at a Redemption Price equal to 100% of their principal
amount, plus accrued and unpaid interest (including Additional Amounts, if any,
and Special Interest, if any), to the Redemption Date, all as provided in the
Indenture.
SECTION 8. REDEMPTION UPON SALE OF A MORTGAGED RIG. If a Mortgaged
Rig or the Capital Stock of a Restricted Subsidiary then owning a Mortgaged Rig
is sold in compliance with the terms of the Indenture, the Issuer shall redeem
50% of the Secured Notes (or 100% of the Secured Notes in the case of a sale of
both Mortgaged Rigs or the Capital Stock of both Restricted Subsidiaries then
owning Mortgaged Rigs or if Secured Notes have previously been redeemed pursuant
to this Section 8 or Section 7) on the earlier to occur of (A) 30 days after the
receipt by the Issuer of Net Available Cash from such sale and (B) 60 days after
the date of such sale at a Redemption Price equal to 100% of their principal
amount, plus accrued and unpaid interest (including Additional Amounts, if any,
and Special Interest, if any), to the Redemption Date plus the Make- Whole
Premium.
7
SECTION 9. REPURCHASE AT OPTION OF HOLDER. Upon the occurrence of a
Change of Control, each Holder will have the right to require the Issuer to
repurchase such Holder's Secured Notes in whole or in part (the "Change of
Control Offer") at a purchase price (the "Change of Control Purchase Price") in
cash equal to 101% of the aggregate principal amount thereof, plus accrued and
unpaid interest thereon, if any (including Additional Interest, if any, and
Special Amounts, if any), to the Change of Control Payment Date on the terms
described in the Indenture.
Within 30 days following any Change of Control, the Issuer shall
send, or cause to be sent, by first class mail, postage prepaid, a notice
regarding the Change of Control Offer to each Holder of Secured Notes. The
Holder of this Secured Note may elect to have this Secured Note or a portion
hereof in an authorized denomination purchased by completing the form entitled
"Option of Holder to Require Purchase" appearing below and tendering this
Secured Note pursuant to the Change of Control Offer. Unless the Issuer defaults
in the payment of the Change of Control Payment with respect thereto, all
Secured Notes or portions thereof accepted for payment pursuant to the Change of
Control Offer will cease to accrue interest (including Additional Amounts, if
any, and Special Interest, if any), from and after the Change of Control
Purchase Date.
SECTION 10. DENOMINATIONS; TRANSFER AND EXCHANGE. The Secured Notes
are in registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Secured Notes may be registered and Secured
Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents (including, in certain cases, opinions of
counsel) and the Issuer may require a Holder to pay any taxes and fees required
by law or permitted by the Indenture. The Issuer need not exchange or register
the transfer of any Secured Note or portion of a Secured Note selected for
redemption, except for the unredeemed portion of any Secured Note being redeemed
in part. Also, it need not exchange or register the transfer of any Secured
Notes for a period of 15 days before a selection of Secured Notes to be redeemed
or during the period between a Record Date and the corresponding Interest
Payment Date.
SECTION 11. PERSONS DEEMED OWNERS. The registered Holder of a
Secured Note may be treated as its owner for all purposes.
8
SECTION 12. AMENDMENT, SUPPLEMENT AND WAIVER. With the consent of
the Holders of not less than a majority in aggregate principal amount of the
outstanding Secured Notes (including consents obtained in connection with a
tender offer or exchange offer for the Secured Notes), the Issuer and the
Trustee may enter into one or more indentures supplemental to the Indenture for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of modifying in any manner the rights
of the Holders; PROVIDED that no such supplemental indenture may, among other
things, without the consent of the Holder of each outstanding Secured Noted
affected thereby, (i) reduce the amount Secured Notes whose Holders must consent
to an amendment, (ii) reduce the rate of or extend the time for payment of
interest (including Additional Interest, if any, and Special Interest, if any),
on any Secured Note or any Issuer Loan, (iii) reduce the principal of or extend
the Stated Maturity of any Secured Note or any Issuer Loan, (iv) modify the
obligations of Issuer to make mandatory redemptions or otherwise reduce the
premium payable upon the redemption of any Secured Note or change the time at
which any Secured Note may be or is required to be redeemed as described under
the covenants described in paragraphs 7, 8 and 9 above, (v) modify the
obligations of Pride to make payments under the Pride Guarantee or the
obligations of the Letter of Credit Provider under the Letter of Credit, (vi)
make any Secured Note payable in money other than that stated in the Secured
Note, (vii) impair the right of any Holder of the Secured Notes to receive
payment of principal of and interest (including Additional Interest, if any, and
Special Interest, if any), on such Holder's Secured Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment on or
with respect to such Holder's Secured Notes, (viii) make any change in the
amendment provisions which require each Holder's consent or in the waiver
provisions, (ix) make any change in the Pride Guarantee, the Subsidiary
Guarantees, if any, the Letter of Credit or any Security Agreement or Mitsubishi
Loan Agreement (in the case of the Mitsubishi Documents, if the Issuer has the
right to consent to any such change) that would materially adversely affect the
Noteholders or terminate the Lien of the Indenture or any Security Agreement on
any property at any time subject thereto or deprive the Holders of the security
afforded by the Lien of the Indenture or the Security Agreements or the Issuer
of the Liens securing the Issuer Loans.
SECTION 13. DEFAULTS AND REMEDIES. Events of Default include in
summary form: (i) default for 30 days in the payment when due of interest
(including Special
9
Interest, if any, or Additional Amounts, if any), on the Secured Notes or an
Issuer Loan; (ii) default in payment when due of the principal of, or premium,
if any, on any Secured Note or Issuer Loan; (iii) failure by the Issuer to
comply with Sections 3.08, 3.09, 4.08, 4.15 or 5.01 of the Indenture; (iv)
failure by the Issuer and the Subsidiary Guarantors for 60 days after notice to
comply with any of its other agreements in the Indenture or the Security
Agreements, or the occurrence of an event of default under a Mitsubishi Loan
Collateral Document that continues for 60 days after notice; (v) Indebtedness of
the Issuer or any Subsidiary is not paid when due within the applicable grace
period, if any, or is accelerated by the holders thereof and, in either case,
the aggregate principal amount of such unpaid or accelerated Indebtedness
exceeds $10,000,000 or a default occurs under a Mitsubishi Document, such
default is not a payment default and such default is not cured or waived within
120 days; (vi) failure by the Issuer or any of its Restricted Subsidiaries to
pay final judgments aggregating in excess of $10,000,000, which judgments are
not paid, discharged or stayed for a period of 30 days; (viii) certain events of
bankruptcy or insolvency with respect to the Issuer, Pride or any Significant
Subsidiary; (ix) the Pride Guarantee or any Subsidiary Guarantee shall for any
reason cease to be, or be asserted by Pride or any Subsidiary Guarantor, as
applicable, not to be, in full force and effect (except pursuant to the release
of any Subsidiary Guarantee in accordance with the Indenture); (x) the Letter of
Credit for any reason cease to be, or be asserted by the Letter of Credit
Provider not to be, in full force and effect; and (xi) the Liens under the
Security Agreements shall, at any time, cease to be in full force and effect for
any reason (other than by operation of the provisions of the Indenture and the
Security Agreements) other than the satisfaction in full of all obligations
under the Indenture and discharge of the Indenture, or any Lien created
thereunder shall be declared invalid or unenforceable or the Issuer or any
Mortgaged Rig Owner shall assert, in any pleading in any court of competent
jurisdiction, that any such Lien is invalid or unenforceable.
