$500,000,000
Rowan Companies, Inc.
7.875 % Senior Notes due 2019
Underwriting Agreement
July 15, 2009
Barclays Capital Inc.
Goldman, Sachs & Co.
As Representatives of the several Underwriters
named in Schedule I hereto
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Rowan Companies, Inc., a Delaware corporation (the
Company
), proposes to issue and sell
$500,000,000 aggregate principal amount of its 7.875% Senior Notes due 2019 (the
Notes
) to the
several underwriters named on
Schedule I
hereto (the
Underwriters
), for which Barclays
Capital Inc. and Goldman, Sachs & Co. are acting as representatives (the
Representatives
). The
Notes will (i) have terms and provisions that are summarized in the Disclosure Package as of the
Applicable Time and the Prospectus dated as of the date hereof (each as defined in Section 1(a)
hereof) and (ii) be issued pursuant to an Indenture to be dated as of July 21, 2009 (the
Base
Indenture
) between the Company and U.S. Bank National Association, as Trustee (the
Trustee
), as
amended and supplemented by the First Supplemental Indenture thereto to be dated as of July 21,
2009 (the
Supplemental Indenture
) between the Company and the Trustee (such Base Indenture, as so
amended and supplemented by the Supplemental Indenture being referred to herein as the
Indenture
). This agreement (this
Agreement
) is to confirm the agreement concerning the
purchase of the Notes from the Company by the Underwriters.
1.
Representations, Warranties and Agreements of the Company
. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) An automatic shelf registration statement (as defined in Rule 405 under the Securities
Act of 1933, as amended (the
Securities Act
)) on Form S-3 in respect of the Notes (File No.
333-160579) (i) has been prepared by the Company in conformity with the requirements of the
Securities Act and the rules and regulations (the
Rules and Regulations
) of the Securities and
Exchange Commission (the
Commission
) thereunder, in all material respects, (ii) has been filed
with the Commission under the Securities Act not earlier than the date that is three years prior to
the Closing Date (as defined in Section 3 hereof) and (iii) upon its filing with the Commission,
automatically became and is effective under the Securities Act. Copies of such registration
statement and any amendment thereto (excluding exhibits to such
S-1
registration statement but including all documents incorporated by reference in each
prospectus contained therein) have been delivered by the Company to the Representatives; and no
other document with respect to such registration statement or any such document incorporated by
reference therein has heretofore been filed or transmitted for filing with the Commission. For
purposes of this Agreement, the following terms have the specified meanings:
Applicable Time
means 5:00 p.m. (New York City time) on the date of this Agreement;
Base Prospectus
means the base prospectus filed as part of the Registration
Statement, in the form in which it has most recently been amended on or prior to the date
hereof, relating to the Notes;
Disclosure Package
means, as of the Applicable Time, the most recent Preliminary
Prospectus, together with each Issuer Free Writing Prospectus filed or used by the Company
on or before the Applicable Time and identified on
Schedule II
hereto, other than a
road show that is an Issuer Free Writing Prospectus under Rule 433 of the Rules and
Regulations;
Effective Date
means any date as of which any part of the Registration Statement or
any post-effective amendment thereto relating to the Notes became, or is deemed to have
become, effective under the Securities Act in accordance with the Rules and Regulations
(including pursuant to Rule 430B of the Rules and Regulations);
Final Term Sheet
means the term sheet prepared pursuant to Section 5(a) of this
Agreement and substantially in the form attached in
Schedule III
hereto;
Issuer Free Writing Prospectus
means each free writing prospectus (as defined in
Rule 405 of the Rules and Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the Notes, including the Final
Term Sheet;
Preliminary Prospectus
means any preliminary prospectus relating to the Notes,
including the Base Prospectus and any preliminary prospectus supplement thereto, included in
the Registration Statement or as filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations and provided to the Representatives for use by the Underwriters;
Prospectus
means the final prospectus relating to the Notes, including the Base
Prospectus and the final prospectus supplement thereto relating to the Notes, as filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations and provided to the
Representatives for use by the Underwriters; and
Registration Statement
means, collectively, the various parts of the above-
referenced registration statement, each as amended as of the Effective Date for such part,
including any Preliminary Prospectus or the Prospectus and all exhibits to such registration
statement.
2
Any reference to the most recent Preliminary Prospectus will be deemed to refer to the
latest Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule
424(b) of the Rules and Regulations prior to or on the date hereof (including, for purposes of this
Agreement, any documents incorporated by reference therein prior to or on the date of this
Agreement). Any reference to any Preliminary Prospectus or the Prospectus will be deemed to refer
to and include any documents incorporated by reference therein pursuant to Form S-3 under the
Securities Act as of the date of such Preliminary Prospectus or the Prospectus, as the case may be.
Any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus will
be deemed to refer to and include any document filed under the Securities Exchange Act of 1934, as
amended (the
Exchange Act
), after the date of such Preliminary Prospectus or the Prospectus, as
the case may be, and incorporated by reference in such Preliminary Prospectus or the Prospectus, as
the case may be; and any reference to any amendment to the Registration Statement will be deemed to
include any annual report of the Company on Form 10-K filed with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act after the Effective Date that is incorporated by reference in
the Registration Statement.
(b) The Commission has not issued any order preventing or suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus; and no proceeding for any such purpose or
pursuant to Section 8A of the Securities Act against the Company or related to the offering has
been instituted or threatened by the Commission. The Commission has not issued any order directed
to any document incorporated by reference in the most recent Preliminary Prospectus or the
Prospectus, and no proceeding has been instituted or threatened by the Commission with respect to
any document incorporated by reference in the most recent Preliminary Prospectus or the Prospectus.
The Commission has not notified the Company of any objection to the use of the form of the
Registration Statement.
(c) The Company has been, and continues to be, a well-known seasoned issuer (as defined in
Rule 405 of the Rules and Regulations) and has not been, and continues not to be, an ineligible
issuer (as defined in Rule 405 of the Rules and Regulations), in each case at all times relevant
under the Securities Act in connection with the offering of the Notes.
(d) The Registration Statement conformed on the Effective Date and conforms as of the date
hereof, and any amendment to the Registration Statement filed after the date hereof will conform
when filed, in all material respects, to the requirements of the Securities Act and the Rules and
Regulations. The most recent Preliminary Prospectus conforms on the date hereof, and the
Prospectus, and any amendment or supplement thereto, will conform as of its date and as of the
Closing Date, in all material respects to the requirements of the Securities Act and the Rules and
Regulations. The documents incorporated by reference in the most recent Preliminary Prospectus or
the Prospectus, when they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and the Rules and Regulations, and any further documents so filed and incorporated
by reference in the Prospectus or any further amendment or supplement thereto, when such documents
become effective or are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the
Rules and Regulations.
3
(e) The Registration Statement did not, as of the Effective Date, contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading;
provided, however,
that no representation or warranty
is made as to information contained in or omitted from the Registration Statement in reliance upon
and in conformity with written information furnished to the Company through the Representatives by
or on behalf of any Underwriter specifically for inclusion therein (which information is specified
in Section 13 hereof).
(f) The Disclosure Package did not, as of the Applicable Time, contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading;
provided, however,
that no representation or warranty is made as to information
contained in or omitted from the Disclosure Package in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein (which information is specified in Section 13 hereof).
(g) The Prospectus, and any amendment or supplement thereto, will not, as of its date and on
the Closing Date, contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however,
that no representation
or warranty is made as to information contained in or omitted from the Prospectus in reliance upon
and in conformity with written information furnished to the Company through the Representatives by
or on behalf of any Underwriter specifically for inclusion therein (which information is specified
in Section 13 hereof).
(h) The documents incorporated by reference in any Preliminary Prospectus or the Prospectus
did not, and any further documents incorporated by reference therein will not, when filed with the
Commission, contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and no such documents were filed with the
Commission since the Commissions close of business on the business day immediately prior to the
date of this Agreement.
(i) Each of the Company and its Significant Subsidiaries (as defined in Article 1, Rule 1-02
of Regulation S-X, promulgated pursuant to the Securities Act), has been duly organized and is
validly existing and in good standing as a corporation or other business entity under the laws of
its jurisdiction of incorporation or organization, with all power and authority necessary to
conduct the business in which it is engaged or to own or lease its properties; and each of the
Company and its Significant Subsidiaries is duly qualified to do business and in good standing as a
foreign corporation or other business entity in each jurisdiction in which its ownership or lease
of property or the conduct of its business requires such qualification, except where the failure to
be so qualified or in good standing would not, individually or in the aggregate, have a material
adverse effect on (i) the condition (financial or otherwise), results of operations, stockholders
equity, properties or business of the Company and its Subsidiaries (as such term is defined in Rule
405 of the Rules and Regulations) taken as a
4
whole or (ii) the ability of the Company to perform its obligations under this Agreement, the
Indenture or the Notes, as applicable (a
Material Adverse Effect
).
(j) All of the outstanding shares of capital stock of each Significant Subsidiary of the
Company that is a corporation have been duly authorized and validly issued, and are fully paid and
nonassessable. Except as disclosed in the most recent Preliminary Prospectus and the Prospectus,
all of the outstanding shares of capital stock, partnership interests or other ownership interests
of each Significant Subsidiary are owned directly or indirectly by the Company, free and clear of
any claim, lien, encumbrance, security interest, restriction upon voting or transfer, preemptive
rights or any other claim of any third party, except as would not, individually or in the
aggregate, have a Material Adverse Effect.
(k) This Agreement has been duly authorized, executed and delivered by the Company.
(l) The Indenture has been duly authorized by the Company, and upon execution thereof by the
Company and the Trustee, will be a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors rights
generally and by general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The Indenture (i) has been duly qualified under
the Trust Indenture Act of 1939, as amended (the
Trust Indenture Act
), (ii) complies as to form
with the requirements of the Trust Indenture Act and (iii) conforms to the description thereof in
the most recent Preliminary Prospectus and the Prospectus.
(m) The Notes have been duly authorized by the Company and, when executed by the Company and
authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriters
against payment therefor in accordance with the terms of this Agreement, will be validly issued and
delivered, and will constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws relating to or affecting the enforcement of creditors rights generally and by general
equitable principles (regardless of whether such enforceability is considered in a proceeding in
equity or at law), and the Notes conform, or will conform, to the description thereof in the
Disclosure Package and the Prospectus.
(n) None of the execution or delivery of this Agreement by the Company, the consummation of
the transactions contemplated hereby, the execution and delivery of the Indenture and the Notes by
the Company, as applicable, or compliance by the Company with all of the provisions of this
Agreement, the Indenture and the Notes, as applicable, will result in a breach or violation of, or
constitute a default under, or result in the creation or imposition of any claim, lien, encumbrance
or security interest upon any property or asset of the Company or any of its Subsidiaries under,
(i) the certificate of incorporation, by-laws, partnership agreement or other constitutive
documents of the Company or any of its Subsidiaries, (ii) any loan agreement, indenture, mortgage,
deed of trust or other agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which any of them is bound or to which any of their
5
properties is subject, or (iii) any law or any rule, regulation, order or decree of any
governmental agency or body or court having jurisdiction over the Company or any of its
Subsidiaries or any of their respective properties or assets, except in the case of the foregoing
clauses (ii) and (iii) to the extent any such violation, breach or default would not, individually
or in the aggregate, have a Material Adverse Effect.
(o) Neither the filing of the Registration Statement, the most recent Preliminary Prospectus
or the Prospectus nor the offer or sale of the Notes as contemplated by this Agreement gives rise
to any rights, other than those which have been duly waived or satisfied, for or relating to the
registration of any securities of the Company.
(p) Neither the Company nor any of its Subsidiaries (i) is in violation or breach of its
certificate of incorporation, by-laws, partnership agreement or other constitutive documents,
except any such violation or breach by any subsidiaries that are not Significant Subsidiaries to
the extent any such violation or breach would not, individually or in the aggregate, have a
Material Adverse Effect, (ii) is in default, and no event has occurred that, with notice or lapse
of time or both, would constitute such a default, in the due performance or observance of any loan
agreement, indenture, mortgage, deed of trust or other agreement or instrument to which it is a
party or by which it is bound or to which any of its properties or assets is subject, (iii) is in
violation of any law or any rule, regulation, order or decree of any governmental agency or body or
court having jurisdiction over the Company or any of its Subsidiaries or any of their respective
properties or assets or (iv) has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary for the conduct of its business or the
ownership or holding of its property, except in the case of clauses (ii), (iii) and (iv), to the
extent any such violation, breach, default or failure would not, individually or in the aggregate,
have a Material Adverse Effect.
(q) No consent, approval, order or authorization of any governmental agency or body or court
is required in connection with the consummation of the transactions contemplated by this Agreement,
the Indenture or the Notes, except for consents, approvals, orders and authorizations required
under the securities or Blue Sky laws of certain jurisdictions, and except, further, for such
consents, approvals, orders and authorizations which have been obtained and are in full force and
effect.
(r) There is no contract or document required to be described in the Registration Statement,
any Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration
Statement or to a document incorporated by reference into the Registration Statement, any
Preliminary Prospectus or the Prospectus that is not described or filed as required.
(s) Since the respective dates as of which information is given in the most recent Preliminary
Prospectus and the Prospectus, there has not been any change in the capital stock or long-term debt
of the Company or any of its Subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the condition (financial or
otherwise), results of operations, stockholders equity, properties, management, business or
prospects of the Company and its Subsidiaries taken as a whole.
6
(t) Since the respective dates as of which information is given in the most recent Preliminary
Prospectus and the Prospectus, the Company and its Subsidiaries have not (i) incurred any liability
or obligation, direct or contingent, other than liabilities and obligations that were incurred in
the ordinary course of business, (ii) entered into any material transaction not in the ordinary
course of business or (iii) declared or paid any dividend on capital stock of the Company.
(u) The industry data and estimates set forth in the most recent Preliminary Prospectus and
the Prospectus are based on or derived from sources that the Company, believes to be reliable or
represent the Companys good faith estimates based on data derived from such sources.
(v) The financial statements and the notes thereto included or incorporated by reference in
the most recent Preliminary Prospectus and the Prospectus present fairly in all material respects
the financial condition, results of operations and cash flows of the entities purported to be shown
thereby at the dates and for the periods indicated and have been prepared in accordance with
generally accepted accounting principles in the United States applied on a consistent basis
throughout the periods indicated and comply as to form in all material respects with the Rules and
Regulations, except as otherwise noted therein; and the supporting schedules included or
incorporated by reference in the most recent Preliminary Prospectus and the Prospectus present
fairly in all materials respects the information required to be stated therein.
(w) Deloitte & Touche LLP, which have audited certain consolidated financial statements of the
Company and its Subsidiaries, and which have audited the Companys internal control over financial
reporting and managements assessment thereof, are an independent registered public accounting firm
as required by the Securities Act and the Rules and Regulations and the rules and regulations of
the Public Company Accounting Oversight Board.
(x) The Company and its Subsidiaries maintain a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with managements general or
specific authorizations, (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to maintain
accountability for assets, (iii) access to assets is permitted only in accordance with managements
general or specific authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with respect thereto.
The Companys internal control over financial reporting is effective, and there are no material
weaknesses or significant deficiencies in its internal control over financial reporting.
(y) (i) The Company and its Subsidiaries have established and maintain disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act), (ii) such disclosure
controls and procedures are designed to ensure that the information required to be disclosed by the
Company and its Subsidiaries in the reports they file or submit under the Exchange Act is
accumulated and communicated to management of the Company and its Subsidiaries, including their
respective principal executive officers and principal financial officers, as appropriate, to allow
timely decisions regarding required
7
disclosure to be made; and (iii) such disclosure controls and procedures are effective in all
material respects to perform the functions for which they were established.
(z) Since the date of the most recent balance sheet of the Company and its consolidated
Subsidiaries reviewed or audited by Deloitte & Touche LLP and the audit committee of the board of
directors of the Company, (i) the Company has not been advised of (A) any significant deficiencies
in the design or operation of internal controls that could adversely affect the ability of the
Company or any of its Subsidiaries to record, process, summarize and report financial data, or any
material weaknesses in internal controls and (B) any fraud, whether or not material, that involves
management or other employees who have a significant role in the internal controls of the Company
and each of its Subsidiaries, and (ii) since that date, there have been no significant changes in
internal controls or in other factors that could significantly affect internal controls, including
any corrective actions with regard to significant deficiencies and material weaknesses.
(aa) There is and has been no failure on the part of the Company or any of the Companys
directors or officers, in their capacities as such, to comply with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith.
(bb) Neither the Company nor any of its Subsidiaries is, and on the Closing Date and, after
giving effect to the offering of the Notes and the application of the proceeds therefrom as
described under Use of Proceeds in each of the most recent Preliminary Prospectus and the
Prospectus will be, an
investment company
within the meaning of the Investment Company Act of
1940, as amended.
(cc) There is no litigation or legal or governmental proceeding to which the Company or any of
its Subsidiaries is a party or to which any property or assets of the Company or any of its
Subsidiaries is subject or which is pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries which (i) if adversely determined, would, individually or in
the aggregate, result in a Material Adverse Effect, except as disclosed in the most recent
Preliminary Prospectus and the Prospectus or (ii) is required to be disclosed in the most recent
Preliminary Prospectus and the Prospectus and is not disclosed.
(dd) Neither the Company nor any of its Subsidiaries has taken, directly or indirectly, any
action designed to cause or result in, or which might cause or result in, the stabilization or
manipulation of the price of the Notes to facilitate the sale or resale of the Notes.
(ee) The Notes will be
pari passu
with all existing and future unsecured and unsubordinated
indebtedness of the Company.
(ff) No labor disturbance by the employees of the Company exists or, to the knowledge of the
Company, is threatened that would, individually or in the aggregate, have a Material Adverse
Effect.
(gg) (i) Each employee benefit plan (within the meaning of Section 3(3) of the Employee
Retirement Security Act of 1974, as amended (
ERISA
)) for which each of the Company or any member
of the Companys
Controlled Group
(defined as any organization which is a member of a controlled
group of corporations within the meaning of Section 414 of
8
the Internal Revenue Code of 1986, as amended (the
Code
)) would have any liability (each, a
Plan
), has been maintained in compliance with its terms and with the requirements of all
applicable statutes, rules and regulations including ERISA and the Code; (ii) with respect to each
Plan subject to Title IV of ERISA (a) no reportable event (within the meaning of Section 4043(c)
of ERISA) has occurred or is reasonably expected to occur, (b) no accumulated funding deficiency
(within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived, has
occurred or is reasonably expected to occur, (c) the fair market value of the assets under each
Plan exceeds the present value of all benefits accrued under such Plan (determined based on those
assumptions used to fund such Plan) and (d) neither the Company or any member of the Companys
Controlled Group has incurred, or reasonably expects to incur, any liability under Title IV of
ERISA (other than contributions to the Plan or premiums to the PBGC in the ordinary course and
without default) in respect of a Plan (including a multiemployer plan, within the meaning of
Section 4001(c)(3) of ERISA); and (iii) each Plan that is intended to be qualified under Section
401(a) of the Code is so qualified and nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification.
(hh) The Company and its Subsidiaries have filed all federal, state, local and foreign income
and franchise tax returns required to be filed through the date hereof, subject to permitted
extensions, and have paid all taxes due thereon, and no tax deficiency has been determined
adversely to the Company or any of it Subsidiaries, nor does the Company have any knowledge of any
tax deficiencies that, if determined adversely to the Company, would, individually or in the
aggregate, have a Material Adverse Effect.
(ii) The Company and its Subsidiaries have such permits, licenses, patents, franchises,
certificates of need and other approvals or authorizations of governmental or regulatory
authorities (
Permits
) as are necessary under applicable law to own their properties and conduct
their businesses in the manner described in the most recent Preliminary Prospectus and the
Prospectus, except as would not, individually or in the aggregate, have a Material Adverse Effect;
and each of the Company and its Subsidiaries has fulfilled and performed all of its obligations
with respect to the Permits, and no event has occurred that allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any other impairment of the
rights of the holder or any such Permits, except as would not, individually or in the aggregate,
have a Material Adverse Effect.
(jj) The Company and its Subsidiaries own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights, licenses, know-how, software, systems and technology
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of their respective businesses and
have no reason to believe that the conduct of their respective businesses will conflict with, and
have not received any notice of any claim of conflict with, any such rights of others, except as
would not, individually or in the aggregate, have a Material Adverse Effect.
(kk) There has been no storage, disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, hazardous wastes or hazardous substances by the Company or
any of its subsidiaries (or, to the knowledge of the Company, any of their
predecessors-in-interest) at, upon or from any of the properties now or previously owned or
9
leased by the Company or any of its Subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or that could result in the
imposition of liability under any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which would not have, and could not
reasonably be expected to have, singularly or in the aggregate with all such violations and
remedial actions, a Material Adverse Effect. There has been no spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries or with respect to which the
Company or any of its subsidiaries has knowledge, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release that would not have, and could not reasonably be
expected to have, singularly or in the aggregate with all such spills, discharges, leaks,
emissions, injections, escapes, dumpings and releases, a Material Adverse Effect; and the terms
hazardous wastes, toxic wastes, and hazardous substances shall have the meanings specified in
any applicable local, state, federal and foreign laws or regulations with respect to environmental
protection.
(ll) Neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company,
any director, officer, agent, employee or other person associated with or acting on behalf of the
Company or any of its Subsidiaries, has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(mm) The operations of the Company and its Subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the
Money Laundering Laws
) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Company or any of
its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(nn) Neither the Company nor its Subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of its Subsidiaries is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Treasury Department (
OFAC
); and the Company will not directly or indirectly use the proceeds
of the offering, or lend, contribute or otherwise make available such proceeds to any Subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
(oo) Except as described in the Disclosure Package, since the date of the latest audited
financial statements included in the Disclosure Package, neither the Company nor any of its
Subsidiaries has (i) sustained any material loss or interference with its business from fire,
10
explosion, flood or other calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or court or governmental action, order or decree, (ii) incurred any material
liability or obligation, direct or contingent, other than liabilities and obligations that were
incurred in the ordinary course of business, (iii) entered into any material transaction not in the
ordinary course of business, and (iv) since such date, there has not been any change in the
long-term debt of the Company or any of its Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the condition
(financial or otherwise), results of operations, properties, management, business or prospects of
the Company and its Subsidiaries, taken as a whole.
(pp) The Company and its Subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by them, in each case free
and clear of all liens, encumbrances and defects, except such liens, encumbrances and defects as
are described in the Disclosure Package and such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be made of such property
by the Company and its Subsidiaries. All assets held under lease by the Company or its
Subsidiaries are held by them under valid, subsisting and enforceable leases, with such exceptions
as do not materially interfere with the use made and proposed to be made of such assets by the
Company or any of its Subsidiaries.
(qq) There are no legal or governmental proceedings or contracts or other documents that would
be required to be described in a registration statement filed under the Securities Act or, in the
case of documents, would be required to be filed as exhibits to a registration statement of the
Company pursuant to Item 601(10) of Regulation S-K that have not been described in the Disclosure
Package. Neither the Company nor any of its subsidiaries has knowledge that any other party to any
such contract, agreement or arrangement has any intention not to render full performance as
contemplated by the terms thereof; and that statements made in the Disclosure Package under the
captions Description of Notes Description of Our Other Indebtedness, Certain United States
Federal Income Tax Considerations and Underwriting, insofar as they purport to constitute
summaries of the terms of statutes, rules or regulations, legal or governmental proceedings or
contracts and other documents, constitute accurate summaries of the terms of such statutes, rules
and regulations, legal and governmental proceedings and contracts and other documents in all
material respects.
(rr) The Company and its Subsidiaries carry, or are covered by, insurance from insurers of
recognized financial responsibility in such amounts and covering such risks as is adequate for the
conduct of their respective businesses and the value of their respective properties and as is
customary for companies engaged in similar businesses in similar industries. All policies of
insurance of the Company and its Subsidiaries are in full force and effect; the Company and its
Subsidiaries are in compliance with the terms of such policies in all material respects; and
neither the Company nor any of its Subsidiaries has received notice from any insurer or agent of
such insurer that capital improvements or other expenditures are required or necessary to be made
in order to continue such insurance. There are no claims by the Company or any of its Subsidiaries
under any such policy or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause; and neither the Company nor any of its Subsidiaries
has any reason to believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage
11
from similar insurers as may be necessary to continue its business at a cost that could not
reasonably be expected to have a Material Adverse Effect.
