EXECUTION VERSION
WEATHERFORD INTERNATIONAL, INC.
(a Delaware corporation)
$600,000,000 5.95% Senior Notes due 2012
$600,000,000 6.35 % Senior Notes due 2017
$300,000,000 6.80% Senior Notes due 2037
Guaranteed by
WEATHERFORD INTERNATIONAL LTD.
(a Bermuda exempted company)
PURCHASE AGREEMENT
Dated: June 13, 2007
WEATHERFORD INTERNATIONAL, INC.
(a Delaware corporation)
$600,000,000 5.95% Senior Notes due 2012
$600,000,000 6.35 % Senior Notes due 2017
$300,000,000 6.80% Senior Notes due 2037
Guaranteed by
WEATHERFORD INTERNATIONAL LTD.
(a Bermuda exempted company)
PURCHASE AGREEMENT
June 13, 2007
Deutsche Bank Securities Inc.
Morgan Stanley & Co. Incorporated
UBS Securities LLC
as Representatives of the several Initial Purchasers
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Ladies and Gentlemen:
Weatherford International, Inc., a Delaware corporation (the “Company”), proposes to sell to
you (the “
Initial Purchasers
”) $600,000,000 principal amount of its 5.95% senior notes due 2012
(the “
2012 Notes
”), $600,000,000 principal amount of its 6.35% senior notes due 2017 (the “
2017
Notes
”) and $300,000,000 principal amount of its 6.80% senior notes due 2037 (the “
2037 Notes
” and,
together with the 2012 Notes and the 2017 Notes, the “
Notes
”) to be issued pursuant to the
provisions of an Indenture dated as of June 18, 2007 (the “
Base Indenture
”) among the Company,
Weatherford International Ltd., a Bermuda exempted company (the “
Guarantor
”), and Deutsche Bank
Trust Company Americas, as Trustee (the “
Trustee
”), as supplemented by a Supplemental Indenture
dated as of June 18, 2007, among the Company, the Guarantor and the Trustee (the “
Supplemental
Indenture
” and, together with the Base Indenture, the “
Indenture
”). Each guarantee by the
Guarantor of the Company’s obligations with respect to a series of Notes is referred to as a
“
Guarantee
.” The Notes and the Guarantees are hereinafter collectively referred to as the
“
Securities
”).
The Securities will be offered without being registered under the Securities Act of 1933, as
amended (the “
Securities Act
”), to qualified institutional buyers in compliance with the exemption
from registration provided by Rule 144A under the Securities Act and in offshore transactions in
reliance on Regulation S under the Securities Act (“
Regulation S
”).
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The Initial Purchasers and their direct and indirect transferees will be entitled to the
benefits of a Registration Rights Agreement dated the Closing Date (as defined below) among the
Company, the Guarantor and the Initial Purchasers (the “
Registration Rights Agreement
”).
In connection with the sale of the Securities, the Company and the Guarantor have prepared a
preliminary offering memorandum, dated June 13, 2007 (the “
Preliminary Memorandum
”), and a final
offering memorandum, dated June 13, 2007 (the “
Final Memorandum
”) including a description of the
terms of the Securities, the terms of the offering and a description of the Company and the
Guarantor. For purposes of this Agreement, “
Additional Written Offering Communication
” means any
written communication (as defined in Rule 405 under the Securities Act) prepared by or on behalf of
the Company or the Guarantor that constitutes an offer to sell or a solicitation of an offer to buy
the Securities other than the Preliminary Memorandum or the Final Memorandum, and “
Time of Sale
Memorandum
” means the Preliminary Memorandum together with the Additional Written Offering
Communications, if any, identified in Schedule II hereto. As used herein, the terms Preliminary
Memorandum, Time of Sale Memorandum and Final Memorandum shall include the documents, if any,
incorporated by reference therein.
SECTION 1.
Representations and Warranties
.
(a)
Representations and Warranties by the Company and the Guarantor
. The Company and the
Guarantor jointly and severally represent and warrant to, and agree with, you that, as of the date
of this Agreement:
1. (i) As of 5:30 p.m. (Eastern Time) on the date of this Agreement, the Time of Sale
Memorandum did not, and at the Closing Date (as defined in Section 4), the Time of Sale
Memorandum, as then amended or supplemented by the Company and the Guarantor, if applicable,
will not, contain any 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 under which they
were made, not misleading, and (ii) the Final Memorandum, as of the date of this Agreement
and as of the Closing Date (as defined in Section 4), does not and will not contain any
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 under which they were made, not
misleading, except that the representations and warranties set forth in this paragraph do
not apply to statements or omissions in the Time of Sale Memorandum or the Final Memorandum
based upon information relating to any Initial Purchaser furnished to the Company in writing
by such Initial Purchaser through you expressly for use therein.
2. The documents incorporated by reference in the Preliminary Memorandum and the Final
Memorandum conformed, when such documents were filed with the Securities and Exchange
Commission (the “
Commission
”), in all material respects to the requirements of the
Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), and the rules and
regulations of the Commission thereunder (except for the absence of segment restatements for
the fiscal years ended 2004 and 2005), and none of such documents, when read together with
the other information in the Preliminary Memorandum or the Final Memorandum, as applicable,
contained an untrue statement of a material fact or omitted to state a 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 any further documents so
filed and incorporated by reference in the Preliminary Memorandum or the Final Memorandum,
as applicable, when such documents are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder, and none of such documents, when read together with the other
information in the Preliminary
2
Memorandum or the Final Memorandum, as applicable, will contain an untrue statement of
a material fact or omit to state a 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. All references in this Agreement to matters that are “included in” or
“described in” the Time of Sale Memorandum or the Final Memorandum include all such matters
included in or described in the documents incorporated by reference therein.
3. Except for the Additional Written Offering Communications, if any, identified in
Schedule II hereto, and electronic road shows, if any, furnished to you before first use,
the Company and the Guarantor have not prepared, used or referred to, and will not, without
your prior consent, prepare, use or refer to, any Additional Written Offering Communication.
4. Since the respective dates as of which information is given in the Preliminary
Memorandum and the Final Memorandum, except as otherwise stated therein, (A) there has been
no material adverse change in the consolidated financial position, shareholders’ equity,
results of operations or business of the Guarantor and its subsidiaries considered as one
enterprise or the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a “
Material Adverse Effect
”), (B) there have
been no transactions entered into by the Guarantor or any of its subsidiaries, other than
those in the ordinary course of business, which are material with respect to the Guarantor
and its subsidiaries considered as one enterprise or the Company and its subsidiaries
considered as one enterprise, and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Guarantor on any class of its share capital.
5. The Guarantor has been duly organized and is validly existing as an exempted company
in good standing under the laws of Bermuda and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the Time of
Sale Memorandum and to enter into and perform its obligations under this Agreement; the
Company has been duly organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the Time of Sale
Memorandum and to enter into and perform its obligations under this Agreement; and each of
the Company and the Guarantor is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect.
6. Each of the Guarantor’s subsidiaries (as defined in Rule 405 of the rules and
regulations of the Commission under the Securities Act (collectively with the rules and
regulations of the Commission under the Exchange Act, the “
Rules and Regulations
”) have been
duly incorporated or formed and are validly existing as corporations, limited liability
companies, limited partnerships or other forms of entities, as the case may be, in good
standing under the laws of their respective jurisdictions of incorporation or formation,
have the requisite power and authority to own their respective properties and conduct their
respective businesses as described in the Time of Sale Memorandum, are duly qualified to do
business and are in good standing as foreign corporations, limited liability companies,
limited partnerships or other forms of entities in each jurisdiction in which their
respective ownership or lease of property or the conduct of their respective businesses
requires such qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a Material Adverse Effect.
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7. All of the issued shares of the Guarantor have been duly and validly authorized and
issued are fully paid and non-assessable; and all of the issued shares, share capital or
other equity interests of each subsidiary of the Guarantor have been duly and validly
authorized and issued and are fully paid and non-assessable and (except for directors’
qualifying shares) are owned directly or indirectly by the Guarantor, free and clear of all
liens, encumbrances, equities or claims. All of the issued and outstanding shares of
capital stock of the Company have been duly authorized and validly issued, are fully paid
and nonassessable and are owned by the Guarantor through subsidiaries, free and clear of all
liens, encumbrances, equities or claims.
8. The accountants who audited the financial statements and supporting schedules
included in the Preliminary Memorandum and Final Memorandum are independent public
accountants as required by the Securities Act and the Rules and Regulations with respect to
the Guarantor and are a registered public accounting firm with the Public Company Accounting
Oversight Board.
9. The consolidated financial statements included in the Time of Sale Memorandum
present fairly in all material respects the financial position of the Guarantor and its
consolidated subsidiaries at the dates indicated and the statement of operations,
shareholders’ equity and cash flows of the Guarantor and its consolidated subsidiaries for
the periods specified all prepared in conformity with generally accepted accounting
principles (“
GAAP
”) (subject, in the case of interim statements, to normal year-end audit
adjustments); and the Guarantor has no material contingent obligation that is not disclosed
in such financial statements or in the Time of Sale Memorandum. The supporting schedules,
if any, included in the Time of Sale Memorandum present fairly in accordance with GAAP the
information required to be stated therein. The summary financial information, the
capitalization table and the ratio of earnings to fixed charges included in the Time of Sale
Memorandum present fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the Time of Sale
Memorandum.
10. This Agreement has been duly authorized, executed and delivered by the Company and
the Guarantor.
11. The Indenture has been duly authorized, executed and delivered by the Company and
the Guarantor. The Indenture constitutes a valid and binding agreement of the Company and
the Guarantor, enforceable against the Company and the Guarantor in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally and except
as enforcement thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
12. The Securities have been duly authorized and, on the Closing Date, will have been
duly executed by the Company and the Guarantor, as the case may be, for issuance and sale
pursuant to this Agreement. The Securities, when authenticated, issued and delivered in the
manner provided for in the Indenture and delivered against payment of the purchase price
therefor as provided in this Agreement, will have been duly executed, authenticated, issued
and delivered and will constitute valid and binding obligations of the Company and the
Guarantor, enforceable against the Company and the Guarantor, as the case may be, in
accordance with their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject
4
to general principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and will be in the form contemplated by, and entitled to
the benefits of, the Indenture.
13. The Exchange Securities (as defined in the Registration Rights Agreement) have been
duly authorized by the Company and the Guarantor, as the case may be, and when duly
executed, authenticated, issued and delivered in accordance with the Indenture and as
contemplated by the Registration Rights Agreement, will be duly and validly issued and
outstanding and will constitute valid and binding obligations of the Company and the
Guarantor, enforceable against the Company and the Guarantor, as the case may be, in
accordance with their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at law), and
will be in the form contemplated by, and entitled to the benefits of, the Indenture.
14. The Registration Rights Agreement has been duly authorized, and, on the Closing
Date, will have been duly executed and delivered by the Company and the Guarantor. The
Registration Rights Agreement, when duly executed and delivered by the Company and the
Guarantor, will constitute a valid and binding agreement of the Company and the Guarantor,
enforceable against the Company and the Guarantor in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
15. The Securities, the Exchange Securities and the Indenture will conform in all
material respects to the respective statements relating thereto contained in the Time of
Sale Memorandum.
16. Neither the Guarantor nor any of its subsidiaries is (i) in violation of its
charter, memorandum of association or bye-laws or similar governing document, as applicable,
(ii) in default, and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of any term,
obligation, agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, lease or other agreement or instrument to which it
is a party or by which it is bound or which any of its properties or assets may be subject
(collectively, “
Agreements and Instruments
”) or (iii) in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its property or assets may be
subject, except with respect to (ii) or (iii), for any such violations or defaults that
would not be reasonably likely, singly or in the aggregate, to have a Material Adverse
Effect; and the execution, delivery and performance of this Agreement, the Indenture, the
Registration Rights Agreement and the Securities and the consummation of the transactions
contemplated herein and in the Time of Sale Memorandum (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as described in
the Time of Sale Memorandum under the caption “Use of Proceeds”) and compliance by the
Company and the Guarantor with their respective obligations hereunder and under the
Indenture, the Registration Rights Agreement and the Securities have been duly authorized by
all necessary corporate action and do not and will not, whether with or without the giving
of notice or passage of time or both, (i) conflict with or result in a breach or violation
of any of the terms or provisions
5
of, or constitute a default or Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property or assets of
the Guarantor or any subsidiary pursuant to, the Agreements and Instruments, (ii) result in
any violation of the provisions of the charter, memorandum of association or bye-laws (or
similar governing document) of the Guarantor or any of its subsidiaries or (iii) result in
any violation of any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Guarantor or any subsidiary or any of their assets, properties or
operations; except for such conflict, breach, violation or default which would, for purposes
of clauses (i) and (iii) above, either individually or in the aggregate, not have a Material
Adverse Effect. As used herein, a “Repayment Event” means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Guarantor or any subsidiary.
17. The Securities, the Registration Rights Agreement and the Indenture will conform in
all material respects to the respective statements relating thereto contained in the Time of
Sale Memorandum.
18. No labor dispute with the employees of the Guarantor or any subsidiary exists or,
to the knowledge of the Company or the Guarantor, is imminent, which would reasonably be
expected to have a Material Adverse Effect; and there are no significant unfair labor
practice complaints pending against the Guarantor or any of its subsidiaries or, to the
knowledge of the Company or the Guarantor, threatened against any of them.
19. Other than proceedings accurately described in all material respects in the Time of
Sale Memorandum, there is no action, suit, proceeding, inquiry or investigation before or
brought by any court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Guarantor, threatened, against or affecting the Guarantor or any
subsidiary, which would reasonably be expected to result in a Material Adverse Effect, or
which would reasonably be expected to materially and adversely affect the consummation of
the transactions contemplated in this Agreement or the performance by the Company and the
Guarantor of their respective obligations hereunder or under the Indenture, the Registration
Rights Agreement or the Securities; the aggregate of all pending legal or governmental
proceedings to which the Guarantor or any subsidiary is a party or of which any of their
respective property or assets is the subject which are not described in the Time of Sale
Memorandum, including ordinary routine litigation incidental to the business, would not
reasonably be expected to result in a Material Adverse Effect.
20. The Guarantor 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 and licenses 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 where such conflict could not reasonably be
expected to have a Material Adverse Effect.
21. None of the Company, the Guarantor or any of their affiliates has taken, nor will
the Company, the Guarantor or any of their affiliates take, directly or indirectly, any
action which is designed to or which has constituted or which would be expected to cause or
result in
6
stabilization or manipulation of the price of any security of the Company or the
Guarantor to facilitate the sale or resale of the Securities.
22. No filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company and the Guarantor of their respective
obligations hereunder, in connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the transactions contemplated by this Agreement or for the
due execution, delivery or performance of the Indenture by the Company and the Guarantor,
except (A) as may be required under state or securities laws and the Companies Act 1981 of
Bermuda, (B) as have already been made, obtained or rendered, as applicable, and except
where the failure to so make, obtain or render, singly or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect or (C) for the order of the
Commission declaring effective the Exchange Offer Registration Statement or, if required,
the Shelf Registration Statement (each as defined in the Registration Rights Agreement).
23. The Guarantor and its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, “
Governmental Licenses
”) issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, except where the failure so to possess would not,
singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect;
the Guarantor and its subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would not, singly or in
the aggregate, reasonably be expected to result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses to be in full force
and effect would not, singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect; and neither the Guarantor nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
24. The Guarantor and its subsidiaries have good and indefeasible title in fee simple
to all real property owned by the Guarantor and its subsidiaries and good and valid title to
all other properties owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any kind except such as
(a) are described in the Time of Sale Memorandum or (b) would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse Effect; and all of the
leases and subleases material to the business of the Company and its subsidiaries considered
as one enterprise, or the Guarantor and its subsidiaries considered as one enterprise, and
under which the Guarantor or any of its subsidiaries holds properties described in the Time
of Sale Memorandum, are in full force and effect, and neither the Guarantor nor any
subsidiary has any notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Guarantor or any subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the Guarantor or such
subsidiary to the continued possession of the leased or subleased premises under any such
lease or sublease.
25. Neither the Company nor the Guarantor is, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds therefrom as
described in the Final Memorandum, neither the Company nor the Guarantor will be, an
“investment company” or an entity “controlled” by an “investment company”, as such terms are
defined in the U.S. Investment Company Act of 1940, as amended (the “
Investment Company
Act
”).
7
26. Except as described in the Time of Sale Memorandum and except as would not, singly
or in the aggregate, result in a Material Adverse Effect, (A) neither the Guarantor nor any
of its subsidiaries is in violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum
products, asbestos-containing materials or mold (collectively, “
Hazardous Materials
”) or to
the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, “
Environmental Laws
”), (B) the Guarantor and
its subsidiaries have all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with their requirements, (C) there
are no pending or, to the knowledge of the Guarantor, threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigation or proceedings relating to any Environmental Law against the
Guarantor or any of its subsidiaries and (D) there are no events or circumstances that would
reasonably be expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or agency, against or
affecting the Guarantor or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
27. Neither the Guarantor nor any of its subsidiaries has sustained, since the date of
the latest audited financial statements included in the Time of Sale Memorandum, any
material loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or contemplated in the
Time of Sale Memorandum; and, since such date, there has not been any material change in the
share capital or long-term debt of the Guarantor or any of its subsidiaries, or any material
adverse change or any development involving a prospective material adverse change in the
condition, financial or otherwise, or in the earnings or business of the Guarantor and its
subsidiaries, otherwise than as set forth or contemplated in the Time of Sale Memorandum.
28. The Guarantor and each of its subsidiaries carry, or are covered by, insurance in
such amounts and covering such risks as they reasonably deem sufficient for the conduct of
their respective businesses and the value of their respective properties, and neither the
Guarantor nor any subsidiary has received notice of cancellation or non-renewal of such
insurance.
29. The Guarantor and each of its subsidiaries (i) makes and keeps books and records,
which accurately reflect transactions and dispositions of its assets, (ii) maintains
internal accounting controls which provide reasonable assurance that (A) transactions are
executed in accordance with management’s general and specific authorization, (B)
transactions are recorded as necessary to permit preparation of its financial statements and
to maintain accountability for its assets, (C) access to its assets is permitted only in
accordance with management’s general and specific authorization and (D) the recorded
accountability for its assets is compared with existing assets at reasonable intervals.
30. Neither the Guarantor nor any of its subsidiaries, nor any director, officer,
agent, employee or shareholder acting on behalf of the Guarantor or any of its subsidiaries,
is aware of or has used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; made any direct or
indirect unlawful payment to
8
any foreign or domestic government official or employee from corporate funds; violated
or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (collectively, the “
FCPA
”) or similar law,
ordinance, rule or regulation applicable to the Guarantor and its subsidiaries; or made any
unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment. The
Guarantor, its subsidiaries and, to the knowledge of the Guarantor, its affiliates, have
conducted their business in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
31. The operations of the Guarantor and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
of the U.S. Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all applicable 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 Guarantor or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Guarantor, threatened.
32. Neither the Guarantor nor any of its subsidiaries nor, to the knowledge of the
Guarantor, any director, officer, agent, employee or affiliate of the Guarantor 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, shareholder 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, in each case other than in compliance
with all applicable OFAC rules, regulations and procedures.
33. The Guarantor and its subsidiaries have not taken, and will not take, any action
that might cause this Agreement or the issuance or sale of the Securities to violate
Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12
C.F.R. Part 224) of the Board of Governors of the Federal Reserve System.
34. (i) The Guarantor has established and maintains disclosure controls and procedures
(as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act); (ii) such
disclosure controls and procedures are designed to ensure that information required to be
disclosed by the Guarantor in the reports it files or submits under the Exchange Act is
accumulated and communicated to the Guarantor’s management, including its principal
executive officer and its principal financial officer, as appropriate, to allow timely
decisions regarding required disclosure; and (iii) such disclosure controls and procedures
are effective in all material respects to perform the functions for which they were
established. Since the date of the most recent evaluation of such disclosure controls and
procedures, there have been no significant changes in internal controls or in other factors
that could significantly affect internal controls.
35. Except as disclosed in the Time of Sale Memorandum, since December 31, 2006, there
has not been (i) any significant deficiency in the design or operation of internal controls
which could adversely affect the Company’s or the Guarantor’s ability to record, process,
summarize and report financial data nor any material weaknesses in internal controls; or
(ii) any fraud, whether or not material, that involves management or other employees who
have a significant role in the Company’s or the Guarantor’s internal controls. Except as
disclosed in the
9
Time of Sale Memorandum, since December 31, 2006, there have been no significant
changes in internal controls or in other factors that could significantly affect internal
controls. The Company and the Guarantor have designed and maintain internal control over
financial reporting (as such term is defined in Rules 13a-15(f) and Rules 15d-15(f) under
the Exchange Act, referred to herein as “
Reporting Controls
”), and the Reporting Controls
are (i) designed to, and sufficient to, provide reasonable assurance (A) that transactions
are executed in accordance with management’s general or specific authorizations; (B) that
transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (C) that access to assets is permitted only in accordance with management’s
general or specific authorization; (D) that the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences; and (E) regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with
generally accepted accounting principles and include, without limitation, those processes
specifically referred to in Rule 13a-15(f) and Rule 15d-15(f) and (ii) to the knowledge of
the Company and the Guarantor, effective to perform the functions for which they are
maintained.
36. Except for the Registration Rights Agreement, there are no contracts, agreements or
understandings between the Company or the Guarantor and any person granting such person the
right to require the Company or the Guarantor to file a registration statement under the
Securities Act with respect to any securities of the Company or of the Guarantor similar to
the Securities, owned or to be owned by such person or to require the Company or the
Guarantor to include such securities with the Securities being registered pursuant to the
Registration Rights Agreement.
37. Neither the Company nor any affiliate (as defined in Rule 501(b) of Regulation D
under the Securities Act, an “
Affiliate
”) of the Company has directly, or through any agent,
(i) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of,
any security (as defined in the Securities Act) which is or will be integrated with the sale
of the Securities in a manner that would require the registration under the Securities Act
of the Securities or (ii) within the six-month period prior to the date hereof, solicited
offers for, or offered or sold, in the United States or to any U.S. person (as such terms
are defined in Regulation S) the Securities or any security of the same class or series as
the Securities or (iii) offered, or will offer or sell, the Securities (A) in the United
States by means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) of Regulation D under the Securities Act or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act or (B) with respect
to any such securities sold in reliance on Rule 903 of Regulation S, by means of any
directed selling efforts within the meaning of Rule 902(c) of Regulation S, and all such
persons have complied with the offering restrictions requirement of Regulation S. The
Company, its Affiliates and any person acting on its or their behalf (other than the Initial
Purchasers, as to which no representation is made) have complied and will comply with the
offering restrictions requirement of Regulation S. The Company and the Guarantor have not
entered and will not enter into any contractual arrangement with respect to the distribution
of the Securities except for this Agreement.
38. Assuming the accuracy of the representations and warranties of the Initial
Purchasers contained in Section 8 and their compliance with their agreements set forth
therein, (i) none of the Company, its Affiliates or any person acting on its or their behalf
has engaged or will engage in directed selling efforts (within the meaning of Regulation S)
with respect to the Securities, and the Company, its Affiliates and any person acting on its
or their behalf have complied and will comply with the offering restriction requirements of
Regulation S with respect
10
to the Securities. The sale of the Securities pursuant to Regulation S is not part of a
plan or scheme to evade the registration provisions of the Securities Act.
39. It is not necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchasers in the manner contemplated by this Agreement to
register the Securities under the Securities Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended, assuming the accuracy of the representations and
warranties of the Initial Purchasers contained in Section 8.