Holders of the Secured Notes may not enforce the Indenture or the
Secured Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Secured Notes may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of the Secured Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal, premium, if any, or interest) if it
10
determines that withholding notice is not opposed to the interests of the
Holders. Subject to certain limitations, the Holders of a majority in aggregate
principal amount of the Secured Notes then outstanding by notice to the Trustee
may on behalf of the Holders of all of the Secured Notes then outstanding waive
any existing Default or Event of Default and its consequences under the
Indenture except a continuing Default or Event of Default in the payment of
interest on, or the principal of, premium, if any, on, or interest (including
Special Interest, if any, and Additional Amounts, if any), on, the Secured
Notes. The Issuer is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Issuer 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.
SECTION 14. DEFEASANCE PRIOR TO MATURITY OR REDEMPTION. The Issuer,
at its election, shall (a) be deemed to have paid and discharged its debt on the
Secured Notes and the Indenture and on Security Agreements, the Pride Guarantee
and the Subsidiary Guarantees shall cease to be of further effect as to all
outstanding Secured Notes (except as to (i) rights of registration of transfer,
substitution and exchange of Secured Notes, (ii) the Issuer's right of optional
redemption, (iii) rights of Holders to receive payments of principal of,
premium, if any, and interest (including Special Interest, if any, and
Additional Amounts, if any), on the Secured Notes (but not the Change of Control
Purchase Price) and any rights of the Holders with respect to such amounts, (iv)
the rights, obligations and immunities of the Trustee under the Indenture, and
(v) certain other specified provisions in the Indenture) or (b) cease to be
under any obligation to comply with certain restrictive covenants that are
described in the Indenture, after the irrevocable deposit by the Issuer with the
Trustee, in trust for the benefit of the Holders, at any time prior to the
stated Maturity of the Secured Notes, of (i) money in an amount, (ii) U.S.
Government Obligations which through the payment of interest and principal will
provide, not later than one Business Day before the due date of payment in
respect of such Secured Notes, money in an amount, or (iii) a combination
thereof sufficient to pay and discharge the principal of, premium, if any on,
and interest (including Additional Amounts, if any, and Special Interest, if
any), on, such Secured Notes then outstanding on the dates on which any such
payments are due in accordance with the terms of the Indenture and of such
Secured Notes.
SECTION 15. SECURITY AGREEMENTS. As provided in the Indenture and
the Security Agreements and subject to
11
certain limitations set forth therein, the Obligations of the Issuer under the
Indenture, the Secured Notes and the Security Agreements are secured by the
Collateral as provided in the Security Agreements. Each Holder, by accepting a
Secured Note, agrees to be bound to all terms and provisions of the Security
Agreements, as the same may be amended from time to time. The Liens created
under the Security Agreements shall be released upon the terms and subject to
the conditions set forth in the Indenture and the Security Agreements.
SECTION 16. TRUSTEE DEALINGS WITH THE ISSUER. Subject to certain
limitations imposed by the Trust Indenture Act, the Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Issuer or its Affiliates, and may otherwise deal with the
Issuer or its Affiliates, as if it were not the Trustee.
SECTION 17. NO RECOURSE AGAINST OTHERS. A director, officer,
employee, incorporator or stockholder of the Issuer, Pride, Maritima or any
Subsidiary Guarantor, as such, shall not have any liability for any obligations
of the Issuer, Pride, Maritima or any Subsidiary Guarantors under the Secured
Notes, the Indenture, the Pride Guarantee, 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 Secured Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Secured Notes.
SECTION 18. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SECURED NOTE, WITHOUT REGARD TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 19. AUTHENTICATION. This Secured Note shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating
agent.
SECTION 20. ABBREVIATIONS. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/MA (=
Uniform Gifts to Minors Act).
SECTION 21. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED
SECURED NOTES. In addition to the rights provided to Holders of Secured Notes
under the
12
Indenture, Holders of Transferred Restricted Secured Notes (as defined in the
Registration Rights Agreement) shall have all the rights set forth in the
Registration Rights Agreement dated as of the date of the Indenture, between the
Issuer and the parties named on the signature pages thereof (the "Registration
Rights Agreement").
SECTION 22. CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Issuer has
caused CUSIP numbers to be printed on the Secured Notes and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Secured Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
The Issuer will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Amethyst Financial Company Limited
Amethyst Financial Company Limited
x/x Xxxxx Xxxxxxx xxx
Xxxxxxx Xxxxx Xx. XXX Limited
000 Xxxxxxxxxx Xxxxx,
Xxxx Xxxxx Xxxxxxxx, 0xx Xxxxx
Xxxxxxx'x Lay Road,
Tortola, British Virgin Islands
Telephone No.: [ ]
Telecopier No.: [ ]
GUARANTEE
Subject to the limitations set forth in the Indenture, Pride has
irrevocably and unconditionally guaranteed (i) the full and punctual payment
when due, whether at Stated Maturity, by acceleration, by redemption or
otherwise, of all obligations of the Issuer under the Indenture (including
obligations to the Trustee), the Secured Notes and the Security Agreements,
whether for payment of principal of, premium, if any, on, or interest (including
Additional Amounts, if any, and Special Interest, if any), on the Secured Notes
and all other monetary obligations of the Issuer under the Indenture, the
Secured Notes and the Security Agreements and (ii) the full and punctual
performance within applicable grace periods of all other obligations of the
Issuer whether for fees, expenses, indemnification or otherwise under the
Indenture, the Secured Notes and the Security Agreements (all the foregoing
being hereinafter collectively called the "Guaranteed Obligations"). Capitalized
terms used herein shall have the same meanings assigned to them in this
Indenture unless otherwise indicated.
Payment on each Secured Note is guaranteed by Pride pursuant to
Article XIII of the Indenture and reference is made to such Indenture for the
precise terms of the Pride Guarantee.
The Guaranteed Obligations guaranteed by Pride under the Pride
Guarantee are limited to $30,000,000.
[SIGNATURE PAGE FOLLOWS]
2
PRIDE INTERNATIONAL, INC.
By
_________________________
Name:
Title:
ASSIGNMENT FORM
To assign this Secured Note, fill in the form below: (I) or (we) assign and
transfer this Secured Note to
________________________________________________________________________________
(Insert assignee's Social Security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
to transfer this Secured Note on the books of the Issuer or the agent appointed
by the Issuer to maintain such books. The agent appointed hereby may substitute
another to act for him.
________________________________________________________________________________
Date:_________________________
Your signature:_________________________________
(Sign exactly as your name appears on the face of this Secured Note)
Signature Guarantee:
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Secured Note purchased by the
Issuer pursuant to Section 4.08 of the Indenture, check the box below:
[ ] Section 4.8
If you want to elect to have only part of the Secured Note purchased
by the Issuer pursuant to Section 4.08 of the Indenture, state the amount you
elect to have purchased (must be an integral multiple of $1,000):
$_________
Your Signature:_________________________________
(Sign exactly as your name
appears on the Secured Note)
Signature Guarantee: Social Security or Tax
Identification No.:
SCHEDULE A
CHANGES IN PRINCIPAL AMOUNT OF SECURED NOTE5
The following changes in the principal amount of this Global Note
have been recorded:
AMOUNT OF AMOUNT OF PRINCIPAL AMOUNT
DECREASE INCREASE OF THIS GLOBAL SIGNATURE
IN PRINCIPAL IN PRINCIPAL NOTE FOLLOWING OF AUTHORIZED
DATE OF AMOUNT OF THIS AMOUNT OF THIS SUCH DECREASE OFFICER OF
TRANSACTION GLOBAL NOTE GLOBAL NOTE (OR INCREASE) TRUSTEE
----------- -------------- -------------- ---------------- -------------
--------
5 This should only be included if the Secured Note is issued in global form.
EXHIBIT B-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION
OF TRANSFER FROM U.S. GLOBAL NOTE TO
REGULATION S GLOBAL NOTE
(PURSUANT TO SECTION 2.06(A)(I) OF THE INDENTURE)
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Re: 11 3/4% Senior Secured Notes due 2001 of AmethyST
Financial Company Limited
Reference is hereby made to this Indenture, dated as of November 1,
1999 (the "Indenture"), between Amethyst Financial Company Limited (the
"Issuer"), Pride International, Inc., Maritima Petroleo e Engenharia Ltda. and
Wilmington Trust Company, as trustee (the "Trustee"). Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture.