(ss) No relationship, direct or indirect, that would be required to be described in a
registration statement of the Company pursuant to Item 404 of Regulation S-K, exists between or
among the Company or any of its Subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its Subsidiaries, on the other hand,
that has not been described in the Disclosure Package.
(tt) No Subsidiary of the Company is currently prohibited, directly or indirectly, from paying
any dividends to the Company, from making any other distribution on such Subsidiarys capital
stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or
from transferring any of such Subsidiarys property or assets to the Company or any other
Subsidiary of the Company.
(uu) Neither the Company nor any of its Subsidiaries is a party to any contract, agreement or
understanding with any person (other than this Agreement) that could give rise to a valid claim
against any of them or the Underwriters for a brokerage commission, finders fee or like payment in
connection with the offering and sale of the Notes.
(vv) None of the transactions contemplated by this Agreement (including, without limitation,
the use of the proceeds from the sale of the Notes), will violate or result in a violation of
Section 8 of the Exchange Act, or any regulation promulgated thereunder, including, without
limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System.
(ww) The Company has not taken any action or omitted to take any action (such as issuing any
press release relating to any Notes without an appropriate legend) which may result in the loss by
any of the Underwriters of the ability to rely on any stabilization safe harbor provided by the
Financial Services Authority under the Financial Services and Markets Act 2000 (the FSMA).
(xx) The Company acknowledges that, in accordance with the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the underwriters are required to
obtain, verify and record information that identifies their respective clients, including the
Company, which information may include the name and address of their respective clients, as well as
other information that will allow the underwriters to properly identify their respective clients.
For purposes of this Section 1, as well as for Section 6 hereof, references to the most recent
Preliminary Prospectus and the Prospectus or the Disclosure Package and the Prospectus are to
each of the most recent Preliminary Prospectus or the Disclosure Package, as the case may be, and
the Prospectus as separate or stand-alone documentation (and not the most recent Preliminary
Prospectus or the Disclosure Package, as the case may be, and the Prospectus taken together), so
that representations, warranties, agreements, conditions and legal opinions will be made, given or
measured independently in respect of each of the most recent Preliminary Prospectus or the
Disclosure Package, as the case may be, and the Prospectus.
12
2.
Purchase of the Notes by the Underwriters
. Subject to the terms and conditions and upon
the basis of the representations and warranties herein set forth, the Company agrees to issue and
sell to the Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a price equal to 98.691% of the principal amount thereof, plus
accrued interest, if any, from July 21, 2009, the principal amount of the Notes set forth opposite
such Underwriters name in
Schedule I
hereto.
3.
Delivery of and Payment for the Notes
. Delivery of the Notes will be made at the offices
of Mayer Brown LLP, 700 Louisiana, Suite 3400, Houston, Texas 77002, or at such place or places as
mutually may be agreed upon by the Company and the Underwriters, at 10:00 A.M., Houston, Texas
time, on July 21, 2009 or on such later date not more than three Business Days after such date as
may be determined by the Representatives and the Company (the
Closing Date
).
Delivery of the Notes will be made to the Representatives by or on behalf of the Company
against payment of the purchase price therefor by wire transfer of immediately available funds.
Delivery of the Notes will be made through the facilities of The Depository Trust Company unless
the Representatives will otherwise instruct. Delivery of the Notes at the time and place specified
in this Agreement is a further condition to the obligations of each Underwriter.
4.
Covenants of the Company
. The Company covenants and agrees with each Underwriter that:
(a) The Company (i) will prepare the Prospectus in a form approved by the Representatives and
file the Prospectus pursuant to Rule 424(b) of the Rules and Regulations within the time period
prescribed by such Rule; (ii) will not file any amendment or supplement to the Registration
Statement or the Prospectus or file any document under the Exchange Act before the termination of
the offering of the Notes by the Underwriters if such document would be deemed to be incorporated
by reference into the Prospectus, which filing is not consented to by the Representatives after
reasonable notice thereof (such consent not to be unreasonably withheld or delayed); (iii) will
advise the Representatives, promptly after it receives notice thereof, of the time when any
amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or
the Prospectus has been filed and will furnish the Representatives with copies thereof; (iv) will
prepare the Final Term Sheet, substantially in the form of
Schedule III
hereto and approved
by the Representatives and file the Final Term Sheet pursuant to Rule 433(d) of the Rules and
Regulations with required legending and within the time period prescribed by such Rule; (v) will
advise the Representatives promptly after it receives notice thereof, of the issuance by the
Commission or any state or other regulatory body of any stop order or any order suspending the
effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending the qualification of
the Notes for offering or sale in any jurisdiction, of the initiation or threatening of any
proceedings for any such purpose or pursuant to Section 8A of the Securities Act, of receipt by the
Company from the Commission of any notice of objection to the use of the Registration Statement or
any post-effective amendment thereto or of any request by the Commission for the amending or
supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus
or for additional information; and (vi) will use
13
its best efforts to prevent the issuance of any stop order or other such order or any such
notice of objection and, if a stop order or other such order is issued or any such notice of
objection is received, to obtain as soon as possible the lifting or withdrawal thereof.
(b) The Company will prepare and file with the Commission, promptly upon the request of the
Representatives, any amendments or supplements to the Registration Statement, the Disclosure
Package or the Prospectus which, in the opinion of the Representatives, may be necessary or
advisable in connection with the offering of the Notes.
(c) The Company will furnish to the Representatives and to counsel for the Underwriters such
number of conformed copies of the Registration Statement, as originally filed and each amendment
thereto (excluding exhibits other than this Agreement), any Preliminary Prospectus, the Final Term
Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and
supplements to any of such documents (including any document filed under the Exchange Act and
deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or
the Prospectus), in each case as soon as available and in such quantities as the Representatives
may from time to time reasonably request.
(d) During the period in which the Prospectus relating to the Notes (or in lieu thereof, the
notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under
the Securities Act, the Company will comply with all requirements imposed upon it by the Securities
Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to
permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of
this Agreement and by the Prospectus. If during such period any event occurs as a result of which
the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances then existing, not misleading, or if during such period
it is necessary to amend the Registration Statement or amend or supplement the Disclosure Package
or the Prospectus or file any document to comply with the Securities Act, the Company will promptly
notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration
Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or
file any document (in each case, at the expense of the Company) so as to correct such statement or
omission or to effect such compliance, and will furnish without charge to each Underwriter as many
written and electronic copies of any such amendment or supplement as the Representatives may from
time to time reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders
and the Underwriters an earnings statement (which need not be audited) satisfying the requirements
of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(f) The Company will, whether or not this Agreement is terminated or the sale of the Notes to
the Underwriters is consummated, pay all fees, expenses, costs and charges in connection with: (i)
the preparation, printing, filing, registration, delivery and shipping of the Registration
Statement (including any exhibits thereto), any Preliminary Prospectus, any Issuer Free Writing
Prospectus, the Prospectus and any amendments or supplements thereto; (ii) the
14
printing, producing, copying and delivering this Agreement, the Indenture, closing documents
(including any compilations thereof) and any other agreements, memoranda, correspondence and other
documents printed and delivered in connection with the offering, purchase, sale and delivery of the
Notes; (iii) the services of the Companys independent registered public accounting firm; (iv) the
services of the Companys counsel; (v) the qualification of the Notes under the securities laws of
the several jurisdictions as provided in Section 4(l) hereof and the preparation, printing and
distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel to the
Underwriters); (vi) any rating of the Notes by rating agencies; (vii) any required review by the
Financial Regulatory Authority of the terms of the sale of the Notes (including related fees and
expenses of counsel to the Underwriters); (viii) the services of the Trustee and any agent of the
Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any road show or
other investor presentations relating to the offering of the Notes (including, without limitation,
for meetings, travel and one-half the cost of private aircraft rental); and (x) otherwise incident
to the performance of its obligations hereunder for which provision is not otherwise made in this
Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections
8 and 10 hereof, the Underwriters will pay all of their own costs and expenses, including the fees
and expenses of counsel to the Underwriters and any advertising expenses incurred in connection
with the offering of the Notes as well as one-half the cost of private aircraft rental for the
road show or other investor presentations. If the sale of the Notes provided for herein is not
consummated by reason of acts of the Company or changes in circumstances of the Company pursuant to
Section 10 of this Agreement, or by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on their part to be performed or because any other condition of
the Underwriters obligations hereunder is not fulfilled or if the Underwriters decline to purchase
the Notes for any reason permitted under this Agreement (other than by reason of a default by any
of the Underwriters pursuant to Section 9 hereof), the Company will reimburse the Underwriters for
all reasonable out-of-pocket disbursements (including fees and expenses of counsel to the
Underwriters) incurred by the Underwriters in connection with any investigation or preparation made
by them in respect of the marketing of the Notes or in contemplation of the performance by them of
their obligations hereunder.
(g) Until completion of the distribution of the Notes, the Company will timely file all
reports, documents and amendments to previously filed documents required to be filed by it pursuant
to Section 12, 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(h) The Company will apply the net proceeds from the sale of the Notes as set forth in the
most recent Preliminary Prospectus and the Prospectus.
(i) Until 30 days following the Closing Date, the Company will not, without the prior written
consent of the Representatives, directly or indirectly, issue, sell, offer to sell, pledge, grant
any option for the sale of or otherwise dispose of, any debt securities that are substantially
similar to the Notes (including, without limitation, with respect to the maturity, currency,
interest rate and other material terms thereof).
(j) The Company will pay the required Commission filing fees relating to the Notes within the
time period required by Rule 456(b)(1) of the Rules and Regulations without
15
regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the
Rules and Regulations.
(k) If required by Rule 430B(h) of the Rules and Regulations, the Company will prepare a
prospectus in a form approved by the Representatives and file such prospectus pursuant to Rule
424(b) of the Rules and Regulations not later than may be required by such Rule; and the Company
will make no further amendment or supplement to such prospectus that will be disapproved by the
Representatives promptly after reasonable notice thereof.
(l) The Company will cooperate with the Underwriters and with counsel to the Underwriters in
connection with the qualification of the Notes for offering and sale by the Underwriters and by
dealers under the securities laws of such jurisdictions as the Underwriters may designate and will
file such consents to service of process or other documents necessary or appropriate in order to
effect such qualification and to permit the continuance of sales and dealings in such jurisdictions
for as long as may be necessary to complete the distribution of the Notes;
provided, however,
that
in no event will the Company be obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would subject it to service of process in suits,
other than for actions or proceedings arising out of the offering or sale of the Notes, in any
jurisdiction where it is not now so subject.
(m) The Company will not take, directly or indirectly, any action designed to cause or result
in, or that might cause or result in, stabilization or manipulation of the price of the Notes to
facilitate the sale or resale of the Notes.
(n) The Company will comply with all agreements set forth in the representation letters of the
Company to DTC relating to the acceptance of the Notes for book- entry transfer through the
facilities of DTC.
5.
Free Writing Prospectuses
.
(a) The Company represents and warrants to, and agrees with, each Underwriter that (i) the
Company has not made, and will not, make any offer relating to the Notes that would constitute an
Issuer Free Writing Prospectus without the prior consent of the Representatives (which consent
being deemed to have been given with respect to (A) the Final Term Sheet prepared and filed
pursuant to Section 4(a) hereof and (B) any other Issuer Free Writing Prospectus identified on
Schedule II
hereto); (ii) each Issuer Free Writing Prospectus conformed or will conform in
all material respects to the requirements of the Securities Act and the Rules and Regulations on
the date of first use, and the Company has complied with any filing requirements applicable to such
Issuer Free Writing Prospectus pursuant to Rule 433 of the Rules and Regulations; (iii) each Issuer
Free Writing Prospectus will not, as of its issue date and through the time the Notes are delivered
pursuant to Section 3 hereof, include any information that conflicts with the information contained
in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus; and (iv)
each Issuer Free Writing Prospectus, when considered together with the information contained in the
most recent Preliminary Prospectus, did not, as of the Applicable Time, does not, as of the date
hereof, and will not, as of the Closing Date, contain any untrue statement of a material fact or
omit to state any material fact required to
16
be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) Each Underwriter represents and warrants to, and agrees with, the Company and each other
Underwriter that it has not made, and will not make any offer relating to the Notes that would
constitute a free writing prospectus (as defined in Rule 405 of the Rules and Regulations)
required to be filed with the Commission, without the prior consent of the Company and the
Representatives, other than one or more term sheets relating to the Notes containing customary
information and conveyed to purchasers of Notes.
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the most recent Preliminary
Prospectus or the Prospectus or would include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the
Representatives and, if requested by the Representatives, will prepare and furnish without charge
to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such
conflict, statement or omission.
6.
Conditions of Underwriters Obligations
. The obligations of the Underwriters hereunder are
subject to the accuracy, as of the date hereof and the Closing Date (as if made at the Closing
Date), of the representations and warranties of the Company contained herein, to the performance by
the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in a timely fashion in accordance
with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet)
required by Rule 424(b) or Rule 433 of the Rules and Regulations shall have been made within the
time periods prescribed by such Rules, and no such filings will have been made without the consent
of the Representatives; no stop order suspending the effectiveness of the Registration Statement or
any amendment or supplement thereto, preventing or suspending the use of any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification
of the Notes for offering or sale in any jurisdiction shall have been issued; no proceedings for
the issuance of any such order shall have been initiated or threatened pursuant to Section 8A of
the Securities Act; no notice of objection of the Commission to use the Registration Statement or
any post-effective amendment thereto shall have been received by the Company; and any request of
the Commission for additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been disclosed to the Representatives and complied with to the
Representatives reasonable satisfaction.
(b) No Underwriter shall have been advised by the Company, or shall have discovered and
disclosed to the Company, that the Registration Statement, the most recent Preliminary Prospectus,
the Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement thereto contains
an untrue statement of fact which, in the opinion of the Representatives or of counsel to the
Underwriters, is material, or omits to state any fact which, in
17
the opinion of the Representatives or of counsel to the Underwriters, is material and is
required to be stated therein or is necessary to make the statements therein not misleading.
(c) The Representatives shall have received from Mayer Brown LLP, counsel to the Underwriters,
such opinion or opinions, addressed to the Underwriters, dated the Closing Date and in form and
substance satisfactory to the Representatives, with respect to the Notes, Indenture, Registration
Statement, Prospectus and Disclosure Package and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Representatives shall have received from Andrews Kurth LLP, counsel for the Company,
the opinion or opinions, addressed to the Underwriters, dated the Closing Date and substantially in
the form of
Annex A
hereto.
(e) The Representatives shall have received a certificate, dated the Closing Date, signed by
the Chief Executive Officer of the Company and by the Chief Financial Officer or the Chief
Accounting Officer of the Company to the effect that: (i) the representations and warranties of
each of the Company in this Agreement are true and correct, as if made at and as of the Closing
Date, and each of the Company has complied with all the agreements and satisfied all the conditions
on its part to be complied with or satisfied at or prior to the Closing Date; (ii) no stop order
suspending the effectiveness of the Registration Statement has been issued, no proceedings for any
such purpose have been initiated or, to the knowledge of such officers, threatened; and the
Commission has not notified the Company of any objection to the use of the form of Registration
Statement or any post-effective amendment thereto; (iii) all filings required by Rule 424(b) or
Rule 433 of the Rules and Regulations have been made within the time periods prescribed by such
Rules; (iv) the signers of such certificate have carefully examined the Registration Statement, the
most recent Preliminary Prospectus, the Disclosure Package and the Prospectus, and any amendments
or supplements thereto (including any documents incorporated or deemed to be incorporated by
reference into the most recent Preliminary Prospectus and the Prospectus), and, in their opinion,
the Registration Statement as of the Effective Date, the Disclosure Package, as of the Applicable
Time, and the Prospectus, as of its date, did not and, on the Closing Date, do not include any
untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; (v) since the initial Effective
Date of the Registration Statement, there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or
the Prospectus which has not been so set forth and there has been no document required to be filed
under the Securities Act and the Rules and Regulations or the Exchange Act and the rules and
regulations thereunder that upon such filing would be deemed to be incorporated by reference into
the Registration Statement, the most recent Preliminary Prospectus or the Prospectus that has not
been so filed; and (vi) no event contemplated by Section 6(f) hereof has occurred.
(f) Except as described in the most recent Preliminary Prospectus and the Prospectus, (i)
neither the Company nor any of its Subsidiaries shall have sustained, since the date of the latest
audited financial statements included or incorporated by reference in the most recent Preliminary
Prospectus, any loss or interference with its business from fire, explosion,
18
flood or other calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree or (ii) since such date there shall not have been any
change in the capital stock or long-term debt of the Company or any of its Subsidiaries or any
change, or any development involving a prospective change, in or affecting the condition (financial
or otherwise), results of operations, stockholders equity, properties, business or prospects of
the Company and its Subsidiaries taken as a whole, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the Representatives, so material and adverse as to
make it impracticable or inadvisable to proceed with the offering of the Notes or on the terms and
in the manner contemplated in the Prospectus.
(g) Concurrently with the execution of this Agreement, the Representatives shall have received
from Deloitte & Touche LLP, the Companys independent registered public accounting firm, a
comfort letter (the
initial comfort letter
) addressed to the Representatives on behalf of the
Underwriters, dated the date hereof, and in form and substance satisfactory to the Representatives
(i) confirming that they are an independent registered public accounting firm within the meaning of
the Securities Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as
of the date hereof (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the most recent
Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information and other matters
ordinarily covered by accountants comfort letters to underwriters in connection with registered
public offerings.
(h) The Representatives shall have received a bring-down comfort letter (the
bring-down
comfort letter
) from Deloitte & Touche LLP, the Companys independent registered public accounting
firm, addressed to the Representatives on behalf of the Underwriters, dated the Closing Date, and
in form and substance satisfactory to the Representatives (i) confirming that they are an
independent registered public accounting firm within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down comfort
letter (or, with respect to matters involving changes or developments since the respective dates as
of which specified financial information is given in the Prospectus, as of a date not more than
three days prior to the date of the bring-down comfort letter), the conclusions and findings of
such firm with respect to the financial information and other matters covered by the initial
comfort letter and (iii) confirming in all material respects the conclusions and findings set forth
in the initial comfort letter.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the
Company such additional documents and certificates as the Representatives or counsel for the
Underwriters may reasonably request.
(j) Subsequent to the execution and delivery of this Agreement, (i) there shall not have
occurred any material adverse change, or any development involving a prospective material adverse
change, in or affecting the condition (financial or otherwise), results of operations, properties,
management, business or prospects of the Company and its subsidiaries,
19
taken as a whole, (ii) no downgrading shall have occurred in the rating accorded to the debt
securities of the Company or any of its Subsidiaries by any nationally recognized statistical
rating organization (as that term is defined in Rule 436(g)(2) of the Rules and Regulations), and
(iii) no such organization shall have publicly announced that it has any such debt securities under
surveillance or review with possible negative implications.
(k) Subsequent to the execution and delivery of this Agreement, there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock Exchange or the
American Stock Exchange or in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been suspended or materially
limited or the settlement of such trading generally shall have been materially disrupted or minimum
prices shall have been established on any such exchange or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a
banking moratorium shall have been declared by federal or state authorities; (iii) a material
disruption in commercial banking or securities settlement or clearance services shall have
occurred, (iv) the United States shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have been a declaration of a
national emergency or war by the United States; or (v) there shall have occurred any other calamity
or crisis or change in general economic, political or financial conditions, including, without
limitation, as a result of terrorist activities after the date hereof (or the effect of
international conditions on the financial markets in the United States shall be such) as to make
it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the
offering of the Notes or on the terms and in the manner contemplated in the Prospectus.
All opinions, certificates, letters and documents referred to in this Section 6 will be in
compliance with the provisions of this Agreement only if they are satisfactory in form and
substance to the Representatives and to counsel for the Underwriters. The Company will furnish to
the Representatives conformed copies of such opinions, certificates, letters and other documents in
such number as the Representatives will reasonably request.
7.
Covenants of the Underwriters
. The Underwriters agree, severally and not jointly, with the
Company to conduct the offering of the Notes in accordance with the Prospectus Supplement.
8.
Indemnification and Contribution
. (a) The Company will indemnify and hold harmless each
Underwriter from and against any loss, claim, damage or liability (or any action in respect
thereof), joint or several, to which such Underwriter may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage or liability (or action in respect thereof)
arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, the
Disclosure Package, the Registration Statement or Prospectus as amended or supplemented, any Issuer
Free Writing Prospectus, including any road show, or any issuer information filed or required to
be filed pursuant to Rule 433(d) of the Rules and Regulations, or (ii) the omission or alleged
omission to state in the Registration Statement, any Preliminary Prospectus, the Prospectus, the
Disclosure Package, or the Registration Statement or Prospectus as amended or supplemented or any
Issuer Free Writing Prospectus, any such issuer information,
20
a material fact required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter promptly after receipt of invoices from such
Underwriter for any legal or other expenses as reasonably incurred by such Underwriter in
connection with investigating, preparing to defend or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability or action,
notwithstanding the possibility that payments for such expenses might later be held to be improper,
in which case such payments will be promptly refunded;
provided, however,
that the Company will not
be liable under this Section 8(a) in any such case to the extent, but only to the extent, that any
such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon and in conformity
with written information furnished to the Company by the Representatives, on behalf of the
Underwriters, expressly for use therein (which information is specified in Section 13 hereof).
(b) Each Underwriter, severally, but not jointly, will indemnify and hold harmless the Company
against any loss, claim, damage or liability (or any action in respect thereof) to which the
Company may become subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage or liability (or action in respect thereof) arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement,
any Preliminary Prospectus, the Prospectus, the Disclosure Package, the Registration Statement or
Prospectus as amended or supplemented, or any Issuer Free Writing Prospectus, or (ii) the omission
or alleged omission to state in the Registration Statement, any Preliminary Prospectus, the
Prospectus, the Disclosure Package, the Registration Statement or Prospectus as amended or
supplemented, or any Issuer Free Writing Prospectus, a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse the Company promptly
after receipt of invoices from the Company, as the case may be, for any legal or other expenses
reasonably incurred by the Company in connection with investigating, preparing to defend or
defending against or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments will be promptly refunded;
provided,
however,
that such indemnification or reimbursement will be available in each such case to the
extent, but only to the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written information furnished
to the Company by the Representatives, on behalf of such Underwriter, expressly for use therein
(which information is specified in Section 13 hereof).
(c) Promptly after receipt by any indemnified party under Section 8(a) or 8(b) above of notice
of any claim or the commencement of any action, the indemnified party will, if a claim in respect
thereof is to be made against one or more indemnifying parties under such subsection, notify each
indemnifying party in writing of the claim or the commencement of that action;
provided, however,
that the failure to so notify each such indemnifying party will not relieve it from any liability
which it may have under this Section 8 except to the extent it has been prejudiced in any material
respect by such failure or from any liability which it may have to an indemnified party otherwise
than under this Section 8. If any such claim or action will be brought against any indemnified
party, and it notifies each indemnifying party thereof, each such indemnifying party will be
entitled to participate therein and, to the extent that it wishes, jointly
21
with each other similarly notified indemnifying party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from each indemnifying party
to the indemnified party of its election to assume the defense of such claim or action, each such
indemnifying party will not be liable to the indemnified party under Section 8(a) or 8(b) above for
any legal or other expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation, except that the Underwriters will
have the right to employ counsel to represent the Underwriters who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the Underwriters against
the Company under Section 8(a) if (i) the employment thereof has been specifically authorized by
the Company in writing, (ii) the Underwriters will have been advised by counsel that there may be
one or more legal defenses available to the Underwriters which are different from or additional to
those available to the Company and in the judgment of such counsel it is advisable for the
Underwriters to employ separate counsel or (iii) the Company has failed to assume the defense of
such action and employ counsel satisfactory to the Underwriters, in which event the reasonable fees
and expenses of such separate counsel will be paid by the Company. No indemnifying party will (i)
without the prior written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought hereunder unless such
settlement, compromise or judgment includes (A) an unconditional release of each indemnified party
from all liability arising out of such claim, action, suit or proceeding and (B) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party, or (ii) be liable for any settlement of any such action effected without its
written consent, but if settled with the consent of each indemnifying party or if there be a final
judgment of the plaintiff in any such action, each such indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 is unavailable or insufficient to
hold harmless an indemnified party under Section 8(a) or 8(b) above, then each indemnifying party
will, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of the losses, claims, damages or liabilities referred to in
Section 8(a) or 8(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the other hand from the
offering of the Notes or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on the one hand and the
Underwriters on the other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, or actions in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand will be deemed to be in the same proportion as the total net
proceeds from the offering of the Notes (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. Relative fault will be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties relative
22
intent, knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable considerations referred to in
the first sentence of this Section 8(d). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred to in the first
sentence of this Section 8(d) will be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating, preparing to defend or
defending against any action or claim which is the subject of this Section 8(d). Notwithstanding
the provisions of this Section 8(d), no Underwriter will be required to contribute any amount in
excess of the amount by which the total price at which the Notes underwritten by it and distributed
to investors were offered to investors exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters obligations in this Section 8(d) to contribute
are several in proportion to their respective underwriting obligations and not joint. Each party
entitled to contribution agrees that upon the service of a summons or other initial legal process
upon it in any action instituted against it in respect to which contribution may be sought, it will
promptly give written notice of such service to the party or parties from whom contribution may be
sought, but the omission so to notify such party or parties of any such service will not relieve
the party from whom contribution may be sought for any obligation it may have hereunder or
otherwise (except as specifically provided in Section 8(c) above).