40. The Securities satisfy the requirements set forth in Rule 144A(d)(3) under the
Securities Act.
(b)
Officer’s Certificates
. Any certificate signed by any officer of the Company or
the Guarantor delivered to you or to counsel for you shall be deemed a representation and warranty
by the Company or the Guarantor, as the case may be, to each Initial Purchaser as to the matters
covered thereby.
SECTION 2.
Agreements to Sell and Purchase
. The Company hereby agrees to sell to the
several Initial Purchasers, and each Initial Purchaser, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated, agrees to purchase
from the Company (including related Guarantees from the Guarantor), in the amounts set forth in
Schedule I, (i) the 2012 Notes at a purchase price of 99.205% of the principal amount thereof (the
“
2012 Notes Purchase Price
”), (ii) the 2017 Notes at a purchase price of 99.270% of the principal
amount thereof (the “
2017 Notes Purchase Price
”), and (iii) the 2037 Notes at a purchase price of
98.505% of the principal amount thereof (the “
2037 Notes Purchase Price
” and, together with the
2012 Notes Purchase Price, the 2017 Notes Purchase Price, the “
Purchase Price
”), in each case plus
accrued interest, if any, to the Closing Date.
SECTION 3.
Terms of Offering
. You have advised the Company that the Initial Purchasers
will make an offering of the Securities purchased by the Initial Purchasers hereunder as soon as
practicable after this Agreement is entered into as in your judgment is advisable.
SECTION 4.
Payment and Delivery
. Payment for the Securities shall be made to the
Company in Federal or other funds immediately available in New York City against delivery of such
Securities for the respective accounts of the several Initial Purchasers at 10:00 a.m., New York
City time, on June 18 , 2007, or at such other time on the same or such other date, not later than
June 19, 2007, as shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the “
Closing Date
.”
The Securities shall be in definitive form or global form, as specified by you, and registered
in such names and in such denominations as you shall request in writing not later than one full
business day prior to the Closing Date. The Securities shall be delivered to you on the Closing
Date for the respective accounts of the several Initial Purchasers, with any transfer taxes payable
in connection with the transfer of the Securities to the Initial Purchasers duly paid, against
payment of the Purchase Price therefor plus accrued interest, if any, to the date of payment and
delivery.
SECTION 5.
Covenants of the Company and the Guarantor
. The Company and the Guarantor
jointly and severally covenant with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 10:00 a.m. New York City time
on the second business day next succeeding the date of this Agreement and during the period
mentioned in Section 5(d) or (e), as many copies of the Time of Sale Memorandum, the Final
11
Memorandum, any documents incorporated by reference therein and any supplements and amendments
thereto as you may reasonably request.
(b) Before amending or supplementing the Preliminary Memorandum, the Time of Sale Memorandum
or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and
not to use any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication to be
used by, or referred to by, the Company and not to use or refer to any proposed Additional Written
Offering Communication to which you reasonably object.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a
time when the Final Memorandum is not yet available to prospective purchasers and any event shall
occur or condition exist as a result of which it is necessary to amend or supplement the Time of
Sale Memorandum in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if, in the opinion of counsel for the Initial Purchasers,
it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law,
forthwith to prepare and furnish, at its own expense, to the Initial Purchasers and to any dealer
upon request, either amendments or supplements to the Time of Sale Memorandum so that the
statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of
the circumstances under which they were made, when delivered to a prospective purchaser, be
misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with
applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the
Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the Final Memorandum in order to make
the statements therein, in the light of the circumstances at the time the Final Memorandum is
delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial
Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable
law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either
amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum,
as so amended or supplemented, will not, in the light of the circumstances at the time the Final
Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended
or supplemented, will comply with applicable law.
(f) To use their best efforts, in cooperation with the Initial Purchasers, to qualify the
Securities for offering and sale under the applicable securities laws of such states and other
jurisdictions as the Initial Purchasers may designate; provided, however, that the Company and the
Guarantor shall not be obligated to file any general consent to service of process or to qualify as
a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so
qualified or so subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. The Company and the Guarantor will also supply the Initial
Purchasers with such information as is necessary for the determination of the legality of the
Securities for investment under the laws of such jurisdictions as the Initial Purchasers may
request.
(g) The Company will use the net proceeds received by it from the sale of the Securities in
the manner specified in the Final Memorandum under “Use of Proceeds”.
(h) The Company and the Guarantor will take all reasonable action necessary to enable Standard
& Poor’s, a division of The McGraw-Hill Companies, Inc. (“
S&P
”), and Moody’s Investors Service Inc.
(“
Moody’s
”) to provide their respective credit ratings of the Securities.
12
(i) The Company and the Guarantor will cooperate with the Initial Purchasers and use
commercially reasonable efforts to permit the Securities to be eligible for clearance and
settlement through the facilities of The Depository Trust Company.
(j) Neither the Company nor any Affiliate will sell, offer for sale or solicit offers to buy
or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be
integrated with the sale of the Securities in a manner which would require the registration under
the Securities Act of the Securities.
(k) Not to solicit any offer to buy or offer or sell the Securities by means of any form of
general solicitation or general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of
the Securities Act.
(l) While any of the Securities remain “restricted securities” within the meaning of the
Securities Act, to make available, upon request, to any seller of such Securities the information
specified in Rule 144A(d)(4) under the Securities Act, unless the Guarantor is then subject to
Section 13 or 15(d) of the Exchange Act.
(m) If requested by you, to use best efforts to permit the Securities to be designated PORTAL
securities in accordance with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. relating to trading in the PORTAL Market.
(n) None of the Company, its Affiliates or any person acting on its or their behalf will
engage in any directed selling efforts (as that term is defined in Regulation S) with respect to
the Securities, and the Company and its Affiliates and each person acting on its or their behalf
will comply with the offering restrictions requirement of Regulation S.
(o) During the period of two years after the Closing Date, each of the Company and the
Guarantor will not, and will not permit any of its affiliates (as defined in Rule 144 under the
Securities Act) to resell any of the Securities which constitute “restricted securities” under Rule
144 that have been reacquired by any of them.
Each of the Company and the Guarantor also agrees that, without the prior written consent of the
Representatives on behalf of the Initial Purchasers, it will not, during the period beginning on
the date hereof and continuing to and including the Closing Date, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or the Guarantor or warrants to purchase
debt securities of the Company or the Guarantor substantially similar to the Securities (other than
the sale of the Securities under this Agreement).
SECTION 6.
Payment of Expenses
.
(a)
Expenses
. The Company and the Guarantor will pay all expenses incident to the performance
of their respective obligations under this Agreement, including (i) the preparation and printing of
the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, and any Additional
Written Offering Communication (including financial statements and exhibits) and each amendment or
supplement thereto, (ii) the preparation, printing and delivery to the Initial Purchasers of this
Agreement, the Indenture, the Registration Rights Agreement and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery of the Securities,
(iii) the preparation, issuance and delivery of the certificates for the Securities to the Initial
Purchasers, (iv) the fees and disbursements of the Company’s and Guarantor’s counsel, accountants
and other advisors,
13
(v) the qualification of the Securities under securities laws in accordance with the
provisions of Section 5(f) hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Initial Purchasers in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the fees and expenses incurred
in connection with the admission of the Securities for trading in PORTAL or any appropriate market
system, (vii) the preparation, printing and delivery to the Initial Purchasers of copies of the
Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee in connection with the Indenture and the
Securities, (ix) the costs and expenses of the Company and the Guarantor relating to investor
presentations on any “road show” undertaken in connection with the marketing of the Securities,
including without limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the road show
presentations, travel and lodging expenses of the representatives and officers of the Company and
the Guarantor and any such consultants, and the cost of aircraft and other transportation chartered
in connection with the road show, (x) any fees payable in connection with the rating of the
Securities, (xi) the filing fees incident to, and the reasonable fees and disbursements of counsel
to the Initial Purchasers in connection with, the review, if any, by NASD Regulation, Inc. of the
terms of the sale of the Securities, and (xii) all costs and expenses of the Exchange Offer and any
Registration Statement, as set forth in the Registration Rights Agreement; provided that, the
Initial Purchasers shall pay their own costs and expenses, including the costs and expenses of
counsel, any transfer taxes on the Securities that they may sell and the expenses of advertising
any offering of the Securities made by the Initial Purchasers.
(b)
Termination of Agreement
. If this Agreement is terminated by the Initial Purchasers in
accordance with the provisions of Section 7, Section 12(a)(i) or the first clause of Section
12(a)(iii) hereof, the Company and the Guarantor shall reimburse the Initial Purchasers for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the
Initial Purchasers.
SECTION 7.
Conditions of Initial Purchasers’ Obligations
. The obligations of the
several Initial Purchasers hereunder are subject to the accuracy of the representations and
warranties of the Company and the Guarantor contained in Section 1 hereof or in certificates of any
officer of the Guarantor or any subsidiary of the Guarantor delivered pursuant to the provisions
hereof, to the performance by the Company and the Guarantor of their covenants and other
obligations hereunder, and to the following further conditions:
(a)
Opinion of Counsel for Company and Guarantor
.
1. On the Closing Date, the Initial Purchasers shall have received the favorable
opinion, dated as of Closing Time, of Andrews Kurth LLP, counsel for the Company and the
Guarantor, in form and substance reasonably satisfactory to counsel for the Initial
Purchasers, together with signed or reproduced copies of such letter for each of the other
Initial Purchasers to the effect set forth in Exhibit A-1 hereto.
2. On the Closing Date, the Initial Purchasers shall have received the favorable
opinion, dated as of Closing Date, of the Senior Vice President and General Counsel for the
Company and the Guarantor, in form and substance reasonably satisfactory to counsel for the
Initial Purchasers, together with signed or reproduced copies of such letter for each of the
other Initial Purchasers to the effect set forth in Exhibit A-2 hereto.
3. On the Closing Date, the Initial Purchasers shall have received the favorable
opinion, dated as of Closing Date, of Conyers Dill & Pearman, special Bermuda counsel for
the Guarantor, in form and substance reasonably satisfactory to counsel for the Initial
Purchasers,
14
together with signed or reproduced copies of such letter for each of the other Initial
Purchasers to the effect set forth in Exhibit A-3 hereto.
(b)
Opinion of Counsel for Initial Purchasers
.
1. On the Closing Date, the Representatives shall have received the favorable opinion,
dated as of Closing Date, of Fulbright & Jaworski L.L.P., counsel for the Initial
Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers,
together with signed or reproduced copies of such letter for each of the other Initial
Purchasers.
2. On the Closing Date, the Initial Purchasers shall have received the favorable
opinion, dated as of Closing Date, of Appleby, counsel for the Initial Purchasers, in form
and substance reasonably satisfactory to the Initial Purchasers, together with signed or
reproduced copies of such letter for each of the other Initial Purchasers.
(c)
Officers’ Certificate
. On the Closing Date, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the Time of Sale
Memorandum, any material adverse change in the consolidated financial position, shareholders’
equity, results of operations or business of the Company and its subsidiaries considered as one
enterprise or the Guarantor and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Initial Purchasers shall have received a
certificate of the President or a Vice President of the Company and the Guarantor and of the chief
financial or chief accounting officer of the Company and the Guarantor, dated as of Closing Date,
to the effect that (i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Date and (iii) the Company and the Guarantor have complied with
all agreements and satisfied all conditions on their part to be performed or satisfied at or prior
to Closing Time.
(d)
Accountants’ Comfort Letter
. At the time of the execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a letter dated such date, in form and
substance satisfactory to the Initial Purchasers, together with signed or reproduced copies of such
letter for each of the other Initial Purchasers containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to initial purchasers with respect to the
financial statements and certain financial information relating to the Guarantor and its
subsidiaries contained in or incorporated by reference into the Time of Sale Memorandum and the
Final Memorandum.
(e)
Bring-down Comfort Letter
. On the Closing Date, the Initial Purchasers shall have
received from Ernst & Young LLP a letter, dated as of Closing Date, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (d) of this Section,
except that the specified date referred to shall be a date not more than two business days prior to
the Closing Date.
(f)
Company and Guarantor Certifications Regarding Financial Information
. At the time of the
execution of this Agreement and again on the Closing Date, the Initial Purchasers shall have
received from the Chief Accounting Officer and Controller of the Company and the Guarantor a
certificate dated such date, in form and substance satisfactory to the Initial Purchasers, together
with signed or reproduced copies of such certificate for each of the other Initial Purchasers
containing statements and information of the type ordinarily included in accountants’ “comfort
letters” to initial purchasers with respect to unaudited financial information, including pro forma
financial information, in the consolidated financial statements of the Guarantor included in its
Annual Report on Form 10-K for the year ended December 31, 2006 filed with the Commission.
15
(g)
Maintenance of Rating
. On the Closing Date, the Securities shall be rated at least Baa1
by Moody’s and BBB+ by S&P, and the Company and the Guarantor shall have delivered to the
Representatives a letter dated within 7 business days of the Closing Date, from each such rating
agency, or other evidence satisfactory to the Initial Purchasers, confirming that the Securities
have such ratings; and since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities or any of the Company’s or Guarantor’s other
debt securities by any “nationally recognized statistical rating agency”, as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization
shall have publicly announced that it has under surveillance or review its rating of the Securities
or any debt securities of the Company or the Guarantor.
(h)
Additional Documents
. On the Closing Date, counsel for the Initial Purchasers shall have
been furnished with such other documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings taken by the
Company and the Guarantor in connection with the issuance and sale of the Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the Initial Purchasers and
counsel for the Initial Purchasers.
(i)
Termination of Agreement
. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Initial
Purchasers by notice to the Company at any time at or prior to the Closing Date, and such
termination shall be without liability of any party to any other party except as provided in
Section 6 and except that Sections 1, 9, 10 and 11 shall survive any such termination and remain in
full force and effect.
SECTION 8.
Offering of Securities; Restrictions on Transfer
.
(a) Each Initial Purchaser, severally and not jointly, represents and warrants that such
Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities
Act (a “
QIB
”). Each Initial Purchaser, severally and not jointly, agrees with the Company that (i)
it will not solicit offers for, or offer or sell, such Securities by any form of general
solicitation or general advertising (as those terms are used in Regulation D under the Securities
Act) or in any manner involving a public offering within the meaning of Section 4(2) of the
Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such
Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the
United States or to U.S. persons, QIBs, and (B) in the case of offers outside the United States, to
persons other than U.S. persons (“
foreign purchasers,
” which term shall include dealers or other
professional fiduciaries in the United States acting on a discretionary basis for foreign
beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the
Securities Act that, in each case, in purchasing such Securities are deemed to have represented and
agreed as provided in the Final Memorandum under the caption “Transfer Restrictions”.
(b) Each Initial Purchaser, severally and not jointly, represents and agrees that it has not
and will not prepare, use or refer to any Additional Written Offering Communication other than
customary Bloomberg notices, and Additional Written Offering Communications, if any, listed on
Schedule II, electronic road shows, if any, and any written communication prepared by the Initial
Purchasers without the prior consent of the Company.
(c) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with
respect to offers and sales outside the United States that:
16
1. such Initial Purchaser understands that no action has been or will be taken in any
jurisdiction by the Company that would permit a public offering of the Securities, or
possession or distribution of the Preliminary Memorandum, the Time of Sale Memorandum, the
Final Memorandum or any other offering or publicity material relating to the Securities, in
any country or jurisdiction where action for that purpose is required;
2. such Initial Purchaser will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Securities or has in its
possession or distributes the Preliminary Memorandum, the Time of Sale Memorandum, the Final
Memorandum or any such other material, in all cases at its own expense;
3. the Securities have not been registered under the Securities Act and may not be
offered or sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Rule 144A or Regulation S under the Securities Act or
pursuant to another exemption from the registration requirements of the Securities Act;
4. it and each of its Affiliates has not solicited offers for, or offered or sold, and
will not solicit offers for or sell, the Securities in the United States by means of any
form of general solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D under the Securities Act involving a public offering within the meaning of
Section 4(2), including, but not limited to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast over
television or radio, or (ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising;
5. with respect to resales made in reliance on Rule 144A of any of the Securities, to
deliver either with the confirmation of such resale or otherwise prior to settlement of such
resale a notice to the effect that the resale of such Securities has been made in reliance
upon the exemption from the registration requirements of the Securities Act provided by Rule
144A;
6. such Initial Purchaser has offered the Securities and will offer and sell the
Securities (i) as part of their distribution at any time and (ii) otherwise until 40 days
after the later of the commencement of the offering and the Closing Date, only in accordance
with Rule 903 of Regulation S or as otherwise permitted in Section 8(a); accordingly,
neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf
have engaged or will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates
and any such persons have complied and will comply with the offering restrictions
requirement of Regulation S;
7. such Initial Purchaser, in relation to each Member State of the European Economic
Area which has implemented the Prospectus Directive (each, a “
Relevant Member State
”), has
represented and agreed that with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State it has not made and will not make an
offer of Securities to the public in that Relevant Member State, except that it may, with
effect from and including such date, make an offer of Securities to the public in that
Relevant Member State:
(i) at any time to legal entities which are authorized or regulated to operate
in the financial markets or, if not so authorised or regulated, whose corporate
purpose is solely to invest in securities;
17
(ii) at any time to any legal entity which has two or more of (1) an average of
at least 250 employees during the last financial year; (2) a total balance sheet of
more than
€
43,000,000 and (3) an annual net turnover of more than
€
50,000,000,
as shown in its last annual or consolidated accounts; or
(iii) at any time in any other circumstances falling within Article 3(2) of the
Prospectus Directive.
provided
that no such offer of Securities shall require the Company or the Initial Purchaser
to publish a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of the above, the expression an “offer of Securities to the public” in
relation to any Securities in any Relevant Member State means the communication in any form
and by any means of sufficient information on the terms of the offer and the Securities to
be offered so as to enable an investor to decide to purchase or subscribe the Securities,
as the same may be varied in that Relevant Member State by any measure implementing the
Prospectus Directive in that Relevant Member State, and the expression Prospectus Directive
means Directive 2003/71/EC and includes any relevant implementing measure in that Relevant
Member State;
8. such Initial Purchaser has represented and agreed that it has only communicated or
caused to be communicated and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity (within the meaning of Section 21
of the Financial Services and Markets Act 2000) in connection with the issue or sale of the
Securities in circumstances in which Section 21(1) of such Act does not apply to the Company
and it has complied and will comply with all applicable provisions of such Act with respect
to anything done by it in relation to any Securities in, from or otherwise involving the
United Kingdom; and
9. such Initial Purchaser agrees that, at or prior to confirmation of sales of the
Securities, it will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it during the
restricted period a confirmation or notice to substantially the following effect:
“The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the “Securities Act”) and may not be offered and
sold within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and the
closing date, except in either case in accordance with Regulation S (or Rule
144A if available) under the Securities Act. Terms used above have the
meaning given to them by Regulation S.”
Terms used in this Section 8(b) have the meanings given to them by Regulation S.
SECTION 9.
Indemnification
.
(a)
Indemnification of the Initial Purchasers.
Each of the Company and the Guarantor, jointly
and severally, agree to indemnify and hold harmless each Initial Purchaser, its directors,
officers, employees and agents, and each person, if any, who controls any Initial Purchaser within
the meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability
or expense, as incurred,
18
to which such Initial Purchaser or such controlling person may become subject, insofar as such
loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based upon any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Memorandum, the Time of Sale Memorandum, any Additional Written
Offering Communication prepared by or on behalf of, used by, referred to by the Company or the
Guarantor, or the Final Memorandum or any amendment or supplement thereto, or the omission or
alleged omission therefrom of a material fact required to be stated therein, in light of the
circumstances under which they were made, or necessary to make the statements therein not
misleading; and to reimburse each Initial Purchaser, its officers, directors, employees, agents and
each such controlling person for any and all expenses (including the fees and disbursements of
counsel chosen by the Representatives) as such expenses are reasonably incurred by such Initial
Purchaser, or its officers, directors, employees and agents or such controlling person in
connection with investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the foregoing indemnity agreement
shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the
extent, arising out of or based upon any 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 and the Guarantor by the Representatives expressly for use in the Preliminary
Memorandum, the Time of Sale Memorandum, any Additional Written Offering Communication or the Final
Memorandum or any amendment or supplement thereto. The indemnity agreement set forth in this
Section 9(a) shall be in addition to any liabilities that the Company and the Guarantor may
otherwise have.
(b)
Indemnification of the Company, its Directors and Officers and the Guarantor.
Each
Initial Purchaser, severally and not jointly, to indemnify and hold harmless the Company, the
Guarantor, their respective directors, their respective officers and employees and each person, if
any, who controls the Company or the Guarantor within the meaning of the Securities Act or the
Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which the
Company, the Guarantor or any such director, officer, employee or controlling person may become
subject, insofar as such loss, claim, damage, liability or expense (or actions in respect thereof
as contemplated below) arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Memorandum, the Time of Sale Memorandum,
any Additional Written Offering Communication prepared by or on behalf of, used by, referred to by
the Company or the Guarantor, or the Final Memorandum or any amendment or supplement thereto, or
the omission or alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading, in each case to the extent, and only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Preliminary Memorandum,
the Time of Sale Memorandum, any Additional Written Offering Communication prepared by or on behalf
of, used by, referred to by the Company or the Guarantor, or the Final Memorandum or any amendment
or supplement thereto, in reliance upon and in conformity with written information furnished to the
Company and the Guarantor by the Representatives expressly for use therein; and to reimburse the
Company, the Guarantor or any such director, officer, employee or controlling person for any legal
and other expense reasonably incurred by the Company, the Guarantor or any such director, officer,
employee or controlling person in connection with investigating, defending, settling, compromising
or paying any such loss, claim, damage, liability, expense or action. Each of the Company and the
Guarantor hereby acknowledges that the only information that the Initial Purchasers have furnished
to the Company and the Guarantor expressly for use in the Preliminary Memorandum, the Time of Sale
Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by,
referred to by the Company or the Guarantor, or the Final Memorandum or any amendment or supplement
thereto are the statements set forth in the two paragraphs under the caption “Plan of
Distribution-Price Stabilization and Short Positions” in the Time of Sale Memorandum and Final
19
Memorandum. The indemnity agreement set forth in this Section 9(b) shall be in addition to
any liabilities that each Initial Purchaser may otherwise have.
(c)
Notifications and Other Indemnification Procedures.
Promptly after receipt by an
indemnified party under this Section 9 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 9, notify the indemnifying party in writing of the commencement thereof; but the
failure to so notify the indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any liability other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any such action is
brought against any indemnified party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the
extent that it shall elect, jointly with all other indemnifying parties similarly notified, by
written notice delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall have reasonably
concluded that a conflict may arise between the positions of the indemnifying party and the
indemnified party in conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying party’s election so to assume the
defense of such action and reasonable approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this Section 9 for any legal
or other expenses subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in accordance with
the proviso to the preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel (other than reasonably
necessary local counsel) reasonably approved by the indemnifying party (or the Representatives in
the case of Section 9), representing the indemnified parties who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d)
Settlements.
The indemnifying party under this Section 9 shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final, non-appealable judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of
such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by Section 9(c) hereof, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days before such settlement is entered into, and (iii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the entry of judgment in any
pending or threatened action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity was or could have been sought hereunder
20
by such indemnified party, unless such settlement, compromise or consent (i) includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding and (ii) 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.
SECTION 10.