This letter relates to U.S.$_________ principal amount of Secured
Notes which are evidenced by one or more U.S. Global Notes and held with the
Depositary in the name of ___________ (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Secured Notes to a
Person who will take delivery thereof in the form of an equal principal amount
of Secured Notes evidenced by one or more Regulation S Global Secured Notes,
which amount, immediately after such transfer, is to be held with the Depositary
through Euroclear or Cedel or both.
In connection with such request and in respect of such Secured
Notes, the Transferor hereby certifies that such transfer has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with Rule 903 or Rule 904 under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor hereby further certifies that:
(1) The offer of the Secured Notes was not made to a person in the
United States and, if the 40-day restricted period has not yet expired and
the Transferor is a dealer (as defined in Section 2(12) of the Securities
Act), or a person receiving a selling concession, fee or other
remuneration in respect of the Secured Notes being sold (collectively,
"Dealers"),
2
(i) neither the Transferor or any Person acting on its behalf knows that
the transferee is a U.S. Person and (ii) if the Transferor or any person
acting on its behalf knows that the transferee is a Dealer, the Transferor
or Person acting on its behalf has sent a confirmation or other notice to
the transferee stating that the Secured Notes may be offered or sold
during the 40-day restricted period only in accordance with the provisions
of Regulation S, pursuant to registration under the Securities Act or
pursuant to an available exemption from the registration requirements of
the Securities Act;
(2) either:
(a) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any Person
acting on its behalf reasonably believed and believes that the
transferee was outside the United States; or
(b) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration provisions of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest
being transferred as described above is to be held with the Depositary
through Euroclear or Cedel or both.
Upon giving effect to this request to exchange a beneficial interest
in a U.S. Global Note for a beneficial interest in a Regulation S Global Note,
the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Regulation S Global Notes pursuant to the Indenture and
the Securities Act and, if such transfer occurs prior to the end of the 40-day
restricted period associated with the initial offering of Secured Notes, the
additional restrictions applicable to transfers of interest in the Regulation S
Temporary Global Note.
3
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation (the "Initial Purchaser"), the Initial Purchaser of such
Secured Notes being transferred. We acknowledge that you, the Issuer and the
Initial Purchaser will rely upon our confirmations, acknowledgments and
agreements set forth herein, and we agree to notify you promptly in writing if
any of our representations or warranties herein ceases to be accurate and
complete. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:________________________________________
Name:______________________________________
Title:_____________________________________
Dated:________________________
cc: Amethyst Financial Company Limited
Initial Purchaser
EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION
OF TRANSFER FROM REGULATION S GLOBAL NOTE TO
U.S. GLOBAL NOTE
(PURSUANT TO SECTION 2.06(A)(II) OF THE INDENTURE)
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Re: 11 3/4% Senior Secured Notes due 2001 of Amethyst
Financial Company Limited
Reference is hereby made to this Indenture dated as of November 1,
1999 (the "Indenture"), between Amethyst Financial Company Limited (the
"Issuer"), Pride International,Inc. and Maritima Petroleo e Engenharia Ltda. and
Wilmington Trust Company, as trustee (the "Trustee"). Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture.
This letter relates to $__________ principal amount of Secured Notes
which are evidenced by one or more Regulation S Global Secured Notes and held
with the Depositary through Euroclear or Cedel in the name of _____________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Secured Notes to a Person who will take delivery thereof in the
form of an equal principal amount of Secured Notes evidenced by one or more U.S.
Global Notes, to be held with the Depositary.
In connection with such request and in respect of such Secured
Notes, the Transferor hereby certifies that:
[CHECK ONE]
[ ] such 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 Secured Notes are being transferred to a Person that
the Transferor reasonably believes is purchasing the Secured Notes 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
2
institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A;
OR
[ ] such transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;
[ ] the surrendered Secured Notes are being transferred to Institutional
Accredited Investor pursuant to an exemption under the Securities Act
other than Rule 144A, Rule 144 or Rule 904 and the Transferor further
certifies that the Transfer complies with the transfer restrictions
applicable to beneficial interests in Global Notes and Certificated
Secured Notes bearing the Private Placement Legend and the requirements of
the exemption claimed, which certification is supported by a certificate
attached hereto executed by the Transferee in the form of Exhibit C to the
Indenture, and, if the Issuer should so request, an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), in form reasonably
acceptable to the Issuer and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act to the effect that such
Transfer is in compliance with the Securities Act;
[ ] such transfer is being effected in an offshore transaction pursuant to and
in accordance with Rule 904 under the Securities Act;
OR
[ ] such transfer is being effected pursuant to an effective registration
statement under the Securities Act;
OR
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than those
contemplated above, and the Transferor hereby further certifies that the
Secured Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported by
an Opinion of Counsel, provided by the Transferor or
3
the Transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Issuer and to the
Registrar, to the effect that such transfer is in compliance with the
Securities Act;
and such Secured Notes are being transferred in compliance with any applicable
blue sky or securities laws of any state of the United States or any other
applicable jurisdiction.
Upon giving effect to this request to exchange a beneficial interest
in Regulation S Global Notes for a beneficial interest in U.S. Global Notes, the
resulting beneficial interest shall be subject to the restrictions on transfer
applicable to U.S. Global Notes pursuant to the Indenture and the Securities
Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation (the "Initial Purchaser"), the Initial Purchaser of such
Secured Notes being transferred. We acknowledge that you, the Issuer and the
Initial Purchaser will rely upon our confirmations, acknowledgments and
agreements set forth herein, and we agree to notify you promptly in writing if
any of our representations or warranties herein ceases to be accurate and
complete. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:________________________________________
Name:______________________________________
Title:_____________________________________
Dated:________________________
cc: Amethyst Financial Company Limited
Initial Purchaser
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION
OF TRANSFER OF CERTIFICATED NOTES
(PURSUANT TO SECTION 2.06(B) OF THE INDENTURE)
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Re: 11 3/4% Senior Secured Notes due 2001 of Amethyst
Financial Company Limited
Reference is hereby made to this Indenture dated as of November 1,
1999 (the "Indenture"), between Amethyst Financial Company Limited (the
"Issuer"), Pride International, Inc. and Maritima Petroleo e Engenharia Ltda.
and Wilmington Trust Company, as trustee (the "Trustee"). Capitalized terms used
but not defined herein shall have the meanings given them in the Indenture.
This relates to $_______ principal amount of Secured Notes which are
evidenced by one or more Certificated Secured Notes in the name of ____________
(the "Transferor"). The Transferor has requested an exchange or transfer of such
Certificated Secured Note(s) in the form of an equal principal amount of Secured
Notes evidenced by one or more Certificated Secured Notes, to be delivered to
the Transferor or, in the case of a transfer of such Secured Notes, to such
Person as the Transferor instructs the Trustee.