(e) The obligations of the Company under this Section 8 will be in addition to any liability
that the Company may otherwise have, and will extend, upon the same terms and conditions set forth
in this Section 8, to the respective officers and directors of the Underwriters and each person, if
any, who controls any Underwriter within the meaning of the Securities Act; and the obligations of
the Underwriters under this Section 8 will be in addition to any liability that the respective
Underwriters may otherwise have, and will extend, upon the same terms and conditions, to each
director of the Company (including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company), to each officer of the
Company who has signed the Registration Statement and to each person, if any, who controls the
Company within the meaning of the Securities Act.
9.
Substitution of Underwriters
. If any Underwriter defaults in its obligation to purchase
the principal amount of the Notes which it has agreed to purchase under this Agreement, the
non-defaulting Underwriters will be obligated to purchase (in the respective proportions which the
principal amount of the Notes set forth opposite the name of each non- defaulting Underwriter in
Schedule I
hereto bears to the total principal amount of the Notes less the principal
amount of the Notes the defaulting Underwriter agreed to purchase set forth in
Schedule I
hereto) the principal amount of the Notes which the defaulting Underwriter agreed but failed to
purchase; except that the non-defaulting Underwriters will not be obligated to purchase any of the
Notes if the total principal amount of the Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase exceed 9.09% of the total principal
23
amount of the Notes, and any non-defaulting Underwriters will not be obligated to purchase
more than 110% of the principal amount of the Notes set forth opposite its name in
Schedule
I
hereto. If the foregoing maximums are exceeded, the non-defaulting Underwriters, and any
other underwriters satisfactory to the Representatives who so agree, will have the right, but will
not be obligated, to purchase (in such proportions as may be agreed upon among them) all of the
Notes. If the non-defaulting Underwriters or the other underwriters satisfactory to the
Underwriters do not elect to purchase the Notes that the defaulting Underwriter or Underwriters
agreed but failed to purchase within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Company, except for the
indemnity and contribution agreements of the Company and the Underwriters contained in Section 8 of
this Agreement. As used in this Agreement, the term Underwriter includes any person substituted
for an Underwriter pursuant to this Section 9.
If the non-defaulting Underwriters or the other underwriters satisfactory to the
Representatives are obligated or agree to purchase the Notes of a defaulting Underwriter, the
Representatives may postpone the Closing Date for up to seven full Business Days in order that the
Company may effect any changes that may be necessary in the Registration Statement or the
Prospectus or in any other document or agreement, and the Company agree to file promptly any
amendments or any supplements to the Registration Statement or the Prospectus which, in the opinion
of the Representatives, may thereby be made necessary.
Nothing contained herein will relieve a defaulting Underwriter of any liability it may have
for damages caused by its default.
10.
Termination
. Until the Closing Date, this Agreement may be terminated by the
Representatives on behalf of the Underwriters by giving notice as hereinafter provided to the
Company if (i) the Company, as the case may be, will have failed, refused or been unable, at or
prior to the Closing Date, to perform any agreement on its part to be performed hereunder, (ii) any
of the events described in Sections 6(j) and 6(k) of this Agreement, shall have occurred, or (iii)
any other condition to the Underwriters obligations hereunder is not fulfilled. Any termination of
this Agreement pursuant to this Section 9 will be without liability on the part of the Company or
any Underwriter, except as otherwise provided in Sections 4(f) and 8 hereof.
Any notice referred to above may be given at the address specified in Section 12 of this
Agreement in writing or by telegraph or telephone, and if by telegraph or telephone, will be
immediately confirmed in writing.
11.
Survival of Certain Provisions
. The agreements contained in Section 8 of this Agreement,
the representations, warranties and agreements of the Company contained in Sections 1 and 4 of this
Agreement will survive the delivery of the Notes to the Underwriters hereunder and will remain in
full force and effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
12.
Notices
. Except as otherwise provided in the Agreement, (a) whenever notice is required
by the provisions of this Agreement to be given to the Company, such notice will be in writing by
mail, telex or facsimile transmission addressed to the Company at 2800 Post Oak Boulevard, Suite
5450, Houston, Texas 77056, Attention: Melanie M. Trent (Fax: 713-960-
24
7560) with a copy to Andrews Kurth LLP, 600 Travis, Suite 4200, Houston, Texas 77002,
Attention: Robert V. Jewell (Fax: 713-238-7135), and (b) whenever notice is required by the
provisions of this Agreement to be given to the several Underwriters, such notice will be in
writing by mail, telex or facsimile transmission addressed to the Representatives in care of
Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate
Registration with a copy to Mayer Brown LLP, 700 Louisiana, Suite 3400, Houston, Texas 77002,
Attention: Robert F. Gray, Jr. (Fax: 713-238-4600), and with a copy, in the case of any notice
pursuant to Section 8, to the Director of Litigation, Office of the General Counsel, Barclays
Capital Inc., 745 Seventh Avenue, New York, New York 10019.
13.
Information Furnished by Underwriters
. The Underwriters severally confirm that the
statements in the third paragraph, the statements in the second sentence of the fifth paragraph and
the statements in the sixth paragraph, in each case, under the caption Underwriting in the most
recent Preliminary Prospectus and the Prospectus, constitute the only written information furnished
to the Company by the Representatives on behalf of the Underwriters, referred to in Sections 1(e),
1(f), 1(g), 8(a) and 8(b) of this Agreement.
14.
Research Analyst Independence
. The Company acknowledge that the Underwriters research
analysts and research departments are required to be independent from their respective investment
banking divisions and are subject to certain regulations and internal policies, and that such
Underwriters research analysts may hold views and make statements or investment recommendations
and/or publish research reports with respect to the Company and/or the offering of the Notes that
differ from the views of their respective investment banking divisions. The Company hereby waives
and releases, to the fullest extent permitted by law, any claims that the Company may have against
the Underwriters with respect to any conflict of interest that may arise from the fact that the
views expressed by their independent research analysts and research departments may be different
from or inconsistent with the views or advice communicated to the Company by such Underwriters
investment banking divisions. The Company acknowledges that each of the Underwriters is a full
service securities firm and as such from time to time, subject to applicable securities laws, may
effect transactions for its own account or the account of its customers and hold long or short
positions in debt or equity securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
15.
Nature of Relationship
. The Company acknowledges and agrees that in connection with the
offering and the sale of the Notes or any other services the Underwriters may be deemed to be
providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between
the parties or any oral representations or assurances previously or subsequently made by the
Underwriters: (i) no fiduciary or agency relationship between the Company and any other person, on
the one hand, and the Underwriters, on the other hand, exists; (ii) the Underwriters are not acting
as advisors, experts or otherwise, to the Company, including, without limitation, with respect to
the determination of the public offering price of the Notes, and such relationship between the
Company, on the one hand, and the Underwriters, on the other hand, is entirely and solely a
commercial relationship, based on arms-length negotiations; (iii) any duties and obligations that
the Underwriters may have to the Company shall be limited to those duties and obligations
specifically stated herein; and (iv) the Underwriters and their respective affiliates may have
interests that differ from those of the Company. The Company
25
hereby waives any claims that the Company may have against the Underwriters with respect to
any breach of fiduciary duty in connection with this offering.
16.
Parties
. This Agreement will inure to the benefit of and be binding upon the several
Underwriters, the Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained in this Agreement
will also be deemed to be for the benefit of the person or persons, if any, who control any
Underwriter within the meaning of Section 15 of the Securities Act and (b) the indemnification
agreement of the Underwriters contained in Section 8 of this Agreement will be deemed to be for the
benefit of directors of the Company, officers of the Company who signed the Registration Statement
and any person controlling the Company within the meaning of Section 15 of the Securities Act.
Nothing in this Agreement will be construed to give any person, other than the persons referred to
in this paragraph, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
17.
Definition of
Business Day
. Definition of
Business Day
. For purposes of this
Agreement, Business Day means any day on which the New York Stock Exchange is open for trading,
other than any day on which commercial banks are authorized or required to be closed in New York
City.
18.
Governing Law
. This Agreement will be governed by, and construed in accordance with, the
laws of the State of New York.
19.
Headings
. The headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
20.
WAIVER OF JURY TRIAL
. THE COMPANY AND EACH OF THE UNDERWRITERS HEREBY IRREVOCABLY WAIVE,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
21.
Counterparts
. This Agreement may be signed in one or more counterparts, each of which
will constitute an original and all of which together will constitute one and the same agreement.
(
Signature Page Follows
)
26
If the foregoing correctly sets forth the agreement among the Company and the several
Underwriters, please indicate your acceptance in the space provided for that purpose below.
|
|
|
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|
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Very truly yours,
Rowan Companies, Inc.
|
|
|
By:
|
/s/ William H. Wells
|
|
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William H. Wells
|
|
|
|
Vice President, Finance and CFO
|
|
|
Signature Page to Underwriting Agreement
Confirmed and accepted as of
the date first above mentioned
Barclays Capital Inc.
Goldman, Sachs & Co.
As Representatives and on behalf of the several Underwriters
named in
Schedule I
hereto
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|
|
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Barclays Capital Inc.
|
|
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By:
|
/s/ Gregory J. Hall
|
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Gregory J. Hall
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Managing Director
|
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Goldman, Sachs & Co.
|
|
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By:
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/s/
Goldman, Sachs & Co.
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Goldman, Sachs & Co.
|
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|
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Signature Page to Underwriting Agreement
SCHEDULE I
|
|
|
|
|
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|
Principal Amount of
|
|
Underwriter
|
|
Notes to be Purchased
|
|
Barclays Capital Inc.
|
|
$
|
225,000,000
|
|
Goldman, Sachs & Co.
|
|
$
|
125,000,000
|
|
Citigroup Global Markets Inc.
|
|
$
|
50,000,000
|
|
Deutsche Bank Securities Inc.
|
|
$
|
50,000,000
|
|
Wells Fargo Securities, LLC
|
|
$
|
50,000,000
|
|
|
|
|
|
Total
|
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$
|
500,000,000
|
|
S-I-1
SCHEDULE II
ISSUER FREE WRITING PROSPECTUSES
|
|
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Final Term Sheet, dated July 15, 2009, relating to the Notes, as filed pursuant to Rule
433 under the Securities Act and attached as
Schedule III
hereto.
|
S-II-1
SCHEDULE III
ISSUER FREE WRITING PROSPECTUS
Filed pursuant to Rule 433
Registration Number: 333-160579
Dated July 15, 2009
Rowan Companies, Inc.
$500,000,000 7.875% Senior Notes due 2019
Final Term Sheet
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|
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Issuer
|
|
Rowan Companies, Inc.
|
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Ratings*
|
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Moodys Investor Services: Baa3
|
|
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Standard & Poors: BBB-
|
|
|
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Security Type
|
|
7.875% Senior Notes due 2019
|
|
|
|
Aggregate Principal Amount
|
|
$500,000,000
|
|
|
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Gross Proceeds
|
|
$496,705,000
|
|
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Form
|
|
SEC Registered
|
|
|
|
Maturity
|
|
August 1, 2019
|
|
|
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Price to Public
|
|
99.341% plus accrued interest, if any, from July 21, 2009
|
|
|
|
Interest Rate
|
|
7.875%
|
|
|
|
Yield to Maturity
|
|
7.971%
|
|
|
|
Spread over Benchmark Treasury Security
|
|
437.5 basis points
|
|
|
|
Benchmark Treasury Security
|
|
UST 3.125% due May 2019
|
|
|
|
Benchmark Treasury Rate
|
|
3.596%
|
|
|
|
Interest Payment Dates
|
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Semi-annually on February 1 and August 1 of each year,
|
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beginning on February 1, 2010
|
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Record Dates
|
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January 15 and July 15
|
|
|
|
Optional Redemption
|
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Redeemable at any time in amount equal to the principal
|
|
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amount plus a make whole premium, using a discount rate
|
|
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of Treasury + 50 bps, plus accrued and unpaid interest
|
|
|
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Trade Date
|
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July 15, 2009
|
|
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Expected Settlement Date
|
|
July 21, 2009
|
|
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Joint Book-Running Managers
|
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Barclays Capital Inc. (45%)
|
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Goldman, Sachs & Co. (25%)
|
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Citigroup Global Markets Inc. (10%)
|
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Deutsche Bank Securities Inc. (10%)
|
|
|
Wells Fargo Securities, LLC (10%)
|
|
|
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Denominations
|
|
$2,000 and integral multiples of $1,000 thereof.
|
|
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CUSIP/ISIN Numbers
|
|
CUSIP: 779382AK6
|
|
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ISIN: US779382AK60
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*
|
|
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
|
S-III-1
The issuer has filed a registration statement (including a prospectus) with the U.S. Securities and
Exchange Commission (SEC) for the offering to which this communication relates. Before you invest,
you should read the prospectus supplement and the prospectus for this offering in that registration
statement, and other documents the issuer has filed with the SEC for more complete information
about the issuer and this offering. You may get these documents for free by searching the SEC
online database (EDGAR
®
) at
www.sec.gov
. Alternatively, you may obtain a copy of the prospectus
from Barclays Capital Inc. by calling 1-888-603-5847 or from Goldman, Sachs & Co., Attn: Prospectus
Department, 85 Broad Street, New York, NY 10004, Telephone: 1-866-471-2526, Facsimile:
212-902-9316, or by emailing prospectus-ny@ny.email.gs.com.
This information does not purport to be a complete description of these securities or the offering.
Please refer to the prospectus for a complete description.
This communication does not constitute an offer to sell or the solicitation of an offer to buy any
securities in any jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction.
S-III-2
ROWAN COMPANIES, INC.
AND
U.S. BANK NATIONAL ASSOCIATION
Trustee
INDENTURE
DATED AS OF JULY 21, 2009
SENIOR DEBT SECURITIES
ROWAN COMPANIES, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939, AS AMENDED,
AND INDENTURE, DATED AS OF JULY 21, 2009
|
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TRUST INDENTURE ACT SECTION
|
|
INDENTURE SECTION
|
|
Section 310(a)(1)
|
|
|
6.9
|
|
(a)(2)
|
|
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6.9
|
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(a)(3)
|
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Not Applicable
|
(a)(4)
|
|
Not Applicable
|
(a)(5)
|
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6.9
|
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(b)
|
|
|
6.8
|
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Section 311
|
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6.13
|
|
|
Section 312(a)
|
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7.1, 7.2(a)
|
|
(b)
|
|
|
7.2(b)
|
|
(c)
|
|
|
7.2(c)
|
|
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Section 313(a)
|
|
|
7.3
|
|
(b)
|
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*
|
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(c)
|
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*
|
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(d)
|
|
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7.3
|
|
|
Section 314(a)
|
|
|
7.4
|
|
(a)(4)
|
|
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10.5
|
|
(b)
|
|
Not Applicable
|
(c)(1)
|
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1.3
|
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(c)(2)
|
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1.3
|
|
(c)(3)
|
|
Not Applicable
|
(d)
|
|
Not Applicable
|
(e)
|
|
|
1.3
|
|
|
Section 315(a)
|
|
|
6.1(a)
|
|
(b)
|
|
|
6.2
|
|
(c)
|
|
|
6.1(b)
|
|
(d)
|
|
|
6.1(c)
|
|
(d)(1)
|
|
|
6.1(a)(1)
|
|
(d)(2)
|
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|
6.1(c)(2)
|
|
(d)(3)
|
|
|
6.1(c)(3)
|
|
(e)
|
|
|
5.14
|
|
|
Section 316(a)
|
|
|
1.1, 1.2
|
|
(a)(1)(A)
|
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|
5.2, 5.12
|
|
(a)(1)(B)
|
|
|
5.13
|
|
(a)(2)
|
|
Not Applicable
|
(b)
|
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|
5.8
|
|
(c)
|
|
|
1.5(f)
|
|
|
|
|
|
|
TRUST INDENTURE ACT SECTION
|
|
INDENTURE SECTION
|
|
Section 317(a)(1)
|
|
|
5.3
|
|
(a)(2)
|
|
|
5.4
|
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(b)
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10.3
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Section 318(a)
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1.8
|
|
|
|
|
NOTE:
|
|
This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
|
|
*
|
|
Deemed included pursuant to Section 318(c) of the Trust Indenture Act
|
TABLE OF CONTENTS
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Page
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|
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
|
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1
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|
Section 1.1. Definitions
|
|
|
1
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|
Section 1.2. Incorporation by Reference of Trust Indenture Act
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|
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8
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|
Section 1.3. Compliance Certificates and Opinions
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8
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|
Section 1.4. Form of Documents Delivered to Trustee
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|
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9
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|
Section 1.5. Acts of Holders; Record Dates
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|
9
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|
Section 1.6. Notices, Etc., to Trustee, Company and Guarantors
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|
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10
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|
Section 1.7. Notice to Holders; Waiver
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|
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11
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|
Section 1.8. Conflict with Trust Indenture Act
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11
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Section 1.9. Effect of Headings and Table of Contents
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11
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|
Section 1.10. Successors and Assigns
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|
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12
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|
Section 1.11. Separability Clause
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|
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12
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Section 1.12. Benefits of Indenture
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|
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12
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Section 1.13. Force Majeure
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12
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Section 1.14. Waiver of Jury Trial
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12
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|
Section 1.15. Governing Law
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|
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12
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|
Section 1.16. Legal Holidays
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|
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12
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|
Section 1.17. Securities in a Composite Currency, Currency Unit or Foreign Currency
|
|
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13
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|
Section 1.18. Payment in Required Currency; Judgment Currency
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|
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13
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|
Section 1.19. Language of Notices, Etc.
|
|
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14
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|
Section 1.20. Incorporators, Shareholders, Officers and Directors of the Company and the
Guarantors Exempt from Individual Liability
|
|
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14
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|
|
|
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ARTICLE TWO SECURITY FORMS
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|
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14
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|
Section 2.1. Forms Generally
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|
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14
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|
Section 2.2. Form of Face of Security
|
|
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15
|
|
Section 2.3. Form of Reverse of Security
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|
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17
|
|
Section 2.4. Global Securities
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|
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21
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|
Section 2.5. Form of Trustees Certificate of Authentication
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|
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22
|
|
|
|
|
|
|
ARTICLE THREE THE SECURITIES
|
|
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22
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|
Section 3.1. Amount Unlimited; Issuable in Series
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|
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22
|
|
Section 3.2. Denominations
|
|
|
25
|
|
Section 3.3. Execution, Authentication, Delivery and Dating
|
|
|
25
|
|
Section 3.4. Temporary Securities
|
|
|
27
|
|
Section 3.5. Registration, Registration of Transfer and Exchange
|
|
|
27
|
|
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
29
|
|
Section 3.7. Payment of Interest; Interest Rights Preserved
|
|
|
30
|
|
Section 3.8. Persons Deemed Owners
|
|
|
31
|
|
Section 3.9. Cancellation
|
|
|
31
|
|
Section 3.10. Computation of Interest
|
|
|
32
|
|
Section 3.11. CUSIP or CINS Numbers
|
|
|
32
|
|
|
|
|
|
|
ARTICLE FOUR SATISFACTION AND DISCHARGE
|
|
|
32
|
|
Section 4.1. Satisfaction and Discharge of Indenture
|
|
|
32
|
|
Section 4.2. Application of Trust Money
|
|
|
33
|
|
i
|
|
|
|
|
|
|
Page
|
|
ARTICLE FIVE REMEDIES
|
|
|
33
|
|
Section 5.1. Events of Default
|
|
|
33
|
|
Section 5.2. Acceleration of Maturity; Rescission and Annulment
|
|
|
34
|
|
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
35
|
|
Section 5.4. Trustee May File Proofs of Claim
|
|
|
36
|
|
Section 5.5. Trustee May Enforce Claims Without Possession of Securities
|
|
|
36
|
|
Section 5.6. Application of Money Collected
|
|
|
36
|
|
Section 5.7. Limitation on Suits
|
|
|
37
|
|
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest
|
|
|
37
|
|
Section 5.9. Restoration of Rights and Remedies
|
|
|
37
|
|
Section 5.10. Rights and Remedies Cumulative
|
|
|
38
|
|
Section 5.11. Delay or Omission Not Waiver
|
|
|
38
|
|
Section 5.12. Control by Holders
|
|
|
38
|
|
Section 5.13. Waiver of Past Defaults
|
|
|
38
|
|
Section 5.14. Undertaking for Costs
|
|
|
39
|
|
Section 5.15. Waiver of Stay or Extension Laws
|
|
|
39
|
|
|
|
|
|
|
ARTICLE SIX THE TRUSTEE
|
|
|
39
|
|
Section 6.1. Certain Duties and Responsibilities
|
|
|
39
|
|
Section 6.2. Notice of Defaults
|
|
|
40
|
|
Section 6.3. Certain Rights of Trustee
|
|
|
41
|
|
Section 6.4. Not Responsible for Recitals or Issuance of Securities
|
|
|
42
|
|
Section 6.5. May Hold Securities
|
|
|
42
|
|
Section 6.6. Money Held in Trust
|
|
|
42
|
|
Section 6.7. Compensation and Reimbursement
|
|
|
42
|
|
Section 6.8. Disqualification; Conflicting Interests
|
|
|
43
|
|
Section 6.9. Corporate Trustee Required; Eligibility
|
|
|
43
|
|
Section 6.10. Resignation and Removal; Appointment of Successor
|
|
|
43
|
|
Section 6.11. Acceptance of Appointment by Successor
|
|
|
45
|
|
Section 6.12. Merger, Conversion, Consolidation or Succession to Business
|
|
|
46
|
|
Section 6.13. Preferential Collection of Claims Against Company
|
|
|
46
|
|
Section 6.14. Appointment of Authenticating Agent
|
|
|
46
|
|
|
|
|
|
|
ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
48
|
|
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders
|
|
|
48
|
|
Section 7.2. Preservation of Information; Communications to Holders
|
|
|
48
|
|
Section 7.3. Reports by Trustee
|
|
|
49
|
|
Section 7.4. Reports by Company
|
|
|
49
|
|
|
|
|
|
|
ARTICLE EIGHT CONSOLIDATION, AMALGAMATION, MERGER AND SALE
|
|
|
50
|
|
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms
|
|
|
50
|
|
Section 8.2. Successor Substituted
|
|
|
50
|
|
|
|
|
|
|
ARTICLE NINE AMENDMENT, SUPPLEMENT AND WAIVER
|
|
|
50
|
|
Section 9.1. Without Consent of Holders
|
|
|
50
|
|
Section 9.2. With Consent of Holders
|
|
|
52
|
|
Section 9.3. Execution of Amendments and Supplemental Indentures
|
|
|
54
|
|
Section 9.4. Effect of Amendments and Supplemental Indentures
|
|
|
54
|
|
Section 9.5. Conformity with Trust Indenture Act
|
|
|
54
|
|
Section 9.6. Reference in Securities to Amendments or Supplemental Indentures
|
|
|
54
|
|
ii
|
|
|
|
|
|
|
Page
|
|
ARTICLE TEN COVENANTS
|
|
|
54
|
|
Section 10.1. Payment of Principal, Premium and Interest
|
|
|
54
|
|
Section 10.2. Maintenance of Office or Agency
|
|
|
54
|
|
Section 10.3. Money for Securities Payments to Be Held in Trust
|
|
|
55
|
|
Section 10.4. Existence
|
|
|
56
|
|
Section 10.5. Statement by Officers as to Default
|
|
|
56
|
|
|
|
|
|
|
ARTICLE ELEVEN REDEMPTION OF SECURITIES
|
|
|
57
|
|
Section 11.1. Applicability of Article
|
|
|
57
|
|
Section 11.2. Election to Redeem; Notice to Trustee
|
|
|
57
|
|
Section 11.3. Selection by Trustee of Securities to Be Redeemed
|
|
|
57
|
|
Section 11.4. Notice of Redemption
|
|
|
58
|
|
Section 11.5. Deposit of Redemption Price
|
|
|
58
|
|
Section 11.6. Securities Payable on Redemption Date
|
|
|
58
|
|
Section 11.7. Securities Redeemed in Part
|
|
|
59
|
|
|
|
|
|
|
ARTICLE TWELVE SINKING FUNDS
|
|
|
59
|
|
Section 12.1. Applicability of Article
|
|
|
59
|
|
Section 12.2. Satisfaction of Sinking Fund Payments with Securities
|
|
|
59
|
|
Section 12.3. Redemption of Securities for Sinking Fund
|
|
|
59
|
|
|
|
|
|
|
ARTICLE THIRTEEN DEFEASANCE
|
|
|
60
|
|
Section 13.1. Option to Effect Legal Defeasance or Covenant Defeasance
|
|
|
60
|
|
Section 13.2. Legal Defeasance and Discharge
|
|
|
60
|
|
Section 13.3. Covenant Defeasance
|
|
|
61
|
|
Section 13.4. Conditions to Legal or Covenant Defeasance
|
|
|
61
|
|
Section 13.5. Deposited Money and U.S. Government Obligations to be Held in Trust, Other
Miscellaneous Provisions
|
|
|
62
|
|
Section 13.6. Repayment
|
|
|
63
|
|
Section 13.7. Reinstatement
|
|
|
63
|
|
|
|
|
|
|
ARTICLE FOURTEEN GUARANTEE OF SECURITIES
|
|
|
63
|
|
Section 14.1. Securities Guarantee
|
|
|
63
|
|
Section 14.2. Limitation on Guarantor Liability
|
|
|
65
|
|
Section 14.3. Execution and Delivery of Securities Guarantee Notation
|
|
|
65
|
|
NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.
iii
PARTIES
INDENTURE, dated as of July 21, 2009, among ROWAN COMPANIES, INC., a corporation duly
organized and existing under the laws of the State of Delaware (herein called the Company), the
Guarantors (as defined hereinafter) and U.S. Bank National Association, a national banking
association, as trustee (the Trustee).