Contribution
. To the extent the indemnification provided for in Section 9
is for any reason unavailable to or otherwise insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantor, on the one hand, and the Initial Purchasers, on the other hand, from the
offering of the Securities pursuant to this Agreement 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 and the Guarantor, on the one hand, and the Initial Purchasers, on the other hand, in
connection with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantor, on the one hand, and the Initial Purchasers, on
the other hand, in connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received by the Company and
the Guarantor, and the total discounts and commissions received by the Initial Purchasers bear to
the aggregate offering price of the Securities. The relative fault of the Company and the
Guarantor, on the one hand, and the Initial Purchasers, on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact or any such inaccurate or alleged
inaccurate representation or warranty relates to information supplied by the Company or the
Guarantor, on the one hand, or the Initial Purchasers, on the other hand, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 9(c), any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The Company, the Guarantor and the Initial
Purchasers agree that it would not be just and equitable if contribution pursuant to this Section
10 were determined by pro rata allocation (even if the Initial Purchasers were treated as one
entity for such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 10.
Notwithstanding the provisions of this Section 10, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
resold by it in the initial placement of such Securities were offered to the public exceeds the
amount of any damages which such Initial Purchaser has otherwise been required to pay by reason of
any such untrue or alleged untrue statement or omission or the alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers’ obligations to contribute pursuant to this Section 10
are several, and not joint, in proportion to their respective purchase commitments as set forth
opposite their names in Schedule I. For purposes of this Section 10, each director, officer,
employee and agent of an Initial Purchaser and each person, if any, who controls an Initial
Purchaser within the meaning of the Securities Act and the Exchange Act shall have the same rights
to contribution as such Initial Purchaser, and each director of the Company or of the Guarantor,
each officer or employee of the Company or of the Guarantor and each person, if any, who controls
the
21
Company or the Guarantor within the meaning of the Securities Act and the Exchange Act shall have
the same rights to contribution as the Company or the Guarantor.
SECTION 11.
Representations, Warranties and Agreements to Survive
. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Guarantor or any of its subsidiaries submitted pursuant hereto, shall remain
operative and in full force and effect regardless of (i) any investigation made by or on behalf of
any Initial Purchaser or its Affiliates or reselling agents, any person controlling any Initial
Purchaser, its officers or directors or any person controlling the Company or the Guarantor, and
(ii) delivery of and payment for the Securities.
SECTION 12.
Termination of Agreement
.
(a)
Termination; General
. The Initial Purchasers may terminate this Agreement, by notice to
the Company, at any time at or prior to the Closing Date (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which information is given in the
Time of Sale Memorandum (exclusive of any supplement thereto), any material adverse change in the
consolidated financial position, shareholders’ equity, results of operations or business of the
Guarantor and its subsidiaries considered as one enterprise, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any material adverse change in the financial
markets in the United States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Initial Purchasers, impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Guarantor has been suspended or materially limited by the
Commission, or if trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, or a material disruption has occurred in
commercial banking or securities settlement, or (iv) a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United States or Bermuda,
or (v) if a banking moratorium has been declared by either Federal or New York or Bermuda
authorities.
(b)
Liabilities
. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 6 hereof,
and provided further that Sections 9 and 10 shall survive such termination and remain in full force
and effect.
SECTION 13.
Default by One or More of the Initial Purchasers
. If one or more of the
Initial Purchasers shall fail at the Closing Date to purchase the Securities which it or they are
obligated to purchase under this Agreement (the “
Defaulted Securities
”), the Initial Purchasers
shall have the right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Initial Purchasers, or any other initial purchasers, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Initial Purchasers shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the aggregate principal
amount of the Securities to be purchased hereunder, each of the non-defaulting Initial Purchasers
shall be obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective purchase obligations hereunder bear to the purchase obligations
of all non-defaulting Initial Purchasers, or
22
(b) if the number of Defaulted Securities exceeds 10% of the aggregate principal amount of the
Securities to be purchased hereunder, this Agreement shall terminate without liability on the part
of any non-defaulting Initial Purchasers.
No action taken pursuant to this Section shall relieve any defaulting Initial Purchaser from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement,
either the Initial Purchasers or the Company shall have the right to postpone the Closing Date for
a period not exceeding seven days in order to effect any required changes in the Time of Sale
Memorandum, the Final Memorandum or in any other documents or arrangements. As used herein, the
term “Initial Purchaser” includes any person substituted for an Initial Purchaser under this
Section 13.
SECTION 14.
No Advisory or Fiduciary Responsibility
.
Each of the Company and the
Guarantor acknowledges and agrees that: (i) the purchase and sale of the Securities pursuant to
this Agreement, including the determination of the offering price of the Securities and any related
discounts and commissions, is an arm’s-length commercial transaction between the Company and the
Guarantor, on the one hand, and the several Initial Purchasers, on the other hand, and the Company
and the Guarantor are capable of evaluating and understanding and understand and accept the terms,
risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with
each transaction contemplated hereby and the process leading to such transaction each Initial
Purchaser is and has been acting solely as a principal and is not the financial advisor, agent or
fiduciary of the Company, the Guarantor or their respective affiliates, shareholders, creditors or
employees or any other party; (iii) no Initial Purchaser has assumed or will assume an advisory,
agency or fiduciary responsibility in favor of the Company or the Guarantor with respect to any of
the transactions contemplated hereby or the process leading thereto (irrespective of whether such
Initial Purchaser has advised or is currently advising the Company or the Guarantor on other
matters) and no Initial Purchaser has any obligation to the Company or the Guarantor with respect
to the offering contemplated hereby except the obligations expressly set forth in this Agreement;
(iv) the several Initial Purchasers and their respective affiliates may be engaged in a broad range
of transactions that involve interests that differ from those of the Company and the Guarantor and
that the several Initial Purchasers have no obligation to disclose any of such interests by virtue
of any advisory, agency or fiduciary relationship; and (v) the Initial Purchasers have not provided
any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby
and the Company and the Guarantor have consulted their own legal, accounting, regulatory and tax
advisors to the extent they deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, the Guarantor and the several Initial Purchasers, or any of them, with respect
to the subject matter hereof. The Company and the Guarantor hereby waive and release, to the
fullest extent permitted by law, any claims that the Company and the Guarantor may have against the
several Initial Purchasers with respect to any breach or alleged breach of agency or fiduciary duty
with respect to the transactions contemplated by this Agreement.
SECTION 15.
Notices
. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication as follows:
(a) if to the Company:
Weatherford International, Inc.
515 Post Oak Blvd., Suite 600
23
Houston, Texas 77027
Attention: Burt M. Martin
Facsimile: (713) 693-4484
(b) if to the Guarantor:
Weatherford International Ltd.
515 Post Oak Blvd., Suite 600
Houston, Texas 77027
Attention: Burt M. Martin
Facsimile: (713) 693-4484
(c) if to the Initial Purchasers:
Morgan Stanley & Co. Incorporated
1585 Broadway, 29th Floor
New York, New York 10036
Attention: Investment Banking Department
Facsimile: (212) 507-8999
with a copy to the general counsel or to such other person or address as any party will specify by
giving notice in writing to the other party. All notices and other communications given to a party
in accordance with the provisions of this Agreement will be deemed to have been given (i) three
business days after the same are sent by certified or registered mail, postage prepaid, return
receipt requested, (ii) when delivered by hand or transmitted by telecopy (answer back received) or
(iii) one business day after the same are sent by a reliable overnight courier service, with
acknowledgment of receipt requested. Notwithstanding the preceding sentence, notice of change of
address will be effective only upon actual receipt thereof.
SECTION 16.
Parties
. This Agreement shall each inure to the benefit of and be binding
upon the Initial Purchasers, the Company, the Guarantor and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to give any person,
firm, company or corporation, other than the Initial Purchasers, the Company, the Guarantor and
their respective successors and the controlling persons and officers and directors referred to in
Sections 9 and 10 and their heirs, estates and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the Initial Purchasers, the Company, the Guarantor and their respective successors, and
said controlling persons and officers and directors and their heirs, estates and legal
representatives, and for the benefit of no other person, firm, company or corporation. No
purchaser of Securities from any Initial Purchaser shall be deemed to be a successor by reason
merely of such purchase.
SECTION 17.
GOVERNING LAW
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 18.
SUBMISSION TO JURISDICTION AND WAIVER
. By the execution and delivery of
this Agreement, the Company and the Guarantor submit to the non-exclusive jurisdiction of any
federal or New York State court located in the City of New York in any suit or proceeding arising
out of or relating to the Securities or this Agreement. Each of the parties hereto hereby
irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so,
any objection which it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any New York State or federal court in
the City of New York, or any
24
appellate court with respect to any of the foregoing. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court. To the extent that the Company or
the Guarantor has or hereafter may acquire any immunity from jurisdiction of any court (including,
without limitation, any court in the United States, the State of New York, Bermuda or any political
subdivision thereof) or from any legal process (whether through service of notice, attachment prior
to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its
property or assets, this Agreement, or any other actions to enforce judgments in respect of any
thereof, the Company and the Guarantor hereby irrevocably waive such immunity, and any defense
based on such immunity, in respect of their respective obligations under the above-referenced
documents and the transactions contemplated thereby, to the fullest extent permitted by law.
In addition to the foregoing, each of the Company and the Guarantor agrees to irrevocably
appoint CT Corporation Systems as its authorized agent on which any and all legal process may be
served in any such action, suit or proceeding brought in the courts specified in the preceding
paragraph. Each of the Company and the Guarantor agrees that service of process in respect of it
upon such agent shall be deemed to be effective service of process upon it in any such action, suit
or proceeding. Each of the Company and the Guarantor agrees that the failure of such agent to give
notice to it of any such service shall not impair or affect the validity of such service or any
judgment rendered in any such action, suit or proceeding based thereon. If for any reason such
agent shall cease to be available to act as such, each of the Company and the Guarantor agrees to
irrevocably appoint another such agent in New York City as its authorized agent for service of
process, on the terms and for the purposes of this Section 18. Nothing herein shall in any way be
deemed to limit the ability of the Initial Purchasers, the Trustee or any other person to serve any
such legal process in any other manner permitted by applicable law or to obtain jurisdiction over
the Company or the Guarantor or bring actions, suits or proceedings against them in such other
jurisdiction, and in such matter, as may be permitted by applicable law.
SECTION 19.
Counterparts
. This Agreement 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 one and the same Agreement.
SECTION 20.
Effect of Headings
. The Section headings herein are for convenience only
and shall not affect the construction hereof.
[signatures on following page]
25
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Initial Purchasers, the Company and the Guarantor in
accordance with its terms.
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Very truly yours,
WEATHERFORD INTERNATIONAL, INC.
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By
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/s/ BURT M. MARTIN
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Burt M. Martin, Senior Vice President
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WEATHERFORD INTERNATIONAL LTD.
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By
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/s/ BURT M. MARTIN
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Burt M. Martin, Senior Vice President
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CONFIRMED AND ACCEPTED,
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as of the date first above written:
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DEUTSCHE BANK SECURITIES INC.
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By
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/s/ BEN SMILCHENSKY
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Managing Director
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Authorized Signatory
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By
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/s/ NIGEL W. H. CREE
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Managing Director/Debt Syndicate
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Authorized Signatory
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MORGAN STANLEY & CO.
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INCORPORATED
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By
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/s/ [signature illegible]
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Authorized Signatory
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UBS SECURITIES LLC
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By
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/s/ CHRIS FORSHNER
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Managing Director
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By
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/s/ RYAN DONOVAN
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Director
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For themselves and as Representatives of the other Initial Purchasers named in Schedule I hereto.
27
SCHEDULE I
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Principal
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Principal
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Principal
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Amount of
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Amount of
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Amount of
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Name of Initial Purchaser
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2012 Notes
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2017 Notes
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2037 Notes
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Morgan Stanley & Co. Incorporated
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$
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240,000,000
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$
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240,000,000
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$
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120,000,000
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Deutsche Bank Securities Inc.
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150,000,000
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150,000,000
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75,000,000
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UBS Securities LLC
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150,000,000
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150,000,000
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75,000,000
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Calyon Securities (USA) Inc.
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30,000,000
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30,000,000
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15,000,000
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Simmons & Company International
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30,000,000
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30,000,000
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15,000,000
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Total
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$
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600,000,000
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$
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600,000,000
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$
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300,000,000
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Sch I-1
SCHEDULE II
TIME OF SALE MEMORANDUM
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1.
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Preliminary Offering Memorandum dated June 13, 2007
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2.
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Final Pricing Term Sheet dated June 13, 2007 (set forth below):
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WEATHERFORD INTERNATIONAL, INC.
FINAL PRICING TERM SHEET
5.950% SENIOR NOTES DUE 2012
6.350% SENIOR NOTES DUE 2017
6.800% SENIOR NOTES DUE 2037
5.950% SENIOR NOTES DUE 2012
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Issuer:
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Weatherford International, Inc.
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Securities:
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5.950% Senior Notes due 2012, guaranteed by Weatherford
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International Ltd. (Bloomberg Ticker: “WFT”)
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Aggregate Principal
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Amount Offered:
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US $600,000,000
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Format:
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Rule 144A/Regulation S with Registration Rights
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CUSIP No
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947074 AE0 (Rule 144A) / U94320 AB1 (Regulation S)
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Maturity:
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June 15, 2012
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Trade Date:
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June 13, 2007
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Expected Settlement:
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June 18, 2007
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Price To Public:
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$598,830,000: 99.805% of principal amount
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Yield:
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5.996%
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Spread:
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+85 basis points over Benchmark Treasury
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Benchmark Treasury Spot:
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5.146%
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Benchmark Treasury:
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4.750% due May 31, 2012
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Coupon:
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5.950% per year (payable semi-annually)
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Interest Payment Dates:
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June 15 and December 15, beginning December 15, 2007
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Make Whole Call At Any Time:
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the greater of 100% of principal amount or discounted present value at
Adjusted Treasury Rate +0.15%
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Denominations:
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$2,000 and multiples of $1,000
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Books:
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Morgan Stanley & Co. Incorporated, Deutsche Bank Securities Inc., UBS Securities LLC
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Co-Managers:
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Calyon Securities (USA) Inc.
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Simmons & Company International
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Sch II-1
6.350% SENIOR NOTES DUE 2017
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Issuer:
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Weatherford International, Inc.
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Securities:
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6.350% Senior Notes due 2017, guaranteed by Weatherford
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International Ltd. (Bloomberg Ticker: “WFT”)
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Aggregate Principal
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Amount Offered:
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US $600,000,000
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Format:
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Rule 144A/Regulation S with Registration Rights
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CUSIP No
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947074 AF7 (Rule 144A) / U94320 AC9 (Regulation S)
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Maturity:
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June 15, 2017
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Trade Date:
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June 13, 2007
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Expected Settlement:
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June 18, 2007
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Price To Public:
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$599,520,000: 99.920% of principal amount
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Yield:
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6.361%
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Spread:
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+115 basis points over Benchmark Treasury
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Benchmark Treasury Spot:
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5.211%
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Benchmark Treasury:
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4.500% due May 15, 2017
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Coupon:
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6.350% per year (payable semi-annually)
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Interest Payment Dates:
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June 15 and December 15, beginning December 15, 2007
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Make Whole Call At Any Time:
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the greater of 100% of principal amount or discounted present value at
Adjusted Treasury Rate +0.20%
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Denominations:
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$2,000 and multiples of $1,000
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Books:
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Morgan Stanley & Co. Incorporated, Deutsche Bank Securities Inc., UBS Securities LLC
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Co-Managers:
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Calyon Securities (USA) Inc.
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Simmons & Company International
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6.800% SENIOR NOTES DUE 2037
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Issuer:
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Weatherford International, Inc.
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Securities:
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6.800% Senior Notes due 2037, guaranteed by Weatherford
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International Ltd. (Bloomberg Ticker: “WFT”)
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Aggregate Principal
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Amount Offered:
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US $300,000,000
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Format:
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Rule 144A/Regulation S with Registration Rights
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CUSIP No
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947074 AG5 (Rule 144A) / U94320 AD7 (Regulation S)
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Maturity:
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June 15, 2037
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Trade Date:
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June 13, 2007
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Expected Settlement:
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June 18, 2007
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Price To Public:
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$298,140,000: 99.380% of principal amount
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Sch II-2
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Yield:
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6.849%
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Spread:
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+155 basis points over Benchmark Treasury
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Benchmark Treasury Spot:
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5.299%
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Benchmark Treasury:
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4.500% due February 15, 2036
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Coupon:
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6.800% per year (payable semi-annually)
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Interest Payment Dates:
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June 15 and December 15, beginning December 15, 2007
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Make Whole Call At Any Time:
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the greater of 100% of principal amount or discounted present value at
Adjusted Treasury Rate +0.25%
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Denominations:
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$2,000 and multiples of $1,000
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Books:
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Morgan Stanley & Co. Incorporated, Deutsche Bank
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Securities Inc., UBS Securities LLC
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Co-Managers:
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Calyon Securities (USA) Inc.
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Simmons & Company International
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The following provisions will be added to the terms of the 5.950% Senior Notes due 2012,
6.350% Senior Notes due 2017 and 6.800% Senior Notes due 2037.
Repurchase at the Option of Holders
If a Change of Control Triggering Event occurs, unless Weatherford Delaware has exercised its right
to redeem the notes as described above, holders of notes will have the right to require Weatherford
Delaware to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess
thereof) of their notes pursuant to the offer described below (the “Change of Control Offer”) on
the terms set forth in the notes. In the Change of Control Offer, Weatherford Delaware will be
required to offer payment in cash equal to 101% of the aggregate principal amount of notes
repurchased plus accrued and unpaid interest, if any, on the notes repurchased, to the date of
purchase (the “Change of Control Payment”). Within 30 days following any Change of Control
Triggering Event, Weatherford Delaware will be required to mail a notice to holders of notes
describing the transaction or transactions that constitute the Change of Control Triggering Event
and offering to repurchase the notes on the date specified in the notice, which date will be no
earlier than 30 days and no later than 60 days from the date such notice is mailed (the “Change of
Control Payment Date”), pursuant to the procedures required by the notes and described in such
notice. Weatherford Delaware must comply with the requirements of Rule 14e-1 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws and
regulations thereunder to the extent those laws and regulations are applicable in connection with
the repurchase of the notes as a result of a Change of Control Triggering Event. To the extent that
the provisions of any securities laws or regulations conflict with the Change of Control provisions
of the notes, Weatherford Delaware will be required to comply with the applicable securities laws
and regulations and will not be deemed to have breached its obligations under the Change of Control
provisions of the notes by virtue of such conflicts.
On the Change of Control Payment Date, Weatherford Delaware will be required, to the extent lawful,
to:
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•
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accept for payment all notes or portions of notes properly tendered pursuant to the
Change of Control Offer;
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•
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deposit with the paying agent an amount equal to the Change of Control Payment in
respect of all notes or portions of notes properly tendered; and
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Sch II-3
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•
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deliver or cause to be delivered to the Trustee the notes properly accepted.
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The definition of Change of Control includes a phrase relating to the direct or indirect sale,
lease, transfer, conveyance or other disposition of “all or substantially all” of the properties or
assets of Weatherford Bermuda and its subsidiaries taken as a whole. Although there is a limited
body of case law interpreting the phrase “substantially all,” there is no precise established
definition of the phrase under applicable law. Accordingly, the ability of a holder of notes to
require Weatherford Delaware to repurchase its notes as a result of a sale, lease, transfer,
conveyance or other disposition of less than all of the assets of Weatherford Bermuda and its
subsidiaries taken as a whole to another person may be uncertain.
If holders of not less than 95% in aggregate principal amount of the outstanding notes validly
tender and do not withdraw such notes in a Change of Control Offer and Weatherford Delaware, or any
third party making a Change of Control Offer in lieu of Weatherford Delaware, as described below,
purchases all of the notes validly tendered and not withdrawn by such holders, Weatherford Delaware
will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than
30 days following such purchase pursuant to the Change of Control Offer described above, to redeem
all notes that remain outstanding following such purchase at a redemption price in cash equal to
the applicable Change of Control Payment plus, to the extent not included in the Change of Control
Payment, accrued and unpaid interest, if any, to the date of redemption.
Weatherford Delaware will not be required to make a Change of Control Offer upon a Change of
Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in the indenture applicable to a
Change of Control Offer made by Weatherford Delaware and purchases all notes properly tendered and
not withdrawn under the Change of Control Offer.
For purposes of the foregoing discussion of a repurchase at the option of holders, the following
definitions are applicable:
“Below Investment Grade Rating Event” means the notes are rated below an Investment Grade Rating by
each of the Rating Agencies (as defined below) on any date from the date of the public notice of an
arrangement that could result in a Change of Control until the end of the 60-day period following
public notice of the occurrence of the Change of Control (which 60-day period shall be extended so
long as the rating of the notes is under publicly announced consideration for possible downgrade by
either of the Rating Agencies).
“Change of Control” means the occurrence of any of the following: (1) the direct or indirect sale,
transfer, conveyance or other disposition (other than by way of merger or consolidation of
Weatherford Bermuda), in one or a series of related transactions, of all or substantially all of
the properties or assets of Weatherford Bermuda and its subsidiaries taken as a whole to any person
(as such term is used in Section 13(d) of the Exchange Act) other than Weatherford Bermuda or one
of its subsidiaries or a person controlled by Weatherford Bermuda or one of its subsidiaries; (2)
the consummation of any transaction (including, without limitation, any merger or consolidation)
the result of which is that any person (as such term is used in Section 13(d) of the Exchange Act)
becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding
number of shares of Weatherford Bermuda voting shares (excluding a redomestication of Weatherford
Bermuda); or (3) the first day on which a majority of the members of Weatherford Bermuda’s Board of
Directors are not Continuing Directors.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Below
Investment Grade Rating Event.
Sch II-4
“Continuing Directors” means, as of any date of determination, any member of the Board of Directors
of Weatherford Bermuda who (1) was a member of such Board of Directors on the date of the issuance
of the notes; or (2) was nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such Board of Directors at
the time of such nomination or election (either by a specific vote or by approval of Weatherford
Bermuda’s proxy statement in which such member was named as a nominee for election as a director,
without objection to such nomination).
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by S&P.
“Moody’s” means Moody’s Investors Service, Inc.
“Rating Agencies” means (1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P ceases to
rate the notes or fails to make a rating of the notes publicly available for reasons outside of our
control, a “nationally recognized statistical rating organization” within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by us (as certified by a resolution of
Weatherford Delaware’s Board of Directors) as a replacement agency for Moody’s or S&P, or both of
them, as the case may be.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.
Sch II-5
SCHEDULE III
SCHEDULED SUBSIDIARIES
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List Company Name
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Jurisdiction
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Weatherford Bermuda Holdings Ltd.
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Bermuda
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Weatherford Canada Ltd.
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Alberta, Canada
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Weatherford Canada Partnership
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Alberta, Canada
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Weatherford U.S. Holdings, L.L.C.
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Delaware, USA
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Sch C-1
Exhibit A-1
FORM OF OPINION OF COMPANY’S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 7(a)(1)
1. The statements in the Preliminary Offering Memorandum and the Offering Memorandum
under the caption “Description of Notes,” insofar as such statements purport to summarize certain
provisions of documents referred to therein and reviewed by us as described above, constitute
descriptions of agreements or refer to statements of law or legal conclusions, fairly summarize the
matters referred to therein in all material respects, subject to the qualifications and assumptions
stated therein.
2. The Company is not required, and upon the issuance and sale of the Initial Notes
as herein contemplated and the application of the net proceeds therefrom as described in the
Offering Memorandum and the Time of Sale Memorandum will not be required, to register as an
“investment company” within the meaning of said term as used in the Investment Company Act.