In connection with such request and in respect of the Secured Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Secured
Notes"), the Holder of such Surrendered Secured Notes hereby certifies that:
[CHECK ONE]
[ ] the Surrendered Secured Notes are being acquired for the Transferor's own
account, without transfer;
OR
[ ] the Surrendered Secured Notes are being transferred to the Issuer;
2
OR
[ ] the Surrendered Secured Notes are being transferred 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 Surrendered Secured Notes are being transferred
to a Person that the Transferor reasonably believes is purchasing the
Surrendered Secured Notes 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 each case in a transaction meeting the
requirements of Rule 144A;
OR
[ ] the Surrendered Secured Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
OR
[ ] the Surrendered Secured Notes are being transferred in an offshore
transaction pursuant to and in accordance with Rule 904 under the
Securities Act;
OR
[ ] the Surrendered Secured Notes are being transferred to an Institutional
Accredited Investor pursuant to an exemption under the Securities Act
other than Rule 144A, Rule 144 or Rule 904 and the Transferor further
certifies that the transfer complies with the transfer restrictions
applicable to beneficial interests in Global Notes and Certificated
Secured Notes bearing the Private Placement Legend and the requirements of
the exemption claimed, which certification is supported by a certificate
attached hereto executed by the Transferee in the form of Exhibit C to the
Indenture, and, if the Issuer should so request, an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), in form reasonably
acceptable to the Issuer and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
3
OR
[ ] the Surrendered Secured Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
OR
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than those
contemplated above, and the Transferor hereby further certifies that the
Secured Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported by
an Opinion of Counsel, provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification) in form
reasonably acceptable to the Issuer and to the Registrar, to the effect
that such transfer is in compliance with the Securities Act;
and the Surrendered Secured Notes are being transferred in compliance with any
applicable blue sky or securities laws of any state of the United States or any
other applicable jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation the "Initial Purchaser"), the Initial Purchaser of such
Secured Notes being transferred. We acknowledge that you, the Issuer and the
Initial Purchaser will rely upon our confirmations, acknowledgments and
agreements set forth herein, and we agree to notify you promptly in writing if
any of our representations or warranties herein ceases to be accurate and
complete. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:________________________________________
Name:______________________________________
Title:_____________________________________
Dated:________________________
cc: Amethyst Financial Company Limited
Initial Purchaser
EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE OR
REGISTRATION OF TRANSFER FROM U.S. GLOBAL
NOTE OR REGULATION S PERMANENT GLOBAL NOTE
TO DEFINITIVE NOTE
(PURSUANT TO SECTION 2.06(C) OF THE INDENTURE)
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Re: 11 3/4% Senior Secured Notes due 2001 of Amethyst
Financial Company Limited
Reference is hereby made to this Indenture dated as of November 1,
1999 (the "Indenture"), between Amethyst Financial Company Limited (the
"Issuer"), Pride International, Inc. and Maritima Petroleo e Engenharia Ltda.
and Wilmington Trust Company, as trustee (the "Trustee"). Capitalized terms used
but not defined herein shall have the meanings given them in the Indenture.
This letter relates to $___________ principal amount of Secured
Notes which are evidenced by a beneficial interest in one or more U.S. Global
Secured Notes or Regulation S Permanent Global Notes in the name of
_____________ (the "Transferor"). The Transferor has requested an exchange or
transfer of such beneficial interest in the form of an equal principal amount of
Secured Notes evidenced by one or more Certificated Secured Notes, to be
delivered to the Transferor or, in the case of a transfer of such Secured Notes,
to such Person as the Transferor instructs the Trustee.
In connection with such request and in respect of the Secured Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Secured
Notes"), the Holder of such surrendered Secured Notes hereby certifies that:
[CHECK ONE]
[ ] the Surrendered Secured Notes are being transferred to
the beneficial owner of such Secured Notes;
OR
2
[ ] the Surrendered Secured Notes are being transferred 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 Surrendered Secured Notes are being transferred
to a Person that the Transferor reasonably believes is purchasing the
Surrendered Secured Notes 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 each case in a transaction meeting the
requirements of Rule 144A;
OR
[ ] the Surrendered Secured Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
OR
[ ] such transfer is being effected in an offshore transaction pursuant to and
in accordance with Rule 904 under the Securities Act;
OR
[ ] the Surrendered Secured Notes are being transferred to Institutional
Accredited Investor pursuant to an exemption under the Securities Act
other than Rule 144A, Rule 144 or Rule 904 and the Transferor further
certifies that the transfer complies with the transfer restrictions
applicable to beneficial interests in Global Notes and Certificated
Secured Notes bearing the Private Placement Legend and the requirements of
the exemption claimed, which certification is supported by a certificate
attached hereto executed by the Transferee in the form of Exhibit C to
this Indenture, and, if the Issuer should so request, an Opinion of
Counsel provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), in form reasonably
acceptable to the Issuer and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
OR
[ ] the Surrendered Secured Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
3
OR
[ ] the Surrendered Secured Notes are being transferred pursuant to an
exemption from the registration requirements of the Securities Act other
than those contemplated above, and the Transferor hereby further certifies
that the Secured Notes are being transferred in compliance with the
transfer restrictions applicable to the Global Secured Notes and in
accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by the
Transferor or the Transferee (a copy of which the Transferor has attached
to this certification) in form reasonably acceptable to the Issuer and to
the Registrar, to the effect that such transfer is in compliance with the
Securities Act;
and the Surrendered Secured Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation (the "Initial Purchaser"), the Initial Purchaser of such
Secured Notes being transferred. We acknowledge that you, the Issuer and the
Initial Purchaser will rely upon our confirmations, acknowledgments and
agreements set forth herein, and we agree to notify you promptly in writing if
any of our representations or warranties herein ceases to be accurate and
complete. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:________________________________________
Name:______________________________________
Title:_____________________________________
Dated:________________________
cc: Amethyst Financial Company Limited
Initial Purchaser
EXHIBIT C
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Reference is hereby made to this Indenture, dated as of November 1,
1999 (the "Indenture"), between Amethyst Financial Company Limited, as issuer,
Pride International, Inc. and Maritima Petroleo e Engenharia Ltda. and
Wilmington Trust Company, as trustee. Capitalized terms used but not defined
herein shall have the meanings given them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] Beneficial interests, or
(b) [ ] Certificated Secured Notes,
we confirm that:
(i) we are an entity which is an "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933, as amended (the "Securities Act"), or an entity in which all of the
equity owners are accredited investors within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act (an "Institutional
Accredited Investor");
(ii) any purchase of Secured Notes by us will be for our own account
or for the account of one or more other Institutional Accredited
Investors;
(iii) in the event that we purchase any Secured Notes, we will
acquire Secured Notes having a minimum purchase price of at least $250,000
for our own account and for each separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of
purchasing Secured Notes;
2
(v) we are not acquiring Secured Notes with a view to any
distribution thereof in a transaction that would violate the Securities
Act or the securities laws of any State of the United States or any other
applicable jurisdiction; provided that the disposition of our property and
the property of any accounts for which we are acting as fiduciary shall
remain at all times within our control; and
(vi) we have received a copy of the Offering Memorandum and
acknowledge that we have had access to such financial and other
information, and have been afforded the opportunity to ask such questions
of representatives of the Issuer and receive answers thereto, as we deem
necessary in connection with our decision to purchase Secured Notes.
We understand that the Secured Notes are being offered in a
transaction not involving any public offering within the meaning of the
Securities Act and that the Secured Notes have not been registered under the
Securities Act, and we agree, on our own behalf and on behalf of each account
for which we acquire any Secured Notes, that (A) such Secured Notes may be
offered, resold, pledged or otherwise transferred only (i) to a Person whom we
reasonably believe to be a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) in a transaction meeting the requirements of Rule
144A, in a transaction meeting the requirements of Rule 144 under the Securities
Act, outside of the United States in a transaction meeting the requirements of
Rule 903 or 904 under the Securities Act or in accordance with another exemption
from the registration requirements of the Securities Act (and based upon an
opinion of counsel if the Issuer so requests), (ii) to the Issuer or (iii)
pursuant to an effective registration statement under the Securities Act, and,
in each case, in accordance with any applicable securities laws of any State of
the United States or any other applicable jurisdiction and (B) that we will, and
each subsequent Holder is required to, notify any subsequent purchaser from it
of the resale restrictions set forth in (A) above. We understand that the
registrar and transfer agent will not be required to accept for registration of
transfer any Secured Notes, except upon presentation of evidence satisfactory to
the Issuer that the foregoing restrictions on transfer have been complied with.
We further understand that the Secured Notes purchased by us will bear a legend
reflecting the substance of this paragraph.