RECITALS OF THE COMPANY:
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured senior debentures, notes or other evidences of
indebtedness (herein called the Securities), which may but are not required to be guaranteed by
the Guarantors, to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the Company and of the
Guarantors, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act that are required to be
a part of this Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1.
Definitions
.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;
(b) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP;
(c) 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;
(d) the words Article and Section refer to an Article and Section, respectively, of
this Indenture;
(e) the word includes and its derivatives means includes, but is not limited to and
corresponding derivative definitions; and
(f) references to any officer of any partnership or limited liability company that does
not have officers but is managed or controlled, directly or indirectly, by an entity that
does have officers, shall be deemed to be references to the officers of such managing or
controlling entity.
Certain terms, used principally in Article Six, are defined in that Article.
Act, when used with respect to any Holder, has the meaning specified in Section 1.5.
Additional Defeasible Provision means a covenant or other provision that is (a) made part of
this Indenture pursuant to an indenture supplemental hereto, a Board Resolution or an Officers
Certificate delivered pursuant to Section 3.1, and (b) pursuant to the terms set forth in such
supplemental indenture, Board Resolution or Officers Certificate, made subject to the provisions
of Article Thirteen.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, control, as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by agreement or otherwise. For
purposes of this definition, the terms controlling, controlled by and under common control
with have correlative meanings.
Authenticating Agent means any Person authorized by the Trustee to act on behalf of the
Trustee to authenticate Securities.
Banking Day means, in respect of any city, any date on which commercial banks are open for
business in that city.
Bankruptcy Law means any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law.
Board of Directors means:
(a) with respect to a corporation, the board of directors of the corporation or any committee
thereof duly authorized to act on behalf of such board;
(b) with respect to a partnership, the Board of Directors of the general partner of the
partnership;
(c) with respect to a limited liability company, the managing member or members or any
controlling committee of managers or members thereof or any board or committee serving a similar
management function; and
(d) with respect to any other Person, the individual or board or committee of such Person
serving a management function similar to those described in clauses (a), (b) or (c) of this
definition.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company or a Guarantor, the principal financial officer of the Company or a
Guarantor, any other authorized officer of the Company or a Guarantor, or a person duly authorized
by any of them, in each case as applicable, to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification, and delivered to the Trustee.
Where any provision of this Indenture refers to action to be taken pursuant to a Board Resolution
(including the establishment of any series of the Securities and the forms and terms thereof), such
action may be taken by any committee,
officer or employee of the Company or a Guarantor, as applicable, authorized to take such
action by the Board of Directors, as evidenced by a Board Resolution.
Business Day, when used with respect to any Place of Payment or other location, means,
except as otherwise provided as contemplated by Section 3.1 with respect to any series of
Securities, each
2
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or other location are authorized or obligated by law,
executive order or regulation to close.
CINS means CUSIP International Numbering System.
Code means the United States Internal Revenue Code of 1986, as amended.
Company means the Person named as the Company in the first paragraph of this instrument
until a successor or resulting Person shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter Company shall mean such successor or resulting Person.
Company Request or Company Order means, in the case of the Company, a written request or
order signed in the name of the Company by its Chairman of the Board, its Chief Executive Officer,
its Chief Financial Officer, its President, any of its Vice Presidents or any other duly authorized
officer of the Company or any person duly authorized by any of them, and delivered to the Trustee
and, in the case of a Guarantor, a written request or order signed in the name of such Guarantor by
its Chairman of the Board, its Chief Executive Officer, its President, any of its Vice Presidents
or any other duly authorized officer of such Guarantor or any person duly authorized by any of
them, and delivered to the Trustee.
Corporate Trust Office means the office of the Trustee at the address specified in Section
3.5 or such other address as to which the Trustee may give notice to the Company.
corporation, when used in reference to the Trustee or any prospective Trustee, shall include
any corporation, company, association, partnership, limited partnership, limited liability company,
joint-stock company and trust, in each case, satisfying the requirements of Section 310(a)(1) of
the Trust Indenture Act.
Covenant Defeasance has the meaning specified in Section 13.3.
CUSIP means the Committee on Uniform Securities Identification Procedures.
Custodian means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Debt means any obligation created or assumed by any Person for the repayment of money
borrowed and any purchase money obligation created or assumed by such Person and any guarantee of
the foregoing.
Default means, with respect to a series of Securities, any event that is, or after notice or
lapse of time or both would be, an Event of Default.
Defaulted Interest has the meaning specified in Section 3.7.
Definitive Security means a security other than a Global Security or a temporary Security.
Depositary means, with respect to the Securities of any series issuable or issued in whole
or in part in the form of one or more Global Securities, a clearing agency registered under the
Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section
3.1, until a successor Depositary shall have become such pursuant to the applicable provisions of
this Indenture, and
3
thereafter shall mean or include each Person which is a Depositary hereunder,
and if at any time there is more than one such Person, shall be a collective reference to such
Persons.
Dollar or $ means the coin or currency of the United States of America, which at the time
of payment is legal tender for the payment of public and private debts.
Event of Default has the meaning specified in Section 5.1.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Foreign Currency means a currency used by the government of a country other than the United
States of America.
GAAP means generally accepted accounting principles in the United States of America as in
effect from time to time, including those 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 approved by a significant segment of the accounting profession.
All ratios and computations based on GAAP contained in this Indenture will be computed in
conformity with GAAP.
Global Security means a Security in global form that evidences all or part of a series of
Securities and is authenticated and delivered to, and registered in the name of, the Depositary for
the Securities of such series or its nominee.
Guaranteed Securities has the meaning specified in Section 14.1.
Guarantor means each Person that becomes a guarantor of any Securities pursuant to the
applicable provisions of this Indenture.
Holder means a Person in whose name a Security is registered in the Security Register.
Indenture means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more amendments or indentures supplemental hereto entered into
pursuant to the applicable provisions hereof, including, for all purposes of this instrument, and
any such amendment or supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be part of and govern this instrument and any such amendment or supplemental indenture,
respectively. The term Indenture also shall include the terms of particular series of Securities
established as contemplated by Section 3.1.
Interest, when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
Interest Payment Date, when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.
Judgment Currency has the meaning specified in Section 1.18.
Legal Defeasance has the meaning specified in Section 13.2.
Mandatory sinking fund payment has the meaning specified in Section 12.1.
Market Exchange Rate has the meaning specified in Section 1.17.
4
Maturity, when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
Notice of Default means a written notice of the kind specified in Section 5.1(c) or Section
5.1(d).
Officers Certificate means, in the case of the Company, a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President, any
Vice President or any other duly authorized officer of the Company, or a person duly authorized by
any of them, and delivered to the Trustee and, in the case of a Guarantor, a certificate signed by
the Chairman of the Board, the Chief Executive Officer, the President, any Vice President or any
other duly authorized officer of such Guarantor, or a person duly authorized by any of them, and
delivered to the Trustee.
Opinion of Counsel means a written opinion of counsel, who may be an employee of or counsel
for the Company or a Guarantor, as the case may be, and who shall be reasonably acceptable to the
Trustee.
Optional Sinking Fund Payment has the meaning specified in Section 12.1.
Original Issue Discount Security means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2.
Outstanding, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(b) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities;
provided
,
however
, that, if such
Securities are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been made;
(c) Securities which have been paid pursuant to Section 3.6 or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the Company; and
(d) Securities, except to the extent provided in Section 13.2 and Section 13.3, with
respect to which the Company has effected Legal Defeasance or Covenant Defeasance as
provided in Article Thirteen, which Legal Defeasance or Covenant Defeasance then
continues in effect;
provided
,
however
, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, (i) the principal amount of an Original Issue Discount Security that shall be
deemed to
5
be Outstanding shall be the amount of the principal thereof that would be due and payable
as of the date of such determination upon acceleration of the Maturity thereof on such date
pursuant to Section 5.2, (ii) the principal amount of a Security denominated in one or more
currencies or currency units other than U.S. dollars shall be the U.S. dollar equivalent of such
currencies or currency units, determined in the manner provided as contemplated by Section 3.1 on
the date of original issuance of such Security or by Section 1.17, if not otherwise so provided
pursuant to Section 3.1, of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent (as so determined) on the date of original issuance of such
Security of the amount determined as provided in clause (i) above) of such Security, and (iii)
Securities owned by the Company, any Guarantor or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so owned as described in
clause (iii) of the immediately preceding sentence which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgees
right to act with respect to such Securities and that the pledgee is not the Company, a Guarantor
or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
Paying Agent means any Person authorized by the Company to pay the principal of and any
premium or interest on any Securities on behalf of the Company.
Periodic Offering means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest or
formula for determining the rate or rates of interest thereon, if any, the Stated Maturity or
Stated Maturities thereof, the original issue date or dates thereof, the redemption provisions, if
any, with respect thereto, and any other terms specified as contemplated by Section 3.1 with
respect thereto, are to be determined by the Company upon the issuance of such Securities.
Person means any individual, corporation, company, limited liability company, partnership,
limited partnership, joint venture, association, joint-stock company, trust, other entity,
unincorporated organization or government or any agency or political subdivision thereof.
Place of Payment, when used with respect to the Securities of any series, means, unless
otherwise specifically provided for with respect to such series as contemplated by Section 3.1, the
office or agency of the Company and such other place or places where, subject to the provisions of
Section 10.2, the principal of and any premium and interest on the Securities of that series are
payable as contemplated by Section 3.1.
Predecessor Security of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
Redemption Date, when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
Redemption Price, when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
6
Regular Record Date for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 3.1.
Required Currency has the meaning specified in Section 1.18.
Responsible Officer, when used with respect to the Trustee, means any officer within the
Corporate Trust Office of the Trustee (or any successor group of the Trustee) or any other officer
of the Trustee customarily performing functions similar to those performed by any of the above
designated officers 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.
SEC means the Securities and Exchange Commission, as from time to time constituted, created
under the Exchange Act, or, if at any time after the execution of this instrument such commission
is not existing and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
Securities has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
Securities Guarantee means each guarantee of the obligations of the Company under this
Indenture and the Securities by a Guarantor in accordance with the provisions hereof.
Security Register and Security Registrar have the respective meanings specified in Section
3.5.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.7.
Stated Maturity, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, Trustee as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
Trust Indenture Act means the Trust Indenture Act of 1939, as amended, as in force at the
date as of which this instrument was executed, except as provided in Section 9.5;
provided
,
however
, that if the Trust Indenture Act of 1939 is amended after such date, Trust Indenture Act
means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
U.S. Person shall have the meaning assigned to such term in Section 7701(a)(30) of the Code.
U.S. Government Obligations means securities which are (a) direct obligations of the United
States for the payment of which its full faith and credit is pledged, or (b) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of the United States,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the
United States, and which are not callable or redeemable at the option of the issuer thereof.
7
Vice President, when used with respect to the Company, the Guarantor or the Trustee, means
any vice president, regardless of whether designated by a number or a word or words added before or
after the title vice president.
Section 1.2.
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:
commission means the SEC.
indenture securities means the Securities.
indenture security holder means a Holder.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Trustee.
obligor on the indenture securities means the Company, the Guarantor (if
applicable) or any other obligor on the indenture securities.
All terms used in this Indenture that are defined by the Trust Indenture Act, defined by a
Trust Indenture Act reference to another statute or defined by an SEC rule under the Trust
Indenture Act have the meanings so assigned to them.
Section 1.3.
Compliance Certificates and Opinions
.
Upon any application or request by the Company or a Guarantor to the Trustee to take any
action under any provision of this Indenture, the Company or such Guarantor, as the case may be,
shall furnish to the Trustee an Officers Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or opinion need be
furnished except as required under Section 314(c) of the Trust Indenture Act.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (except for certificates provided for in Section 10.5) shall include:
(a) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether such covenant or condition has been complied with; and
8
(d) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
Section 1.4.
Form of Documents Delivered to Trustee
.
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
other 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 Company or a 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, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company or the Guarantor, as the case may be, stating that the information with
respect to such factual matters is in the possession of the Company or the Guarantor, as the case
may be, unless such counsel knows 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 1.5.
Acts of Holders; Record Dates
.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed (either
physically or by means of a facsimile or an electronic transmission,
provided
that such
electronic transmission is transmitted through the facilities of a Depositary) by such
Holders in person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the Company or
the Guarantors. 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 Section 315 of the Trust Indenture Act) conclusive in favor
of the Trustee, the Company and, if applicable, the Guarantors, if made in the manner
provided in this Section.
(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
his 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 sufficient.
9
(c) The ownership, principal amount and serial numbers of Securities held by any
Person, and the date of commencement of such Persons holding of same, shall be proved by
the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Security shall bind every future Holder of the same Security and the
Holder of every Security 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, the Company or, if applicable, the Guarantors in reliance thereon, regardless
of whether notation of such action is made upon such Security.
(e) Without limiting the foregoing, a Holder entitled to give or take any action
hereunder with regard to any particular Security may do so with regard to all or any part of
the principal amount of such Security 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.
(f) The Company may set any day as the record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other Act provided or permitted
by this Indenture to be given or taken by Holders of Securities of such series, but the
Company shall have no obligation to do so. With regard to any record date set pursuant to
this paragraph, the Holders of Outstanding Securities of the relevant series on such record
date (or their duly appointed agents), and only such Persons, shall be entitled to give or
take the relevant action, regardless of whether such Holders remain Holders after such
record date.
Section 1.6.
Notices, Etc., to Trustee, Company and Guarantors
.
(a) Any notice or communication by the Company, any of the Guarantors 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 Company and/or any Guarantor:
Rowan Companies, Inc.
2800 Post Oak Boulevard, Suite 5450
Houston, Texas 77056
Telephone: (713) 621-7800
Facsimile: (713) 960-7685
Attention: Chief Financial Officer
with a copy to:
Andrews Kurth LLP
600 Travis, Suite 4200
Houston, Texas 77002
Telephone: (713) 220-4200
Facsimile: (713) 220-4285
Attention: Robert V. Jewell
10
If to the Trustee:
U.S. Bank National Association
5555 San Felipe, Suite 1150
Houston, Texas 77056
Telephone: (713) 235-9208
Facsimile: (713) 235-9213
Attention: Corporate Trust Services
(b) The Company, the Guarantors or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.
(c) 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; three
Business Days after being deposited in the mail, postage prepaid, if mailed; 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.
Section 1.7.
Notice to Holders; Waiver
.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, regardless of whether such Holder actually receives such notice.
Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case it shall be impracticable to give such notice by mail by reason of the suspension of
regular mail service or by reason of any other cause, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 1.8.
Conflict with Trust Indenture Act
.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Indenture, the provision of the
Trust Indenture Act shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the provision of the
Trust Indenture Act shall be deemed to apply to this Indenture as so modified or excluded, as the
case may be.
Section 1.9.
Effect of Headings and Table of Contents
.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
11
Section 1.10.
Successors and Assigns
.
All covenants and agreements in this Indenture by each of the Company and the Guarantors shall
bind their respective successors and assigns, whether so expressed or not.
Section 1.11.
Separability Clause
.
In case any provision in this Indenture or in the Securities or, if applicable, the Securities
Guarantee 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 1.12.
Benefits of Indenture
.
Nothing in this Indenture or in the Securities or, if applicable, the Securities Guarantee,
express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 1.13.
Force Majeure
.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it
being understood that the Trustee shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable under the
circumstances.
Section 1.14.
Waiver of Jury Trial
.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS INDENTURE.
Section 1.15.
Governing Law
.
THIS INDENTURE, THE SECURITIES AND THE SECURITIES GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 1.16.
Legal Holidays
.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities or, if applicable, the Securities Guarantee (other
than a provision of the Securities of any series or, if applicable, the Securities Guarantee that
specifically states that such provision shall apply in lieu of this Section 1.16)) payment of
interest or principal and any premium need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and
if payment is so made, no interest shall accrue for the
12
period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
Section 1.17.
Securities in a Composite Currency, Currency Unit or Foreign Currency
.
Unless otherwise specified in a Board Resolution, Officers Certificate or indenture
supplemental hereto delivered pursuant to Section 3.1 of this Indenture with respect to a
particular series of Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of Securities of all series or
all series affected by a particular action at the time Outstanding and, at such time, there are
Outstanding Securities of any affected series which are denominated in a coin, currency or
currencies other than Dollars (including, but not limited to, any composite currency, currency
units or Foreign Currency), then the principal amount of Securities of such
series which shall be deemed to be Outstanding for the purpose of taking such action shall be
that amount of Dollars that could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 1.17, the term Market Exchange Rate shall mean the noon Dollar buying
rate in The City of New York for cable transfers of such currency or currencies as published by the
Federal Reserve Bank of New York, as of the most recent available date. If such Market Exchange
Rate is not so available for any reason with respect to such currency, the Trustee shall use, in
its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank
of New York as of the most recent available date, or quotations or rates of exchange from one or
more major banks in The City of New York or in the country of issue of the currency in question,
which for purposes of Euros shall be Brussels, Belgium, or such other quotations or rates of
exchange as the Trustee shall deem appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of Securities of a series denominated in a
currency other than Dollars in connection with any action taken by Holders of Securities pursuant
to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Issuer and all Holders.
Section 1.18.
Payment in Required Currency; Judgment Currency
.
Each of the Company and the Guarantors agrees, to the fullest extent that it 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 interest on the Securities of
any series (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 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 Banking
Day next preceding the day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (regardless of whether entered in
accordance with subclause (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
13
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.
Section 1.19.
Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, waiver or Act required or
permitted under this Indenture shall be in the English language, except that any published notice
may be in an official language of the country of publication.
Section 1.20.
Incorporators, Shareholders, Officers and Directors of the Company and the
Guarantors Exempt from Individual Liability
.
No recourse under or upon any obligation, covenant or agreement of or contained in this
Indenture or of or contained in any Security or, if applicable, the Securities Guarantee, or for
any claim based thereon or otherwise in respect thereof, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator, shareholder, member,
officer, manager, employee, partner or director, as such, past, present or future, of the Company,
any Guarantor or any successor Person, either directly or through the Company, any Guarantor or any
successor Person, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a part of the
consideration for, the execution of this Indenture and the issue of the Securities.
ARTICLE TWO
SECURITY FORMS
Section 2.1.
Forms Generally
.
The Securities of each series and, if applicable, the notation thereon relating to the
Securities Guarantee, shall be in substantially the form set forth in this Article Two, or in such
other form or forms as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by 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 the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities and, if applicable,
the Securities Guarantee, as evidenced by their execution thereof.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution thereof. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by an authorized officer or other authorized person on behalf of the
Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated
by Section 3.3 for the authentication and delivery of such Securities.
The forms of Global Securities of any series shall have such provisions and legends as are
customary for Securities of such series in global form, including without limitation any legend
required by the Depositary for the Securities of such series.
14
Section 2.2.
Form of Face of Security
.
[
If the Security is an Original Issue Discount Security and is not publicly offered within the
meaning of Treasury Regulations Section 1.1275-1(h), insert
FOR PURPOSES OF SECTION 1275 OF THE
UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY WAS ISSUED WITH ORIGINAL
ISSUE DISCOUNT, THE AMOUNT OF THE ORIGINAL ISSUE
DISCOUNT IS [. . . . . . . .% OF ITS PRINCIPAL AMOUNT] [$. . . . PER $1,000 OF PRINCIPAL AMOUNT],
THE ISSUE DATE IS . . . . . ., 20. . . AND, THE YIELD TO MATURITY IS . . . . . . . . , COMPOUNDED
[SEMIANNUALLY OR OTHER PROPER PERIOD].
[
In the alternative instead of providing such legend, insert the following legend
FOR PURPOSES OF
SECTION 1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED THIS SECURITY WAS
ISSUED WITH ORIGINAL ISSUE DISCOUNT, AND. . . . . . . [THE NAME OR TITLE AND ADDRESS OR TELEPHONE
NUMBER OF A REPRESENTATIVE OF THE COMPANY] WILL, BEGINNING NO LATER THAN 10 DAYS AFTER THE ISSUE
DATE, PROMPTLY MAKE AVAILABLE TO HOLDERS THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE, THE
YIELD TO MATURITY AND ANY OTHER INFORMATION REQUIRED BY APPLICABLE TREASURY REGULATIONS.]
[Insert any other legend required by the Code or the regulations thereunder.]
[
If a Global Security,insert legend required by Section 2.4 of the Indentur
e] [
If applicable,
insert
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
ROWAN COMPANIES, INC.
[TITLE OF SECURITY]
|
|
|
|
|
|
No. . . . . .
|
|
U.S. $. . . . . .
|
[CUSIP No. ]
ROWAN COMPANIES, INC., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the Company, which term includes any successor or resulting Person under
the Indenture hereinafter referred to), for value received, hereby promises to pay to .. . . . . .
. . . . . . . . . . . . . . . . ., or registered assigns, the principal sum of . . . . United
States Dollars on. . . . . . . [
If the Security is to bear interest prior to Maturity, insert
, and to pay
interest thereon from . . . . . . . . . . or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on . . . . . . and . . . . . . in each
year, commencing . . . . . ., at the rate of . . . . % per annum, until the principal hereof is
paid or made available for payment [
if applicable, insert
, and at the rate of ___% per annum on
any overdue principal and premium and on any installment of interest (to the extent that the
payment of such interest shall be legally enforceable)].
15
The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest, which shall be
the . . . . or . . . . (regardless of whether a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to
the
Person in whose name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than
10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[
If the Security is not to bear interest prior to Maturity, insert
The principal of this Security
shall not bear interest except in the case of a default in payment of principal upon acceleration,
upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of . . . .% per annum (to the extent that the payment of such interest
shall be legally enforceable), which shall accrue from the date of such default in payment to the
date payment of such principal has been made or duly provided for. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of . . . . % per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly provided for, and
such interest shall also be payable on demand.]
[
If a Global Security, insert
Payment of the principal of (and premium, if any) and [
if
applicable, insert
any such] interest on this Security will be made by transfer of immediately
available funds to a bank account in
designated by the Holder 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 [state other currency].]