3. No Governmental Approval is required on the part of any Weatherford Entity for
the execution, delivery and performance by such Weatherford Entity of the Purchase Agreement or the
Registration Rights Agreement and the sale, issuance and delivery of the Initial Securities under
the Purchase Agreement, except for Governmental Approvals that have been obtained. As used in this
paragraph, “Governmental Approval” means any consent, approval, license, authorization or
validation of, or filing, recording or registration with, any executive, legislative, judicial,
administrative or regulatory body of the State of New York, the State of Texas, the State of
Delaware or the United States of America, pursuant to (i) applicable laws of the State of New York,
(ii) applicable laws of the State of Texas, (iii) the General Corporation Law of the State of
Delaware (the “DGCL”) or (iv) applicable laws of the United States of America.
4. The Initial Notes are in the form contemplated by the Indenture.
5. The Indenture has been duly authorized, executed and delivered by the Company and
constitutes the valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, under the applicable laws of the State of New York, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent conveyances or transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law), including, without limitation, the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and concepts of materiality,
reasonableness, good faith and fair dealing.
6. Assuming the due authorization, execution and delivery of the Initial Guarantees
by the Guarantor, when the Initial Notes have been duly authenticated by the Trustee in accordance
with the provisions of the Indenture (which fact we have not determined by an inspection of the
Initial Securities) and delivered to and paid for by the Initial Purchasers in accordance with the
Purchase Agreement, the Initial Guarantees will constitute a valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms, under the applicable
laws of the State of New York, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws
A-1-1
relating to fraudulent conveyances or transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law), including, without limitation, the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and concepts of materiality,
reasonableness, good faith and fair dealing.
7. Assuming the due authorization, execution and delivery of the Indenture by the
Guarantor, the Indenture constitutes the valid and binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with its terms, under the applicable laws of the State of New
York, except as the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent conveyances or transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law), including, without limitation, the possible
unavailability of specific performance, injunctive relief or any other equitable remedy and
concepts of materiality, reasonableness, good faith and fair dealing.
8. When the Initial Notes have been duly authenticated by the Trustee in accordance
with the provisions of the Indenture (which fact we have not determined by an inspection of the
Initial Securities) and delivered to and paid for by the Initial Purchasers in accordance with the
Purchase Agreement, the Initial Notes will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with their terms, under the applicable laws
of the State of New York, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent conveyances or
transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law), including, without
limitation, the possible unavailability of specific performance, injunctive relief or any other
equitable remedy and concepts of materiality, reasonableness, good faith and fair dealing, and will
be entitled to the benefits of the Indenture.
9. The Incorporated Documents, when they were filed with the Commission, appeared on
their face to be appropriately responsive in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
10. Assuming (i) the accuracy of the representations and warranties of the
Weatherford Entities set forth in Section 1(a)(37), (38) and (39) of the Purchase Agreement, (ii)
the due performance by the Weatherford Entities and the Initial Purchasers of the covenants and
agreements set forth in the Purchase Agreement, (iii) the compliance by the Initial Purchasers with
the offering and transfer procedures and the restrictions described in the Offering Memorandum,
(iv) the accuracy of the representations and warranties of the Initial Purchasers set forth in
Section 8 of the Purchase Agreement, (v) the accuracy of the representations and warranties made or
deemed to be made in accordance with the Purchase Agreement and the Offering Memorandum by
purchasers to whom the Initial Purchasers initially resell the Initial Securities, and (vi) that
purchasers to whom the Initial Purchasers initially resell the Initial Securities have been made
aware of the information set forth in the Offering Memorandum under the caption “Transfer
Restrictions,” (A) the offer, issue, sale and delivery of the Initial Securities to the Initial
Purchasers and the initial resale of the Initial Securities by the Initial Purchasers, each in the
manner contemplated by the Purchase Agreement and the Offering Memorandum, do not require
registration under the Securities Act, and (B) prior to the consummation of the Exchange Offer or
the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights
Agreement), such offer, issue, sale and delivery of the Initial Securities and such initial resale
of the Initial Securities do not require qualification of the Indenture under the Trust Indenture
Act of 1939, as amended; provided, however, that we express no opinion as to any subsequent resale
of any Initial Security or any Exchange Security.
A-1-2
11. When validly executed by the Company and authenticated by the Trustee in
accordance with the provisions of the Indenture and delivered in exchange for Initial Notes
pursuant to the Exchange Offer contemplated by the Registration Rights Agreement, the Exchange
Notes will constitute a valid and binding obligation of the Company, enforceable against the
Company in accordance with their terms, under applicable laws of the State of New York, except as
the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent conveyances or transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), including, without limitation, the possible unavailability of
specific performance, injunctive relief or any other equitable remedy and concepts of materiality,
reasonableness, good faith and fair dealing, and will be entitled to the benefits of the Indenture.
12. Assuming the due authorization, execution and delivery of the Exchange
Guarantees by the Guarantor, when the Exchange Notes have been duly authenticated by the Trustee in
accordance with the provisions of the Indenture and delivered in exchange for Initial Notes
pursuant to the Exchange Offer contemplated by the Registration Rights Agreement, the Exchange
Guarantees will constitute a valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms, under applicable laws of the State of New York, except as
the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent conveyances or transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), including, without limitation, the possible unavailability of
specific performance, injunctive relief or any other equitable remedy and concepts of materiality,
reasonableness, good faith and fair dealing.
13. The Registration Rights Agreement has been duly authorized, executed and
delivered and constitutes a valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, under applicable laws of the State of New York, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent conveyances or transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law), including, without limitation, the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and concepts of materiality,
reasonableness, good faith and fair dealing.
14. Assuming the due authorization, execution and delivery of the Registration
Rights Agreement by the Guarantor, the Registration Rights Agreement constitutes a valid and
binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its
terms, under applicable laws of the State of New York, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent
conveyances or transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in equity or at law),
including, without limitation, the possible unavailability of specific performance, injunctive
relief or any other equitable remedy and concepts of materiality, reasonableness, good faith and
fair dealing.
15. The statements set forth in the Time of Sale Memorandum and the Offering
Memorandum under the caption “United States Federal Income Tax Considerations,” insofar as they
refer to statements of law or legal conclusions, fairly summarize the matters referred to therein
in all material respects, subject to the qualifications and assumptions stated therein.
A-1-3
In addition, we have participated in conferences with certain officers and other
representatives of the Company and the Guarantor, representatives of the independent public
accountants of the Company and the Guarantor and the Initial Purchasers’ representatives, at which
the contents of the Time of Sale Memorandum and the Offering Memorandum and related matters were
discussed. Although we are not (except with respect to the opinions set forth in paragraphs 1 and
15 above) passing upon and do not (except with respect to the opinions set forth in paragraphs 1
and 15 above) assume any responsibility for and shall not be deemed to have independently verified
the accuracy, completeness or fairness of the statements contained in the Time of Sale Memorandum
or the Offering Memorandum (except with respect to the opinions set forth in paragraphs 1 and 15
above), or incorporated by reference therein, on the basis of the foregoing (relying with respect
to factual matters to the extent we deem appropriate upon statements made by officers and other
representatives of the Company and the Guarantor), no facts have come to our attention that have
led us to believe that (i) the Time of Sale Memorandum, as of 5:30 p.m. (Eastern Time) on June 13,
2007 (which you have informed us is a time prior to the time of the first sale of the Initial
Securities by any Initial Purchaser), contained an untrue statement of a material fact or omitted
to state any material fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, (ii) as of its date, the Offering Memorandum contained
an untrue statement of a material fact or omitted to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading, or
(iii) as of the date hereof, the Offering Memorandum contains an untrue statement of a material
fact or omits to state any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, it being understood that we did not
participate in the preparation of the Incorporated Documents and that we express no statement or
belief in this letter with respect to (A) the financial statements and related schedules, including
the notes and schedules thereto and the auditor’s report thereon, (B) any other financial or
accounting data included or incorporated or deemed incorporated by reference in, or excluded from,
the Offering Memorandum or the Time of Sale Memorandum and (C) the representations and warranties
contained in the exhibits to the Incorporated Documents.
In rendering such opinion, such counsel may state that their opinion is limited to matters
governed by the Federal laws of the United States of America, the laws of the State of Texas and
the State of New York and the General Corporation Law of the State of Delaware. In addition, such
counsel may state that their opinion is subject to customary exceptions and qualifications. In
giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York, the State of Texas and the federal law of the United
States and the General Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Guarantor and its subsidiaries and certificates of public officials.
A-1-4
Exhibit A-2
FORM OF OPINION OF COMPANY’S IN-HOUSE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 7(a)(2)
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1.
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The Company has been duly incorporated and is validly existing and in good standing under the
laws of the State of Delaware. The Company has the necessary corporate power and authority to
execute, deliver and perform its obligations under the Transaction Agreements to which it is a
party.
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2.
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The Company is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not reasonably be expected to result in a Material
Adverse Effect.
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3.
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The Guarantor is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not reasonably be expected to result in a material
adverse change in the consolidated financial position, shareholders’ equity, results of
operations or business of the Guarantor and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a “Guarantor Material Adverse
Effect”).
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4.
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Each of the Significant Subsidiaries set forth on Schedule III to the Purchase Agreement (the
“Scheduled Subsidiaries”), if a corporation, is duly incorporated, and if a general
partnership or limited liability company, is duly formed or organized. Each of the Scheduled
Subsidiaries, if a corporation, is a corporation validly existing in good standing under the
laws of the jurisdiction of its incorporation, with due corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the Offering
Memorandum, if a general partnership, is validly subsisting under the laws of the jurisdiction
of its formation, with due power and authority to own, lease and operate its properties and
conduct its business as described in the Offering Memorandum, and if a limited liability
company, is validly existing in good standing (where applicable) under the laws of the
jurisdiction of its formation, with due power and authority to own, lease and operate its
properties and conduct its business as described in the Offering Memorandum; and all of the
outstanding shares of capital stock of each of the corporate Scheduled Subsidiaries and the
Company have been duly authorized and validly issued, are fully paid and non-assessable, and
all of the outstanding partnership interests of the general partnership Scheduled Subsidiaries
and the limited liability company interests of the limited liability company Scheduled
Subsidiaries are held of record, directly or indirectly, by the Guarantor.
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5.
|
|
To my knowledge, there is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending or threatened against
or affecting the Guarantor or any of its subsidiaries, or to which any of their respective
properties are subject that would reasonably be expected to result in a Material Adverse
Effect, or which could reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in the Purchase Agreement, the Registration
Rights Agreement, the
|
A-2-1
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Indenture or the performance by the Company and the Guarantor of their respective
obligations thereunder.
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6.
|
|
The (i) execution and delivery of, and the performance by each of the Company and the
Guarantor of its respective obligations under, the Transactions Agreements to which it is a
party, (ii) consummation of the transactions contemplated in the Purchase Agreement (including
the use of the proceeds from the sale of the Securities as described in the Offering
Memorandum under the caption “Use of Proceeds”), and (iii) compliance by each of the Company
and the Guarantor with its respective obligations under the Transaction Agreements to which it
is a party, do not and will not, whether with or without the giving of notice or lapse of time
or both, constitute a breach of, or default or Repayment Event (as defined in Section 1(a)(16)
of the Purchase Agreement) under any indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to me, to which the
Guarantor or any of its subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Guarantor or any of its subsidiaries is subject
(except for such breaches, defaults or Repayment Events that would not reasonably be expected
to have a Guarantor Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of the Scheduled Subsidiaries or any applicable law,
judgment, order, writ or decree known to me of any government, government instrumentality or
court domestic or foreign, having jurisdiction over the Guarantor or any of its subsidiaries
or any of their respective properties, assets or operations.
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7.
|
|
All descriptions in the Offering Memorandum of contracts and other documents to which the
Guarantor or any of its subsidiaries is a party are accurate in all material respects.
|
In addition, I have participated in conferences with certain officers and other
representatives of the Company and the Guarantor, representatives of the independent public
accountants of the Company and the Guarantor and the Initial Purchasers’ representatives, at which
the contents of the Time of Sale Memorandum and the Offering Memorandum and related matters were
discussed. Although I am not (except with respect to the opinion set forth in paragraph 7 above)
passing upon and do not (except with respect to the opinion set forth in paragraph 7 above) assume
any responsibility for and shall not be deemed to have independently verified the accuracy,
completeness or fairness of the statements contained in the Time of Sale Memorandum or the Offering
Memorandum, or incorporated by reference therein, on the basis of the foregoing (relying with
respect to factual matters to the extent I deem appropriate upon statements made by officers and
other representatives of the Company and the Guarantor), no facts have come to my attention that
have led me to believe that (i) the Time of Sale Memorandum, as of 5:30 p.m. (Eastern Time) on June
13, 2007 (which you have informed me is a time prior to the time of the first sale of the
Securities by any Initial purchaser), contained an untrue statement of a material fact or omitted
to state any material fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, (ii) as of its date, the Offering Memorandum contained
an untrue statement of a material fact or omitted to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading, or
(iii) as of the date hereof, the Offering Memorandum contains an untrue statement of a material
fact or omits to state any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, it being understood I express no
statement or belief in this letter with respect to (A) the financial statements and related
schedules, including the notes and schedules thereto and the auditor’s report thereon, (B) any
other financial or accounting data included or incorporated or deemed incorporated by reference in,
or excluded from, the Offering Memorandum or the Time of Sale Memorandum and (C) the
representations and warranties contained in the exhibits to the documents incorporated by reference
in, or excluded from, the Time of Sale Memorandum and the Offering Memorandum.
A-2-2
In rendering such opinion, such counsel may state that his opinion is limited to matters
governed by the Federal laws of the United States of America, the laws of the State of Texas and
the General Corporation Law of the State of Delaware. In addition, such counsel may state that his
opinion is subject to customary exceptions and qualifications.
A-2-3
Exhibit A-3
FORM OF OPINION OF COMPANY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 7(a)(3)
|
1.
|
|
The Guarantor is duly incorporated and existing under the laws of Bermuda in good standing
(meaning solely that it has not failed to make any filing with any Bermuda governmental
authority, or to pay any Bermuda government fee or tax, which would make it liable to be
struck off the Register of Companies and thereby cease to exist under the laws of Bermuda).
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2.
|
|
The Guarantor has the necessary corporate power and authority to execute, deliver and perform
its obligations under the Documents, including the execution and delivery of the Initial Notes
and the Exchange Notes, and the necessary corporate power to conduct its business as described
under the captions “Weatherford Bermuda” and “Weatherford International, Inc.” in the
Preliminary Memorandum and the Final Memorandum. The execution and delivery of the Documents
by the Guarantor and the performance by the Guarantor of its obligations thereunder will not
violate the memorandum of association or bye-laws of the Guarantor nor any applicable law,
regulation, order or decree in Bermuda.
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|
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3.
|
|
The Guarantor has taken all corporate action required to authorise its execution, delivery
and performance of the Documents, including the execution and delivery of the Initial Notes
and the Exchange Notes. The Documents (other than the Exchange Notes) have been duly executed
and delivered by or on behalf of the Guarantor, and constitute the valid and binding
obligations of the Guarantor, enforceable against the Guarantor in accordance with the terms
thereof. When duly executed and delivered by or on behalf of the Guarantor, the Exchange
Notes will constitute the valid and binding obligations of the Guarantor, enforceable against
the Guarantor in accordance with the terms thereof and the holders of the Exchange Notes will
be entitled to the benefits of the Indenture in accordance with the terms thereof.
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4.
|
|
No order, consent, approval, licence, authorisation or validation of, filing with or
exemption by any government or public body or authority of Bermuda or any sub-division thereof
is required to authorise or is required in connection with the execution, delivery,
performance and enforcement of the Documents, including the execution and delivery of the
Initial Notes and the Exchange Notes, except such as have been duly obtained or filed in
accordance with Bermuda law.
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5.
|
|
It is not necessary or desirable to ensure the enforceability in Bermuda of the Documents
that they be registered in any register kept by, or filed with, any governmental authority or
regulatory body in Bermuda. However, to the extent that any of the Documents creates a charge
over assets of the Guarantor, it may be desirable to ensure the priority in Bermuda of the
charge that it be registered in the Register of Charges in accordance with Section 55 of the
Companies Act 1981. On registration, to the extent that Bermuda law governs the priority of a
charge, such charge will have priority in Bermuda over any unregistered charges, and over any
subsequently registered charges, in respect of the assets which are the subject of the charge.
A registration fee of $515 will be payable in respect of the registration.
|
A-3-1
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While there is no exhaustive definition of a charge under Bermuda law, a charge includes any
interest created in property by way of security (including any mortgage, assignment, pledge,
lien or hypothecation). As the Documents are governed by the Foreign Laws, the question of
whether they create such an interest in property would be determined under the Foreign Laws.
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|
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6.
|
|
The Documents will not be subject to ad valorem stamp duty in Bermuda and no registration,
documentary, recording, transfer or other similar tax, fee or charge is payable in Bermuda
other than as stated in paragraph 5 hereof in connection with the execution, delivery, filing,
registration or performance of the Documents or in connection with the admissibility in
evidence thereof (other than ordinary court filing fees).
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7.
|
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The Guarantor has received an assurance from the Minister of Finance under the Exempted
Undertakings Tax Protection Act, 1966 that in the event of there being enacted in Bermuda any
legislation imposing tax computed on profits or income or computed on any capital asset, gain
or appreciation, or any tax in the nature of estate duty or inheritance tax, then the
imposition of any such tax shall not until 28 March 2016 be applicable to the Guarantor or any
of its operations or its shares, debentures or other obligations except insofar as such tax
applies to persons ordinarily resident in Bermuda or to tax payable in accordance with the
provisions of the Land Tax Act 1967 or otherwise payable in relation to any land leased to the
Guarantor.
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8.
|
|
The statements contained in the Preliminary Memorandum and Final Memorandum under the section
“Description of Notes – the Guarantee” and “Description of Notes — No Personal Liability of
Officers, Directors, Employees or Shareholders”, to the extent that they constitute statements
of Bermuda law are accurate in all material respects.
|
|
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|
9.
|
|
Based solely on a search of the public records in respect of the Guarantor maintained at the
offices of the Registrar of Companies at [ ] a.m. on
l
June 2007 (which would not
reveal details of matters which have not been lodged for registration or have been lodged for
registration but not actually registered at the time of our search) and a search of the Cause
Book of the Supreme Court of Bermuda conducted at [ ] a.m. on
l
June 2007 (which
would not reveal details of proceedings which have been filed but not actually entered in the
Cause Book at the time of our search), no steps have been, or are being, taken in Bermuda for
the appointment of a receiver or liquidator to, or for the winding-up, dissolution,
reconstruction or reorganisation of, the Guarantor.
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10.
|
|
The choice of the Foreign Laws as the governing law of the Documents is a valid choice of law
and would be recognised and given effect to in any action brought before a court of competent
jurisdiction in Bermuda, except for those laws (i) which such court considers to be procedural
in nature, (ii) which are revenue or penal laws or (iii) the application of which would be
inconsistent with public policy, as such term is interpreted under the laws of Bermuda. The
submission in the Purchase Agreement, the Registration Rights Agreement and the Indenture to
the non-exclusive jurisdiction of the Foreign Courts, and the appointment of CT Corporation
Systems by the Guarantor as its agent for service of legal process in connection with
proceedings in the Foreign Courts pursuant to the Purchase Agreement, the Registration Rights
Agreement and the Indenture, is valid and binding upon the Guarantor.
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11.
|
|
The courts of Bermuda would recognise as a valid judgment, a final and conclusive judgment in
personam obtained in the Foreign Courts against the Guarantor based upon the Documents under
which a sum of money is payable (other than a sum of money payable in respect of multiple
damages, taxes or other charges of a like nature or in respect of a fine or other penalty) and
would give a judgment based thereon provided that (a) such courts had proper jurisdiction over
the
|
A-3-2
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parties subject to such judgment, (b) such courts did not contravene the rules of natural
justice of Bermuda, (c) such judgment was not obtained by fraud, (d) the enforcement of the
judgment would not be contrary to the public policy of Bermuda, (e) no new admissible
evidence relevant to the action is submitted prior to the rendering of the judgment by the
courts of Bermuda and (f) there is due compliance with the correct procedures under the laws
of Bermuda.
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|
12.
|
|
There is no income or other tax of Bermuda imposed by withholding or otherwise on any payment
to be made by the Guarantor to a holder of Notes or Exchange Notes.
|
|
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13.
|
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The Guarantor has been designated as non-resident of Bermuda for the purposes of the Exchange
Control Act, 1972 and, as such, is free to acquire, hold, transfer and sell foreign currency
(including the payment of dividends or other distributions) and securities without
restriction.
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14.
|
|
The Guarantor is not entitled to any immunity under the laws of Bermuda, whether
characterised as sovereign immunity or otherwise, from any legal proceedings to enforce the
Documents in respect of itself or its property.