3
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation (the "Initial Purchaser"), the Initial Purchaser of such
Secured Notes being transferred. We acknowledge that you, the Issuer and the
Initial Purchaser will rely upon our confirmations, acknowledgments and
agreements set forth herein, and we agree to notify you promptly in writing if
any of our representations or warranties herein ceases to be accurate and
complete. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS
PRINCIPLES THEREOF.
____________________________________
(Name of Purchaser)
By:_________________________________
Name:_______________________________
Title:______________________________
Address:____________________________
EXHIBHT D
FORM OF SUBSIDIARY GUARANTEE
[To be provided]
EXHIBIT E
FORM OF LETTER OF CREDIT
IRREVOCABLE LETTER OF CREDIT NO. [ ]
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Dear Sirs:
We, Republic National Bank of New York (the "L/C Issuer"), hereby
establish in your favor our Irrevocable Letter of Credit No. [ ] whereby we
irrevocably authorize you, as trustee under the Indenture dated as of November
1, 1999 (as the same may be amended or supplemented, the "Indenture"), between
Amethyst Financial Company Limited (the "Issuer"), Pride International,Inc.,
Maritima Petroleo e Engenharia Ltda.and you, as Trustee (the "Trustee"), to draw
hereunder from time to time, from and after the date hereof to and including
3:00 p.m., New York time, on April 30, 2002 (the "L/C Expiration Date") (or such
other time as this Letter of Credit shall earlier terminate by its terms), a
maximum aggregate amount up to but not exceeding the lesser of (a) the Available
L/C Amount on the date of any drawing, and (b) $23,000,000 (the "Stated L/C
Amount"), available against the following documents presented at Republic
National Bank of New York, 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Letter of Credit Department:
1. A drawing certificate in the form of Annex A attached hereto, which
certificate shall be on your letterhead, have all blanks
appropriately filled in and shall be signed by a purported officer
of beneficiary with an accompanying signature authentication signed
by another purported officer of beneficiary.
2. This original Letter of Credit instrument and all amendments hereto,
if any, which original Letter of Credit instrument and amendments
will be returned to he beneficiary after we endorse the back with
the amount of the drawing.
2
If demand for payment is made on a Business Day in strict conformity
with the terms and conditions hereof and is received by us prior to 11:00 a.m.,
New York time, then payment shall be made to you prior to 12:00 noon, New York
time, on the next succeeding Business Day. If any such demand for payment is
received by us at or after 11:00 a.m., New York time, such demand shall be
deemed to have been received prior to 11:00 a.m. on the next Business Day.
Drawings made under and in compliance with the terms of this Letter
of Credit will be duly honored upon presentation of original documentation at
Republic National Bank of New York, 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Letter of Credit Department. Partial drawings under this
Letter of Credit shall be permitted. Payment under this Letter of Credit will be
made by the L/C Issuer from its own funds by wire transfer of immediately
available funds in United States dollars to the account specified in the related
drawing certificate. Upon payment pursuant to the terms hereof of the amount
specified in a drawing certificate presented hereunder, we shall be fully
discharged of our obligation under this Letter of Credit with respect to, and to
the extent of the amount, of such drawing certificate.
For purposes of this Letter of Credit:
"AVAILABLE L/C AMOUNT" shall mean, as of any date of determination,
the amount available to be drawn under the Letter of Credit from time to time,
which on any date of determination shall be equal to the Stated L/C Amount minus
the amount of all drawings under the Letter of Credit made prior to such date of
determination, PROVIDED that, with respect to the initial Payment Date, the
Available L/C Amount shall be the Stated L/C Amount.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions in New York, New York, London, Tokyo and Rio
de Janiero are authorized or obligated by law or executive order to be
closed.
This Letter of Credit is not transferable except to a successor
trustee under the Indenture. Such transfer shall be effective upon receipt by us
of the original transfer form effecting such transfer signed by the transferor
and by the transferee in the form of Annex B hereto (which shall be conclusive
evidence of such transfer), and, in such case, the transferee instead of the
transferor shall, without the necessity of further action, be entitled to all
the benefits of and rights under this
3
Letter of Credit in the transferor's place; PROVIDED, FURTHER, that this
original Letter of Credit instrument and all amendments hereto, if any, shall
have been presented to us for an appropriate endorsement of transfer (which
original Letter of Credit instrument and amendments will be returned to the
beneficiary after such endorsement of transfer).
To the extent not inconsistent with the express terms hereof, this
Letter of Credit shall be governed by, and construed in accordance with, the
terms of the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce, Publication No. 500, except for
Article 41 and the first sentence of Article 48(g) thereof, and to the extent
not governed thereby, shall be governed by and construed in accordance with the
laws of the State of New York, including without limitation, Article 5 of the
New York Uniform Commercial Code.
This Letter of Credit sets forth in full our undertaking, and,
except as specifically set forth herein such undertaking shall not in any way be
modified, amended, amplified or limited by reference to any other document,
instrument or agreement whatsoever.
Our obligations under this Letter of Credit are primary, absolute
and unconditional (except as expressly provided herein), and neither the failure
of you or any successor trustee under the Indenture to perform any covenant or
obligations, nor the commencement of any bankruptcy, insolvency or other
proceedings by or against you or any successor trustee under the Indenture shall
in any way affect or limit our unconditional obligations under this Letter of
Credit.
We agree to honor and pay in immediately available funds the amount
of any drawing certificate if presented as required by and otherwise in
compliance with all of the terms of this Letter of Credit. Upon the earlier of
(i) the receipt by us of written notice, in the form of Annex C hereto, stating
that the Secured Notes have been paid in full (which notice shall be conclusive
evidence thereof), signed by you or a successor trustee under the Indenture, as
appropriate, and (ii) the L/C Expiration Date, this Letter of Credit shall
automatically terminate.
Very truly yours,
0
XXXXXXXX XXXXXXXX XXXX XX XXX XXXX
By:
_________________________
Name:
Title:
By:
_________________________
Name:
Title:
ANNEX A TO
REPUBLIC NATIONAL BANK OF NEW YORK
IRREVOCABLE LETTER OF CREDIT NO. _____________
[Letterhead of Trustee]
Republic National Bank
of New York
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Letter of Credit Department
RE: Republic National Bank of New York
Irrevocable Letter of Credit No. _____________
DRAWING CERTIFICATE
Ladies and Gentlemen:
[ ] (the "Trustee") hereby certifies to Republic National Bank of New York
(the "L/C Issuer") with reference to Irrevocable Letter of Credit No. _________
(the "Letter of Credit"; capitalized terms contained herein and not otherwise
defined herein are used herein as defined in or pursuant to the Letter of
Credit) that:
1. The Trustee is the trustee or a successor trustee under the
Indenture.
2. The Trustee is making a demand for payment under the Letter of
Credit in the amount of U.S.$______________, which represents
amounts due on the Issuer's 11 3/4% Senior Secured Notes due 2001 or
under the Indenture that have not been remitted to the Trustee by or
on behalf of the Issuer.
3. The amount demanded is to be paid in immediately available funds on
__________, to the following account:
U.S.$______________ to Account No._____________ at
____________________.
4. The Available L/C Amount prior to the drawing requested pursuant to
this drawing certificate is U.S. $____________. The Available L/C
Amount after the drawing requested pursuant to this drawing
certificate will be U.S.$______________. The amount hereby demanded
does not exceed the Available L/C Amount. The Available L/C Amount
has been computed in strict conformity with the terms and conditions
of the Letter of Credit.
2
IN WITNESS WHEREOF, the Trustee has executed and
delivered this Certificate as of the ________ day of
____________, _____.
[ ], as
Trustee
By:
_________________________
Name:
Title:
SIGNATURE AUTHENTICATION
By:
_________________________
Name:
Title:
ANNEX B TO
REPUBLIC NATIONAL BANK OF NEW YORK
IRREVOCABLE LETTER OF CREDIT NO. ____________
[Letterhead of Trustee]
[Date]
Republic National Bank
of New York
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Letter of Credit Department
RE: Republic National Bank of New York
Irrevocable Letter of Credit No. ____________________
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
_____________________________
(Name of Transferee)
_____________________________
(Address)
as successor trustee under the Indenture (as defined in the above-referenced
Letter of Credit) all rights of the undersigned beneficiary to draw under the
above Letter of Credit.