[
If a Definitive Security, insert
Payment of the principal of (and premium, if any) and [
if
applicable, insert
any such] interest on this Security will be made at the office or agency of the
Company maintained for that purpose in
, 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] [state other currency] [or subject to any laws or regulations applicable thereto and to the
right of the Company (as provided in the Indenture) to rescind the designation of any such Paying
Agent, at the [main] offices of
in
, or at such other offices or
agencies as the Company may designate, by [United States Dollar] [state other currency] check drawn
on, or transfer to a [United States Dollar] account maintained by the payee with, a bank in The
City of New York (so long as the applicable Paying Agency has received proper transfer instructions
in writing at least ___days prior to the payment date)] [
if applicable, insert
;
provided
,
however
, that payment of interest may be made at the option of the Company by [United States
Dollar] [state other currency] check mailed to the addresses of the Persons entitled thereto as
such addresses shall appear in the Security Register] [or by transfer to a [United States Dollar]
[state other currency] account maintained by the payee with a bank in The City of New York [state
other Place of Payment] (so long as the applicable Paying Agent has received proper transfer
instructions in writing by the record date prior to the applicable Interest Payment Date)].]
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
16
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
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ROWAN COMPANIES, INC.
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By:
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Section 2.3.
Form of Reverse of Security
.
This Security is one of a duly authorized issue of senior securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture, dated as of
, 20___(herein called the Indenture), between the Company, the Guarantors, if any, and
[
], as Trustee (herein called the Trustee, which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Guarantors, if any, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. As provided in the Indenture, the Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may mature at different
times, may bear interest, if any, at different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may
be subject to different covenants and Events of Default and may otherwise vary as in the Indenture
provided or permitted. This Security is one of the series designated on the face hereof [, limited
in aggregate principal amount to $ . . . . . . . . . . ].
This security is the general, unsecured, senior obligation of the Company [
if applicable,
insert
and is guaranteed pursuant to a guarantee (the Securities Guarantee) by [
insert name of
each Guarantor
] (the Guarantors). The Securities Guarantee is the general, unsecured, senior
obligation of each Guarantor.]
[
If applicable, insert
The Securities of this series are subject to redemption upon not less than
... days notice by mail, [
if applicable, insert
,
(1) on . . . . . . . . . . . . . . in any year
commencing with the year . . . . and ending with the year . . . . through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal amount, and (2) ] at any
time [on or after . . . . . . . . . ., 20. . . ], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the principal amount): If
redeemed [on or before . . . . . . . . . . . . . . . , . . . . . %, and if redeemed] during the
12-month period beginning . . . . . . . . of the years indicated,
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Year
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Redemption Price
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Year
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Redemption Price
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17
and thereafter at a Redemption Price equal to . . . . . % of the principal amount, together in the
case of any such redemption [
if applicable, insert
(whether through operation of the sinking fund
or otherwise)]
with accrued interest to the Redemption Date, but interest installments the Stated Maturity of
which is on or prior to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the relevant record dates
referred to on the face hereof, all as provided in the Indenture.]
[
If applicable, insert
The Securities of this series are subject to redemption upon not less
than... nor more than ... days notice by mail, (1) on . . . . . . . . in any year commencing with
the year . . . . and ending with the year . . . . through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at anytime [on or after . . . . . . . . . . ], as a whole or in part, at the election of the Company, at the Redemption
Prices for redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed during the 12-month
period beginning . . . . . . . . . . . . . . of the years indicated,
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Redemption Price for
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Redemption Price For
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Redemption Otherwise Than
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Redemption Through
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Through Operation of the
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Year
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Operation of the Sinking Fund
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Sinking Fund
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and thereafter at a Redemption Price equal to . . . . % of the principal amount, together in the
case of any such redemption (whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest installments the Stated Maturity of which is
on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant record dates
referred to on the face hereof, all as provided in the Indenture.]
[
If applicable, insert
Notwithstanding the foregoing, the Company may not, prior to . . . . . . .
. . ., redeem any Securities of this series as contemplated by [clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the application, directly
or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance
with generally accepted financial practice) of less than . . . .% per annum.]
[
If applicable, insert
The sinking fund for this series provides for the redemption on . . . . . .
. . . . . . in each year beginning with the year . . . . and ending with the year . . . . of [not
less than] $ . . . . . . . . . . . . [ (mandatory sinking fund) and not more than $ . . . . .
. . . . . . . ] aggregate principal amount of Securities of this series. [Securities of this series
acquired or redeemed by the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required to be made [
If
applicable, insert
in the inverse order in which they become due].]
18
[
If the Securities are subject to redemption in part of any kind, insert
In the event of
redemption of this Security in part only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[
If applicable, insert
The Securities of this series are not redeemable prior to Stated Maturity.]
[
If the Security is not an Original Issue Discount Security
,
If an Event of Default with respect
to Securities of this series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect provided in the
Indenture.]
[
If the Security is an Original Issue Discount Security
,
If an Event of Default with respect to
Securities of this series shall occur and be continuing, an amount of principal of the Securities
of this series may be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to
insert formula for determining the amount
. Upon
payment (i) of the amount of principal so declared due and payable and (ii) of interest on any
overdue principal and overdue interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Companys obligations in respect of the payment
of the principal of and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company [
If applicable, insert
and the
Guarantors] and the rights of the Holders of the Securities of each series to be affected under the
Indenture at any time by the Company [
If applicable, insert
and the Guarantors] and the Trustee
with the consent of the Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the
Company [
If applicable, insert
and the Guarantors] with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such consent or waiver by
the Holder of this Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, regardless of whether notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Security at the times, place(s) and rate,
and in the coin or currency, herein prescribed.
[
If a Global Security, insert
This Global Security or portion hereof may not be exchanged for
Definitive Securities of this series except in the limited circumstances provided in the Indenture.
The holders of beneficial interests in this Global Security will not be entitled to receive
physical delivery of Definitive Securities except as described in the Indenture and will not be
considered the Holders thereof for any purpose under the Indenture.]
[
If a Definitive Security, insert
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency of the Company in
[
if applicable, insert
any place where the principal of and any premium and interest on this
Security are payable] [
if applicable, insert
The City of New York [, or, subject to any laws or
regulations applicable thereto and to the right of the Company (limited as provided in the
Indenture) to rescind the designation of any such transfer agent, at the [main] offices of
in
or at such other offices or agencies as the
19
Company may
designate]], duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of this series and of
like
tenor, of authorized denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.]
The Securities of this series are issuable only in registered form without coupons in denominations
of U.S. $ . . . . . . . . and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, [
If
applicable, insert
any Guarantor,] the Trustee and any agent of the Company [
If applicable,
insert
, a Guarantor] or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, regardless of whether this Security be overdue,
and none of the Company, [
If applicable, insert
the Guarantors,] the Trustee nor any such agent
shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of or contained in the Indenture or
of or contained in any Security, [
If applicable, insert
, or the Securities Guarantee endorsed
thereon,] or for any claim based thereon or otherwise in respect thereof, or because of the
creation of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, member, officer, manager or director, as such, past, present or future, of the Company
[
If applicable, insert
or any Guarantor] or of any successor Person, either directly or through
the Company [
If applicable, insert
or any Guarantor] or any successor Person, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any assessment, penalty or
otherwise; it being expressly understood that all such liability is hereby expressly waived and
released by the acceptance hereof and as a condition of, and as part of the consideration for, the
Securities and the execution of the Indenture.
The Indenture provides that the Company [
If applicable, insert
and the Guarantors] (a) will be
discharged from any and all obligations in respect of the Securities (except for certain
obligations described in the Indenture), or (b) need not comply with certain restrictive covenants
of the Indenture, in each case if the Company [
If applicable, insert
or a Guarantor] deposits, in
trust, with the Trustee money or U.S. Government Obligations (or a combination thereof) which
through the payment of interest thereon and principal thereof in accordance with their terms will
provide money, in an amount sufficient to pay all the principal of and interest on the Securities,
but such money need not be segregated from other funds except to the extent required by law.
Except as otherwise defined herein, all terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
[
If a Definitive Security, insert as a separate page
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please Print or Type Name and Address of Assignee)
20
the within instrument of ROWAN COMPANIES, INC. and does hereby irrevocably constitute and appoint
Attorney to transfer said instrument on the books of the within-named Company,
with full power of substitution in the premises.
Please Insert Social Security or Other Identifying Number of Assignee:
NOTICE: The signature to this assignment must correspond with the name as written upon the face of
the within instrument in every particular, without alteration or enlargement or any change
whatever.]
[
If a Security to which Article Fourteen has been made applicable, insert the following Form of
Notation on such Security relating to the Securities Guarantee
Each of the Guarantors (which term includes any successor Person in such capacity under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, the due and punctual payment of the
principal of, and premium, if any, and interest on the Securities of this series and all other
amounts due and payable under the Indenture and the Securities of this series by the Company.
The obligations of the Guarantors to the Holders of Securities of this series and to the Trustee
pursuant to the Securities Guarantee and the Indenture are expressly set forth in Article Fourteen
of the Indenture and reference is hereby made to the Indenture for the precise terms of the
Securities Guarantee.
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Guarantors:
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[NAME OF EACH GUARANTOR]
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By:
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]
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Section 2.4.
Global Securities
.
Every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES
REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF
AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN
EXCHANGE FOR OR IN LIEU
21
OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
If Securities of a series are issuable in whole or in part in the form of one or more Global
Securities, as specified as contemplated by Section 3.1, then, notwithstanding clause (i) of
Section 3.1 and the provisions of Section 3.2, any Global Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities represented thereby may from time to time be
reduced or increased, as the case may be, to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any reduction or increase in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon instructions given by such
Person or Persons as shall be specified therein or in a Company Order. Subject to the provisions
of Section 3.3, Section 3.4 and Section 3.5, the Trustee shall deliver and redeliver any Global
Security in the manner and upon instructions given by the Person or Persons specified therein or in
the applicable Company Order. Any instructions by the Company with respect to endorsement or
delivery or redelivery of a Global Security shall be in a Company Order (which need not comply with
Section 1.3 and need not be accompanied by an Opinion of Counsel).
The provisions of the last sentence of Section 3.3 shall apply to any Security represented by
a Global Security if such Security was never issued and sold by the Company and the Company
delivers to the Trustee the Global Security together with a Company Order (which need not comply
with Section 1.3 and need not be accompanied by an Opinion of Counsel) with regard to the reduction
or increase, as the case may be, in the principal amount of Securities represented thereby,
together with the written statement contemplated by the last sentence of Section 3.3.
Section 2.5.
Form of Trustees Certificate of Authentication.
The Trustees certificate(s) of authentication shall be in substantially the following form:
This is one of the Securities of the series designated [
insert title of applicable
series
] referred to in the within-mentioned Indenture.
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U.S. Bank National Association, as Trustee
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By:
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Authorized Officer
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ARTICLE THREE
THE SECURITIES
Section 3.1.
Amount Unlimited; Issuable in Series
.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution, and set forth, or determined in the manner provided, in an Officers
Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series:
22
(a) the title of the Securities of the series (which shall distinguish the Securities
of the series from all other Securities and which may be part of a series of Securities
previously issued);
(b) any limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.4, Section 3.5, Section 3.6, Section 9.6 or
Section 11.7 and except for any Securities which, pursuant to Section 3.3, are deemed never
to have been authenticated and delivered hereunder);
(c) the Person to whom any interest on a Security of the series shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of the Securities of the series is payable
or the method of determination thereof;
(e) the rate or rates at which the Securities of the series shall bear interest, if
any, or the formula, method or provision pursuant to which such rate or rates are
determined, the date or dates from which such interest shall accrue or the method of
determination thereof, the Interest Payment Dates on which such interest shall be payable
and the Regular Record Date for the interest payable on any Interest Payment Date;
(f) the place or places where, subject to the provisions of Section 10.2, the principal
of and any premium and interest on Securities of the series shall be payable, Securities of
the series may be surrendered for registration of transfer, Securities of the series may be
surrendered for exchange, and notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(g) the period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Company;
(h) the obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at which and the terms
and conditions upon which Securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(i) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of the series shall be issuable;
(j) whether payment of principal of and premium, if any, and interest, if any, on the
Securities of the series shall be without deduction for taxes, assessments or governmental
charges paid by Holders of the series;
(k) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.2;
23
(l) if the amount of payments of principal of and any premium or interest on the
Securities of the series may be determined with reference to an index, the manner in which
such amounts shall be determined;
(m) if and as applicable, that the Securities of the series shall be issuable in whole
or in part in the form of one or more Global Securities and, in such case, the Depositary or
Depositaries for such Global Security or Global Securities and any circumstances other than
those set forth in Section 3.5 in which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of, a Person other than the
Depositary for such Global Security or a nominee thereof and in which any such transfer may
be registered;
(n) any deletions from, modifications of or additions to the Events of Default set
forth in Section 5.1 or the covenants of the Company set forth in Article Ten with respect
to the Securities of such series;
(o) whether and under what circumstances the Company will pay additional amounts on the
Securities of the series held by a Person who is not a U.S. Person in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the Company will
have the option to redeem the Securities of the series rather than pay such additional
amounts;
(p) if the Securities of the series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions, the form and
terms of such certificates, documents or conditions;
(q) if the Securities of the series are to be convertible into or exchangeable for any
other security or property of the Company, including, without limitation, securities of
another Person held by the Company or its Affiliates and, if so, the terms thereof;
(r) if other than as provided in Section 13.2 and Section 13.3, the means of Legal
Defeasance or Covenant Defeasance as may be specified for the Securities of the series;
(s) if other than the Trustee, the identity of the initial Security Registrar and any
initial Paying Agent;
(t) whether the Securities of the series will be guaranteed pursuant to the Securities
Guarantee set forth in Article Fourteen, any modifications to the terms of Article Fourteen
applicable to the Securities of such series and the applicability of any other guarantees;
and
(u) any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 3.3) set forth, or determined in the manner provided, in the Officers
Certificate referred to above or in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for increases in the
aggregate principal amount of such series of Securities and issuances of additional Securities of
such series or for the establishment of additional terms with respect to the Securities of such
series.
24
If any of the terms of the series are established by action taken by or pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by an authorized
officer or other authorized person on behalf of the Company and, if applicable, the Guarantors and
delivered to the Trustee at or prior to the delivery of the Officers Certificate setting forth, or
providing the manner for determining, the terms of the series.
With respect to Securities of a series subject to a Periodic Offering, such Board Resolution
or Officers Certificate may provide general terms for Securities of such series and provide either
that the specific terms of particular Securities of such series shall be specified in a Company
Order or that such terms shall be determined by the Company and, if applicable, the Guarantors or
one or more agents thereof designated in an Officers Certificate, in accordance with a Company
Order.
Section 3.2.
Denominations
.
The Securities of each series shall be issuable in registered form without coupons in such
denominations as shall be specified as contemplated by Section 3.1. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.3.
Execution, Authentication, Delivery and Dating
.
The Securities shall be executed on behalf of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, its Chief Financial Officer or any of its Vice Presidents
and need not be attested. The signature of any of these officers on the Securities may be manual
or facsimile. Any Securities Guarantee endorsed on the Securities shall be executed on behalf of
the applicable Guarantor by its Chairman of the Board, its Chief Executive Officer, its President,
its Chief Financial Officer or any of its Vice Presidents and need not be attested. The signature
of any of these officers on any endorsement of the Securities Guarantee may be manual or facsimile.
Securities and any endorsement of a Securities Guarantee bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the Company or a Guarantor,
as the case may be, shall bind the Company or such Guarantor, as the case may be, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities;
provided
,
however
, that in the case of Securities offered in a Periodic Offering,
the Trustee shall authenticate and deliver such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized agents, thereafter promptly
confirmed in writing) acceptable to the Trustee as may be specified by or pursuant to a Company
Order delivered to the Trustee prior to the time of the first authentication of Securities of such
series. If the forms or terms of the Securities of the series have been established in or pursuant
to one or more Board Resolutions as permitted by Section 2.1 and Section 3.1, in authenticating
such Securities, and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive such documents as it may reasonably request. The Trustee shall
also be entitled to receive, and (subject to Section 6.1) shall be fully protected in relying upon,
an Opinion of Counsel stating:
25
(a) if the form or forms of such Securities has been established in or pursuant to a
Board Resolution as permitted by Section 2.1, that each such form has been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been, or in the case of Securities of a series
offered in a Periodic Offering will be, established in or pursuant to a Board Resolution as
permitted by Section 3.1, that such terms have been, or in the case of Securities of a
series offered in a Periodic Offering will be, established in conformity with the provisions
of this Indenture, subject, in the case of Securities of a series offered in a Periodic
Offering, to any conditions specified in such Opinion of Counsel; and
(c) that such Securities when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions and assumptions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of the Company
and, if applicable, the Guarantors, enforceable in accordance with their terms, subject to
the following limitations: (i) bankruptcy, insolvency, moratorium, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws of general
applicability relating to or affecting the enforcement of creditors rights, or to general
equity principles, (ii) the availability of equitable remedies being subject to the
discretion of the court to which application therefor is made; and (iii) such other usual
and customary matters as shall be specified in such Opinion of Counsel.
If such form or forms or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustees own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers Certificate otherwise required pursuant to Section 3.1 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
time of authentication of each Security of such series if such documents are delivered at or prior
to the authentication upon original issuance of the first Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely,
as to the authorization by the Company of any of such Securities, on the form or forms and terms
thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of
Counsel and the other documents delivered pursuant to Section 2.1 and Section 3.1 and this Section,
as applicable, in connection with the first authentication of Securities of such series.
Each Security shall be dated the date of its authentication.
No Security, nor any Securities Guarantee endorsed thereon, shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein executed by
the Trustee by manual signature of an authorized officer, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.9, for
all purposes of this Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this Indenture.
26
Section 3.4.
Temporary Securities
.
Pending the preparation of Definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the Definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company will cause Definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of Definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
Definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Securities of the same series and tenor of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as Definitive Securities of such series.
Section 3.5.
Registration, Registration of Transfer and Exchange
.
The Company shall cause to be kept at the office or agency of the Company in a Place of
Payment required by Section 10.2 a register (the register maintained in such office being herein
sometimes referred to as the Security Register) in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of Securities and of transfers
of Securities. The Trustee is hereby appointed as the initial Security Registrar for the purpose
of registering Securities and transfers of Securities as herein provided, and its corporate trust
office, which, at the date hereof, is located at 5555 San Felipe, Suite 1150, Houston, Texas 77056,
is the initial office or agency where the Securities Register will be maintained. The Company may
at any time replace such Security Registrar, change such office or agency or act as its own
Security Registrar. The Company will give prompt written notice to the Trustee of any change of
the Security Registrar or of the location of such office or agency.
Upon surrender for registration of transfer of any Security of any series at the office or
agency maintained pursuant to Section 10.2 for such purpose, the Company and, if applicable, the
Guarantors shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities, with an endorsement of the
Securities Guarantee, if applicable, executed by the Guarantors, of the same series and tenor, of
any authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Securities of any series (except a Global Security) may be
exchanged for other Securities of the same series and tenor, of any authorized denominations and of
a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company and, if applicable, the
Guarantors shall execute and the Trustee shall authenticate and deliver, the Securities, with an
endorsement of the Securities Guarantee, if applicable, executed by the Guarantors, which the
Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company and, if applicable, the Guarantors evidencing the same debt, and
entitled to
27
the same benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, Section 9.6 or Section 11.7 not involving
any transfer.
The Company shall not be required (a) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of that series selected for redemption
under Section 11.3 and ending at the close of business on the day of such mailing, or (b) to
register the transfer of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provisions of this Indenture and except as otherwise specified with
respect to any particular series of Securities as contemplated by Section 3.1, a Global Security
representing all or a portion of the Securities of a series may not be transferred, except as a
whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
Every Security authenticated and delivered upon registration of, transfer of, or in exchange for or
in lieu of, a Global Security shall be a Global Security except as provided in the two paragraphs
immediately following.
If at any time the Depositary for any Securities of a series represented by one or more Global
Securities notifies the Company that it is unwilling or unable to continue as Depositary for such
Securities or if at any time the Depositary for such Securities shall no longer be eligible to
continue as Depositary under Section 3.1 or ceases to be a clearing agency registered under the
Exchange Act, the Company shall appoint a successor Depositary with respect to such Securities. If
a successor Depositary for such Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Companys election
pursuant to Section 3.1 that such Securities be represented by one or more Global Securities shall
no longer be effective and the Company and, if applicable, the Guarantors will execute and the
Trustee, upon receipt of a Company Order for the authentication and delivery of Definitive
Securities of such series, will authenticate and deliver, Securities, with an endorsement of the
Securities Guarantee, if applicable, executed by the Guarantors, of such series in definitive
registered form without coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Global Security or Securities representing such Securities in exchange for such Global Security or Securities registered in the names of
such Persons as the Depositary shall direct.
The Company may at any time and in its sole discretion determine that the Securities of any
series issued in the form of one or more Global Securities shall no longer be represented by a
Global Security or Securities. In such event, the Company and, if applicable, the Guarantors will
execute and the Trustee, upon receipt of a Company Order for the authentication and delivery of
Definitive Securities of such series, will authenticate and deliver, Securities, with an
endorsement of the Securities Guarantee, if applicable, executed by the Guarantors, of such series
in definitive registered form without coupons, in
28
any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or Securities representing
such Securities in exchange for such Global Security or Securities registered in the names of such
Persons as the Depositary shall direct.
If specified by the Company pursuant to Section 3.1 with respect to Securities represented by
a Global Security, the Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for Securities of the same series and tenor in definitive registered
form on such terms as are acceptable to the Company, the Trustee and such Depositary. Thereupon,
the Company and, if applicable, the Guarantors shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of Securities in definitive registered form,
shall authenticate and deliver, without service charge:
(i) to the Person specified by such Depositary a new Security or Securities, with an
endorsement of the Securities Guarantee, if applicable, executed by the Guarantors, of the
same series and tenor, of any authorized denominations as requested by such Person, in an
aggregate principal amount equal to and in exchange for such Persons beneficial interest in
the Global Security; and
(ii) to such Depositary a new Global Security, with an endorsement of the Securities
Guarantee, if applicable, executed by the Guarantors, in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities authenticated and delivered pursuant to clause (i)
above.
Every Person who takes or holds any beneficial interest in a Global Security agrees that:
(A) the Company, the Guarantors (if applicable) and the Trustee may deal with the
Depositary as sole owner of the Global Security and as the authorized representative of such
Person;
(B) such Persons rights in the Global Security shall be exercised only through the
Depositary and shall be limited to those established by law and agreement between such
Person and the Depositary and/or direct and indirect participants of the Depositary;
(C) the Depositary and its participants make book-entry transfers of beneficial
ownership among, and receive and transmit distributions of the principal of (and premium, if
any) and interest on the Global Securities to, such Persons in accordance with their own
procedures; and
(D) none of the Company, the Guarantors (if applicable), the Trustee, nor any agent of
any of them will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial ownership
interests.
Section 3.6.
Mutilated, Destroyed, Lost and Stolen Securities
.
If any mutilated Security is surrendered to the Trustee, together with, in proper cases, such
security or indemnity as may be required by the Company, the Guarantors (if applicable) or the
Trustee to save each of them and any agent of any of them harmless, the Company and, if applicable,
the Guarantors shall execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security, with an endorsement of the Securities Guarantee, if applicable, executed by the
Guarantors, of the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
29
If there shall be delivered to the Company, the Guarantors (if applicable) and the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such
security or indemnity as may be required by them to save each of them and any agent of any of them
harmless, then, in the absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company and, if applicable, the Guarantors shall execute and
the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security,
a new Security, with an endorsement of the Securities Guarantee, if applicable, executed by the
Guarantors, of the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company and, if applicable, the Guarantors, regardless of whether the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 3.7.
Payment of Interest; Interest Rights Preserved
.
Except as otherwise provided as contemplated by Section 3.1 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.
Any interest on any Security of any series 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 Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor Securities) 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 Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest 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 in this clause provided. Thereupon, the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
30
less than 10
days after the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) 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 Company may make payment of any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company 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, each Security delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 3.8.
Persons Deemed Owners
.
Except as otherwise provided as contemplated by Section 3.1 with respect to any series of
Securities, prior to due presentment of a Security for registration of transfer, the Company, the
Trustee and, if applicable, the Guarantors and any agent thereof may treat the Person in whose name
such Security is registered as the owner of such Security for the purpose of receiving payment of
principal of and any premium and (subject to Section 3.5 and Section 3.7) any interest on such
Security and for all other purposes whatsoever, regardless of whether such Security be overdue, and
none of the Company, the Trustee nor, if applicable, the Guarantors nor any agent of any of them
shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its behalf by a Depositary
shall have any rights under this Indenture with respect to such Global Security, and such
Depositary may be treated by the Company, the Trustee, and, if applicable, the Guarantors and any agent of
thereof as the owner of such Global Security for all purposes whatsoever.