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15.
|
|
The obligations of the Guarantor under the Indenture, the Notes and the Exchange Notes will
rank at least pari passu in priority of payment with all other unsecured unsubordinated
indebtedness of the Guarantor, other than indebtedness which is preferred by virtue of any
provision of the laws of Bermuda of general application.
|
A-3-3
Exhibit 4.1
WEATHERFORD INTERNATIONAL, INC., as Issuer,
WEATHERFORD INTERNATIONAL LTD., as Guarantor,
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
Trustee
INDENTURE
DATED AS OF JUNE 18, 2007
SENIOR DEBT SECURITIES
WEATHERFORD INTERNATIONAL, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939, AS AMENDED,
AND INDENTURE, DATED AS OF JUNE 18, 2007
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TRUST INDENTURE ACT SECTION
|
|
INDENTURE SECTION
|
|
|
Section 310(a)(1)
|
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6.9
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(a)(2)
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6.9
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(a)(3)
|
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Not Applicable
|
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(a)(4)
|
|
Not Applicable
|
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(a)(5)
|
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6.9
|
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(b)
|
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6.8
|
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Section 311
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6.13
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Section 312(a)
|
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7.1, 7.2
|
(a)
|
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(b)
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7.2
|
(b)
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(c)
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7.2
|
(c)
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Section 313(a)
|
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7.3
|
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(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
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Section 314(a)
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7.4
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(a)(4)
|
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10.7
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(b)
|
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Not Applicable
|
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(c)(1)
|
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1.3
|
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(c)(2)
|
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1.3
|
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(c)(3)
|
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Not Applicable
|
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(d)
|
|
Not Applicable
|
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(e)
|
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|
1.3
|
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|
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Section 315(a)
|
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6.1
|
(a)
|
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(b)
|
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6.2
|
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(c)
|
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6.1
|
(b)
|
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(d)
|
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6.1
|
(c)
|
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(d)(1)
|
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6.1
|
(c)(1)
|
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(d)(2)
|
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6.1
|
(c)(2)
|
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(d)(3)
|
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6.1
|
(c)(3)
|
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(e)
|
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5.14
|
|
|
|
|
Section 316(a)
|
|
|
1.1, 1.2
|
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(a)(1)(A)
|
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5.2, 5.12
|
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(a)(1)(B)
|
|
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5.13
|
|
|
(a)(2)
|
|
Not Applicable
|
|
(b)
|
|
|
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
|
|
|
|
|
Section 318(a)
|
|
|
1.8
|
|
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
|
|
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|
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*
|
|
Deemed included pursuant to Section 318(c) of the Trust Indenture Act
|
TABLE OF CONTENTS
|
|
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PARTIES
|
|
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2
|
|
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|
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|
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|
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RECITALS OF THE COMPANY:
|
|
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2
|
|
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|
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|
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|
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
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2
|
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|
Section 1.1. Definitions
|
|
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2
|
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|
Section 1.2. Incorporation by Reference of Trust Indenture Act
|
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9
|
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Section 1.3. Compliance Certificates and Opinions
|
|
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10
|
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Section 1.4. Form of Documents Delivered to Trustee
|
|
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10
|
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Section 1.5. Acts of Holders; Record Dates
|
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11
|
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Section 1.6. Notices, Etc., to Trustee, Company and Guarantor
|
|
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12
|
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Section 1.7. Notice to Holders; Waiver
|
|
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12
|
|
|
Section 1.8. Conflict with Trust Indenture Act
|
|
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13
|
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|
Section 1.9. Effect of Headings and Table of Contents
|
|
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13
|
|
|
Section 1.10. Successors and Assigns
|
|
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13
|
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Section 1.11. Separability Clause
|
|
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13
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Section 1.12. Benefits of Indenture
|
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13
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|
Section 1.13. Governing Law
|
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13
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|
Section 1.14. Legal Holidays
|
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14
|
|
|
Section 1.15. Securities in a Composite Currency, Currency Unit or Foreign Currency
|
|
|
14
|
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|
Section 1.16. Payment in Required Currency; Judgment Currency
|
|
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15
|
|
|
Section 1.17. Language of Notices, Etc.
|
|
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15
|
|
|
Section 1.18. Incorporators, Shareholders, Officers and Directors of the Company and Guarantor
Exempt from Individual Liability
|
|
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15
|
|
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|
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|
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ARTICLE TWO
SECURITY FORMS
|
|
|
16
|
|
|
Section 2.1. Forms Generally
|
|
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16
|
|
|
Section 2.2. Form of Face of Security
|
|
|
16
|
|
|
Section 2.3. Form of Reverse of Security
|
|
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18
|
|
|
Section 2.4. Global Securities
|
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23
|
|
|
Section 2.5. Form of Trustee’s Certificate of Authentication
|
|
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24
|
|
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|
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ARTICLE THREE
THE SECURITIES
|
|
|
24
|
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|
Section 3.1. Amount Unlimited; Issuable in Series
|
|
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24
|
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|
Section 3.2. Denominations
|
|
|
27
|
|
|
Section 3.3. Execution, Authentication, Delivery and Dating
|
|
|
27
|
|
|
Section 3.4. Temporary Securities
|
|
|
29
|
|
|
Section 3.5. Registration, Registration of Transfer and Exchange
|
|
|
29
|
|
|
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
32
|
|
|
Section 3.7. Payment of Interest; Interest Rights Preserved
|
|
|
32
|
|
|
Section 3.8. Persons Deemed Owners
|
|
|
33
|
|
|
Section 3.9. Cancellation
|
|
|
33
|
|
|
Section 3.10. Computation of Interest
|
|
|
34
|
|
|
Section 3.11. CUSIP or CINS Numbers
|
|
|
34
|
|
|
|
|
|
|
|
|
ARTICLE FOUR
SATISFACTION AND DISCHARGE
|
|
|
34
|
|
i
|
|
|
|
|
|
|
Section 4.1. Satisfaction and Discharge of Indenture
|
|
|
34
|
|
|
Section 4.2. Application of Trust Money
|
|
|
35
|
|
|
|
|
|
|
|
|
ARTICLE FIVE
REMEDIES
|
|
|
35
|
|
|
Section 5.1. Events of Default
|
|
|
35
|
|
|
Section 5.2. Acceleration of Maturity; Rescission and Annulment
|
|
|
36
|
|
|
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
37
|
|
|
Section 5.4. Trustee May File Proofs of Claim
|
|
|
38
|
|
|
Section 5.5. Trustee May Enforce Claims Without Possession of Securities
|
|
|
38
|
|
|
Section 5.6. Application of Money Collected
|
|
|
38
|
|
|
Section 5.7. Limitation on Suits
|
|
|
39
|
|
|
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest
|
|
|
39
|
|
|
Section 5.9. Restoration of Rights and Remedies
|
|
|
39
|
|
|
Section 5.10. Rights and Remedies Cumulative
|
|
|
40
|
|
|
Section 5.11. Delay or Omission Not Waiver
|
|
|
40
|
|
|
Section 5.12. Control by Holders
|
|
|
40
|
|
|
Section 5.13. Waiver of Past Defaults
|
|
|
40
|
|
|
Section 5.14. Undertaking for Costs
|
|
|
41
|
|
|
Section 5.15. Waiver of Stay or Extension Laws
|
|
|
41
|
|
|
|
|
|
|
|
|
ARTICLE SIX
THE TRUSTEE
|
|
|
41
|
|
|
Section 6.1. Certain Duties and Responsibilities
|
|
|
41
|
|
|
Section 6.2. Notice of Defaults
|
|
|
42
|
|
|
Section 6.3. Certain Rights of Trustee
|
|
|
43
|
|
|
Section 6.4. Not Responsible for Recitals or Issuance of Securities
|
|
|
44
|
|
|
Section 6.5. May Hold Securities
|
|
|
44
|
|
|
Section 6.6. Money Held in Trust
|
|
|
44
|
|
|
Section 6.7. Compensation and Reimbursement
|
|
|
44
|
|
|
Section 6.8. Disqualification; Conflicting Interests
|
|
|
45
|
|
|
Section 6.9. Corporate Trustee Required; Eligibility
|
|
|
45
|
|
|
Section 6.10. Resignation and Removal; Appointment of Successor
|
|
|
45
|
|
|
Section 6.11. Acceptance of Appointment by Successor
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47
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Section 6.12. Merger, Conversion, Consolidation or Succession to Business
|
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48
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Section 6.13. Preferential Collection of Claims Against Company
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48
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Section 6.14. Appointment of Authenticating Agent
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48
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ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
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50
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Section 7.1. Company to Furnish Trustee Names and Addresses of Holders
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50
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Section 7.2. Preservation of Information; Communications to Holders
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50
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Section 7.3. Reports by Trustee
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51
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Section 7.4. Reports by Guarantor
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51
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ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, MERGER AND SALE
|
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52
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Section 8.1. Company May Consolidate, Etc., Only on Certain Terms
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52
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Section 8.2. Successor Substituted
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53
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
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53
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Section 9.1. Supplemental Indentures Without Consent of Holders
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53
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ii
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Section 9.2. Supplemental Indentures with Consent of Holders
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54
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Section 9.3. Execution of Supplemental Indentures
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55
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Section 9.4. Effect of Supplemental Indentures
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55
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Section 9.5. Conformity with Trust Indenture Act
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56
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Section 9.6. Reference in Securities to Supplemental Indentures
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56
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ARTICLE TEN
COVENANTS
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56
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Section 10.1. Payment of Principal, Premium and Interest
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56
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Section 10.2. Maintenance of Office or Agency
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56
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Section 10.3. Money for Securities Payments to Be Held in Trust
|
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56
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Section 10.4. Existence
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58
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Section 10.5. Limitation on Liens
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58
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Section 10.6. Restriction of Sale-Leaseback Transactions
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59
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Section 10.7. Statement by Officers as to Default
|
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60
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Section 10.8. Waiver of Certain Covenants
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60
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Section 10.9. Additional Amounts
|
|
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60
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
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|
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61
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Section 11.1. Applicability of Article
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61
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Section 11.2. Election to Redeem; Notice to Trustee
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61
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Section 11.3. Selection by Trustee of Securities to Be Redeemed
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61
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Section 11.4. Notice of Redemption
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62
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Section 11.5. Deposit of Redemption Price
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62
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Section 11.6. Securities Payable on Redemption Date
|
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63
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Section 11.7. Securities Redeemed in Part
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63
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ARTICLE TWELVE
SINKING FUNDS
|
|
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63
|
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Section 12.1. Applicability of Article
|
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63
|
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Section 12.2. Satisfaction of Sinking Fund Payments with Securities
|
|
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63
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Section 12.3. Redemption of Securities for Sinking Fund
|
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64
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ARTICLE THIRTEEN
DEFEASANCE
|
|
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64
|
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Section 13.1. Applicability of Article
|
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64
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Section 13.2. Legal Defeasance
|
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64
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Section 13.3. Covenant Defeasance
|
|
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66
|
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Section 13.4. Deposited Money and U.S. Government Obligations to be Held in Trust
|
|
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67
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Section 13.5. Repayment to Company; Qualifying Trustee
|
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67
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|
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ARTICLE FOURTEEN
GUARANTEE OF SECURITIES
|
|
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68
|
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Section 14.1. Unconditional Guarantee
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68
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Section 14.2. Execution and Delivery of Notation of Guarantee
|
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70
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Section 14.3. Reports by Guarantor
|
|
|
70
|
|
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 June 18, 2007, among WEATHERFORD INTERNATIONAL, INC., a corporation
duly organized and existing under the laws of the State of Delaware (herein called the “Company”),
having an office at 515 Post Oak Blvd., Suite 600, Houston, Texas 77027, WEATHERFORD INTERNATIONAL
LTD., a company duly organized and existing under the laws of Bermuda (herein called the
“Guarantor”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, 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 Guarantor, to be issued in one or more series as in this Indenture provided. The Guarantor
indirectly owns 100% of the capital stock of the Company.
All things necessary to make this Indenture a valid agreement of the Company and of the
Guarantor, 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:
(1) the terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;
(2) all terms used in this Indenture that are defined in the Trust Indenture Act,
defined by a Trust Indenture Act reference to another statute or defined by a Commission
rule under the Trust Indenture Act have the meanings so assigned to them;
(3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP;
(4) 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;
(5) the words “Article” and “Section” refer to an Article and Section, respectively, of
this Indenture; and
2
(6) the word “includes” and its derivatives means “includes, but is not limited to” and
corresponding derivative definitions.
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.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Attributable Indebtedness” means, with respect to any Sale-Leaseback Transaction as of any
particular time, the present value (discounted at the rate of interest implicit in the terms of the
lease) of the obligations of the lessee under such lease for net rental payments during the
remaining term of the lease (including any period for which such lease has been extended). “Net
rental payments” under any lease for any period means the sum of the rental and other payments
required to be paid in such period by the lessee thereunder, not including, however, any amounts
required to be paid by such lessee (whether or not designated as rental or additional rental) on
account of maintenance and repairs, insurance, taxes, assessments or similar charges required to be
paid by such lessee thereunder contingent upon the amount of sales or deliveries, maintenance and
repairs, insurance, taxes, assessments or similar charges.
“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 (or, in the case of the Guarantor, Bermuda)
bankruptcy, insolvency, reorganization or other similar law.
“Board of Directors” means either the board of directors of the Company or of the Guarantor, as
applicable, or any duly authorized committee of that board to which the powers of that board have
been lawfully delegated.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company or the Guarantor, the principal financial officer of the Company or the
Guarantor, any other authorized officer of the Company or the 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 the
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
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.
3
“CINS” means CUSIP International Numbering System.
“Commission” 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.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a
successor or resulting corporation shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter “Company” shall mean such successor or resulting corporation.
“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
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 the
Guarantor, a written request or order signed in the name of the 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 the Guarantor or any person duly authorized by any of them, and delivered to
the Trustee.
“Consolidated Net Worth” means, at any date of determination, the amount of total shareholders’
equity shown in most recent consolidated statement of financial position of the Guarantor.
“Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered and which, at the date hereof, is
located at 60 Wall Street, 27
th
Floor, Mail Stop: NYC60-2710, New York, New York 10005,
Attention: Trust & Securities Services, with a copy to Deutsche Bank National Trust Company, 25
DeForest Avenue, Mail Stop: SUM01-0105, Summit, New Jersey 07901, Attention: Trust & Securities
Services.
“corporation” includes corporations, companies, associations, partnerships, limited partnerships,
limited liability companies, joint-stock companies and trusts.
“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.
“defeasance” has the meaning specified in Section 13.2.
“Definitive Security” means a security other than a Global Security or a temporary Security.
4
“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 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 set forth in the
opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be approved by a
significant segment of the accounting profession of the United States, as in effect from time to
time.
“Global 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.
“Guarantee” has the meaning specified in Section 14.1.
“Guarantor” means the person named in the first paragraph of this instrument until a successor
guarantor shall have become such pursuant to applicable provisions of this Indenture, and
thereafter “Guarantor” shall mean or include each Person who is then a Guarantor hereunder.
“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 indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument, and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be part of and
govern this instrument and any such supplemental indenture, respectively. The term “Indenture” also
shall include the terms of particular series of Securities established as contemplated by Section
3.1.
“Indenture Obligations” has the meaning specified in Section 14.1.
“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 1.16.
5
“Lien” means any mortgage, pledge, security interest, charge, lien or other encumbrance of any
kind, whether or not filed, recorded or perfected under applicable law.
“mandatory sinking fund payment” has the meaning specified in Section 12.1.
“Market Exchange Rate” has the meaning specified in Section 1.15.
“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(3).
“Officer’s Certificate” means, in the case of the Company, 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 the Company, or a person duly authorized by any of them, and delivered to the
Trustee and, in the case of the 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
the 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 the 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:
(i) Securities theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(ii) 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;
(iii) 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
(iv) Securities, except to the extent provided in Section 13.2 and 13.3, with respect
to which the Company has effected defeasance or covenant defeasance as provided in Article
Thirteen, which defeasance or covenant defeasance then continues in effect;
6
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, (A) the principal amount of an Original Issue Discount Security that shall be
deemed to 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, (B) 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 1.15, 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 (A) above) of such Security, and (C)
Securities owned by the Company, the 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 (C) 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 pledgee’s
right so to act with respect to such Securities and that the pledgee is not the Company, the
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.
“Permitted Liens” means (i) any governmental Lien, mechanics’, materialmen’s, carriers’ or similar
Lien incurred in the ordinary course of business which is not yet due or which is being contested
in good faith by appropriate proceedings and any undetermined Lien which is incidental to
construction; (ii) the right reserved to, or vested in, any municipality or public authority by the
terms of any right, power, franchise, grant, license, permit or by any provision of law, to
purchase or recapture or to designate a purchaser of, any property, (iii) Liens of taxes and
assessments which are (A) for the then current year, (B) not at the time delinquent, or (C)
delinquent but the validity of which is being contested at the time by the Guarantor or any
Subsidiary in good faith; (iv) Liens of, or to secure performance of, leases; (v) any Lien upon, or
deposits of, any assets in favor of any surety company or clerk of court for the purpose of
obtaining indemnity or stay of judicial proceedings; (vi) any Lien upon property or assets acquired
or sold by the Guarantor or any Subsidiary resulting from the exercise of any rights arising out of
defaults or receivables; (vii) any Lien incurred in the ordinary course of business in connection
with workmen’s compensation, unemployment insurance, temporary disability, social security, retiree
health or similar
laws or regulations or to secure obligations imposed by statute or governmental regulations; (viii)
any Lien upon any property or assets in accordance with customary banking practice to secure any
Debt incurred by the Guarantor or any Subsidiary in connection with the exporting of goods to, or
between, or the marketing of goods in, or the importing of goods from, foreign countries; or (ix)
any Lien in favor of the United States of America or any state thereof, or any other country, or
any political subdivision of any of the foregoing, to secure partial, progress, advance, or other
payments pursuant to any contract or statute, or any Lien securing industrial development,
pollution control, or similar revenue bonds.
7
“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 in the City of New York 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.
“Process Agent” has the meaning specified in Section 1.3.
“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.
“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 1.16.
“Responsible Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any director, managing director, vice
president, assistant vice president, assistant secretary, associate or any other officer of the
Trustee who customarily performs functions similar to those performed by the Persons who at the
time shall be such officers, respectively, or to whom any corporate trust matter is referred
because of such person’s knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
“Sale-Leaseback Transaction” means any arrangement with any Person providing for the leasing by the
Guarantor or any Subsidiary, for a period of more than three years, of any real or personal
property, which property has been or is to be sold or transferred by the Guarantor or such
Subsidiary to such Person in contemplation of such leasing.
“Securities” has the meaning stated in the first recital of this Indenture and more particularly
means any Securities authenticated and delivered under this Indenture.
“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.
8
“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.
“stock” includes shares.
“Subsidiary” means (i) a corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Guarantor or by one or more other Subsidiaries, or by the
Guarantor and one or more other Subsidiaries or (ii) any partnership or similar business
organization more than 50% of the ownership interests having ordinary voting power of which shall
at the time be so owned. For the purposes of this definition, “voting stock” means capital stock or
equity interests which ordinarily have voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by reason of any
contingency.
“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 Internal
Revenue Code of 1986, as amended.
“U.S. Government Obligations” means securities which are (i) direct obligations of the United
States for the payment of which its full faith and credit is pledged, or (ii) 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, each of which are not callable or redeemable at the option of the issuer thereof.
“Vice President”, when used with respect to the Company, the Guarantor or the Trustee, means any
vice president, whether or not 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 Commission.
“indenture securities” means the Securities.
“indenture security holder” means a Holder.
“indenture to be qualified” means this Indenture.
9
“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 a Commission 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 the Guarantor to the Trustee to take any
action under any provision of this Indenture, the Company or the Guarantor, as the case may be,
shall furnish to the Trustee an Officer’s 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 10.7) shall include
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) 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;
(3) 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 or not such covenant or condition has been complied with; and
(4) 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 the 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
10
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 an 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 Guarantor. 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 Guarantor, 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.
(c) The ownership, principal amount and serial numbers of Securities held by
any Person, and the date of commencement of such Person’s 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 Guarantor in
reliance thereon, whether or not 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
11
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, whether or not such Holders remain Holders after such record date.
Section 1.6.
Notices, Etc., to Trustee, Company and Guarantor
.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Holder, the Guarantor or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, Attention: Trust & Securities Services.
(2) the Company by the Trustee, the Guarantor or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument to the attention of the
Corporate Secretary, or at any other address previously furnished in writing to the Trustee
by the Company, or
(3) the Guarantor by the Company, the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Guarantor addressed to 515 Post Oak Blvd., Suite
600, Houston, Texas 77027, Attention: Corporate Secretary, or at any other address
previously furnished in writing to the Trustee by the Guarantor.
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, whether or not 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.
12
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, 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 latter provision
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 latter provision 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.
Section 1.10.
Successors and Assigns
.
All covenants and agreements in this Indenture by each of the Company and the Guarantor shall
bind its 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 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 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.
Governing Law
.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
To the fullest extent permitted by applicable law, each of the Company and the Guarantor
hereby irrevocably submits to the jurisdiction of any Federal or state court located in the Borough
of Manhattan in The City of New York, New York in any suit, action or proceeding based on or
arising out of or relating to this Indenture or any Securities and irrevocably agrees that all
claims in respect of such suit or proceeding may be determined in any such court. Each of the
Company and the Guarantor irrevocably waives, to the fullest extent permitted by law, any objection
which it may have to the laying of the venue of any such suit, action or proceeding brought in an
inconvenient forum. Each of the Company and the Guarantor agrees that final judgment in any such
suit, action or proceeding brought in such a court shall be conclusive and binding and may be
enforced in the courts of Bermuda (or any other courts of any other jurisdiction to which either of
them is subject) by a suit upon such judgment, provided that service of process is effected upon
the Company. Each of the Company and the Guarantor hereby irrevocably
13
designates and appoints C T
Corporation System, 111 Eighth Avenue, New York, New York, 10011 (the “Process Agent”) as their
authorized agent for purposes of this Section 1.13, it being understood that the designation and
appointment of the Process Agent as such authorized agent shall become effective immediately
without any further action on the part of the Company or the Guarantor, as the case may be. Each
of the Company and the Guarantor further agrees that, unless otherwise required by law, service of
process upon the Process Agent and written notice of said service to the Company or the Guarantor,
as the case may be, mailed by prepaid registered first class mail or delivered to the Process Agent
at its principal office, shall be deemed in every respect effective service of process upon the
Company or the Guarantor, as the case may be, in any such suit or proceeding. Each of the Company
and the Guarantor further agrees to take any and all action, including the execution and filing of
any and all such documents and instruments as may be necessary, to continue such designation and
appointment of the Process Agent in full force and effect so long as the Company or the Guarantor,
as the case may be, has any outstanding obligations under this Indenture. To the extent the
Company or the Guarantor, as the case may be, has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service of notice, attachment
prior to judgment, attachment in aid of execution, executor or otherwise) with respect to itself or
its property, each of the Company and the Guarantor hereby irrevocably waives such immunity in
respect of its obligations under this Indenture to the extent permitted by law.
Section 1.14.
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 Guarantee (other than a
provision of the Securities of any series or, if applicable, the Guarantee that specifically states
that such provision shall apply in lieu of this Section 1.14)) 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, provided that no interest
shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
Section 1.15.
Securities in a Composite Currency, Currency Unit or Foreign Currency
.
Unless otherwise specified in an Officer’s Certificate 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 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 1.15, 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
14
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 1.16.
Payment in Required Currency; Judgment Currency
.
Each of the Company and the Guarantor 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 (whether or not 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 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 1.17.
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 1.18.
Incorporators, Shareholders, Officers and Directors of the Company and Guarantor
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 Guarantee, or for any claim
based thereon or otherwise in respect thereof, or in any Security or, if applicable, Guarantee, 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, the Guarantor or any successor Person, either directly or through the Company, the
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.
15
ARTICLE TWO
SECURITY FORMS
Section 2.1.
Forms Generally
.
The Securities of each series and, if applicable, the notation thereon relating to the
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 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.
Section 2.2.
Form of Face of Security
.
[
If the Security is an Original Issue Discount Security, insert—
FOR PURPOSES OF SECTION 1275 OF THE
UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE AMOUNT OF THE ORIGINAL ISSUE DISCOUNT
IS
,
THE ISSUE DATE IS
, 20
[AND] [,] THE YIELD TO MATURITY
IS
[,] [AND THE ORIGINAL ISSUE DISCOUNT FOR THE
SHORT ACCRUAL PERIOD IS
AND THE METHOD USED TO DETERMINE THE YIELD THEREFOR IS
]]
[Insert any other legend required by the United States Internal Revenue Code or the regulations
thereunder.]
[
If a Global Security,—insert legend required by Section 204 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.]
WEATHERFORD INTERNATIONAL, INC.
16
[TITLE OF SECURITY]
[CUSIP No. ]
WEATHERFORD INTERNATIONAL, INC., a company duly incorporated 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]. 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
day (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 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
17
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.
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:
|
|
|
|
|
|
|
WEATHERFORD INTERNATIONAL, INC.
|
|
|
|
|
|
By:
|
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
June 18, 2007 (herein called the “Indenture”), between the Company, the Guarantor and Deutsche Bank
Trust Company Americas, 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 Guarantor, 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 $
].
18
This Security is the general, unsecured, senior obligation of the Company [
if applicable,
insert—
and is guaranteed pursuant to a guarantee (the “Guarantee”) by Weatherford International
Ltd., a Bermuda exempted company (the “Guarantor”). The Guarantee is the general, unsecured,
senior obligation of the 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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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 whose Stated
Maturity 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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19
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 whose Stated Maturity 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].]
[
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
,
insert —
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
,
insert —
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 Company’s 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
Guarantor] 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 Guarantor] 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 Guarantor] 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
20
hereof or in
exchange herefor or in lieu hereof, whether or not 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 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—
the Guarantor,] the Trustee and any agent of the Company [
If applicable,
insert—
, the Guarantor] 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 be overdue, and none
of the Company, [
If applicable, insert—
the Guarantor,] 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 Guarantee endorsed thereon,] or
for any claim based thereon or otherwise in respect thereof, or in any Security [
If applicable,
insert—
or in the Guarantee], 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 the Guarantor] or of any
successor Person, either directly or through the Company [
If applicable, insert—
or the 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
21
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 Guarantor] (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 the 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 Typewrite Name and Address of Assignee)
the within instrument of WEATHERFORD INTERNATIONAL, 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 Guarantee
—
The Guarantor (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 and all other amounts due and payable under the
Indenture and the Securities by the Company.