By this transfer, all rights of the undersigned beneficiary in such
Letter of Credit are transferred to the undersigned transferee and the
undersigned transferee shall have the sole rights as beneficiary thereof
including sole rights relating to any amendments, whether increases or
extensions or other amendments and whether now existing or hereafter made. All
amendments are to be advised directly to the undersigned transferee without
necessity of any consent of or notice to the undersigned beneficiary.
The original Letter of Credit (and any amendments thereto) is
returned herewith, and we ask you to endorse the
2
transfer on the reverse thereof, and forward it directly to the undersigned
transferee with your customary notice of transfer.
Very truly yours,
SIGNATURE AUTHENTICATION [Name of Transferor]
By: By:
______________________ _________________________
Name: (Authorized Officer)
Title:
SIGNATURE AUTHENTICATION [Name of Transferee]
By: By:
______________________ _________________________
Name: (Authorized Officer)
Title:
ANNEX C TO
REPUBLIC NATIONAL BANK OF NEW YORK
IRREVOCABLE LETTER OF CREDIT NO. ____________
[Letterhead of Trustee]
[Date]
Republic National Bank
of New York
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Letter of Credit Department
RE: Republic National Bank of New York
Irrevocable Letter of Credit No. ____________________
Ladies and Gentlemen:
The undersigned, a duly authorized officer of [ ] (the "Trustee"),
hereby certifies to Republic National Bank of New York (the "L/C Issuer") with
reference to Irrevocable Letter of Credit No. __________ (the "Letter of
Credit"; capitalized terms contained herein and not otherwise defined herein are
used herein as defined in or pursuant to the Letter of Credit) that:
1. The Trustee is the Trustee or a successor trustee under the
Indenture.
2
2. The Secured Notes have been paid in full. The Letter of Credit,
which accompanies this Certificate, is hereby surrendered for
cancelation.
Please acknowledge receipt of this Certificate and confirm that the
Letter of Credit has been canceled by signing in the space provided below.
IN WITNESS WHEREOF, the Trustee has executed and
delivered this Certificate this _______ day of __________,
-----.
[ ], as
Trustee
By:
_________________________
Name:
Title:
SIGNATURE AUTHENTICATION
By:
_________________________
Name:
Title:
Acknowledged and confirmed:
REPUBLIC NATIONAL BANK OF NEW YORK
By:
_________________________
Name:
Title:
SCHEDULE A
MARAD DOCUMENTS
(unless otherwise expressly specified,
all documents are dated as of April 9, 1999)
1. Commitment to Guarantee Obligation by the United
States of America accepted by Petrodrill Four Limited
("Petrodrill Four") (as shipowner).
2. Commitment to Guarantee Obligation by the United
States of America accepted by Petrodrill Five Limited
("Petrodrill Five") (as shipowner).
3. Credit Agreements among each of Petrodrill Four and Petrodrill Five (as
shipowner), and Govco Incorporated (as primary lender), Citibank, N.A. (as
alternate lender), Citibank International PLC (as Facility Agent) and Citicorp
North America, Inc. (as Administrative Agent for the primary lender and the
commercial paper holders of the primary lender) (the "Credit Agreements").
4. Trust Indentures relating to the United States Government Guaranteed
Ship Financing Obligations, between each of Petrodrill Four and Petrodrill Five
(as shipowner), and FMB Trust Company, National Association (as indenture
trustee).
5. United States Government Guaranteed Export Ship Financing Obligation,
Amethyst 5 Series (the "Petrodrill Five Obligations"), consisting of
US$150,183,000 aggregate principal amount of Floating Rate Note issued by
Petrodrill Five; as well as relevant Guarantee of the United States of America
and the Indenture Trustee's Authentication Certificate.
6. United States Government Guaranteed Export Ship Financing Obligation,
Amethyst 4 Series (the "Petrodrill Four Obligations"), consisting of
US$149,625,000 aggregate principal amount of Floating Rate Note issued by
Petrodrill Four; as well as relevant Guarantee of the United States of America
and the Indenture Trustee's Authentication Certificate.
7. Authorization Agreement between the United States of America and FMB
Trust Company, National Association ("FMB Trust Company") (as indenture trustee
under the Trust Indenture dated as of April 9, 1999, between it and Petrodrill
Four) (Contract No. MA-13504).
8. Authorization Agreement between the United States of America and FMB
Trust Company (as indenture trustee under
2
the Trust Indenture dated as of April 9, 1999, between it
and Petrodrill Five) (Contract No. MA-13510).
9. Forms of Secretary Supplemental Indentures to each of the Trust
Indenture between each of Petrodrill Four and Petrodrill Five, and FMB Trust
Company (Exhibit to Trust Indenture).
10. Security Agreements between each of Petrodril Four ("Petrodrill Four
Security Agreement") and Petrodrill Five ("Petrodrill Five Security Agreement"
and together with the Petrodrill Four Security Agreement, the "Security
Agreements"), and The United States of America (Contracts Nos. MA-13505 and
13511, respectively).
11. Promissory Notes issued by each of Petrodrill Four and Petrodrill Five
to the benefit of The United States of America, each in the aggregate amount of
US$149,625,000 and US$150,183,000, respectively (the "Promissory Notes").
12. Forms of mortgage in account current form between each of Petrodrill
Four and Petrodrill Five (as mortgagor), and The United States of America (as
mortgagee), relating to the mortgage of sixty-four sixty fourth (64/64th)
shares, of which each mortgagor is the owner in the Amethyst 4 and Amethyst 5,
respectively (the "Mortgages").
13. Form of Deed of Covenants between each of Petrodrill Four and
Petrodrill Five, and The United States of America, supplementing the Security
Agreements and the Mortgages.
14. Title XI Reserve Fund and Financial Agreements between each of
Petrodrill Four and Petrodrill Five, and The United States of America (Contracts
Nos. MA-13507 and MA- 13513, respectively).
15. Consents of Shipyard made by TDI-Halter, Limited Partnership
("TDI-Halter"), to each of Petrodrill Four and Petrodrill Five, and The United
States of America, relating to the assignment of, and granting of a security
interest in, the the the construction contracts and the rigs t.b.n. Amethyst 4
and Amethyst 5 in favour of The United States of America pursuant to the
Security Agreements.
16. Consents of Shipyard made by TDI-Halter to each of Petrodrill Four and
Petrodrill Five, and The United States of America, relating to the assignment
of, and granting of a security interest in, the the Parent Guarantee dated as of
April 15, 1998 in favour of The United States of America
pursuant to the Security Agreements.
3
17. Contracts for the construction and sale of Dynamic
Positioned Semi-Submersible Drilling Vessels (Hulls Nos.
1828 and 1829) dated as of April 9, 1998, between TDI-Halter
and Petrodrill Construction Inc. (the "Construction
Contracts").
18. Novation Agreements dated as of December 9, 1998, between TDI-Halter,
Petrodrill Offshore Inc. (formerly Pedrodrill Construction, Inc.), and each of
Petrodrill Four and Petrodrill Five.
19. Amendments No. 1 to the Semi-Submersible Drilling Vessel Construction
Contract between TDI-Halter and each of Petrodrill Four and Petrodrill Five.
20. Depository Agreements among each of Petrodrill Four and Petrodrill
Five (as shipowner), and Citibank, N.A. (as depository) and The United States of
America (Contracts Nos. MA-13508 and MA-13514, respectively).