Section 3.9.
Cancellation
.
All Securities surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of in
accordance with its customary practices, and the Trustee shall thereafter deliver to the Company a
certificate with respect to such disposition from time to time upon written request.
31
Section 3.10.
Computation of Interest
.
Except as otherwise specified as contemplated by Section 3.1 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a year of twelve 30-day
months.
Section 3.11.
CUSIP or CINS Numbers
.
The Company in issuing the Securities may use CUSIP or CINS numbers (if then generally in
use, and in addition to the other identification numbers printed on the Securities), and, if so,
the Trustee shall use CUSIP or CINS numbers in notices of redemption as a convenience to
Holders;
provided
,
however
, that any such notice may state that no representation is made as to the
correctness of such CUSIP or CINS numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected by any defect in
or omission of such CUSIP or CINS numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.1.
Satisfaction and Discharge of Indenture
.
This Indenture shall cease to be of further effect and will be discharged with respect to the
Securities of any series (except as to any surviving rights of registration of transfer or exchange
of Securities and certain rights of the Trustee, in each case, herein expressly provided for), and
the Trustee, upon Company Request and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such Securities, when:
(a) either:
(i) all such Securities theretofore authenticated and delivered (other than (A)
such Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6, and (B) such Securities for the payment
of which money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation:
(A) have become due and payable; or
(B) will become due and payable at their Stated Maturity within one
year; or
(C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (ii)(A), (B) or (C) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for such purpose an amount
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to
32
the Trustee for cancellation, for principal (and premium,
if any) and interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be, together with instructions from the Company irrevocably directing the
Trustee to apply such funds to the payment thereof at maturity or redemption, as the
case may be;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the
Company with respect to such Securities; and
(c) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, which, taken together, state that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture with respect to such Securities
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to the Securities of
any series, (x) the obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and the right of the Trustee to resign
under Section 6.10 shall survive, and (y) if money shall have been deposited with the Trustee
pursuant to clause (a) of this Section, the obligations of the Company and the Trustee under
Section 4.2, Section 6.6, Section 10.2 and the last paragraph of Section 10.3 shall survive.
Section 4.2.
Application of Trust Money
.
Subject to the provisions of the last paragraph of Section 10.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal and any premium and interest for the payment of
which such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 5.1.
Events of Default
.
Event of Default, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Security of that series when it
becomes due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of (or premium, if any, on) any Security of
that series at its Maturity; or
(c) default in the performance, or breach, of any covenant set forth in Article Ten in
this Indenture (other than a covenant a default in the performance of which or the breach of
which is elsewhere in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified
33
mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a Notice of Default hereunder; or
(d) default in the performance, or breach, of any covenant in this Indenture (other
than a covenant in Article Ten or any other covenant a default in the performance of which
or the breach of which is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of series of Securities
other than that series), and continuance of such default or breach for a period of 120 days
after there has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a Notice of Default hereunder;
or
(e) the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a
voluntary case, (ii) consents to the entry of any order for relief against it in an
involuntary case, (iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (iv) makes a general assignment for the benefit of its
creditors; or
(f) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a
Custodian of the Company or for all or substantially all of its property, or (iii) orders
the liquidation of the Company; and the order or decree remains unstayed and in effect for
60 consecutive days; or
(g) default in the deposit of any sinking fund payment when due; or
(h) any other Event of Default provided with respect to Securities of that series in
accordance with Section 3.1.
Section 5.2.
Acceleration of Maturity; Rescission and Annulment
.
If an Event of Default with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case the Trustee or the Holders of 25% in aggregate principal
amount of the Outstanding Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all of the Securities of that series to
be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified amount) shall become
immediately due and payable. Notwithstanding the foregoing, if an Event of Default specified in
clause (e) or (f) of Section 5.1 occurs, the Securities of any series at the time Outstanding shall
be due and payable immediately without further action or notice.
At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article Five provided, the Holders of a majority in principal amount
of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(a) the Company or, if applicable, one or more of the Guarantors has paid or deposited
with the Trustee a sum sufficient to pay:
34
(i) all overdue interest on all Securities of that series;
(ii) the principal of (and premium, if any, on) any Securities of that series
which have become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such Securities;
(iii) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities; and
(iv) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel; and
(b) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.3.
Collection of Indebtedness and Suits for Enforcement by Trustee
.
The Company covenants that if:
(a) default is made in the payment of any installment of interest on any Security when
such interest becomes due and payable and such default continues for a period of 30 days; or
(b) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal and any premium
and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and any premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, 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.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or, if applicable, the Guarantors or any other obligor upon
such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or, if applicable, the Guarantors or any other obligor upon
such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
35
Section 5.4.
Trustee May File Proofs of Claim
.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or, if applicable, any Guarantor or any other obligor upon the Securities, their property
or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company or, if applicable, the Guarantors for the
payment of overdue principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal (and premium, if any)
and interest owing and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, if the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.7.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, compromise,
arrangement, adjustment or composition affecting the Securities or, if applicable, the Securities
Guarantee 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;
provided
,
however
, that the Trustee may, on behalf of
the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member
of a creditors or other similar committee.
Section 5.5.
Trustee May Enforce Claims Without Possession of Securities
.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 5.6.
Application of Money Collected
.
Any money collected by the Trustee pursuant to this Article Five shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or any premium or interest, upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender thereof if fully
paid:
36
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for principal of and any
premium and interest on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities for principal and any premium and interest,
respectively; and
THIRD: The balance, if any, to the Company.
Section 5.7.
Limitation on Suits
.
No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture (including, if applicable, the Securities
Guarantee), or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of that series;
(b) the Holders of not less than 25% in principal amount of the Outstanding Securities
of that series shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, 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, except in
the manner herein provided and for the equal and ratable benefit of all such Holders.
Section 5.8.
Unconditional Right of Holders to Receive Principal, Premium and Interest
.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional (subject to Section 3.7 and Section 9.2), to receive
payment of the principal of and any premium and interest on such Security on the Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
Section 5.9.
Restoration of Rights and Remedies
.
If the Trustee or any Holder 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
37
determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Guarantors, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
Section 5.10.
Rights and Remedies Cumulative
.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no right or remedy
herein conferred 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 5.11.
Delay or Omission Not Waiver
.
To fullest extent permitted by applicable law, no delay or omission of the Trustee or of any
Holder of any Securities 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 Five 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.
Section 5.12.
Control by Holders
.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee,
with respect to the Securities of such series;
provided
,
however
, that:
(a) such direction shall not be in conflict with any rule of law or with this
Indenture;
(b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction; and
(c) subject to the provisions of Section 6.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall determine that the
proceeding so directed would involve the Trustee in personal liability.
Section 5.13.
Waiver of Past Defaults
.
By written notice to the Company and the Trustee, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect to such series and its
consequences, except:
(a) a continuing default in the payment of the principal of or any premium or interest
on any Security of such series; or
38
(b) a default in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each Outstanding Security
of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture, but no such waiver shall
extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14.
Undertaking for Costs
.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant, other than
the Trustee, in such suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section 5.14 shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of (or premium, if any) or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
Section 5.15.
Waiver of Stay or Extension Laws
.
Each of the Company and the Guarantors covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 6.1.
Certain Duties and Responsibilities
.
(a) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and as are provided by the Trust Indenture
Act, and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any
39
provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether they conform to the requirements of this Indenture.
(b) In case 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 man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its own bad
faith or willful misconduct, except that:
(i) this Subsection shall not be construed to limit the effect of Subsection
(a) 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 shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Securities of any
series, given pursuant to Section 5.12, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(iv) no provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(d) Regardless of whether therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
Section 6.2.
Notice of Defaults
.
Within 90 days after the occurrence of any Default hereunder with respect to the Securities of
any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register, notice of such Default hereunder known
to the Trustee, unless such Default shall have been cured or waived;
provided
,
however
, that,
except in the case of a Default in the payment of the principal of or any premium or interest on
any Security of such series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee may withhold from Holders of Securities notice of any
continuing Default or Event of Default if a Responsible Officer of the Trustee in good faith
determines that the withholding of such notice is in the interest of the Holders of Securities of
such series; and,
provided
,
further
, that in the case of any Default of the character specified in
Section 5.1(c) with respect to Securities of such series, no such notice to Holders shall be given
until at least 90 days after the occurrence thereof and that in the case of any Default of the
character
40
specified in Section 5.1(d) with respect to Securities of such series, no such notice to
Holders shall be given until at least 180 days after the occurrence thereof.
Section 6.3.
Certain Rights of Trustee
.
Subject to the provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company or a Guarantor mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than delivery of any
Security to the Trustee for authentication and delivery pursuant to Section 3.3, which shall
be sufficiently evidenced as provided therein) and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed)
shall be entitled to receive and may, in the absence of bad faith on its part, rely upon an
Officers Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection from liability in respect
of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(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 pursuant to
this Indenture, unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder and shall not be responsible for the supervision of officers
and employees of such agents or attorneys;
(h) the Trustee may request that the Company and, if applicable, the Guarantors deliver
an Officers Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture, which
Officers Certificate may be
41
signed by any person authorized to sign an Officers
Certificate, including any person specified as so authorized in any such certificate
previously delivered and not superseded;
(i) the Trustee shall be entitled to the rights and protections afforded to the Trustee
pursuant to this Article Six in acting as a Paying Agent or Security Registrar hereunder;
(j) the Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a Default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities and this
Indenture; and
(k) anything in this Indenture notwithstanding, in no event shall the Trustee be liable
for any special, indirect, punitive, incidental or consequential loss or damage of any kind
whatsoever (including but not limited to loss of profit), even if the Company has been
advised as to the likelihood of such loss or damage and regardless of the form of action.
Section 6.4.
Not Responsible for Recitals or Issuance of Securities
.
The recitals contained herein and in the Securities, except the Trustees certificates of
authentication, shall be taken as the statements of the Company or, if applicable, the Guarantors,
and the Trustee or any Authenticating Agent assumes no responsibility for their correctness.
Neither the Trustee nor any Authenticating Agent makes any representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any Authenticating Agent shall
not be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 6.5.
May Hold Securities
.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or, if applicable, any Guarantor, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 310(b) and 311 of the Trust
Indenture Act and Section 6.8, Section 6.9 and Section 6.13, may otherwise deal with the Company
or, if applicable, the Guarantors with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.6.
Money Held in Trust
.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company or, if applicable,
one or more of the Guarantors.
Section 6.7.
Compensation and Reimbursement
.
The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee
42
in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(c) to indemnify each of the Trustee and its officers, directors, agents and employees
for, and to hold it and them harmless against, any loss, liability or expense incurred
without negligence, bad faith or willful misconduct on its or their part, arising out of or
in connection with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself or themselves against any claim or
liability in connection with the exercise or performance of any of its or their powers or
duties hereunder.
As security for the performance of the obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of the principal of (and premium,
if any) or interest on particular Securities.
Without limiting any rights available to the Trustee under applicable law, when the Trustee
incurs expenses or renders services in connection with an Event of Default specified in Section
5.1(e) or Section 5.1(f), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services of the Trustee are intended to constitute expenses
of administration under any applicable Bankruptcy Law.
The provisions of this Section 6.7 shall survive the resignation or removal of the Trustee and
the termination or satisfaction and discharge of this Indenture and the Legal Defeasance of the
Securities.
Section 6.8.
Disqualification; Conflicting Interests
.
Reference is made to Section 310(b) of the Trust Indenture Act. There shall be excluded from
the operation of Section 310(b)(1) of the Trust Indenture Act this Indenture with respect to the
Securities of more than one series.
Section 6.9.
Corporate Trustee Required; Eligibility
.
There shall at all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital
and surplus required by the Trust Indenture Act, subject to supervision or examination by Federal
or State authority. If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. The
Trustee shall not be an obligor upon the Securities or an Affiliate thereof. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article Six.
Section 6.10.
Resignation and Removal; Appointment of Successor
.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 6.11.
43
(b) The Trustee may resign at any time with respect to the Securities of one or more
series by giving written notice thereof to the Company. If the instrument of acceptance of
appointment by a successor Trustee required by Section 6.11 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series
by Act of the Holders of a majority in principal amount of the Outstanding Securities of
such series, delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 310(b) of the Trust Indenture
Act after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months; or
(ii) the Trustee shall cease to be eligible under Section 6.9 and shall fail to
resign after written request therefor by the Company or by any such Holder; or
(iii) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the Trustee
with respect to all Securities, or (B) subject to Section 5.14, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the Securities
of one or more series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect
to the Securities of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 6.11, any Holder who
has been a bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of
such series.
44
(f) The Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a successor Trustee
with respect to the Securities of any series to all Holders of Securities of such series in
the manner provided in Section 1.7. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its Corporate Trust
Office.
Section 6.11.
Acceptance of Appointment by Successor
.
(a) In case of the appointment hereunder of a successor Trustee with respect to all
Securities, the successor Trustee so appointed shall execute, acknowledge and deliver to the
Company, the Guarantors (if applicable) and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company, any Guarantor (if applicable) or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the Guarantors (if applicable),
the retiring Trustee and each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (i) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of such successor
Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company, any Guarantor (if applicable) or any successor
Trustee, such retiring Trustee, upon payment of its charges, shall execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee with respect to the Securities of the series to which the appointment of
such successor relates and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder with respect to the
Securities of such series.
(c) Upon request of any such successor Trustee, the Company and, if applicable, the
Guarantors shall execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
45
(d) No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this Article and the
Trust Indenture Act.
Section 6.12.
Merger, Conversion, Consolidation or Succession to Business
.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article Six, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.
Section 6.13.
Preferential Collection of Claims Against Company
.
Reference is made to Section 311 of the Trust Indenture Act. For purposes of Section 311(b)
of the Trust Indenture Act:
(a) the term cash transaction means any transaction in which full payment for goods
or securities sold is made within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or bankers and payable upon demand;
(b) the term self-liquidating paper means any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or incurred by the Company or, if applicable,
any Guarantor for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Trustee simultaneously
with the creation of the creditor relationship with the Company or, if applicable, such
Guarantor arising from the making, drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
Section 6.14.
Appointment of Authenticating Agent
.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustees certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said supervising or
examining
46
authority, then for the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company and, if applicable, the Guarantors. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and
to the Company and, if applicable, the Guarantors. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and, if applicable, the Guarantors
and shall mail written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating Agent will serve, as
their names and addresses appear in the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section.
Except with respect to an Authenticating Agent appointed at the request of the Company or, if
applicable, the Guarantors, the Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 6.14, and the Trustee shall be
entitled to be reimbursed by the Company or, if applicable, the Guarantors for such payments,
subject to the provisions of Section 6.7.
If an appointment with respect to one or more series is made pursuant to this Section 6.14,
the Securities of such series may have endorsed thereon, in addition to the Trustees certificate
of authentication, an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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U.S. Bank National Association, as Trustee
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By:
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As Authenticating Agent
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By:
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Authorized Officer
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47
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1.
Company to Furnish Trustee Names and Addresses of Holders
.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record Date for a series of
Securities, a list for such series of Securities, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities of such series as of such
Regular Record Date; and
(b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished;
provided
,
however
, that if and so long as the Trustee shall be the Security Registrar, no such
list need be furnished with respect to such series of Securities.
Section 7.2.
Preservation of Information; Communications to Holders
.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to the Trustee as
provided in Section 7.1 and the names and addresses of Holders received by the Trustee in
its capacity as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as applicants) apply in writing to
the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned
a Security for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other Holders with
respect to their rights under this Indenture or under the Securities and is accompanied by a
copy of the form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five business days after the receipt of such application, at
its election, either:
(i) afford such applicants access to the information preserved at the time by
the Trustee in accordance with Section 7.2(a); or
(ii) inform such applicants as to the approximate number of Holders whose names
and addresses appear in the information preserved at the time by the Trustee in
accordance with Section 7.2(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants, mail to
each Holder whose name and address appear in the information preserved at the time
by the Trustee in accordance with Section 7.2(a) a copy of the form of proxy or
other communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within five
days after such tender the Trustee shall mail to such applicants and file with the
SEC, together with a copy of the material to be
48
mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to the
best interest of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the SEC, after
opportunity for a hearing upon the objections specified in the written statement so
filed, shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the SEC shall find,
after notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the
Company, the Guarantors (if applicable) and the Trustee that none of the Company, the
Guarantors (if applicable) nor the Trustee nor any agent of any of them shall be held
accountable by reason of the disclosure of any such information as to the names and
addresses of the Holders in accordance with Section 7.2(b), regardless of the source from
which such information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 7.2(b).
Section 7.3.
Reports by Trustee
.
Any Trustees report required pursuant to Section 313(a) of the Trust Indenture Act shall be
dated as of May 15, and shall be transmitted within 60 days after May 15 of each year (but in all
events at intervals of not more than 12 months), commencing with the year 20___, by mail to all
Holders, as their names and addresses appear in the Security Register. A copy of each such report
shall, at the time of such transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the SEC and with the Company. The Company will
notify the Trustee when any Securities are listed on any stock exchange.
Section 7.4.
Reports by Company
.
So long as clauses (1), (2) and (3) of Section 314(a) of the Trust Indenture Act (or any
successor provisions of law) are applicable to this Indenture, the Company shall:
(a) file with the Trustee, within 15 days after the Company files the same with the
SEC, copies of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may from time to time by rules
and regulations prescribe) which the Company may be required to file with the SEC pursuant
to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to
file information, documents or reports pursuant to either of said Sections, then it shall
file with the Trustee and the SEC, in accordance with rules and regulations prescribed from
time to time by the SEC, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with rules and regulations
prescribed from time to time by the SEC, such additional information, documents and reports
with respect to compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations; and
49
(c) transmit by mail to all Holders, as their names and addresses appear in the
Security Register, within 30 days after the filing thereof with the Trustee, such summaries
of any information, documents and reports required to be filed by the Company pursuant to
clauses (a) and (b) of this Section as may be required by rules and regulations prescribed
from time to time by the SEC.
ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, MERGER AND SALE
Section 8.1.
Company May Consolidate, Etc., Only on Certain Terms
.
The Company shall not consolidate or merge with or into any other Person or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of the properties and assets of
the Company and, if applicable, the Guarantors on a consolidated basis to any other Person unless:
(a) the Person formed by or surviving any such conversion, consolidation, amalgamation
or merger (if other than the Company) or the Person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all the obligations of the
Company under the Securities and this Indenture pursuant to agreements reasonably
satisfactory to the Trustee, which may include an indenture supplemental hereto;
(b) immediately after giving effect to such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of Default, shall
have occurred and be continuing; and
(c) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, amalgamation, merger, conveyance, sale,
transfer or lease and such supplemental indenture, if any, comply with this Article Eight
and that all conditions precedent herein provided for relating to such transaction have been
complied with.
Section 8.2.
Successor Substituted
.
Upon any consolidation or merger of the Company with or into any other Person or any sale,
conveyance, transfer, lease or other disposition of all or substantially all of the properties and
assets of the Company and, if applicable, the Guarantors on a consolidated basis in accordance with
Section 8.1, the successor or resulting Person formed by or resulting upon such consolidation or
merger (if other than the Company) or to which such sale, conveyance, transfer, lease or other
disposition is made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the case of a lease, the predecessor
Company and each of the Guarantors shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1.
Without Consent of Holders
.
The Company, the Guarantors and the Trustee may amend or supplement this Indenture, the
Securities Guarantees or the Securities without the consent of any holder of a Security:
50
(a) to cure any ambiguity or defect or to correct or supplement any provision herein
that may be inconsistent with any other provision herein; or
(b) to evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company herein and, to the extent applicable, of
the Securities; or
(c) to provide for uncertificated Securities in addition to or in place of certificated
Securities;
provided
that the uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Code, or in the manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code; or
(d) to add a Securities Guarantee and cause any Person to become a Guarantor, and/or to
evidence the succession of another Person to a Guarantor and the assumption by any such
successor of the Securities Guarantee of such Guarantor herein and, to the extent
applicable, endorsed upon any Securities of any series; or
(e) to secure the Securities of any series; or
(f) to add to the covenants of the Company such further covenants, restrictions,
conditions or provisions as the Company shall consider to be appropriate for the benefit of
the Holders of all or any series of Securities (and if such covenants, restrictions,
conditions or provisions are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the benefit of such
series), to make the occurrence, or the occurrence and continuance, of a Default in any such
additional covenants, restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this Indenture as herein
set forth, or to surrender any right or power herein conferred upon the Company;
provided
,
that in respect of any such additional covenant, restriction, condition or provision such
amendment or supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of other
defaults), may provide for an immediate enforcement upon such an Event of Default, may limit
the remedies available to the Trustee upon such an Event of Default or may limit the right
of the Holders of a majority in aggregate principal amount of the Securities of such series
to waive such an Event of Default; or
(g) to make any change to any provision of this Indenture that does not adversely
affect the rights or interests of any Holder of Securities; or
(h) to provide for the issuance of additional Securities in accordance with the
provisions set forth in this Indenture on the date of this Indenture; or
(i) to add any additional Defaults or Events of Default in respect of all or any series
of Securities; or
(j) to add to, change or eliminate any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities in bearer
form, registrable or not registrable as to principal, and with or without interest coupons;
or
(k) to change or eliminate any of the provisions of this Indenture;
provided
that any
such change or elimination shall become effective only when there is no Security Outstanding
of any
51
series created prior to the execution of such amendment or supplemental indenture that
is entitled to the benefit of such provision; or
(l) to establish the form or terms of Securities of any series as permitted by Section
2.1 and Section 3.1, including to reopen any series of any Securities as permitted under
Section 3.1; or
(m) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11(b); or
(n) to conform the text of this Indenture (and/or any supplemental indenture) or any
debt securities issued thereunder to any provision of a description of such debt securities
appearing in a prospectus, prospectus supplement, offering memorandum or offering circular
to the extent that such provision appears on its face to have been intended to be a verbatim
recitation of a provision of this Indenture (and/or any supplemental indenture) or any debt
securities issued thereunder; or
(o) to modify, eliminate or add to the provisions of this Indenture to such extent as
shall be necessary to effect the qualification of this Indenture under the Trust Indenture
Act or under any similar federal statute subsequently enacted, and to add to this Indenture
such other provisions as may be expressly required under the Trust Indenture Act.
Upon the request of the Company accompanied by a Board Resolution authorizing the execution of
any such amendment or supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 6.3 hereof, the Trustee will join with the Company and any Guarantor in the
execution of any such amendment or supplemental indenture, to make any further appropriate
agreements and stipulations that may be therein contained and to accept the conveyance, transfer,
assignment, mortgage, charge or pledge of any property thereunder, but the Trustee shall not be
obligated to enter into any such amendment or supplemental indenture that affects the Trustees own
rights, duties or immunities under this Indenture or otherwise.
Section 9.2.
With Consent of Holders
.
The Company and the Trustee may amend or supplement this Indenture, the Securities Guarantees
and the Securities with the consent of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of each series of Securities affected by such amendment or supplemental
indenture, with each such series voting as a separate class (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange offer for,
Securities) and, subject to Section 5.8 and Section 5.13 hereof, any existing Default or Event of
Default or compliance with any provision of this Indenture, the Securities Guarantees or the
Securities may be waived with respect to each series of Securities with the consent of the Holders
of a majority in principal amount of the Outstanding Securities of such series voting as a separate
class (including consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Securities).
Upon the request of the Company accompanied by a Board Resolution authorizing the execution of
any such amendment or supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Securities as aforesaid, and upon
receipt by the Trustee of the documents described in Section 6.3 hereof, the Trustee will join with
the Company and the
Guarantors in the execution of such amendment or supplemental indenture unless such amendment
or supplemental indenture directly affects the Trustees own rights, duties or immunities under
this Indenture
52
or otherwise, in which case the Trustee may in its discretion, but will not be
obligated to, enter into such amendment or supplemental Indenture.
It is not necessary for the consent of the Holders of Securities under this Section 9.2 to
approve the particular form of any proposed amendment, supplement or waiver, but it is sufficient
if such consent approves the substance of the proposed amendment, supplement or waiver.