The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the
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 Guarantee.
22
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Guarantor:
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WEATHERFORD INTERNATIONAL LTD.
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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 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 (9) 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 Sections 3.3, 3.4 and 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.
23
Section 2.5.
Form of Trustee’s Certificate of Authentication
.
The Trustee’s certificate(s) of authentication shall be in substantially 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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Deutsche Bank Trust Company Americas,
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 Officer’s
Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(1) 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);
(2) 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 Sections 3.4, 3.5, 3.6, 9.6 or 11.7 and except for
any Securities which, pursuant to Section 3.3, are deemed never to have been authenticated
and delivered hereunder);
(3) 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;
(4) the date or dates on which the principal of the Securities of the series is payable
or the method of determination thereof;
(5) 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;
24
(6) 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;
(7) 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;
(8) 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;
(9) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of the series shall be issuable;
(10) 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;
(11) 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;
(12) if other than the currency of the United States of America, the currency or
currencies, including composite currencies, currency units or Foreign Currency, in which
payment of the principal of and any premium and interest on the Securities of the series
shall be payable, and, if other than as specified in Section 1.15, the manner of determining
the equivalent thereof in the currency of the United States of America for purposes of the
determination of “Outstanding” in Section 1.1;
(13)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;
(14)if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company, the Guarantor (if applicable) or a Holder thereof, in one or more currencies or currency units other than that or those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any premium and interest on Securities of such series as to which such election is made shall be payable, and the periods within which and the terms and conditions upon which such election is to be made;
(15)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;
25
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;
(16) any deletions from, modifications of or additions to the Events of Default set
forth in Section 5.1 or the covenants of the Company or the Guarantor set forth in Article
Ten with respect to the Securities of such series;
(17) 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;
(18) 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;
(19) if the Securities of the series are to be convertible into or exchangeable for any
other security or property of the Company or the Guarantor, including, without limitation,
securities of another Person held by the Company or the Guarantor or their respective
Affiliates and, if so, the terms thereof;
(20) if other than as provided in Sections 13.2 and 13.3, the means of defeasance or
covenant defeasance as may be specified for the Securities of the series;
(21) if other than the Trustee, the identity of the initial Security Registrar and any
initial Paying Agent;
(22) whether the Securities of the series will be guaranteed pursuant to the Guarantee,
any modifications to the terms of Article Fourteen applicable to the Securities of such
series and the applicability of any other guarantees; and
(23) 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 Officer’s
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.
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 Guarantor and
delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth, or
providing the manner for determining, the terms of the series.
26
With respect to Securities of a series subject to a Periodic Offering, such Board Resolution
or Officer’s 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 Guarantor or
one or more agents thereof designated in an Officer’s 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 Guarantee endorsed on the Securities shall be executed on behalf of the
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 Guarantee may be manual or facsimile.
Securities and any Guarantee bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company or the Guarantor, as the case may be, shall
bind the Company or the 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 Sections 2.1 and 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,
(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
27
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 Guarantor, 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; (iii) with reference to Securities stated to be
payable in a currency other than Dollars said counsel may note that (x) a New York
statute provides that a judgment rendered by a court of the State of New York in
respect of an obligation denominated in any such other currency would be rendered in
such other currency and would be converted into Dollars at the rate of exchange
prevailing on the date of entry of the judgment, and (y) a judgment rendered by a
Federal court sitting in the State of New York in respect of an obligation
denominated in any such other currency may be expressed in Dollars, but said counsel
need express no opinion as to the rate of exchange such Federal court would apply;
and (iv) 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 Trustee’s 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 Officer’s 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, 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 Sections 2.1 and 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 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
28
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.
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 the Borough of
Manhattan, the City of New York or in any other 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 60 Wall Street, 27
th
Floor, Mail Stop:
NYC60-2710, New York, New York 10005, is the initial office or agency in the Borough of Manhattan
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
Guarantor 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
Guarantee, if applicable, executed by the Guarantor, 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 Guarantor shall execute and the Trustee shall authenticate and deliver, the Securities, with an
endorsement of the
29
Guarantee, if applicable, executed by the Guarantor, 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 Guarantor evidencing the same debt, and
entitled to 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, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) 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 (ii) 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 1.1 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 Company’s 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 Guarantor 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 Guarantee, if applicable, executed
by the Guarantor, 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.
30
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 Guarantor will
execute and the Trustee, upon receipt of a Company Order for the authentication and delivery of the
Definitive Securities of such series, will authenticate and deliver, Securities, with an
endorsement of the Guarantee, if applicable, executed by the Guarantor, 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.
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 and such Depositary. Thereupon, the Company
and, if applicable, the Guarantor 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,
(1) to the Person specified by such Depositary a new Security or Securities, with an
endorsement of the Guarantee, if applicable, executed by the Guarantor, 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 Person’s beneficial interest in the
Global Security; and
(2) to such Depositary a new Global Security, with an endorsement of the Guarantee, if
applicable, executed by the Guarantor, 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 (1) above.
Every Person who takes or holds any beneficial interest in a Global Security agrees that:
(a) the Company, the Guarantor (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 Person’s 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 may make book-entry transfers of
beneficial ownership among, and receive and transmit distributions of principal and
interest on the Global Securities to, such Persons in accordance with their own
procedures; and
(d) none of the Company, the Guarantor (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.
31
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 Guarantor (if applicable) or the
Trustee to save each of them and any agent of any of them harmless, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security, with an endorsement
of the Guarantee, if applicable, executed by the Guarantor, of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company, the Guarantor (if applicable) and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them and any agent of either 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 Guarantor shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security, with an endorsement of the Guarantee, if applicable,
executed by the Guarantor, 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 Guarantor, whether or not 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 (1) or (2) below:
(1) 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
32
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 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 (2).
(2) 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 Guarantor 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 Sections 3.5 and 3.7) any interest on such Security
and for all other purposes whatsoever, whether or not such Security be overdue, and none of the
Company, the Trustee nor, if applicable, the Guarantor 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 Guarantor and any agent 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
33
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.
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 with respect to the Securities of any
series (except as to any surviving rights of registration of transfer or exchange of Securities
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:
(1) either
(a) all such Securities theretofore authenticated and delivered (other than (i)
such Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6, and (ii) such Securities for whose
payment 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
(b) all such Securities not theretofore delivered to the Trustee for
cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated Maturity within one
year, or
34
(3) 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 (1), (2) or (3) 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 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;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the
Company with respect to such Securities; and
(3) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating 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 subclause (b) of clause (1) of this Section, the obligations of the Company and the
Trustee under Sections 4.2, 6.6 and 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 whose payment
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):
(1) 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
(2) default in the payment of the principal of (or premium, if any, on) any Security of
that series at its Maturity; or
35
(3) default in the performance, or breach, of any covenant or warranty of the Guarantor
or the Company in this Indenture (other than a covenant or warranty a default in whose
performance or whose breach 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 90 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
(4) the Guarantor or the Company pursuant to or within the meaning of any Bankruptcy
Law (a) commences a voluntary case, (b) consents to the entry of any order for relief
against it in an involuntary case, (c) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or (d) makes a general assignment for the
benefit of its creditors; or
(5) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that (a) is for relief against the Company or the Guarantor in an involuntary case, (b)
appoints a Custodian of the Company or the Guarantor or for all or substantially all of its
property, or (c) orders the liquidation of the Company or the Guarantor; and the order or
decree remains unstayed and in effect for 90 consecutive days; or
(6) default in the deposit of any sinking fund payment when due; or
(7) 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 a specified percentage 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 (4) or (5) 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:
(1) the Company or, if applicable, the Guarantor has paid or deposited with the Trustee
a sum sufficient to pay:
(a) all overdue interest on all Securities of that series,
36
(b) 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,
(c) 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
(d) 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
(2) 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:
(1) 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 60 days, or
(2) 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 Guarantor 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 Guarantor 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.
37
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, the 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 Guarantor for the
payment of overdue principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) 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
(ii) 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 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:
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
38
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 Guarantee), or
for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of that series;
(2) 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;
(3) 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;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(5) 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, to receive payment of the principal of and any
premium and (subject to Sections 3.5 and 3.7) 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 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 Guarantor, the Trustee and the Holders shall
be
39
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 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:
(1) such direction shall not be in conflict with any rule of law or with this
Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction; and
(3) 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
.
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:
(1) a continuing default in the payment of the principal of or any premium or interest
on any Security of such series, or
(2) 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.
40
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 (1) 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 25% 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 Guarantor 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 Guarantor (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,
(1) 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, except for implied covenants or obligations
under the Trust Indenture Act, no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) 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 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 or not they conform to
the requirements of this Indenture.
41
(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 willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) 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;
(3) 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
(4) 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) Whether or not 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 shall be protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine 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(3) with respect to Securities of such series, no such notice
to Holders shall be given until at least 90 days after the occurrence thereof.
42
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 the 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 Officer’s 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 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 willful 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 Guarantor
deliver an Officer’s Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant to
this
43
Indenture, which Officer’s Certificate may be signed by any person authorized
to sign an Officer’s Certificate, including any person specified as so authorized in
any such certificate previously delivered and not superseded; and
(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.
Section 6.4.
Not Responsible for Recitals or Issuance of Securities
.
The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company or, if applicable, the Guarantor,
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, the 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 Sections 6.8, 6.9 and 6.13, may otherwise deal with the Company or, if
applicable, the Guarantor 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,
the Guarantor.
Section 6.7.
Compensation and Reimbursement
.
The Company agrees:
(1) 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);
(2) 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
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
(3) to indemnify each of the Trustee and its officers, directors, agents and employees
for, and to hold it harmless against, any loss, liability or expense incurred without
negligence or willful misconduct on its 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
44
against any claim or liability in connection with the exercise
or performance of any of its 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 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(4) or Section 5.1(5), 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 satisfaction and discharge of this
Indenture and the 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.
(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 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.
45
(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:
(1) 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
(2) 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
(3) 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, (i) the Company by a
Board Resolution may remove the Trustee with respect to all Securities, or
(ii) 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.
(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
46
of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
(g) If a Trustee is removed with or without cause, all fees and expenses
(including the reasonable fees and expenses of counsel) of the Trustee incurred in
the administration of the trust or in performing of the duties hereunder shall be
paid by the Trustee.
Section 6.11.
Acceptance of Appointment by Successor
.
(a) In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company, the Guarantor (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 or, if applicable, the Guarantor 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 Guarantor (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 (1)
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, (2) 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 (3) 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, the Guarantor (if applicable) or any successor Trustee, such retiring
Trustee 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 that or those series to which the appointment of such successor
Trustee relates.
47
(c) Upon request of any such successor Trustee, the Company and, if applicable,
the Guarantor 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.
(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,
(1) 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 acceptances and payable
upon demand;
(2) 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,
the 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, the
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 Trustee’s certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of
48
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 $100,000,000 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 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. The Authenticating Agent must agree with the
Trustee, in writing, that the Authenticating Agent will indemnify the Trustee against any loss,
liability or expense incurred by the Trustee and to defend any claim asserted against the Trustee
by reason of any acts or failures to act of the Authenticating Agent. 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 Guarantor. 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 Guarantor. 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 Guarantor 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 Guarantor, 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 Guarantor 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 Trustee’s certificate
of authentication, an alternate certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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Deutsche Bank Trust Company Americas,
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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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
(ii) afford such applicants access to the information preserved at the time by the
Trustee in accordance with Section 7.2(a), or
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(iii) 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 Commission, together with a
copy of the material to be 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
Commission, 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 Commission 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.
(a) Every Holder of Securities, by receiving and holding the same, agrees with
the Company, the Guarantor (if applicable) and the Trustee that none of the Company,
the Guarantor (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 Trustee’s 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, commencing
with the year 2008, 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 Commission
and with the Company. The Company will notify the Trustee when any Securities are listed on any
stock exchange.
Section 7.4.
Reports by the Guarantor and the Company.
The Guarantor and the Company shall:
(a) file with the Trustee, within 15 days after the Guarantor or the Company is
required to file the same with the Commission, 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 Commission may from time to time by rules and regulations
prescribe)
which the Guarantor or the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Guarantor or
the Company is not required to file information, documents or reports pursuant to
either of
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said Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, 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 Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Guarantor and
the Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(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
Guarantor and 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 Commission.
The receipt by the Trustee of any reports, documents or information pursuant to (a) and (b) of
this Section 7.4 shall not constitute notice or constructive notice of any information contained in
such reports or documents or determinable from information contained in such reports or documents,
including the Guarantor’s and the Company’s compliance with any covenants hereunder (as to which
the Trustee is entitled to rely exclusively on a certificate pursuant to Section 10.7 hereof).
ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, MERGER AND SALE
Section 8.1.
Company May Consolidate, Etc., Only on Certain Terms
.
The Company and, if any Securities of a series to which Article Fourteen has been made
applicable are Outstanding, the Guarantor shall not consolidate or amalgamate with or merge into
any other Person or convey, transfer or lease its properties and assets as, or substantially as, an
entirety to any Person unless:
(1) the Person formed by such consolidation or amalgamation or into which the Company
or the Guarantor, as the case may be, is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company or the Guarantor, as
the case may be, as, or substantially as, an entirety shall be a corporation and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal
of and any premium and interest on all the Securities and the performance or observance of
every other covenant of this Indenture on the part of the Company or the Guarantor, as the
case may be, to be performed or observed and shall have expressly provided for conversion
rights in respect of any series of Outstanding Securities with conversion rights;
(2) 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
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(3) the Company or the Guarantor, as the case may be, has delivered to the Trustee an
Officer’s 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 amalgamation of the Company or the Guarantor, as the case may be,
with or merger of the Company or the Guarantor, as the case may be, into, any other Person or any
conveyance, transfer or lease of the properties and assets of the Company or the Guarantor, as the
case may be, as, or substantially as, an entirety in accordance with Section 8.1, the successor or
resulting Person formed by or resulting upon such consolidation or amalgamation or into which the
Company or the Guarantor, as the case may be, is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every right and power of,
the Company or the Guarantor, as the case may be, under this Indenture with the same effect as if
such successor Person had been named as the Company or the Guarantor, as the case may be, herein,
and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities and may liquidate and dissolve.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.1.
Supplemental Indentures Without Consent of Holders
.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, the
Guarantor and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) 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 in the Securities; or
(2) to evidence the succession of another Person to the Guarantor and the assumption by
any such successor of the Guarantee of the Guarantor herein and, to the extent applicable,
endorsed upon any Securities; or
(3) to add to the covenants of the Company and the Guarantor such further covenants,
restrictions, conditions or provisions as the Company and the Guarantor 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 fewer than
all series of Securities, stating that such covenants are expressly being included solely
for the benefit of such series) or to surrender any right or power herein conferred upon the
Company or the Guarantor and 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; provided, that in respect of any such additional covenant,
restriction, condition or provision such 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) or may
provide for an immediate enforcement upon such an Event of Default or 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
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(4) to add any additional Defaults or Events of Default in respect of all or any series
of Securities; or
(5) 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
(6) 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 series created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(7) to secure the Securities of any series pursuant to the requirements of Section 10.5
or otherwise; or
(8) to establish the form or terms of Securities of any series as permitted by Sections
2.1 and 3.1, including to reopen any series of any Securities as permitted under Section
3.1; or
(9) 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
(10) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, to comply with any applicable mandatory
provision of law or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not adversely affect the interests of the Holders
of Securities of any series in any material respect; or
(11) 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.
The Trustee is hereby authorized to join with the Company and the Guarantor in the execution
of any such supplemental indenture, to make any further appropriate agreements and stipulations
which 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
supplemental indenture which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.
Section 9.2.
Supplemental Indentures with Consent of Holders
.
With the consent of the Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of all series affected by such supplemental indenture, by Act of said
Holders
delivered to the Company, the Guarantor and the Trustee, the Company, when authorized by a Board
Resolution, the Guarantor and the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of modifying in any manner the rights of the Holders of
Securities of such
54
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) 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 any
Place of Payment where, or 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
(2) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders 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
(3) modify any of the provisions of this Section 9.2, Section 5.13 or Section 10.8,
except to increase any such percentage 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, provided, however, that this clause (3) shall not be deemed to
require the consent of any Holder with respect to changes in the references to “the Trustee”
and concomitant changes in this Section, or the deletion of this proviso, in accordance with
the requirements of Sections 6.11(b) and 9.1(9).
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which 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.
It shall not be necessary for any Act of Holders under this Section 9.2 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 9.3.
Execution of Supplemental Indentures
.
In executing, or accepting the additional trusts created by, any 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 supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.
Section 9.4.
Effect of Supplemental Indentures
.
Upon the execution of any supplemental indenture under this Article Nine, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
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Section 9.5.
Conformity with Trust Indenture Act
.
Every 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 Supplemental Indentures
.
Securities of any series authenticated and delivered after the execution of any 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 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 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 an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be 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 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 301, the Company hereby initially designates as the Place of Payment for each series of
Securities The City and State of New York, and initially appoints the Trustee at its Corporate
Trust Office as the Company’s office or agency for each such purpose in such city.
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
56
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:
(1) 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;
(2) 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
(3) 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.
The Company and, if applicable, the Guarantor 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 and any 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 a newspaper published
in the English language, customarily published on each Business Day and of general circulation in
the Borough of Manhattan, The City of New York, 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.
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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, the 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, the 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 the Guarantor, as the case may be.
Section 10.5.
Limitation on Liens
.
The Guarantor will not, nor will it permit any Subsidiary to, create, assume, incur or suffer
to exist any Lien upon any property, whether owned or leased on the date of this Indenture or
thereafter acquired, to secure any Debt of the Company or any other Person (other than the
Securities issued hereunder), without in any such case making effective provision whereby all of
the Securities Outstanding hereunder shall be secured equally and ratably with, or prior to, such
Debt so long as such Debt shall be so secured. This restriction shall not apply to:
(1) Liens (i) existing on the date any Securities are issued under this Indenture or
(ii) provided for under the terms of agreements existing on such date securing indebtedness
existing on such date;
(2) Liens on current assets to secure current liabilities;
(3) Liens on property acquired, constructed, altered or improved by the Guarantor or
any Subsidiary of the Guarantor after the date of this Indenture which are created or
assumed contemporaneously with, or within one year after, such acquisition (or in the case
of property constructed, altered or improved, after the completion and commencement of
commercial operation of such property, whichever is later) to secure or provide for the
payment of any part of the purchase price of such property or the cost of such construction,
alteration or improvement, it being understood that if a commitment for such a financing is
obtained prior to or within such one year period, the applicable Lien shall be deemed to be
included in this clause (3) whether or not such Lien is created within such one year period;
provided that in the case of any such construction, alteration or improvement the Lien shall
not apply to any property theretofore owned by the Guarantor or any Subsidiary of the
Guarantor, other than (i) the property so altered or improved and (i) any theretofore
unimproved real property on which the property so constructed or altered, or the
improvement, is located;
(4) Liens on any property existing at the time of acquisition thereof (including Liens
on any property acquired from or held by a Person which is consolidated or amalgamated with
or merged with or into the Guarantor or a Subsidiary of the Guarantor) and Liens outstanding
at the time any Person becomes a Subsidiary of the Guarantor that are not incurred in
connection with such entity becoming a Subsidiary of the Guarantor;
(5) Liens in favor of the Guarantor or any Subsidiary of the Guarantor;
(6) Liens on any property (i) in favor of the United States, any State thereof, any
foreign country or any department, agency, instrumentality or political subdivision of any
such
jurisdiction, to secure partial, progress, advance or other payments pursuant to any
contract or statute, (ii) securing any indebtedness incurred for the purpose of financing
all or any part of the purchase price or the cost of constructing, installing or improving
the property subject to such
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Liens, including, without limitation, Liens to secure Debt of
the pollution control or industrial revenue bond type, or (iii) securing indebtedness issued
or guaranteed by the United States, any State thereof, any foreign country, or any
department, agency, instrumentality or political subdivision of any such jurisdiction;
(7) Permitted Liens; and
(8) any extension, renewal, or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien referred to in any of the foregoing clauses
(1), (2), (3), (4), (5), and (7); provided, however, that the principal amount of Debt
secured thereby shall not exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement, together with the reasonable costs related to such
extension, renewal or replacement, and that such extension, renewal or replacement shall be
limited to all or a part of the property which secured the Lien so extended, renewed or
replaced (plus improvements on such property).
Notwithstanding the foregoing provisions of this Section 10.5, the Guarantor and any Subsidiary of
the Guarantor may issue, assume or guarantee secured Debt, which would otherwise be subject to the
foregoing restrictions, in an aggregate amount which, together with all other such secured Debt and
together with the aggregate amount of Attributable Indebtedness of the Guarantor and its
Subsidiaries deemed to be outstanding in respect of all Sale-Leaseback Transactions (excluding any
such Sale-Leaseback Transactions the proceeds of which have been applied in accordance with clauses
(a), (b) or (c) of Section 10.6) does not exceed 15% of Consolidated Net Worth, as shown on a
consolidated balance sheet, as of a date not more than 150 days prior to the proposed transaction,
prepared by the Guarantor in accordance with generally accepted accounting principles.
Section 10.6.
Restriction of Sale-Leaseback Transactions
.
The Guarantor shall not, and shall not permit any Subsidiary of the Guarantor to, enter into
any Sale-Leaseback Transaction with any Person (other than the Guarantor or a Subsidiary) unless:
(a) at the time of entering into such Sale-Leaseback Transaction, the Guarantor
or such Subsidiary would be entitled to incur Debt, in a principal amount equal to
the Attributable Indebtedness with respect to such Sale-Leaseback Transaction,
secured by a Lien on the property subject to such Sale-Leaseback Transaction,
pursuant to Section 10.5 without equally and ratably securing the Securities
pursuant to such Section; or
(b) after the issue date of the Securities and within a period commencing six
months prior to the consummation of such Sale-Leaseback Transaction and ending six
months after the consummation thereof, the Guarantor or such Subsidiary shall have
expended for property used or to be used in the ordinary course of business of the
Guarantor or such Subsidiary (including amounts expended for additions, expansions,
alterations, repairs and improvements thereto) an amount equal to all or a portion
of the net proceeds of such Sale-Leaseback Transaction, and the Guarantor or such
Subsidiary shall have elected to designate such amount as a credit against such
Sale-Leaseback Transaction (with any such amount not being so designated to be
applied as set forth in clause (c) below; or
(c) during the 12-month period after the effective date of such Sale-Leaseback
Transaction, the Company shall have applied to the voluntary defeasance or
retirement of Securities or any pari passu indebtedness of the Company an amount
equal
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to the net proceeds of the sale or transfer of the real or personal property
leased in such Sale-Leaseback Transaction, which amount shall not be less than the
fair value of such property at the time of entering into such Sale-Leaseback
Transaction (adjusted to reflect the remaining term of the lease and any amount
expended by the Company as set forth in clause (b) above), less an amount equal to
the principal amount of Securities and pari passu indebtedness voluntarily defeased
or retired by the Company within such 12-month period and not designated as a credit
against any other Sale-Leaseback Transaction entered into by the Guarantor or any
Subsidiary of the Guarantor during such period.
Section 10.7.
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, the
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, the Guarantor as to his or her
knowledge of the Company’s or the Guarantor’s, 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 the Indenture and, if the Company or the 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.