21. Uniform Commercial Code-Financing Statement-Forms UCC-1 between each
of Petrodrill Four and Petrodrill Five, and The United States of America,
providing a description of the collateral given to The United States of America.
22. Letter-agreement dated as of April 1, 1999, between Citicorp North
America, Inc. and Petrodrill Four and Petrodrill Five, providing for the payment
of non-refundable fees to Citicorp North America, Inc. in connection with the
Credit Agreements.
23. Assignment Agreement between Maritima Petroleo e Engenharia Ltda.
("Maritima") (as assignor) and The United States of America (as assignee),
relating to the assignment by Maritima of its rights pursuant to the services
rendering contracts entered into with Petrobras in connection with the rigs
t.b.n. Amethyst 4 and Amethyst 5.
24. Consent of Petroleo Brasileiro S.A. ("Petrobras") to Maritima and The
United States of America, relating to the assignment of, and granting of a
security interest in, the services rendering contract entered into with
Petrobras in connection with the rig t.b.n. Amethyst 4 by Maritima in favour of
The United States of America pursuant to the security agreement entered into
between Maritima and The United States of America (the "Maritima Security
Agreement").
25. Consents of Petrobras to each Petrodrill Four and Petrodrill Five and
The United States of America, relating
4
to the assignment of, and granting of a security interest in, the charter
agreement entered into with Petrobras in connection with the rig t.b.n. Amethyst
4 by Petrodrill Four in favour of The United States of America pursuant to the
Petrodrill Four Security Agreement.
26. Consents of Bigem Holdings X.X.xx each Petrodrill Four and Petrodrill
Five and The United States of America, relating to the assignment of, and
granting of a security interest in, the licensing agreement entered into with
Bigem Holdings N.V. in connection with the rig t.b.n. Amethyst 4 by Petrodrill
Four in favour of The United States of America pursuant to the Petrodrill Four
Security Agreement.
27. Consents of Formaritima Ltd. to each Petrodrill Four and Petrodrill
Five and The United States of America, relating to the assignment of, and
granting of a security interest in, the management agreement entered into with
Formaritima Ltd. in connection with the rig t.b.n. Amethyst 4 by Petrodrill Four
in favour of The United States of America pursuant to the Petrodrill Four
Security Agreement.
28. Consents of Workships Contractors B.V. to each Petrodrill Four and
Petrodrill Five and The United States of America, relating to the assignment of,
and granting of a security interest in, the marine and nautical services
agreement entered into with Workships Contractors B.V. in connection with the
rig t.b.n. Amethyst 4 by Petrodrill Four in favour of The United States of
America pursuant to the Petrodrill Four Security Agreement.
29. Consents of Petrodrill Engineering N.V. to each Petrodrill Four and
Petrodrill Five and The United States of America, relating to the assignment of,
and granting of a security interest in, the construction management agreement
entered into with Petrodrill Engineering N.V. in connection with the rig t.b.n.
Amethyst 4 by Petrodrill Four in favour of The United States of America pursuant
to the Petrodrill Four Security Agreement.
30. Performance Bonds dated as of April 13, 1998, between TDI-Halter (as
principal) and Fireman's Fund Insurance Company (as surety), regarding the issue
of performance bonds in the amount of US$84.0 million each to Petrodrill
Construction, Inc. (as obligee) in connection with each of the Construction
Contracts.
31. Labor and Material Payment Bonds dated as of April 13, 1998, between
TDI-Halter (as principal) and Fireman's Fund Insurance Company (as surety),
regarding the issue of labor and material payment bonds in the amount of US$84.0
5
million each to Petrodrill Construction, Inc. (as obligee) in connection with
each of the Construction Contracts.
32. Dual Obligee Riders among each of Petrodrill Four and Petrodrill Five,
TDI-Halter and Fireman's Fund Insurance Company, adding The United States of
America as a co-obligee and as sole loss payee to the joing and several bond
executed between TDI-Halter and Fireman's Fund Insurance Company.
33. Guaranty Agreements in Favor of The United States, made by each of
Petrodrill Four and Petrodrill Five to The United States of America, providing
for a cross-guarantee by each of Petrodrill Four and Petrodrill Five in
connection with the obligations assumed under the Promissory Notes.
34. Guaranty Agreement in Favor of The United States, made by Pride
International, Inc. ("Pride") (as guarantor) to The United States of America,
providing for a guarantee in connection with the payment by both Petrodrill Four
and Petrodrill Five of late arrival penalties that might be imposed by Petrobras
and ad valorem taxes up to a maximum aggregate amount of US$20.5 million (the
"Pride Guaranty Agreement").
35. Payment Undertaking in Favor of The United States, made by Maritima
(as guarantor) to The United States of America, providing for a guarantee in
connection with the payment by both Petrodrill Four and Petrodrill Five of late
arrival penalties that might be imposed by Petrobras and ad valorem taxes up to
a maximum aggregate amount of US$20.5 million (the "Maritima Payment
Undertaking").
36. Interguarantor Agreement between Maritima and Pride, providing for the
manner of payment of any amount due under the Pride Guaranty Agreement and the
Maritima Payment Undertaking.
37. Any and all exhibits, attachments, annexes and/or schedules to the
foregoing MARAD Documents, as well as any and all other agreements, amendments,
assignments, deeds and instruments re-stating, supplementing, amending,
providing a collateral to, or otherwise pertaining or relating to the above
MARAD Documents, together with their relevant exhibits, attachments, annexes
and/or schedules.
SCHEDULE B
MITSUBISHI LOAN AGREEMENTS
1. Loan Agreement dated as of December 19, 1998, among Lenders (Petro Dia
Three S.A. ("MC1") and Petro Dia Four S.A. ("MC2) as initial lenders),
Petrodrill Six Limited ("Petrodrill Six") (as borrower) and Mitsubishi
Corporation (UK) (as Facility Agent and Security Agent), providing for a secured
loan facility not exceeding US$160.0 million in connection with the acquisition
of a semi-submersible drilling rig t.b.n. "Amethyst 6" (the "Amethyst 6
Mitsubishi Credit Facility").
2. Loan Agreement dated as of December 19, 1998, among Lenders (MC1 and
MC2 as initial lenders), Petrodrill Seven Limited ("Petrodrill Seven") (as
borrower) and Mitsubishi Corporation (UK) (as Facility Agent and Security
Agent), providing for a secured loan facility not exceeding US$180.0 million in
connection with the acquisition of a semi-submersible drilling rig t.b.n.
"Amethyst 7" (the "Amethyst 7 Mitsubishi Credit Facility" and together with the
Amethyst 6 Mitsubishi Credit Facility, the "Mitsubishi Credit Facilities").
3. Any and all exhibits, attachments, annexes and/or schedules to the
foregoing documents, as well as any and all other agreements, amendments,
assignments, deeds and instruments, other than those referred to in items 1
through 22 of Schedule C hereto, re-stating, supplementing, amending, providing
a collateral to, or otherwise pertaining or relating to the Mitsubishi Credit
Facilities, together with their relevant exhibits, attachments, annexes and/or
schedules.
SCHEDULE C
MITSUBISHI LOAN COLLATERAL DOCUMENTS
1. Fee Agreement dated as of December 19, 1998, among MC1 and MC2 (as
initial creditors), and Petrodrill Six and Petrodrill Seven (as borrowers), and
Pride International, Inc. ("Pride") and Maritima Petroleo e Engenharia Ltda.
("Maritima") (as sponsors).
2. Deeds of Guarantee and Undertaking dated as of December 19, 1998, each
relating to the Amethyst 6 Credit Facility and the Amethyst 7 Credit Facility,
among each of Petrodrill Six and Petrodrill Seven (as borrower), and Pride and
Maritima (as Sponsors), the Lenders (MC1 and MC2 as initial lenders) and
Mitsubishi (as Facility Agent and Security Agent).