After an amendment, supplement or waiver under this Section 9.2 becomes effective, the Company
will mail to the Holders of Securities affected thereby, with a copy to the Trustee, a notice
briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, will not, however, in any way impair or affect the validity of any
such amendment, supplemental indenture or waiver. Subject to Section 5.8 and Section 5.13 hereof,
the application of or compliance with, either generally or in any particular instance, of any
provision of this Indenture, the Securities or the Securities Guarantees may be waived as to each
series of Securities by the Holders of a majority in aggregate principal amount of the Outstanding
Securities of such series voting as a separate class (including consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Securities). However, without the
consent of each Holder affected, an amendment, supplement or waiver under this Section 9.2 may not
(with respect to any Securities held by a non-consenting Holder):
(a) change the Stated Maturity of the principal of, or any installment of principal of
or interest on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2, or change the
coin or currency in which any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); or
(b) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of the Holders of which is required for any such amendment or
supplemental indenture, or the consent of the Holders of which is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture; or
(c) modify any of the provisions of Section 5.8 or Section 5.13; or
(d) waive a redemption payment with respect to any Security;
provided, however
, that
any purchase or repurchase of Securities shall not be deemed a redemption of the Securities;
or
(e) release any Guarantor from any of its obligations under its Securities Guarantee or
this Indenture, except in accordance with the terms of this Indenture (as amended or
supplemented); or
(f) make any change in the foregoing amendment and waiver provisions, except to
increase any percentage provided for therein or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
An amendment or supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the benefit of one or more
53
particular series of Securities, or that modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
Section 9.3.
Execution of Amendments and Supplemental Indentures
.
In executing, or accepting the additional trusts created by, any amendment or supplemental
indenture permitted by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of such amendment or
supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall
not be obligated to, enter into any such amendment or supplemental indenture which affects the
Trustees own rights, duties or immunities under this Indenture or otherwise.
Section 9.4.
Effect of Amendments and Supplemental Indentures
.
Upon the execution of any amendment or supplemental indenture under this Article Nine, this
Indenture shall be modified in accordance therewith, and such amendment or supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.5.
Conformity with Trust Indenture Act
.
Every amendment or supplemental indenture executed pursuant to this Article Nine shall conform
to the requirements of the Trust Indenture Act as then in effect.
Section 9.6.
Reference in Securities to Amendments or Supplemental Indentures
.
Securities of any series authenticated and delivered after the execution of any amendment or
supplemental indenture pursuant to this Article Nine may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in such amendment or
supplemental indenture. If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any such amendment or
supplemental indenture may be prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 10.1.
Payment of Principal, Premium and Interest
.
The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and this Indenture.
Section 10.2.
Maintenance of Office or Agency
.
The Company will maintain in the United States an office or agency (which may be an office of
the Trustee or Registrar or agent of the Trustee or Registrar) where Securities of each series may
be presented or surrendered for payment and surrendered for registration of transfer or exchange
and where notices and demands to or upon the Company in respect of the Securities of that series
and this Indenture
54
may be served. The Company will 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 Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.
Except as otherwise specified with respect to a series of Securities as contemplated by
Section 3.1, the Company hereby initially designates the office of the Trustee located at 5555 San
Felipe, Suite 1150, Houston, Texas 77056, as the Companys office or agency for each such purpose
for each series of Securities.
Section 10.3.
Money for Securities Payments to Be Held in Trust
.
If the Company shall at any time act as its own Paying Agent, with respect to any series of
Securities, it will, on or before each due date of the principal of and any premium or interest on
any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to each due date of the principal of and any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay the principal and any premium or
interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the
Trustee of its action or failure so to act. For purposes of this Section 10.3, should a due
date for principal of and any premium or interest on, or sinking fund payment with respect to any
series of Securities not be on a Business Day, such payment shall be due on the next Business Day
without any interest for the period from the due date until such Business Day.
The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of and any premium or
interest on Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(b) give the Trustee notice of any Default by the Company (or any other obligor upon
the Securities of that series) in the making of any payment of principal and any premium or
interest on the Securities of that series; and
(c) at any time during the continuance of any such Default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
55
The Company and, if applicable, the Guarantors may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Subject to any applicable escheat or abandoned property laws, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal
of and any premium or interest on any Security of any series and remaining unclaimed for one year
after such principal, premium or interest has become due and payable shall be paid to the Company
on Company Request, or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided
,
however
, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
The New York Times
and
The Wall Street Journal
(national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.4.
Existence
.
Subject to Article Eight, the Company and, if any Securities of a series to which Article
Fourteen has been made applicable are Outstanding, each Guarantor will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence, rights (charter and
statutory) and franchises;
provided
,
however
, that the Company and, if applicable, each Guarantor
shall not be required to preserve any such right or franchise if the Board of Directors shall
determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company or such
Guarantor, as the case may be.
Section 10.5.
Statement by Officers as to Default
.
Annually, within 150 days after the close of each fiscal year beginning with the first fiscal
year during which one or more series of Securities are Outstanding, the Company and, if any
Securities of a series to which Article Fourteen has been made applicable are Outstanding, each
Guarantor will deliver to the Trustee a brief certificate (which need not include the statements
set forth in Section 1.3) from the principal executive officer, principal financial officer or
principal accounting officer of the Company and, if applicable, such Guarantor as to his or her
knowledge of the Companys or such Guarantors, as the case may be, compliance (without regard to
any period of grace or requirement of notice provided herein) with all conditions and covenants
under this Indenture and, if the Company or such Guarantor, as the case may be, shall be in
Default, specifying all such Defaults and the nature and status thereof of which such officer has
knowledge.
56
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.1.
Applicability of Article
.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 3.1
for Securities of any series) in accordance with this Article Eleven.
Section 11.2.
Election to Redeem; Notice to Trustee
.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company of less than all the Securities of any
series, the Company shall, at least 15 days prior to the last date for the giving of notice of such
redemption (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture or (b) pursuant to an election of the Company
that is subject to a condition specified in the terms of the Securities of the series to be
redeemed, the Company shall furnish the Trustee with an Officers Certificate evidencing compliance
with such restriction or condition.
Section 11.3.
Selection by Trustee of Securities to Be Redeemed
.
If less than all the Securities of any series are to be redeemed (unless all of the Securities
of such series and of a specified tenor are to be redeemed), the particular Securities to be
redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee, from
the Outstanding
Securities of such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. If the Securities of any series to be redeemed consist of Securities
having different dates on which the principal is payable or different rates of interest, or
different methods by which interest may be determined or have any other different tenor or terms,
then the Company may, by written notice to the Trustee, direct that the Securities of such series
to be redeemed shall be selected from among the groups of such Securities having specified tenor or
terms and the Trustee shall thereafter select the particular Securities to be redeemed in the
manner set forth in the preceding paragraph from among the group of such Securities so specified.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
57
Section 11.4.
Notice of Redemption
.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price, or if not then ascertainable, the manner of calculation
thereof;
(c) if less than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed;
(d) that on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for payment of the
Redemption Price; and
(f) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by
the Company or, at the Companys request, by the Trustee in the name and at the expense of the
Company.
Section 11.5.
Deposit of Redemption Price
.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 11.6.
Securities Payable on Redemption Date
.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be paid by the Company
at the Redemption Price, together with accrued interest to the Redemption Date;
provided
,
however
,
that unless otherwise specified with respect to Securities of any series as contemplated in Section
3.1, installments of interest the Stated Maturity of which is on or prior to the Redemption Date
shall be payable to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant record dates according to their terms
and the provisions of Section 3.7.
58
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
Section 11.7.
Securities Redeemed in Part
.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series and tenor, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of
the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 12.1.
Applicability of Article
.
The provisions of this Article Twelve shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise specified as contemplated by Section 3.1
for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a mandatory sinking fund payment, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an optional sinking fund payment. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.2.
Each sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
Section 12.2.
Satisfaction of Sinking Fund Payments with Securities
.
The Company (a) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (b) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series;
provided
that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption through operation of
the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.3.
Redemption of Securities for Sinking Fund
.
Not less than 45 days prior to each sinking fund payment date for any series of Securities
(unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the
Trustee an Officers Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion
59
thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 12.2 and stating the basis
for such credit and that such Securities have not been previously so credited, and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 11.4. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Section 11.6 and Section 11.7.
ARTICLE THIRTEEN
DEFEASANCE
Section 13.1.
Option to Effect Legal Defeasance or Covenant Defeasance
.
The Company may, at the option of its Board of Directors evidenced by a Board Resolution, and
at any time, elect to have either Section 13.2 or Section 13.3 hereof be applied to all outstanding
Securities upon compliance with the conditions set forth below in this Article Thirteen.
Section 13.2.
Legal Defeasance and Discharge
.
Upon the Companys exercise under Section 13.1 hereof of the option applicable to this Section
13.2, the Company and each of the Guarantors will, subject to the satisfaction of the conditions
set forth in Section 13.4 hereof, be deemed to have been discharged from their obligations with
respect to all outstanding Securities (including the Securities Guarantees) on the date the
conditions set forth below are satisfied (hereinafter, Legal Defeasance). For this purpose,
Legal Defeasance means that the Company and the Guarantors will be deemed to have paid and
discharged the entire Debt represented by the outstanding Securities (including the Securities
Guarantees), which will thereafter be deemed to be outstanding only for the purposes of Section
13.5 hereof and the other sections of this Indenture referred to in clauses (a) and (b) below, and
to have satisfied all their other obligations under such Securities, the Securities Guarantees and
this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following provisions which will survive
until otherwise terminated or discharged hereunder:
(a) the rights of Holders of Outstanding Securities to receive payments in respect of
the principal of, or interest or premium, if any, on, such Securities when such payments are
due from the trust referred to in Section 13.4 hereof;
(b) the Companys obligations with respect to such Securities under Section 3.4,
Section 3.5, Section 3.6, Section 10.2 and Section 10.3 hereof;
(c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Companys and the Guarantors obligations in connection therewith; and
(d) this Article Thirteen.
Subject to compliance with this Article Thirteen, the Company may exercise its option under
this Section 13.2 notwithstanding the prior exercise of its option under Section 13.3 hereof.
60
Section 13.3.
Covenant Defeasance
.
Upon the Companys exercise under Section 13.1 hereof of the option applicable to this Section
13.3, the Company and each of the Guarantors will, subject to the satisfaction of the conditions
set forth in Section 13.4 hereof, be released from each of their obligations under the covenants
contained in Section 7.4, Section 8.1 and Section 10.4 hereof as well as any Additional Defeasible
Provisions (such release and termination hereinafter referred to as Covenant Defeasance), and the
Securities will 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 will continue to be deemed outstanding for all other purposes hereunder (it
being understood that such Securities will not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the outstanding Securities and
Securities Guarantees, the Company and the Guarantors may fail to comply with and will have no
liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and such failure to comply
will not constitute a Default or an Event of Default under Section 5.1 hereof, but, except as
specified above, the remainder of this Indenture and such Securities and Securities Guarantees will
be unaffected thereby. In addition, upon the Companys exercise under Section 13.1 hereof of the
option applicable to this Section 13.3 hereof, subject to the satisfaction of the conditions set
forth in Section 13.4 hereof, any Event of Default that constitutes an Additional Defeasible
Provision will no longer constitute an Event of Default.
Section 13.4.
Conditions to Legal or Covenant Defeasance
.
In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 13.2
or Section 13.3 hereof:
(a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Securities, cash in U.S. dollars, non-callable U.S. Government
Obligations, or a combination of cash in U.S. dollars and non-callable U.S. Government
Obligations, in such amounts as will be sufficient, in the opinion of a nationally
recognized investment bank, appraisal firm, or firm of independent public accountants, to
pay the principal of, and interest and premium, if any, on, the Outstanding Securities on
the stated date for payment thereof or on the applicable redemption date, as the case may
be, and the Company must specify whether the Securities are being defeased to such stated
date for payment or to a particular redemption date;
(b) in the case of an election under Section 13.2 hereof, the Company must deliver to
the Trustee an Opinion of Counsel confirming that:
(i) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling; or
(ii) since the Issue Date, there has been a change in the applicable federal
income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel will
confirm that, the Holders of the Outstanding Securities will not recognize income,
gain or loss for federal income tax purposes as a result of such Legal Defeasance
and will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance had not
occurred;
61
(c) in the case of an election under Section 13.3 hereof, the Company must deliver to
the Trustee an Opinion of Counsel confirming that the Holders of the Outstanding Securities
will not recognize income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing on the date of
such deposit (other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit);
(e) the deposit must not result in a breach or violation of, or constitute a default
under, any other instrument to which the Company or any Guarantor is a party or by which the
Company or any Guarantor is bound;
(f) such Legal Defeasance or Covenant Defeasance must not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound;
(g) the Company must deliver to the Trustee an Officers Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Securities
over the other creditors of the Company with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or others;
(h) the Company must deliver to the Trustee an Officers Certificate stating that all
conditions precedent set forth in clauses (a) through (f) of this Section 13.4 have been
complied with; and
(i) the Company must deliver to the Trustee an Opinion of Counsel (which Opinion of
Counsel may be subject to customary assumptions, qualifications and exclusions) stating that
all conditions precedent set forth in clauses (b), (c) and (f) of this Section 13.4 have
been complied with.
Section 13.5.
Deposited Money and U.S. Government Obligations to be Held in Trust, Other
Miscellaneous Provisions
.
Subject to Section 13.6 hereof, all money and non-callable U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 13.5, the Trustee) pursuant to Section 13.4 hereof in
respect of the Outstanding Securities will be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee
may determine, to the Holders of such Securities of all sums due and to become due thereon in
respect of principal, premium, if any, and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to
Section 13.4 hereof or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the Outstanding
Securities.
62
Notwithstanding anything in this Article Thirteen to the contrary, the Trustee will deliver or
pay to the Company from time to time upon the request of the Company any money or non-callable U.S.
Government Obligations held by it as provided in Section 13.4 hereof which, in the opinion of a
nationally recognized investment bank, appraisal firm or firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 13.4(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 13.6.
Repayment
.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or premium, if any, or interest on any Security and
remaining unclaimed for two years after such principal, premium, if any, or interest has become due
and payable shall be paid to the Company on its request or (if then held by the Company) will be
discharged from such trust; and the Holder of such Security will thereafter be permitted to look
only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee thereof, will thereupon
cease;
provided, however
, that the Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be published once, in
The New York Times
and
The Wall Street Journal
(national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining will be repaid to
the Company.
Section 13.7.
Reinstatement
.
If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
U.S. Government Obligations in accordance with Section 13.2 or Section 13.3 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 Companys and the Guarantors
obligations under this Indenture and the Securities and the Securities Guarantees will be revived
and reinstated as though no deposit had occurred pursuant to Section 13.2 or Section 13.3 hereof
until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 13.2 or Section 13.3 hereof, as the case may be;
provided, however
, that, if the
Company makes any payment of principal of or premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE FOURTEEN
GUARANTEE OF SECURITIES
Section 14.1.
Securities Guarantee
.
(a) Subject to the other provisions of this Article Fourteen, each of the Guarantors
hereby jointly and severally guarantees to each Holder of a Security of each series to which
this Article Fourteen has been made applicable as provided in Section 3.1(t) (the Securities
of such series being referred to herein as the Guaranteed Securities) (which Security has
been authenticated and delivered by the Trustee), and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability of this Indenture, the Guaranteed
Securities, or the obligations of the Company hereunder or thereunder, that:
63
(i) the principal of and premium, if any, and interest on the Guaranteed
Securities will be promptly paid in full when due, whether at maturity, or by
acceleration, redemption or otherwise, and interest on the overdue principal of and
interest on the
Guaranteed Securities, if any, if lawful, and all other obligations of the
Company to the Holders of Guaranteed Securities, or the Trustee hereunder or
thereunder, will be promptly paid in full or performed, all in accordance with the
terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any Guaranteed
Securities or any of such other obligations, that same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee
of collection.
(b) To the extent permissible under applicable law, the obligations of the Guarantors
under this Securities Guarantee are unconditional, irrespective of the validity, regularity
or enforceability of the Guaranteed Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Guaranteed Securities with
respect to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. To the extent
permitted by applicable law, each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest, notice and
all demands whatsoever and covenants that this Securities Guarantee will not be discharged
except by complete performance of the obligations contained in the Guaranteed Securities and
this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar official
acting in relation to either the Company or the Guarantors, any amount paid by either to the
Trustee or such Holder, this Securities Guarantee, to the extent theretofore discharged,
will be reinstated in full force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby. Each Guarantor further agrees that, to the
extent permitted by applicable law, as between the Guarantors, on the one hand, and the
Holders of Guaranteed Securities and the Trustee, on the other hand, (i) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the
purposes of this Securities Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations guaranteed hereby,
and (ii) in the event of any declaration of acceleration of such obligations as provided in
Article Five hereof, such obligations (regardless of whether due and payable) will forthwith
become due and payable by the Guarantors for the purpose of this Securities Guarantee. The
Guarantors will have the right to seek contribution from any non-paying Guarantor so long as
the exercise of such right does not impair the rights of the Holders under the Securities
Guarantee.
64
Section 14.2.
Limitation on Guarantor Liability
.
Each Guarantor, and by its acceptance of Guaranteed Securities, each Holder thereof, hereby
confirms that it is the intention of all such parties that the Securities Guarantee of such
Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or
State law to the extent applicable to any Securities Guarantee. To effectuate the foregoing
intention, the Trustee, to the extent permitted under applicable law, the Holders and each
Guarantor hereby irrevocably agree that the obligations of such Guarantor will be limited to the
maximum amount that will, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to
any collections from, rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under this Article Fourteen,
result in the obligations of such Guarantor under its Securities Guarantee not constituting a
fraudulent transfer or conveyance.
Section 14.3.
Execution and Delivery of Securities Guarantee Notation
.
To evidence its Securities Guarantee set forth in Section 14.1 hereof, each Guarantor hereby
agrees that a notation of such Securities Guarantee substantially in the form set forth in Section
2.3 or established in or pursuant to a Board Resolution or in an indenture supplemental hereto, in
accordance with the provisions of Section 2.1, will be endorsed by an officer of such Guarantor on
each Guaranteed Security authenticated and delivered by the Trustee and that this Indenture will be
executed on behalf of such Guarantor by one of its officers.
Each Guarantor hereby agrees that its Securities Guarantee set forth in Section 14.1 hereof
will remain in full force and effect notwithstanding any failure to endorse on each Guaranteed
Security a notation of such Securities Guarantee.
If an officer whose signature is on this Indenture or on the Securities Guarantee no longer
holds that office at the time the Trustee authenticates the Guaranteed Security on which a
Securities Guarantee is endorsed, the Securities Guarantee will be valid nevertheless.
The delivery of any Guaranteed Security by the Trustee, after the authentication thereof
hereunder, will constitute due delivery of the Securities Guarantee of such Guaranteed Security set
forth in this Indenture on behalf of the Guarantors.
* * *
65
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, as of
the day and year first above written.
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ROWAN COMPANIES, INC.
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By:
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/s/ William H. Wells
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Name:
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William H. Wells
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Title:
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Vice President, Finance and Chief Financial Officer
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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/s/ Steven A. Finklea
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Name:
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Steven A. Finklea
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Title:
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Vice President
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ROWAN COMPANIES, INC.
as the Company
and
U.S. BANK NATIONAL ASSOCIATION
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 21, 2009
to
INDENTURE
Dated as of July 21, 2009
7.875% SENIOR NOTES DUE
2019
TABLE OF CONTENTS
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Page
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ARTICLE ONE Relation to Indenture; Definitions
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1
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SECTION 1.01. Relation to Indenture
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1
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SECTION 1.02. Definitions
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1
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SECTION 1.03. General References
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1
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ARTICLE TWO The Series of Securities
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1
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SECTION 2.01. The Form and Title of the Securities
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1
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SECTION 2.02. Amount
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2
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SECTION 2.03. Stated Maturity
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2
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SECTION 2.04. Interest and Interest Rates
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2
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SECTION 2.05. Place of Payment
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2
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SECTION 2.06. Optional Redemption
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2
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SECTION 2.07. Defeasance and Discharge; Covenant Defeasance
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2
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SECTION 2.08. Global Securities
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3
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ARTICLE THREE Amendments to Original Indenture
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3
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SECTION 3.01. Defined Terms
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3
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SECTION 3.02. Additional Event of Default
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6
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ARTICLE FOUR Additional Covenants
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7
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SECTION 4.01. Limitation on Liens
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7
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SECTION 4.02. Limitation on Sale and Leaseback Transactions
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7
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ARTICLE FIVE Miscellaneous
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8
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SECTION 5.01. Certain Trustee Matters
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SECTION 5.02. Continued Effect
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SECTION 5.03. Governing Law
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9
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SECTION 5.04. Counterparts
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EXHIBITS
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Exhibit A: Form of Note
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First Supplemental Indenture
FIRST SUPPLEMENTAL INDENTURE
, dated as of July 21, 2009 (this Supplemental Indenture), by
and between
ROWAN COMPANIES, INC.
, a corporation duly organized and existing under the
laws of the State of Delaware (the Company), and
U.S. BANK NATIONAL ASSOCIATION
, a
nationally chartered banking association, as trustee under the Indenture referred to below (in such
capacity, the Trustee).
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee have heretofore entered into an Indenture dated as of
July 21, 2009 (the Original Indenture) (the Original Indenture, as supplemented from time to
time, including without limitation pursuant to this Supplemental Indenture, being referred to
herein as the Indenture); and
WHEREAS, under the Original Indenture, a new series of Securities may at any time be
established by an indenture supplemental to the Original Indenture; and
WHEREAS, the Company proposes to create under the Indenture a new series of Securities; and
NOW, THEREFORE, in consideration of the premises, agreements and obligations set forth herein
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree, for the equal and proportionate benefit of all
Holders of the Notes (as defined below), as follows:
ARTICLE ONE
Relation to Indenture; Definitions
SECTION 1.01.
Relation to Indenture.
With respect to the Notes, this Supplemental Indenture constitutes an integral part of the
Indenture.
SECTION 1.02.
Definitions.
For all purposes of this Supplemental Indenture, capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned thereto in the Original Indenture.
SECTION 1.03.
General References.
Unless otherwise specified or unless the context otherwise requires, (i) all references in
this Supplemental Indenture to Articles and Sections refer to the corresponding Articles and
Sections of this Supplemental Indenture and (ii) the terms
herein
,
hereof
,
hereunder
and any
other word of similar import refer to this Supplemental Indenture.
ARTICLE TWO
The Series of Securities
SECTION 2.01.
The Form and Title of the Securities
.
There is hereby established a new series of Securities to be issued under the Indenture and to
be designated as the Companys 7.875% Senior Notes due 2019 (the Notes). The Notes shall be
substantially in the form attached as
Exhibit A
hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by the
Indenture, and may have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as the Company may deem appropriate or as may be required or
appropriate to comply with any laws or with
First Supplemental Indenture
any rules made pursuant thereto or with the rules of any securities exchange or automated
quotation system on which the Notes may be listed or traded, or to conform to general usage, or as
may, consistently with the Indenture, be determined by the officers executing such Notes, as
evidenced by their execution thereof.
The Notes shall be executed, authenticated and delivered in accordance with the provisions of,
and shall in all respects be subject to, the terms, conditions and covenants of the Original
Indenture as supplemented by this Supplemental Indenture (including the form of Note attached as
Exhibit A
hereto (the terms of which are incorporated in and made a part of this
Supplemental Indenture for all intents and purposes)).
SECTION 2.02.
Amount
.
The aggregate principal amount of the Notes that may be authenticated and delivered pursuant
hereto is unlimited. The Trustee shall initially authenticate and deliver Notes for original issue
in an initial aggregate principal amount of up to $500,000,000, upon delivery to the Trustee of a
Company Order for the authentication and delivery of such Notes. The aggregate principal amount of
the Notes to be issued hereunder may be increased at any time hereafter and the series may be
reopened for issuances of Additional Notes, upon Company Order, without the consent of any Holder
and without any further supplement or amendment to the Original Indenture or this Supplemental
Indenture. The Notes issued on the date hereof and any such Additional Notes that may be issued
hereafter shall be part of the same series of Securities for all purposes under the Indenture.
SECTION 2.03.
Stated Maturity.
The Notes may be issued on any Business Day on or after July 21, 2009, and the Stated Maturity
of the Notes shall be August 1, 2019.
SECTION 2.04.
Interest and Interest Rates
.