Section 10.8.
Waiver of Certain Covenants
.
The Company and the Guarantor may omit in any particular instance to comply with any term,
provision or condition set forth in Section 10.4, 10.5 or 10.6 with respect to the Securities of
any series if before the time for such compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of all affected series (voting as one class) shall,
by Act of such Holders, either waive such compliance in such instance or generally waive compliance
with such term, provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the Guarantor, as applicable, and the duties
of the Trustee in respect of any such term, provision or condition shall remain in full force and
effect.
A waiver which changes or eliminates any term, provision or condition of this Indenture which
has expressly been included solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such series with respect to such term,
provision or condition, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
Section 10.9.
Additional Amounts
.
If the Securities of a series provide for the payment of additional amounts (as provided in
Section 3.1(17)), at least 10 days prior to the first Interest Payment Date with respect to that
series of Securities and at least 10 days prior to each date of payment of principal of, premium,
if any, or interest on the Securities of that series if there has been a change with respect to the
matters set forth in the below-mentioned Officer’s Certificate, the Company shall furnish to the
Trustee and the principal Paying Agent, if other than the Trustee, an Officer’s Certificate
instructing the Trustee and such Paying Agent whether
such payment of principal of, premium, if any, or interest on the Securities of that series shall
be made to holders of the Securities of that series without withholding or deduction for or on
account of any tax, assessment or other governmental charge described in the Securities of that
series. If any such
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withholding or deduction shall be required, then such Officer’s Certificate
shall specify by country the amount, if any, required to be withheld or deducted on such payments
to such holders and shall certify the fact that additional amounts will be payable and the amounts
so payable to each holder, and the Company shall pay to the Trustee or such Paying Agent the
additional amounts required to be paid by this Section. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officer’s Certificate furnished
pursuant to this Section 10.9.
Whenever in this Indenture there is mentioned, in any context, the payment of the principal of
or any premium, interest or any other amounts on, or in respect of, any Securities of any series,
such mention shall be deemed to include mention of the payment of additional amounts provided by
the terms of such series established hereby or pursuant hereto to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to such terms, and
express mention of the payment of additional amounts (if applicable) in any provision hereof shall
not be construed as excluding the payment of additional amounts in those provisions hereof where
such express mention is not made.
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 Officer’s 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.
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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.
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:
(1) the Redemption Date,
(2) the Redemption Price, or if not then ascertainable, the manner of calculation
thereof,
(3) 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,
(4) 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,
(5) the place or places where such Securities are to be surrendered for payment of the
Redemption Price, and
(6) 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 Company’s 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.
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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 whose Stated Maturity 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.
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
63
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 Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion 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 Sections 11.6 and 11.7.
ARTICLE THIRTEEN
DEFEASANCE
Section 13.1.
Applicability of Article
.
The provisions of this Article shall be applicable to each series of Securities except as
otherwise specified as contemplated by Section 3.1 for Securities of such series.
Section 13.2.
Legal Defeasance
.
In addition to discharge of the Indenture pursuant to Section 4.1, the Company shall be deemed
to have paid and discharged the entire indebtedness on all the Securities of such a series on the
91st day after the date of the deposit referred to in clause (1) below (and the Trustee, at the
expense of the Company, shall upon a Company Request execute proper instruments acknowledging
same), and the provisions of this Indenture with respect to the Securities of such series shall no
longer be in effect, except for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of Outstanding Securities of such series to
receive, solely from the trust fund described in Section 13.4 and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest on such Securities
when such payments are due, (B) the Company’s obligations with respect to such Securities under
Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (C) the rights, powers, trusts, duties, and immunities of
the Trustee hereunder and (D) this Article Thirteen, if the conditions set forth below are
satisfied (hereinafter, “defeasance”):
(1) The Company has irrevocably deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of Section 6.9 who shall agree to comply
with the provisions of this Article Thirteen applicable to it) as trust funds in trust
for the purposes of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such series (i) cash in
an amount, or (ii) in the case of any series of Securities the payments on which may only be
made in legal coin or currency of
64
the United States, U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of any payment,
cash in an amount, or (iii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge (a) the principal of
and any premium and interest on and each installment of principal of and any premium and
interest on the Outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest, as the case may be, or on any Redemption
Date established pursuant to clause (3) below, and (b) any mandatory sinking fund or
analogous payments on the dates on which such payments are due and payable in accordance
with the terms of the Indenture and the Securities of such series;
(2) The Company has delivered to the Trustee an Opinion of Counsel based on the fact
that (a) the Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (b) since the date hereof, there has been a change in the applicable
federal income tax law, in either case to the effect that, and such opinion shall confirm
that, the holders of the Securities of such series will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and defeasance and will be
subject to federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit and defeasance had not occurred;
(3) If the Securities are to be redeemed prior to Stated Maturity (other than from
mandatory sinking fund payments or analogous payments), notice of such redemption shall have
been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee
shall have been made;
(4) No Default or Event of Default shall have occurred and be continuing on the date of
such deposit;
(5) Such defeasance shall be effected in compliance with any additional terms,
conditions or limitations which may be imposed on the Company in connection therewith
pursuant to Section 3.1; and
(6) The Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with.
For this purpose, such defeasance means that the Company, the Guarantor (if applicable) and any
other obligor upon the Securities of such series shall be deemed to have paid and discharged the
entire debt represented by the Securities of such series, which shall thereafter be deemed to be
“Outstanding” only for the purposes of Section 13.4 and the rights and obligations referred to in
clauses (A) through (D), inclusive, of the first paragraph of this Section 13.2, and to have
satisfied all its other obligations under the Securities of such series and this Indenture insofar
as the Securities of such series are concerned.
Notwithstanding the foregoing, if an Event of Default specified in Subsection 5.1(4) or
5.1(5), or an event which with lapse of time would become such an Event of Default, shall occur
during the period ending on the 91st day after the date of the deposit referred to in clause (1)
or, if longer, ending on the day
following the expiration of the longest preference period applicable to the Company in respect of
such deposit, then, effective upon such occurrence, the defeasance pursuant to this Section 13.2
and such deposit shall be rescinded and annulled, and the Company, the Guarantor (if applicable),
the Trustee and the Holders of the Securities of such series shall be restored to their former
positions.
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Section 13.3.
Covenant Defeasance
.
The Company, the Guarantor (if applicable) and any other obligor, if any, shall be released on
the 91st day after the date of the deposit referred to in clause (1) below from its obligations
under Sections 7.4, 8.1, 10.4, 10.5 and 10.6 with respect to the Securities of any series on and
after the date the conditions set forth below are satisfied (hereinafter, “covenant defeasance”),
and the Securities of such series shall thereafter be deemed to be not “Outstanding” for the
purposes of any request, demand, authorization, direction, notice, waiver, consent or declaration
or other action or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed Outstanding for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Securities of such series, the
Company may omit to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section, whether directly or indirectly by reason of any reference
elsewhere herein to such Section or by reason of any reference in such Section to any other
provision herein or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 5.1, but, except as specified above, the remainder of
this Indenture and the Securities of such series shall be unaffected thereby. The following shall
be the conditions to application of this Section 13.3:
(1) The Company has irrevocably deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of Section 6.9 who shall agree to comply
with the provisions of this Article Thirteen applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such series (i) cash in
an amount, or (ii) in the case of any series of Securities the payments on which may only be
made in legal coin or currency of the United States, U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of any payment,
cash in an amount, or (iii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accounts expressed in a written
certification thereof delivered to the Trustee, to pay and discharge (a) the principal of
and any premium and interest on and each installment of principal of and any premium and
interest on the Outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest, as the case may be, or on any Redemption
Date established pursuant to clause (2) below, and (b) any mandatory sinking fund payments
on the date on which such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series;
(2) If the Securities are to be redeemed prior to Stated Maturity (other than from
mandatory sinking fund payments or analogous payments), notice of such redemption shall have
been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee
shall have been made;
(3) No Event of Default, or an event which with notice or lapse of time or both would
become such an Event of Default, shall have occurred and be continuing on the date of such
deposit;
(4) The Company shall have delivered to the Trustee an Opinion of Counsel which shall
confirm that the holders of the Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and covenant defeasance and
will be subject to federal income tax on the same amount and the same manner and at the same
times, as would have been the case if such deposit and covenant defeasance had not occurred;
66
(5) Such defeasance shall be effected in compliance with any additional terms,
conditions or limitations which may be imposed on the Company in connection therewith
pursuant to Section 3.1; and
(6) The Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel stating that all conditions precedent provided for relating to the
covenant defeasance contemplated by this provision have been complied with.
Notwithstanding the foregoing, if an Event of Default specified in Subsection 5.1(4) or 5.1(5), or
an event which with lapse of time would become such an Event of Default, shall occur during the
period ending on the 91st day after the date of the deposit referred to in clause (1) or, if
longer, ending on the day following the expiration of the longest preference period applicable to
the Company in respect of such deposit, then, effective upon such occurrence, the defeasance
pursuant to this Section 13.3 and such deposit shall be rescinded and annulled, and the Company,
the Guarantor (if applicable), the Trustee and the Holders of the Securities of such series shall
be restored to their former positions.
Section 13.4.
Deposited Money and U.S. Government Obligations to be Held in Trust
.
Subject to the provisions of the last paragraph of Section 10.3, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee — collectively, for purposes of this Section 13.4, the “Trustee”) pursuant to Section 13.2
or 13.3 in respect of the Outstanding Securities of such series shall 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 its own
Paying Agent), to the Holders of such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.2 or 13.3
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 of such series.
Section 13.5.
Repayment to Company; Qualifying Trustee
.
The Trustee and any Paying Agent promptly shall pay or return to the Company upon Company
Request any money and U.S. Government Obligations held by them at any time that, in the opinion of
a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the same certification given at the time of the
deposit pursuant to Section 13.2 or 13.3, as applicable), are not required for the payment of the
principal of and any interest on the Securities of any series for which money or U.S. Government
Obligations have been deposited pursuant to Section 13.2 or 13.3.
The provisions of the last paragraph of Section 10.3 shall apply to any money held by the
Trustee or any Paying Agent under this Article Thirteen that remains unclaimed for one year after
the Maturity of
any series of Securities for which money or U.S. Government obligations have been deposited
pursuant to Section 13.2 or 13.3.
Any trustee appointed pursuant to Section 13.2 or 13.3 for the purpose of holding trust funds
deposited pursuant to that Section shall be appointed under an agreement in form acceptable to the
Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the
Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein
to the related
67
defeasance or covenant defeasance have been complied with. In no event shall the
Trustee be liable for any acts or omissions of said trustee.
ARTICLE FOURTEEN
GUARANTEE OF SECURITIES
Section 14.1.
Unconditional Guarantee
.
For value received, the Guarantor hereby fully, irrevocably, unconditionally and absolutely
guarantees to the Holders of Securities of each series to which this Article Fourteen has been made
applicable as provided in Section 3.1(22) and to the Trustee the due and punctual payment of the
principal of, and premium, if any, and interest on such Securities, and all other amounts due and
payable under this Indenture and such Securities by the Company to the Trustee or such Holders
(including, without limitation, all costs and expenses (including reasonable legal fees and
disbursements) incurred by the Trustee or such Holders in connection with the enforcement of this
Indenture and the Guarantee) (collectively, the “Indenture Obligations”), when and as such
principal, premium, if any, interest, if any, and other amounts shall become due and payable,
whether at the Stated Maturity, upon redemption or by declaration of acceleration or otherwise,
according to the terms of such Securities and this Indenture. The guarantees by the Guarantor set
forth in this Article Fourteen are referred to herein as the “Guarantee.” Without limiting the
generality of the foregoing, the Guarantor’s liability shall extend to all amounts that constitute
part of the Indenture Obligations and would be owed by the Company to the Trustee or such Holders
under this Indenture and such Securities but for the fact that they are unenforceable, reduced,
limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization
or similar proceeding involving the Company.
Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever
reason, the Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay
the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever
(whether for taxes, withholding or otherwise). The Guarantee hereunder is intended to be a
general, unsecured, senior obligation of the Guarantor and will rank
pari passu
in right of payment
with all unsecured indebtedness of the Guarantor that is not, by its terms, expressly subordinated
in right of payment to the Guarantee of the Guarantor. The Guarantor hereby agrees that, to the
fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable,
unconditional and absolute, irrespective of the validity, regularity or enforceability of such
Securities, the Guarantee or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any such Holder with respect to any provisions hereof or thereof, the recovery
of any judgment against the Company, any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of the Guarantor. The
Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium,
if any, or interest on such Securities, or any other amounts payable under this Indenture and such
Securities by the Company to the Trustee or the Holders thereof, whether at the Stated Maturity,
upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted
by the Trustee on behalf of such Holders or, subject to Section 5.7 hereof, by such Holders, on the
terms and conditions set forth in this Indenture, directly against the Guarantor to enforce the
Guarantee without first proceeding against the Company.
To the fullest extent permitted by applicable law, the obligations of the Guarantor under this
Article Fourteen shall be as aforesaid full, irrevocable, unconditional and absolute and shall not
be impaired, modified, discharged, released or limited by any occurrence or condition whatsoever,
including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension,
indulgence or modification of, or any change in, any of the obligations and liabilities of the
Company or the Guarantor contained in any of such Securities or this Indenture, (ii) any
impairment, modification, release or
68
limitation of the liability of the Company, the Guarantor or
any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the
operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other
statute or from the decision of any court, (iii) the assertion or exercise by the Trustee or any
such Holder of any rights or remedies under any of such Securities or this Indenture or their delay
in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the
purported assignment of any property as security for any of such Securities, including all or any
part of the rights of the Company or the Guarantor under this Indenture, (v) the extension of the
time for payment by the Company or the Guarantor of any payments or other sums or any part thereof
owing or payable under any of the terms and provisions of any of such Securities or this Indenture
or of the time for performance by the Company or the Guarantor of any other obligations under or
arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi)
the modification or amendment (whether material or otherwise) of any duty, agreement or obligation
of the Company or the Guarantor set forth in this Indenture, (vii) the voluntary or involuntary
liquidation, dissolution, sale or other disposition of all or substantially all of the assets,
marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment, rehabilitation or
relief of, or other similar proceeding affecting, the Company or the Guarantor or any of their
respective assets, or the disaffirmance of any of such Securities, the Guarantee or this Indenture
in any such proceeding, (viii) the release or discharge of the Company or the Guarantor from the
performance or observance of any agreement, covenant, term or condition contained in any of such
instruments by operation of law, (ix) the unenforceability of any of such Securities, the Guarantee
or this Indenture, (x) any change in the name, business, capital structure, corporate existence, or
ownership of the Company or the Guarantor, or (xi) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable discharge of, a surety or the Guarantor.
To the fullest extent permitted by applicable law, the Guarantor hereby (i) waives diligence,
presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of
the merger, amalgamation, insolvency, winding up or bankruptcy of the Company or the Guarantor, and
all demands and notices whatsoever, (ii) acknowledges that any agreement, instrument or document
evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall
extend to each holder of any agreement, instrument or document evidencing the Guarantee without
notice to them and (iii) covenants that its Guarantee will not be discharged except by complete
performance of the Guarantee. To the fullest extent permitted by applicable law, the Guarantor
further agrees that if at any time all or any part of any payment theretofore applied by any Person
to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without
limitation, the insolvency, bankruptcy or reorganization of the Guarantor, such Guarantee shall, to
the extent that such payment is or must be rescinded or returned, be deemed to have continued in
existence notwithstanding such application, and the Guarantee shall continue to be effective or be
reinstated, as the case may be, as though such application had not been made.
The Guarantor shall be subrogated to all rights of the Holders and the Trustee against the
Company in respect of any amounts paid by the Guarantor pursuant to the provisions of this
Indenture; provided, however, that the Guarantor shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation with respect to any of such
Securities until all of such Securities and the Guarantee shall have been indefeasibly paid in full
or discharged.
A director, officer, employee or shareholder, as such, of the Guarantor shall not have any
liability for any obligations of the Guarantor under this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation.
69
To the fullest extent permitted by applicable law, no failure to exercise and no delay in
exercising, on the part of the Trustee or the Holders, any right, power, privilege or remedy under
this Article Fourteen and the Guarantee shall operate as a waiver thereof, nor shall any single or
partial exercise of any rights, power, privilege or remedy preclude any other or further exercise
thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and
remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in
law or equity. Nothing contained in this Article Fourteen shall limit the right of the Trustee or
the Holders to take any action to accelerate the maturity of such Securities pursuant to Article
Five or to pursue any rights or remedies hereunder or under applicable law.
Section 14.2.
Execution and Delivery of Notation of Guarantee
To further evidence the Guarantee, the Guarantor hereby agrees that a notation of such
Guarantee may be endorsed on each Security of a series to which this Article Fourteen has been made
applicable authenticated and delivered by the Trustee and executed by either manual or facsimile
signature of an officer of the Guarantor.
The Guarantor hereby agrees that its Guarantee of Securities of a series to which this Article
Fourteen has been made applicable shall remain in full force and effect notwithstanding any failure
to endorse on any such Security a notation relating to the Guarantee thereof.
If an officer of the Guarantor whose signature is on this Indenture or a Security no longer
holds that office at the time the Trustee authenticates such Security or at any time thereafter,
the Guarantor’s Guarantee of such Security shall be valid nevertheless.
The delivery by the Trustee of any Security of a series to which this Article Fourteen has
been made applicable, after the authentication thereof under this Indenture, shall constitute due
delivery of the Guarantee set forth in this Indenture on behalf of the Guarantor.
Section 14.3.
Reports by Guarantor
.
In addition to the certificates delivered to the Trustee pursuant to Section 10.7, the
Guarantor shall file with the Trustee and the Commission, and transmit to Holders of Outstanding
Securities of each series to which this Article Fourteen has been made applicable, such
information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant thereto; provided that
any such information, documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.
The receipt by the Trustee of any reports, documents or information pursuant to this Section
14.3 shall not constitute notice or constructive notice of any information contained in such
reports or documents or determinable from information contained in such reports or documents.
* * *
70
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.
[SIGNATURE PAGE FOLLOWS]
71
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and
their respective corporate seals to be hereunto affixed and attested, all as of the day and year
first above written.
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WEATHERFORD INTERNATIONAL, INC.,
as Issuer
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By:
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/s/ BURT M. MARTIN
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Name:
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Burt M. Martin
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Title:
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Senior Vice President
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The COMMON SEAL of
WEATHERFORD INTERNATIONAL LTD.,
as Guarantor
was hereunto affixed in the presence of
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By:
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/s/ BURT M. MARTIN
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Name:
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Burt M. Martin
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Title:
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Senior Vice President
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
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By:
Name:
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/s/ [Signature illegible]
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Title:
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By:
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/s/ [Signature illegible]
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Name:
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Title:
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72
Exhibit 4.2
WEATHERFORD INTERNATIONAL, INC.
as Issuer
WEATHERFORD INTERNATIONAL LTD.
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of June 18, 2007
To
INDENTURE
Dated as of June 18, 2007
5.95% SENIOR
NOTES DUE
2012
6.35% SENIOR NOTES DUE 2017
6.80% SENIOR NOTES DUE 2037
TABLE OF CONTENTS
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Page
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ARTICLE 1 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 2 The Series of Securities
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2
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SECTION 2.01. The Form and Title of the Securities
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2
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SECTION 2.02. Amount
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2
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SECTION 2.03. Stated Maturity and Denominations
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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. Global Securities; Restrictions on Transfer and Exchange
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3
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SECTION 2.08. Transfer and Exchange
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3
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SECTION 2.09. Legends
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4
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SECTION 2.10. Unconditional Guarantee
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5
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SECTION 2.11. Registration Rights Agreement
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6
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ARTICLE 3 Other Amendments to Indenture
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6
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SECTION 3.01. Amendments to Indenture
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6
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ARTICLE 4 Miscellaneous
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9
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SECTION 4.01. Certain Trustee Matters
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9
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SECTION 4.02. Continued Effect
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9
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SECTION 4.03. Governing Law
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9
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SECTION 4.04. Counterparts
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10
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EXHIBIT
Exhibit A: Form of Note
First Supplemental Indenture
FIRST SUPPLEMENTAL INDENTURE dated as of June 18, 2007 (this “
First Supplemental Indenture
”),
among
Weatherford International, Inc.
, a corporation duly organized and existing under the
laws of the State of Delaware (the “
Company
”),
Weatherford International Ltd.
, a Bermuda
exempted company (the “
Guarantor
”), and
Deutsche Bank Trust Company Americas
, a New York
banking corporation, as trustee under the Indenture referred to below (in such capacity, the
“
Trustee
”).
RECITALS OF THE COMPANY
WHEREAS, the Company, the Guarantor and the Trustee are parties to an Indenture dated as of
June 18, 2007 (the “
Original Indenture
”) (the Original Indenture, as supplemented from time to
time, including without limitation pursuant to this First 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 in accordance with the provisions of the Original Indenture, and the terms of such
series may be established by a supplemental indenture executed by the Company, the Guarantor and by
the Trustee; and
WHEREAS, the Company and the Guarantor propose to create under the Indenture three new series
of Securities, which will be guaranteed by the Guarantor pursuant to its Guarantees as set forth in
Article Fourteen of the Original Indenture (as made applicable to the Notes, defined herein,
pursuant to this First Supplemental Indenture); and
WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee as provided in the Original Indenture and this First
Supplemental Indenture, the valid and binding obligations of the Company, to make the Guarantees of
such Notes by the Guarantor the valid and binding obligation of the Guarantor, and to make this
First Supplemental Indenture a valid and binding agreement in accordance with the Original
Indenture, have been done or performed; and
WHEREAS, the Company and the Guarantor have entered into a Registration Rights Agreement dated
as of June 18, 2007 (the “
Registration Rights Agreement
”) relating to the Notes and the Guarantees
thereof by the Guarantor, among the Company, the Guarantor and the initial purchasers named therein
(the “
Initial Purchasers
”);
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 follows:
ARTICLE 1
Relation to Indenture; Definitions
SECTION 1.01.
Relation to Indenture.
With respect to the Notes and the Guarantees thereof by the Guarantor, this First Supplemental
Indenture constitutes an integral part of the Indenture.
SECTION 1.02.
Definitions.
For all purposes of this First 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.
All references in this First Supplemental Indenture to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this First Supplemental Indenture;
and the terms “
herein
”, “
hereof
”, “
hereunder
” and any other word of similar import refers to this
First Supplemental Indenture.
First Supplemental Indenture
ARTICLE 2
The Series of Securities
SECTION 2.01.
The Form and Title of the Securities.
There is hereby established three new series of Securities to be issued under the Indenture
and to be designated as the Company’s 5.95% Senior Notes due 2012 (the “
2012 Notes
”), the Company’s
6.35% Senior Notes due 2017 (the “
2017 Notes
”) and the Company’s 6.80% Senior Notes due 2037 (the
“
2037 Notes
” and collectively with the 2012 Notes and the 2017 Notes, 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 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 First Supplemental Indenture (including the form of Note set
forth as
Exhibit A
hereto (the terms of which are incorporated in and made a part of this
First Supplemental Indenture for all intents and purposes)).
SECTION 2.02.
Amount.