3. Subordinated Loan Facility Agreements dated as of December 19, 1998,
among each of Petrodrill Six and Petrodrill Seven (as borrower), and Pride and
Maritima (as sponsors), the Lenders (MC1 and MC2 as initial lenders) and
Mitsubishi (as Facility Agent and Security Agent).
4. Floor Guarantee dated as of December 19, 1998, relating to the
Mitsubishi Credit Facilities, among Pride and Maritima (as sponsors) and MC1 and
MC2 (as beneficiaries).
5. Share Charges dated as of December 19, 1998, over each of the
Petrodrill Six and Petrodrill Seven shares, between Amethyst Financial Company
Limited (the "Company") (as shareholder) and Mitsubishi (as Security Agent).
6. Additional Funding and Guarantee Agreement dated as of December 19,
1998, among MC1 and MC2, Pride and Maritima (as sponsors) and Petrodrill Six and
Petrodrill Seven, as amended and restated as at July 1, 1999, incorporating
amendments made by Deeds of Release dated as of April 15, 1999, May 14, 1999,
June 15, 1999 and July 1, 1999.
7. Assignments of Charterparty, Earnings and Requisition Compensation
dated as of December 19, 1998, between each of Petrodrill Six and Petrodrill
Seven (as assignor), and Mitsubishi (as Security Agent), relating to each of the
semi-submersible drilling units having Daewoo Heavy Industries Ltd.'s Hull Nos.
3016 and 3015 t.b.n. "Amethyst 6" and "Amethyst 7", respectively.
8. Assignments of Deed of Guarantee and Undertaking and Subordinated Loan
Facility Agreement dated as of December 19, 1998, relating to each of the Credit
2
Facilities, between each of Petrodrill Six and Petrodrill Seven (as assignor),
and Mitsubishi (as Security Agent).
9. Assignments of Rig Construction Contract and Refund Guarantee dated as
of December 19, 1998, between each of Petrodrill Six and Petrodrill Seven (as
assignor), and Mitsubishi (as Security Agent), in respect of each of the
semi-submersible drilling units having Hulls Nos. 3016 and 3015 at Daewoo Heavy
Industries, Ltd., respectively.
10. Bridging Loan Agreement dated as of December 19, 1998, between MC1 (as
funder) and MC2 (as participant), providing for the funding of the participant's
participation in the Credit Facilities.
11. Debentures dated as of December 19, 1998, between each of Petrodrill
Six and Petrodrill Seven (as borrower), and Mitsubishi (as Security Agent).
12. Deed of Covenants dated as of December 19, 1998, between each of
Petrodrill Six and Petrodrill Seven (as owner), and Mitsubishi (as Security
Agent), relating to the First Priority Statutory Mortgage over each of the semi-
submersible drilling units "Amethyst 6" and "Amethyst 7" (formerly Hulls Nos.
3016 and 3015 at Daewoo Heavy Industries, Ltd., respectively).
13. Insurances Assignments dated as of December 19, 1998, between each of
Petrodrill Six and Petrodrill Seven (as assignor), and Mitsubishi (as Security
Agent), relating to each of the semi-submersible drilling units having Daewoo
Heavy Industries Ltd.'s Hull Nos. 3016 and 3015 t.b.n. "Amethyst 6" and
"Amethyst 7", respectively.
14. Inter-Company Cross Guarantee dated as of December 19, 1998, among
Petrodrill Six, Petrodrill Seven and the Company (as guarantors), and Mitsubishi
(as Security Agent).
15. Loan Agreement dated as of December 19, 1998, between Petrodrill Six
(as borrower) and Petrodrill Seven (as lender), providing for a facility of
US$10.0 million repayable on demand.
16. Inter-Company Loan Agreement Assignment dated as of December 19, 1998,
between Petrodrill Seven (as assignor) and Mitsubishi (as Security Agent),
relating to the semi- submersible drilling unit having Daewoo Heavy Industries
Ltd.'s Hull No. 3015 t.b.n. "Amethyst 7".
17. Management Account Charges dated as of December 19, 1998, between
each of Petrodrill Six and Petrodrill
3
Seven (as chargor), and Mitsubishi (as Security Agent), relating to each of the
semi-submersible drilling units having Daewoo Heavy Industries Ltd.'s Hull Nos.
3016 and 3015 t.b.n. "Amethyst 6" and "Amethyst 7", respectively.
18. Omnibus Contract Assignments dated as of December 19, 1998, between
each of Petrodrill Six and Petrodrill Seven (as assignor), and Mitsubishi (as
Security Agent), relating to each of the semi-submersible drilling units having
Daewoo Heavy Industries Ltd.'s Hull Nos. 3016 and 3015 t.b.n. "Amethyst 6" and
"Amethyst 7", respectively.
19. Performance Guarantee dated as of December 19, 1998, between
Mitsubishi (as guarantor) and Petrodrill Six and Petrodrill Seven (as
beneficiaries), relating to two semi-submersible drilling plataforms.
20. Reserve Account Charges dated as of December 19, 1998, between each of
Petrodrill Six and Petrodrill Seven (as chargor), and Mitsubishi (as Security
Agent), relating to each of the semi-submersible drilling units having Daewoo
Heavy Industries Ltd.'s Hull Nos. 3016 and 3015 t.b.n. "Amethyst 6" and
"Amethyst 7", respectively.
21. Security Trust Deed dated as of December 19, 1998, among Petrodrill
Six and Petrodrill Seven (as borrowers), Pride, Maritima and the Company (as the
other security parties), the Lenders (MC1 and MC2 as initial lenders) and
Mitsubishi (as Facility Agent and Security Agent).
22. Services Rendering Contract Assignments dated as of December 19, 1998,
between Maritima and each of Petrodrill Six and Petrodrill Seven (as assignors),
and Mitsubishi (as Security Agent), relating to each of the semi-submersible
drilling units having Daewoo Heavy Industries Ltd.'s Hull Nos. 3016 and 3015
t.b.n. "Amethyst 6" and "Amethyst 7", respectively.
23. Any and all exhibits, attachments, annexes and/or schedules to the
foregoing documents, as well as any and all other agreements, amendments,
assignments, deeds and instruments other than those referred to in items 1 and 2
of Schedule B hereto, re-stating, supplementing, amending, providing a
collateral to, or otherwise pertaining or relating to the Mitsubishi Credit
Facilities, together with their relevant exhibits, attachments, annexes and/or
schedules.
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) ................................................... 7.03; 7.08; 7.10
(c) ................................................... N.A.
311(a) ................................................... 7.11
(b) ................................................... 7.11
(c) ................................................... N.A.
312(a) ................................................... 2.05
(b) ................................................... 12.03
(c) ................................................... 12.03
313(a) ................................................... 7.06
(b)(1) ................................................... 7.06
(b)(2) ................................................... 7.06
(c) ................................................... 7.06; 12.02
(d) ................................................... 7.06
314(a) ................................................... 4.13;4.26;12.02
(b) ................................................... 11.02
(c)(1) ................................................... 12.04; 12.05
(c)(2) ................................................... 7.02;12.04;12.05
(c)(3) ................................................... N.A.
(d) ................................................... 11.02
(e) ................................................... 11.02
(f) ................................................... N.A.
315(a) ................................................... 7.01
(b) ................................................... 7.05; 12.04
(c) ................................................... 7.01
(d) ................................................... 7.01
(e) ................................................... 6.11
316(a)(last ...................................................
sentence) ................................................... 2.09
(a)(1)(A).................................................. 6.05
(a)(1)(B).................................................. 6.04
(a)(2) .................................................. N.A.
(b) .................................................. 6.07
(c) .................................................. 2.12
317(a)(1) .................................................. 6.08
(a)(2) .................................................. 6.09
(b) .................................................. 2.04
318(a) .................................................. 12.01
(b) .................................................. N.A.
(c) .................................................. 12.01
-----------------
N.A. means not applicable.
* This Cross-Reference Table is not part of this Indenture.