The rate or rates at which the Notes shall bear interest, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and
the Regular Record Date for any interest payable on any Interest Payment Date, in each case, shall
be as set forth in the form of Note attached as
Exhibit A
hereto.
SECTION 2.05.
Place of Payment
.
As long as any Notes are Outstanding, the Company shall maintain an office or agency in the
United States where Notes may be presented for payment. Such office or agency shall initially be
the office or agency of the Trustee in Houston, Texas.
SECTION 2.06.
Optional Redemption
.
At its option, the Company may redeem the Notes, in whole or in part, in principal amounts of
$2,000 or integral multiples of $1,000 in excess thereof, at any time or from time to time, at the
applicable Redemption Price determined as set forth in the form of Note attached hereto as
Exhibit A
, in accordance with the terms set forth in the Notes and in accordance with
Article Eleven of the Original Indenture.
SECTION 2.07.
Defeasance and Discharge; Covenant Defeasance
.
Article Thirteen of the Original Indenture (as amended and supplemented by this Supplemental
Indenture) shall apply to the Notes. Furthermore, the additional Event of Default specified in
Section 3.02. of this Supplemental Indenture, each of the covenants set forth in ARTICLE Four of
this Supplemental Indenture, and the Events of Default specified in Sections 5.1(c) and 5.1(d) of
the Original
First Supplemental Indenture
2
Indenture, shall, in each case, constitute Additional Defeasible Provisions (as such term is
used in the Original Indenture).
SECTION 2.08.
Global Securities
.
The Notes shall initially be issuable in whole or in part in the form of one or more Global
Securities. Such Global Securities (i) shall be deposited with, or on behalf of, the Depository
Trust Company, New York, New York, which shall act as Depositary with respect to the Notes, (ii)
shall bear the legends applicable to Global Securities set forth in Sections 2.2 and 2.4 of the
Original Indenture, (iii) may be exchanged in whole or in part for Securities in definitive form
upon the terms and subject to the conditions provided in Section 3.5 of the Original Indenture and
in this Supplemental Indenture and (iv) shall otherwise be subject to the applicable provisions of
the Indenture.
ARTICLE THREE
Amendments to Original Indenture
With respect to the Notes, the Original Indenture is hereby amended as set forth below in this
ARTICLE Three;
provided
,
however
, that each such amendment shall apply only to the Notes and not to
any other series of Securities issued under the Indenture.
SECTION 3.01.
Defined Terms.
Subject to the limitations set forth in the preamble to ARTICLE Three of this Supplemental
Indenture, Section 1.1 of the Original Indenture is hereby amended by inserting or restating, as
the case may be, each of the following defined terms in its appropriate alphabetical position:
Additional Defeasible Provisions means the provisions of Sections 5.1(c), 5.1(d),
5.1(h), 10.7 and 10.8 of the Indenture.
Additional Notes means an unlimited maximum aggregate principal amount of Notes
(other than the Notes issued on the date hereof) issued under the Indenture pursuant to
Section 2.02. of this Supplemental Indenture.
Attributable Indebtedness, when used with respect to any Sale and 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
rental payments during the remaining term of the lease included in such Sale and Leaseback
Transaction (other than amounts required to be paid on account of taxes, maintenance,
repairs, insurance, assessments, utilities, operating and labor costs and other items that
do not constitute payments for property rights), including any period for which such lease
has been extended. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall be the lesser of the net amount determined
assuming termination upon the first date such lease may be terminated (in which case the net
amount shall also include the amount of the penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it may be so
terminated) or the net amount determined assuming no such termination.
Capital Lease Obligation means, at the time any determination is to be made, the
amount of the liability in respect of a capital lease that would at that time be required to
be capitalized on a balance sheet in accordance with GAAP, and the stated maturity thereof
shall be the date of the last payment of rent or any other amount due under such lease prior
to the first date upon which such lease may be prepaid by the lessee without payment of a
penalty.
Capital Stock means:
First Supplemental Indenture
3
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person.
Consolidated Net Tangible Assets of any Person means the total amount of assets
(after deducting applicable reserves and other properly deductible items) of such Person and
its consolidated Subsidiaries
minus
all current liabilities (excluding liabilities that are
extendable or renewable at the option of such Person or any of its consolidated Subsidiaries
to a date more than 12 months after the date of calculation and excluding current maturities
of long-term indebtedness) and all goodwill, trade names, trademarks, patents, unamortized
indebtedness discount and expense and other like intangible assets. Consolidated Net
Tangible Assets of any Person shall be based on the most recently available consolidated
quarterly balance sheet of such Person, and shall be calculated in accordance with GAAP.
Funded Indebtedness means all Indebtedness that matures on or is renewable to a date
more than one year after the date the Indebtedness is incurred.
Indebtedness of any Person means:
(1) all indebtedness of such Person for borrowed money (whether full or limited
recourse);
(2) all obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(3) all obligations of such Person under letters of credit or other similar
instruments, other than standby letters of credit, performance bonds and other obligations
issued 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;
(4) 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;
(5) all Capital Lease Obligations of such Person;
(6) all Indebtedness of others secured by a Lien on any asset of such Person:
provided
that if the obligations so secured have not been assumed in full or are not otherwise fully
such Persons legal liability, then such obligations may be reduced to the value of the
asset or the liability of such Person; and
(7) all Indebtedness of others (other than endorsements in the ordinary course of
business) guaranteed by such Person to the extent of such guarantee.
Issue Date means the first date on which any Notes are issued, authenticated and
delivered under the Indenture.
First Supplemental Indenture
4
Joint Venture means any partnership, corporation or other entity in which up to and
including 50% of the partnership interests, outstanding Voting Stock or other equity
interests is owned, directly or indirectly, by the Company and/or one or more Subsidiaries
of the Company.
Lien means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, regardless of whether filed,
recorded or otherwise perfected under applicable law (including any conditional sale or
other title retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in any asset and any filing of or agreement to
give any financing statement under the Uniform Commercial Code (or equivalent statutes) of
any jurisdiction).
Notes means a series of Securities designated as the Companys 7.875% Senior Notes
due 2019, issued pursuant to this Indenture, as amended and supplemented by the First
Supplemental Indenture hereto dated as of July 21, 2009.
Permitted Liens means:
(1) Liens existing on the Issue Date;
(2) Liens on any Persons property or assets existing at the time the Company acquires
such Person or its property or assets, or at the time such Person becomes a Subsidiary of
the Company;
(3) intercompany Liens in favor of the Company or any Subsidiary of the Company;
(4) Liens on assets either (a) securing all or part of the cost of acquiring,
constructing, improving, developing or repairing the assets or (b) securing Indebtedness
incurred to finance the acquisition of the assets or the cost of constructing, improving,
developing, expanding or repairing the assets and commencing commercial operation of the
assets if the applicable Indebtedness was incurred prior to, at the time of or within 24
months after the acquisition, or completion of construction, improvement, development,
expansion or repair of the assets or their commencing commercial operation;
(5) Liens in favor of governmental entities to secure (a) payments under any contract
or statute to secure progress or advance payments or (b) industrial development, pollution
control or similar indebtedness;
(6) governmental Liens under contracts for the sale of products or services;
(7) Liens imposed by law, such as mechanics or workmens Liens;
(8) Liens under workers compensation laws or similar legislation;
(9) Liens in connection with legal proceedings or securing taxes or other assessments;
(10) statutory or other Liens arising in the ordinary course of business of the Company
or of any Subsidiary of the Company and relating to amounts that are not yet delinquent or
that the Company or any Subsidiary of the Company is contesting in good faith;
(11) Liens on stock, partnership or other equity interests of the Company in any Joint
Venture or of any Subsidiary of the Company that owns an equity interest in a Joint Venture
to secure Indebtedness contributed or advanced solely to that Joint Venture;
First Supplemental Indenture
5
(12) good faith deposits in connection with bids, tenders, contracts or leases;
(13) deposits made in connection with maintaining self-insurance, to obtain the
benefits of laws, regulations or arrangements relating to unemployment insurance, old age
pensions, social security or similar matters or to secure surety, appeal or customs bonds;
and
(14) any extensions, substitutions, renewals or replacements of the above-described
Liens.
Principal Property means any drilling rig, or integral portion thereof, owned or
leased by the Company or any Subsidiary of the Company and used for drilling offshore oil
and gas wells, which, in the opinion of the Board of Directors of the Company, is of
material importance to the business of the Company and its Subsidiaries considered as a
whole;
provided, however
that no such drilling rig, or portion thereof, shall be deemed of
material importance if its net book value (after deducting accumulated depreciation) is less
than 2% of the Consolidated Net Tangible Assets of the Company.
Sale and Leaseback Transaction means any arrangement with any Person under which the
Company or any Subsidiary of the Company leases any Principal Property that the Company or
that Subsidiary has or will sell or transfer to that Person;
provided, however
, that each of
the following shall be deemed not to be a Sale and Leaseback Transaction:
(1) temporary leases for a term of not more than five years;
(2) intercompany leases between the Company and a Subsidiary or between two or more
Subsidiaries of the Company; and
(3) leases of a Principal Property executed by the time of or within 12 months after
the acquisition, the completion of construction, alteration, improvement or repair, or the
commencement of commercial operation of such Principal Property.
Significant Subsidiary means any Subsidiary of the Company that would be a
significant subsidiary as defined in Article 1, Rule 1-02(w) of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on the Issue
Date.
Subsidiary means, with respect to any Person,
(1) any corporation, association or other business entity of which more than 50% of the
total voting power of the Voting Stock thereof is at the time owned or controlled, directly
or indirectly, by such Person; and
(2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or an entity described in clause (1) and related to such Person or (b)
the only general partners of which are such Person or of one or more entities described in
clause (1) and related to such Person (or any combination thereof ).
Voting Stock of any specified Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of Directors (or
similar governing body) of such Person.
SECTION 3.02.
Additional Event of Default.
With respect to the Notes, the occurrence of any of the following events shall, in
addition to the other events or circumstances described as Events of Default in Section 5.1
of the Original
First Supplemental Indenture
6
Indenture, constitute an Event of Default: default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or evidenced any
Indebtedness of the Company or any of its Significant Subsidiaries (or the payment of which
is guaranteed by the Company or any of its Significant Subsidiaries), whether such
Indebtedness or guarantee now exists or is created after the date of issuance of the Notes,
if (a) that default (x) 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
Indebtedness on the date of such default (a Payment Default), or (y) results in the
acceleration of such Indebtedness prior to its express maturity, and (b) in each case
described in clauses (x) or (y) above, 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 $35.0 million
or more.
ARTICLE FOUR
Additional Covenants
With respect to the Notes, Article Ten of the Original Indenture is hereby amended as set
forth below in this ARTICLE Four;
provided
,
however
, that each such amendment shall apply only to
the Notes and not to any other series of Securities issued under the Indenture.
SECTION 4.01.
Limitation on Liens.
Subject to the limitations set forth in the preamble to ARTICLE Four of this Supplemental
Indenture, Article Ten of the Original Indenture is hereby further amended by adding the following
Section 10.7 thereto:
Section 10.7
Limitation on Liens
.
(a) The Company shall not, and shall not permit any of its Subsidiaries to, issue,
assume or guarantee any Indebtedness for borrowed money secured by any Lien upon any
Principal Property without making effective provision whereby the Notes (together with, if
the Company shall so determine, any other Indebtedness or other obligation of the Company or
any Subsidiary) shall be secured equally and ratably with (or, at the option of the Company,
prior to) the Indebtedness so secured for so long as such Indebtedness is so secured. The
foregoing restrictions will not, however, apply to Indebtedness secured by Permitted Liens.
(b) Notwithstanding the immediately preceding paragraph (a), without securing the
Notes, the Company or any Subsidiary of the Company may issue, assume or guarantee
Indebtedness that such paragraph (a) would otherwise restrict or prohibit, in a total
principal amount that, when added to all of other outstanding Indebtedness of the Company
and its Subsidiaries that such paragraph (a) would otherwise restrict or prohibit and the
total amount of Attributable Indebtedness outstanding for Sales and Leaseback Transactions
(other than any such Attributable Indebtedness for outstanding Sale and Leaseback
Transactions in connection with which the Company has voluntarily retired debt securities
issued under this Indenture, Indebtedness of equal rank or Funded Indebtedness (in each case
as described in clause (3) of Section 10.8)), does not exceed 15% of the Consolidated Net
Tangible Assets of the Company.
SECTION 4.02.
Limitation on Sale and Leaseback Transactions.
Subject to the limitations set forth in the preamble to ARTICLE Four of this Supplemental
Indenture, Article Ten of the Original Indenture is hereby further amended by adding the following
Section 10.8 thereto:
First Supplemental Indenture
7
Section 10.8
Limitation on Sale and Leaseback Transactions
.
The Company shall not, and shall not permit any of its Subsidiaries to, enter into a
Sale and Leaseback Transaction, unless one of the following applies:
(1) the Company or such Subsidiary of the Company could incur Indebtedness in a
principal amount equal to the Attributable Indebtedness for that Sale and Leaseback
Transaction and, without violating Section 10.7, could secure that Indebtedness by a Lien on
the property to be leased without equally or ratably securing the Notes;
(2) after the issuance of the Notes and within the period beginning nine months before
the closing of the Sale and Leaseback Transaction and ending nine months after such closing,
the Company or any of its Subsidiaries have expended for property used or to be used in the
ordinary course of business an amount equal to all or a portion of the net proceeds of the
transaction, and the Company has elected to designate that amount as a credit against that
transaction (with any amount not so designated to be applied as set forth in clause (3)
below or as otherwise permitted); or
(3) during the nine-month period after the effective date of the Sale and Leaseback
Transaction, the Company has applied to the voluntary defeasance or retirement of any debt
securities under the Indenture, any Indebtedness of equal rank to the Notes or any Funded
Indebtedness, an amount equal to the net proceeds of the sale or transfer of the property
leased in the Sale and Leaseback Transaction (or, if greater, the fair value of that
property at the time of the Sale and Leaseback Transaction as determined by the Board of
Directors of the Company) adjusted to reflect the remaining term of the lease and any amount
expended as set forth in the immediately preceding clause (2).
ARTICLE FIVE
Miscellaneous
SECTION 5.01.
Certain Trustee Matters.
The recitals contained herein shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this Supplemental
Indenture or the Notes or the proper authorization or the due execution hereof or thereof by the
Company.
Except as expressly set forth herein, nothing in this Supplemental Indenture shall alter the
duties, rights or obligations of the Trustee set forth in the Original Indenture.
The Trustee makes no representation or warranty as to the validity or sufficiency of the
information contained in the prospectus supplement related to the Notes, except such information
which specifically pertains to the Trustee itself, or any information incorporated therein by
reference.
SECTION 5.02.
Continued Effect.
Except as expressly supplemented and amended by this Supplemental Indenture, the Original
Indenture shall continue in full force and effect in accordance with the provisions thereof, and
the Original Indenture (as supplemented and amended by this Supplemental Indenture) is in all
respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall
be deemed a part of the Original Indenture in the manner and to the extent herein and therein
provided.
First Supplemental Indenture
8
SECTION 5.03.
Governing Law.
This Supplemental Indenture and the Notes shall be governed by and construed in accordance
with the laws of the State of New York.
SECTION 5.04.
Counterparts.
This instrument may be executed in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute but one and the same
instrument.
(
Remainder of Page Intentionally Left Blank
)
First Supplemental Indenture
9
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and delivered, all as of the date first written above.
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THE COMPANY:
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ROWAN COMPANIES, INC.
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By:
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/s/ William H. Wells
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Name:
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William H. Wells
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Title:
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Vice President, Finance and Chief Financial
Officer
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First Supplemental Indenture
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TRUSTEE:
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U.S. BANK NATIONAL ASSOCIATION
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By:
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/s/ Steven A. Finklea
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Name:
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Steven A. Finklea
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Title:
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Authorized Officer
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First Supplemental Indenture
EXHIBIT A
[FORM OF FACE OF NOTE]
[If a Global Security, insertTHIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES
REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH
TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY
SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN
LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.]
[If a Global Security, insertUNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
ROWAN COMPANIES, INC.
7.875% Senior Note due 2019
CUSIP: 779382AK6
ISIN: US779382AK60
ROWAN COMPANIES, INC., a Delaware corporation (herein called the Company, which term
includes any successor or resulting Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to
, or registered assigns, the principal sum
of
United States Dollars on August 1, 2019, and to pay interest
thereon from July 21, 2009, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on February 1 and August 1 in each year, commencing
on February 1, 2010, at the rate of 7.875% per annum, until the principal hereof is paid or made
available for payment and at the rate of 7.875% per annum on any overdue principal and premium and
on any overdue installment of interest (to the extent that the payment of such interest shall be
legally enforceable). The amount of interest payable for any period shall be computed on the basis
of twelve 30-day months and a 360-day year. The amount of interest payable for any partial period
shall be computed on the basis of a 360-day year of twelve 30-day months and the days elapsed in
any partial month. In the event that any date on which interest is payable on this Security is not
a Business Day, then a payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other payment in respect of any
such delay) with the same force and effect as if made on the date the payment was originally
payable. A
Business Day
shall mean, when used with respect to any Place of Payment, each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that
Place of Payment are authorized or obligated by law, executive order or regulation to close. The
interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will,
as provided in such Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the
Regular Record Date
for
such interest, which shall be the January 15 or July 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Securities of this series may be listed or
traded, and upon such notice as may be required by such exchange or automated quotation system, all
as more fully provided in such Indenture.
[If a Global Security, insertPayment of the principal of (and premium, if any) and any such
interest on this Security will be made by transfer of immediately available funds to a bank account
in the United States of America designated by the Holder 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.]
[If a Definitive Security, insertPayment of the principal of (and premium, if any) and any
such interest on this Security will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, the City and State of New York, 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 or subject to any laws or regulations applicable thereto and to the right of the
Company (as provided in the Indenture) to rescind the designation of any such Paying Agent, at the
offices of
in the Borough of Manhattan, The City and State of New York, or at
such other offices or agencies as the Company may designate, by United States Dollar check drawn
on, or transfer to a United States Dollar account maintained by the payee with, a bank in The City
of New York (so long as the applicable Paying Agent has received proper transfer instructions in
writing at least 10 days prior to the payment date);
provided, however
, that payment of interest
may be made at the option of the Company by United States Dollar check mailed to the addresses of
the Persons entitled thereto as such addresses shall appear in the Security Register or by transfer
to a United States Dollar account maintained by the payee with a bank in The City of New York (so
long as the applicable Paying Agent has received proper transfer instructions in writing by the
Record Date prior to the applicable Interest Payment Date).]
Reference is hereby made to the further provisions of this Security 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 authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
,
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ROWAN COMPANIES, INC.
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By:
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Name:
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Title:
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This is one of the Securities of the series designated 7.875% Senior Notes due 2019 referred to in
the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
[REVERSE OF NOTE]
ROWAN COMPANIES, INC.
7.875% Senior Note due 2019
This Security is one of a duly authorized issue of senior securities of the Company (the
Securities
), issued and to be issued in one or more series under an Indenture, dated as of July
21, 2009, as amended and supplemented by the First Supplemental Indenture thereto dated as of July
21, 2009 (such Indenture, as so amended and supplemented being referred to herein as the
Indenture
), between the Company and U.S. Bank National Association, a national banking
association organized and existing under the laws of the United States of America, as Trustee (the
Trustee
, which term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are
to be, authenticated and delivered. This Security is one of the series designated on the face
hereof.
This Security is redeemable, in whole or in part, at the Companys option at any time prior to
maturity at a redemption price equal to the greater of (a) 100% of the principal amount of this
Security, and (b) as determined by the Quotation Agent (as defined below), the sum of the present
values of the remaining scheduled payments of principal and interest (not including any portion of
those payments of interest accrued as of the date of redemption) discounted to the date of
redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Adjusted Treasury Rate (as defined below) plus 50 basis points, plus, in each case, accrued and
unpaid interest to the date of redemption.
For purposes of determining any redemption price, the following definitions shall apply:
Adjusted Treasury Rate
means, with respect to any date of redemption, the rate per annum
equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue (as defined
below), assuming a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price (as defined below) for the date of
redemption. The Adjusted Treasury Rate will be calculated on the third Business Day preceding the
redemption date.
Comparable Treasury Issue
means the United States Treasury security selected by the
applicable Quotation Agent as having a maturity comparable to the remaining term of this Security
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 the
remaining term of this Security.
Comparable Treasury Price
means, with respect to any date of redemption, (a) the average of
the Reference Treasury Dealer Quotations (as defined below) for the date of redemption, after
excluding the highest and lowest Reference Treasury Dealer Quotations, or (b) if the Company
obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations.
Quotation Agent
means the Reference Treasury Dealer (as defined below) appointed by the
Company.
Reference Treasury Dealer
means (a) Barclays Capital Inc. and Goldman Sachs & Co. and their
successors;
provided, however
, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer (a
Primary Treasury Dealer
), the Company shall substitute another
Primary Treasury Dealer; and (b) any other Primary Treasury Dealer selected by the Company.
Reference Treasury Dealer Quotations
means, with respect to each 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 such Reference Treasury Dealer at 5:00 p.m. (New York City
time) on the third Business Day preceding that redemption date.
Unless the Company defaults in payment of the redemption price, on and after the date of
redemption, interest will cease to accrue on this Security or the portions hereof called for
redemption.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of (1) the entire indebtedness of
this Security or (2) certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected (with each series voting as a separate class). The
Indenture also contains provisions permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences. Any such consent
or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon
all future Holders of this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, regardless of whether notation of such consent or
waiver is made upon this Security.
No Holder of this Security shall have any right to institute any proceeding, judicial or
otherwise, with respect to the Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless (a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of this series, (b) the
Holders of not less than 25% in principal amount of the Outstanding Securities of this series shall
have made written request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder, (c) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request, (d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding and (e) no direction
inconsistent with such written request has been given to the Trustee during such 60-day period by
the Holders of a majority in principal amount of the Outstanding Securities of this series; it
being understood and intended that no one or more of such Holders shall have any right in any
manner whatsoever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, 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,
except in the manner herein provided and for the equal and ratable benefit of all such Holders.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place(s) and rate, and
in the coin or currency, herein prescribed.
[If a Global Security, insertThis Global Security or portion hereof may not be exchanged for
Definitive Securities of this series except in the limited circumstances provided in the Indenture.
The holders of beneficial interests in this Global Security will not be entitled to receive
physical delivery of Definitive Securities except as described in the Indenture and will not be
considered the Holders thereof for any purpose under the Indenture.]
[If a Definitive Security, insertAs provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the office or agency of
the Company in The City of New York, or, subject to any laws or regulations applicable thereto and
to the right of the Company (limited as provided in the Indenture) to rescind the designation of
any such transfer agent, at the offices of
in the Borough of Manhattan, The City
of New York or at such other offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.]
The Securities of this series are issuable only in registered form without coupons in
denominations of U.S. $2,000 and any integral multiple of U.S. $1,000 in excess thereof. As
provided in the Indenture and subject to certain limitations therein set forth, Securities of this
series are exchangeable for a like aggregate principal amount of Securities of this series and of
like tenor of a different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security is
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement of or contained in the
Indenture or of or contained in any Security, or for any claim based thereon or otherwise in
respect thereof, or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, shareholder, member, officer, manager or director, as such, past, present
or future, of the Company or of any successor Person, either directly or through the Company or any
successor Person, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment, penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released by the acceptance hereof and as a condition of,
and as part of the consideration for, the execution of the Indenture and the issuance of the
Securities.
This Security shall be governed by and construed in accordance with the laws of the State of
New York.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
[If a Definitive Security, insert as a separate page
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please Print or Typewrite Name and Address of Assignee) the within
instrument of ROWAN COMPANIES, INC., and does hereby irrevocably constitute and appoint
Attorney to transfer said instrument on the books of the within-named
corporation, with full power of substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
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Signature Guarantee:
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(Participant in a Recognized Signature
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Guaranty Medallion Program)
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NOTICE: The signature to this assignment must correspond with the name as written upon the
face of the within instrument in every particular, without alteration or enlargement or any change
whatsoever.
[If a Global Security, insert as a separate page
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
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Amount of
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Amount of
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Principal Amount
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Decrease in
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Increase in
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of this Global
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Signature of
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Principal
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Principal Amount
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Security Following
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Authorized Officer
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Amount of this
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of this
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Such Decrease
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of Trustee or
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Date of Exchange
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Global Security
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Global Security
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(or Increase)
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Depositary
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