The aggregate principal amount of the Notes which may be authenticated and delivered pursuant
hereto is unlimited. The Trustee shall initially authenticate and deliver Notes for original issue
in initial aggregate principal amounts of up to $600,000,000 of the 2012 Notes, up to $600,000,000
of the 2017 Notes and up to $300,000,000 of the 2037 Notes upon delivery to the Trustee of a
Company Order for the authentication and delivery of such Notes. The Company may, from time to
time, without notice to or the consent of the Holders of the Notes, increase the principal amount
of the Notes under the Indenture and issue such increased principal amount (or any portion
thereof), in which case any additional Notes so issued will have the same form and terms (other
than the date of issuance and, under certain circumstances, the date from which interest thereon
will begin to accrue), and will carry the same right to receive accrued and unpaid interest, as the
Notes previously issued, and such additional Notes will form a single series with the Notes
previously issued.
SECTION 2.03.
Stated Maturity and Denominations.
The Stated Maturity of the 2012 Notes shall be June 15, 2012, of the 2017 Notes shall be June
15, 2017 and of the 2037 Notes shall be June 15, 2037. The Notes are issuable only in registered
form without coupons in denominations of U.S. $2,000 and any integral multiple of $1,000 in excess
thereof.
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 applicable Note set forth as
Exhibits 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
Borough of Manhattan, The City of New York, where Notes may be presented for payment.
SECTION 2.06.
Optional Redemption.
At its option, the Company may redeem any series of Notes, in whole or in part, in principal
amounts of $1,000 or any integral multiple thereof, at any time or from time to time, at the
applicable redemption price
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2
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First Supplemental Indenture
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determined as set forth in the form of Note attached hereto as
Exhibit A
, in
accordance with the terms set forth in the Note and in accordance with Article Eleven of the
Original Indenture.
SECTION 2.07.
Global Securities; Restrictions on Transfer and Exchange.
The Notes shall initially be issued in the form of one or more Global Securities. Such Global
Securities (i) shall bear the legends applicable to Global Securities set forth in the Original
Indenture (including without limitation in Section 2.4 thereof), (ii) 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 First Supplemental Indenture and (iii) shall
otherwise be subject to the applicable provisions of the Indenture.
(1)
Rule 144A Global Notes
. The Notes offered and sold to “qualified institutional
buyers” (“
QIBs
” or individually, a “
QIB
”) (which term shall have the meaning assigned to it
in Rule 144A under the Securities Act of 1933, as amended (the “
Securities Act
”)) in the
United States of America in reliance on Rule 144A will initially be issued as permanent
Global Securities (the “
Rule 144A Global Notes
”), without interest coupons, substantially in
the form of
Exhibit A
hereto. The Rule 144A Global Notes will be duly executed by
the Company, authenticated by the Trustee, deposited with the Trustee (as custodian for The
Depository Trust Company (“
DTC
”), which shall act as Depository with respect to the Notes
constituting Global Securities) and registered in the name of DTC or a nominee thereof.
(2)
Regulation S Global Notes
. Notes offered and sold in Offshore Transactions to
Non-U.S. Persons (each such term to have the meaning assigned to it in Regulation S under
the Securities Act (“
Regulation S
”)) in reliance on Regulation S will initially be issued as
permanent Global Securities (the “
Regulation S Global Notes
”), without interest coupons,
substantially in the form of
Exhibit A
hereto. The Regulation S Global Notes will
be duly executed by the Company, authenticated by the Trustee, deposited with the Trustee
(as custodian for DTC) and registered in the name of DTC or a nominee thereof.
SECTION 2.08.
Transfer and Exchange.
(1)
Transfer and Exchange of Notes in Certificated Form
. In addition to the
requirements set forth in Section 3.5 of the Original Indenture, the Notes in certificated
form that are Registrable Securities under the Registration Rights Agreement (the “
Transfer
Restricted Securities
”) presented or surrendered for registration of transfer or exchange
pursuant to Section 3.5 of the Original Indenture shall be accompanied by the following
additional information and documents, as applicable, upon which the Security Registrar may
conclusively rely:
(a) if such Transfer Restricted Securities are being delivered to the Security
Registrar by a Holder for registration in the name of such Holder, without transfer,
a certification from such Holder to that effect (in substantially the form of the
Exchange/Transfer Certificate included in
Exhibit A
hereto); or
(b) if such Transfer Restricted Securities are being transferred (1) to a QIB
in accordance with Rule 144A under the Securities Act or (2) pursuant to an
exemption from registration in accordance with Rule 144 under the Securities Act
(and based upon an opinion of counsel if the Company or the Trustee so requests) or
(3) pursuant to an effective registration statement under the Securities Act, a
certification to that effect from such holder (in substantially the form of the
Exchange/Transfer Certificate included in
Exhibit A
hereto); or
(c) if such Transfer Restricted Securities are being transferred pursuant to an
exemption from registration in accordance with Rule 904 of Regulation S under the
Securities Act, certifications to that effect from such Holder (in substantially the
form of both (i) the Exchange/Transfer Certificate included in
Exhibit A
hereto and (ii) the Regulation S Certificate included in
Exhibit A
hereto)
and an opinion of counsel to that effect if the Company or the Trustee so requests;
or
(d) if such Transfer Restricted Securities are being transferred in reliance on
and in compliance with another exemption from the registration requirements of the
Securities Act, a certification to that effect from such Holder (in substantially
the form of the Exchange/Transfer
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3
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First Supplemental Indenture
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Certificate included in
Exhibit A
hereto) and an opinion of counsel to
that effect if the Company or the Trustee so requests.
(2)
Transfer and Exchange of Global Notes
. The transfer and exchange of the Global
Notes (as defined below) or beneficial interests therein shall be effected through the
Depository, upon the terms and subject to the conditions provided in Section 3.5 of the
Original Indenture and Article 2 of this First Supplemental Indenture (including the
restrictions on transfer set forth therein and herein) and the rules and procedures of the
Depository therefor, which shall include restrictions on transfer comparable to those set
forth therein and herein to the extent required by the Securities Act.
SECTION 2.09.
Legends.
(1) (i) Except as permitted by the following paragraphs (2) and (3) immediately below,
each certificate evidencing the Rule 144A Global Notes or Regulation S Global Notes (each, a
“
Global Note
”) or any other Notes in certificated form (and all Notes issued in exchange
therefor or substitution thereof other than the Exchange Notes (as defined below)) shall
bear a legend in substantially the following form:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II)
TO AN INSTITUTIONAL “ACCREDITED INVESTOR” THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES
ACT, (IV) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (V) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES
(I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. IN ANY CASE, THE HOLDER HEREOF
WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH
REGARD TO THIS SECURITY EXCEPT AS PERMITTED UNDER THE SECURITIES ACT.
(ii) Except as permitted by the following paragraphs (2) and (3) immediately below, each
certificate evidencing the Regulation S Global Notes (and all Notes issued in exchange
therefor or substitution thereof other than the Exchange Notes (as defined below)) shall
bear a legend in substantially the following form:
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THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE
HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.
(2) Upon any sale or transfer of a Transfer Restricted Security (including any Transfer
Restricted Security represented by a Global Note) pursuant to Rule 144 under the Securities
Act or an effective registration statement under the Securities Act, which effectiveness
shall be certified by the Company to the Trustee and Security Registrar upon which each may
conclusively rely:
(a) in the case of any Transfer Restricted Security in definitive form, the
Security Registrar shall permit the Holder thereof to exchange such Transfer
Restricted Security for a Note in definitive form that does not bear the legends set
forth in (1) above and rescind any restriction on the transfer of such Transfer
Restricted Security; and
(b) in the case of any Transfer Restricted Security represented by a Global
Note, such Transfer Restricted Security shall not be required to bear the legends
set forth in (1) above if all other interests in such Global Note have been or are
concurrently being sold or transferred pursuant to Rule 144 under the Securities Act
or pursuant to an effective registration statement under the Securities Act, but
such Transfer Restricted Security shall continue to be subject to the provisions of
Section 3.5 of the Original Indenture and this Section 2.09 of this First
Supplemental Indenture.
(3) Notwithstanding the foregoing, upon consummation of the Exchange Offer (as defined
in the Registration Rights Agreement), the Company shall issue and, upon receipt of a
Company Order in accordance with Section 3.3 of the Original Indenture, the Trustee shall
authenticate Notes (“
Exchange Notes
”) in exchange for Notes accepted for exchange in the
Exchange Offer, which Exchange Notes shall be in the form of Note attached hereto as
Exhibit A
but shall not bear the legends set forth in (1) above, and the Security
Registrar shall rescind any restriction on the transfer of the Exchange Notes, in each case
unless the Holder of Notes being transferred in the Exchange Offer is either (A) a
broker-dealer tendering Notes acquired directly from the Company, (B) a Person participating
in the Exchange Offer for purposes of distributing the Exchange Notes or (C) a Person who is
an “affiliate” (as defined in Rule 144 under the Securities Act) of the Company. The
Company shall identify to the Trustee such Holders of the Notes in a written certification
signed by an Officer of the Company and, absent receipt of a certificate from the Company to
such effect, the Trustee shall assume that there are no such Holders.
SECTION 2.10.
Unconditional Guarantee.
Article Fourteen of the Original Indenture (as amended and supplemented by this First
Supplemental Indenture) shall be applicable to the Notes, and accordingly, as more fully set forth
in such Article Fourteen, the Guarantor fully, irrevocably, unconditionally and absolutely
guarantees to the Holders of Notes and to the Trustee the due and punctual payment of the principal
of, and premium, if any, and interest on the Notes, and all other Indenture Obligations, when and
as the same shall become due and payable, whether at the Stated Maturity, upon redemption or by
declaration of acceleration or otherwise.
To further evidence the Guarantees of the Notes, the Guarantor hereby agrees that a notation
of such Guarantees in substantially in the form attached as
Exhibit B
hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by the Indenture, shall be endorsed on each Note authenticated and delivered by the
Trustee and executed by either manual or facsimile signature of an officer of the Guarantor. The
Guarantor hereby agrees that its Guarantees of the Notes shall remain in full force and effect
notwithstanding any failure to endorse on any such Notes a notation relating to the Guarantees
thereof.
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SECTION 2.11.
Registration Rights Agreement.
Holders of the Notes shall have the benefit of the Company’s registration obligations with
respect to the Notes, and such Holders shall also have certain obligations to indemnify the Company
under certain circumstances, all as more fully set forth in the Registration Rights Agreement.
ARTICLE 3
Other Amendments to Indenture
SECTION 3.01.
Amendments to Indenture
The amendments contained in this Section 3.01 shall apply to the Notes only and not to any
other series of Securities issued under the Indenture. Such amendments shall be effective only for
so long as there remain outstanding any Notes.
(a) Section 7.4 of the Original Indenture is hereby amended, subject to the preamble of this
Section 3.01 and with respect to the Notes only, by (i) deleting the word “and” at the end of
clause (b) of such Section, (ii) deleting the period at the end of clause (c) of such Section and
inserting the word “and” at the end of such clause, and (iii) inserting the following text
immediately after such clause (c):
(d) for so long as the Notes are not freely transferable under the Securities
Act, furnish to the Holders of Notes and to prospective investors in the Notes, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act of 1933, as amended.
(b) The Original Indenture is hereby amended, subject to the preamble of this Section 3.01 and
with respect to the Notes only, by adding the following as a new Section 10.10 thereto:
Section 10.10 Repurchase at the Option of Holders
(a) Upon the occurrence of a Change of Control Triggering Event, Holders of
Securities will have the right to require the Company to make an offer (the “Change
of Control Offer”) to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of their Securities at a purchase price in
cash equal to 101% of the aggregate principal amount of Securities repurchased plus
accrued and unpaid interest, if any, on the Securities repurchased, to the date of
purchase (the “Change of Control Payment”). Within 30 days following any Change of
Control Triggering Event, the Company will mail a notice to each Holder of
Securities describing the transaction or transactions that constitute the Change of
Control Triggering Event and stating:
(1) that the Change of Control Offer is being made pursuant to this
Section 10.10 and that all Securities tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no earlier
than 30 days and no later than 60 days from the date such notice is mailed
(the “Change of Control Payment Date”);
(3) that any Securities not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Securities accepted for payment pursuant to the Change
of Control Offer will cease to accrue interest after the Change of Control
Payment Date;
(5) that Holders electing to have any Securities repurchased pursuant
to a Change of Control Offer will be required to surrender the Securities,
with the form entitled “Option of Holder to Elect Purchase” attached to the
Securities completed, or transfer by book-entry transfer, to the Paying
Agent at the address specified in the notice prior to the close of business
on the third Business Day preceding the Change of Control Payment Date;
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(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile, transmission or letter setting forth the name of the
Holder, the principal amount of Securities delivered for purchase, and a
statement that such Holder is withdrawing his election to have the
Securities purchased; and
(7) that Holders whose Securities are being purchased only in part will
be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered, which unpurchased portion must be
equal to $2,000 in principal amount or in any integral multiple of $1,000 in
excess thereof.
The Company will comply with the requirements of Rule 14e-1 under the Exchange
Act, and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with the repurchase of the
Securities as a result of a Change of Control Triggering Event. To the extent that
the provisions of any securities laws or regulations conflict with the provisions of
this Section 10.10 (or compliance with this Section 10.10 would constitute a
violation of any such laws or regulations), the Company will comply with the
applicable securities laws and regulations and will not be deemed to have breached
its obligations under this Section 10.10 by virtue of such conflicts.
(b) On or before the Change of Control Payment Date, the Company will be
required, to the extent lawful, to:
(1) accept for payment all Securities or portions of Securities
properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Securities or portions of Securities
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Securities
properly accepted.
The Paying Agent will promptly mail (but in any case not later than five days
after the Change of Control Payment Date) to each Holder of Securities properly
tendered the Change of Control Payment for such Securities, and the Trustee will
promptly authenticate and mail (or cause to be transferred by book entry) to each
Holder a new Security equal in principal amount to any unpurchased portion of the
Securities surrendered, if any; provided that each new Security will be in a
principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The
Company will publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.
If Holders of not less than 95% in aggregate principal amount of the
outstanding Securities validly tender and do not withdraw such Securities in a
Change of Control Offer and the Company, or any third party making a Change of
Control Offer in lieu of the Company as described below, purchases all of the
Securities validly tendered and not withdrawn by such Holders, the Company will have
the right, upon not less than 30 nor more than 60 days’ prior notice, given not more
than 30 days following such purchase pursuant to the Change of Control Offer
described above, to redeem all Securities that remain outstanding following such
purchase at a redemption price in cash equal to the applicable Change of Control
Payment plus, to the extent not included in the Change of Control Payment, accrued
and unpaid interest, if any, to the date of redemption.
(d) Notwithstanding anything to the contrary in this Section 10.10, the Company
will not be required to make a Change of Control Offer upon a Change of Control
Triggering Event if (1) a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth in
this Section 10.10 and purchases all Securities properly tendered and not withdrawn
under the Change of Control Offer, or (2) notice
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of redemption has been given pursuant to Section 11.4 with respect to a redemption
of Securities pursuant to Article Eleven, unless and until there is a default in
payment of the applicable redemption price.
(e) For purposes of this Section 10.10, the following definitions shall be
applicable:
(1) “Below Investment Grade Rating Event” means the Securities are
rated below an Investment Grade Rating by each of the Rating Agencies on any
date from the date of the public notice of an arrangement that could result
in a Change of Control until the end of the 60-day period following public
notice of the occurrence of the Change of Control (which 60-day period shall
be extended so long as the rating of the Securities is under publicly
announced consideration for possible downgrade by either of the Rating
Agencies).
(2) “Change of Control” means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other disposition
(other than by way of merger, amalgamation or consolidation of the
Guarantor), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Guarantor and its
Subsidiaries taken as a whole to any person (as such term is used in Section
13(d) of the Exchange Act) other than the Guarantor or one of its
Subsidiaries or a Person controlled by the Guarantor or one of its
Subsidiaries; (2) the consummation of any transaction (including, without
limitation, any merger, amalgamation or consolidation) the result of which
is that any person (as such term is used in Section 13(d) of the Exchange
Act) becomes the beneficial owner, directly or indirectly, of more than 50%
of the then outstanding number of the Guarantor’s voting shares (excluding a
Redomestication of the Guarantor); or (3) the first day on which a majority
of the members of the Guarantor’s Board of Directors are not Continuing
Directors.
(3) “Change of Control Triggering Event” means the occurrence of both a
Change of Control and a Below Investment Grade Rating Event.
(4) “Continuing Directors” means, as of any date of determination, any
member of the Board of Directors of the Guarantor who (1) was a member of
such Board of Directors on the date of the issuance of the Securities; or
(2) was nominated for election or appointed or elected to such Board of
Directors with the approval of a majority of the Continuing Directors who
were members of such Board of Directors at the time of such nomination,
appointment or election (either by a specific vote or by approval of the
Guarantor’s proxy statement in which such member was named as a nominee for
election as a director, without objection to such nomination).
(5) “Investment Grade Rating” means a rating equal to or higher than
Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.
(6) “Moody’s” means Moody’s Investors Service, Inc.
(7) “Rating Agencies” means (1) each of Moody’s and S&P; and (2) if
either of Moody’s or S&P ceases to rate the Securities or fails to make a
rating of the Securities publicly available for reasons outside of the
Company’s control, a “nationally recognized statistical rating organization”
within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act,
selected by the Company (as certified by a resolution of the Company’s Board
of Directors) as a replacement agency for Moody’s or S&P, or both of them,
as the case may be.
(8) “Redomestication” means:
(a) any amalgamation, merger, conversion or consolidation of the Guarantor with
or into any other person (as such term is used in Section 13(d) of the Exchange
Act), or of any other person (as such term is used in Section 13(d) of the Exchange
Act) with or into the Guarantor, or the sale or other disposition (other than by
lease) of all or substantially all of the properties or
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assets of the Guarantor and its Subsidiaries taken as a whole to any other
person (as such term is used in Section 13(d) of the Exchange Act),
(b) any continuation, discontinuation, amalgamation, merger, conversion,
consolidation or domestication or similar action with respect to the Guarantor
pursuant to the law of the jurisdiction of its organization and of any other
jurisdiction, or
(c) the formation of a Person that becomes, as part of the transaction, the
owner of 100% of the voting shares of the Guarantor (the “New Parent”),
if as a result thereof
(x) in the case of any action specified in clause (a), the entity that
is the surviving, resulting or continuing Person in such merger,
amalgamation, conversion or consolidation, or the transferee in such sale or
other disposition,
(y) in the case of any action specified in clause (b), the entity that
constituted the Guarantor immediately prior thereto (but disregarding for
this purpose any change in its jurisdiction of organization), or
(z) in the case of any action specified in clause (c), the New
Parent
(in any such case, the “Surviving Person”) is a corporation or other entity,
validly incorporated or formed and existing in good standing (to the extent
the concept of good standing is applicable) under the laws of Delaware or
another State of the United States or under the laws of the United Kingdom,
The Kingdom of the Netherlands or under the laws of any other jurisdiction,
whose voting shares of each class of capital stock issued and outstanding
immediately following such action, and giving effect thereto, shall be
beneficially owned by the same Persons, in the same percentages, as was such
capital stock or shares of the entity constituting the Guarantor immediately
prior thereto and, if the Surviving Person is the New Parent, the Surviving
Person continues to be owned, directly or indirectly, 100% by Persons who
were shareholders of the Guarantor immediately prior to such transaction.
(9) “S&P” means Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc.
ARTICLE 4
Miscellaneous
SECTION 4.01.
Certain Trustee Matters.
The recitals contained herein shall be taken as the statements of the Company and the
Guarantor, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this First
Supplemental Indenture or the Notes or the proper authorization or the due execution hereof or
thereof by the Company.
SECTION 4.02.
Continued Effect.
Except as expressly supplemented and amended by this First Supplemental Indenture, the
Original Indenture shall continue in full force and effect in accordance with the provisions
thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This First
Supplemental Indenture and all of its provisions shall be deemed a part of the Original Indenture
in the manner and to the extent herein and therein provided.
SECTION 4.03.
Governing Law.
This First Supplemental Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
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SECTION 4.04.
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.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed and delivered, all as of the day and year first above written.
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WEATHERFORD INTERNATIONAL, INC.
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By:
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/s/ BURT M. MARTIN
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Name: Burt M. Martin
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Title: Senior Vice President
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In witness whereof
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The COMMON SEAL of
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WEATHERFORD INTERNATIONAL LTD.,
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as Guarantor
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was hereunto affixed in the presence of
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By:
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/s/ BURT M. MARTIN
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Name: Burt M. Martin
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Title: Senior Vice President
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First Supplemental Indenture
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DEUTSCHE BANK TRUST COMPANY AMERICAS
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as Trustee
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By:
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/s/ [Signature illegible]
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Name:
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Title:
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By:
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/s/ [Signature illegible]
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Name:
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Title:
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First Supplemental Indenture
EXHIBIT A
[FORM OF FACE OF NOTE AND/OR EXCHANGE NOTE]
[If a Global Security, insert—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.]
[If a Global Security, insert—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, insert—UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (“DTC”) (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO., OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[If a Rule 144A Restricted Note, insert—THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY
IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) TO AN
INSTITUTIONAL “ACCREDITED INVESTOR” THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE
FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (III) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (IV)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. IN ANY
CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH
REGARD TO THIS SECURITY EXCEPT AS PERMITTED UNDER THE SECURITIES ACT.]
[If a Regulation S Restricted Note, insert—THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN
A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE
THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.]
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A-1
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First Supplemental Indenture
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WEATHERFORD INTERNATIONAL, INC.
[
]% Senior Note due [
]
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Rate of Interest
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Maturity Date
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Original Issue Date
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[
]%
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June 15, [
]
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June 18, 2007
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Weatherford International, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the “
Company
”), for value received, hereby promises to pay to
Cede & Co. or registered assigns, the principal sum of
United States
Dollars on the maturity date shown above, and to pay interest thereon, at the annual rate of
interest shown above, from the original issue date shown above or from the most recent Interest
Payment Date (as hereinafter defined) to which interest has been paid or duly provided for, payable
semi-annually on June 15 and December 15 of each year (each, an “
Interest Payment Date
”) and at
such maturity date, commencing on the first such date after the original issue date hereof, except
that if such original issue date is on or after a Regular Record Date (as defined below) but before
the next Interest Payment Date, interest payments will commence on the second Interest Payment Date
following the original issue date.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the person in whose name this Note is
registered at the close of business on the “
Regular Record Date
” for any such Interest Payment
Date, which shall be the fifteenth calendar day (whether or not a Business Day) preceding the
applicable Interest Payment Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent lawful), will forthwith cease to
be payable to the Holder on such Regular Record Date and shall be paid to the person in whose name
this Note is registered at the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Company, notice of which shall be given to Holders of Notes
not less than 15 days prior to such special record date. Payment of the principal of and interest
on this Note will be made at the agency of the Company maintained for that purpose in New York, New
York and at any other office or agency maintained by the Company for such purpose, in United States
dollars;
provided
,
however
, that, at the option of the Company, payment of interest, other than
interest due on the maturity date shown above, may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
(Signature Page Follows)
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A-2
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First Supplemental Indenture
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IN WITNESS WHEREOF, Weatherford International, Inc. has caused this instrument to be executed
in its corporate name by the signature of its duly authorized officer.
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WEATHERFORD INTERNATIONAL, INC.
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By:
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Name:
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Title:
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DATED: June 18, 2007
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the [
]% Senior Notes due [
] referred to in the within-mentioned
Indenture.
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
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as Trustee
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By:
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Authorized Signatory
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By:
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Authorized Signatory
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A-3
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First Supplemental Indenture
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[REVERSE OF NOTE]
WEATHERFORD INTERNATIONAL, INC.
[
]% Senior Note due [
]
This Note is one of a duly authorized issue of Securities of the Company (which term includes
any successor corporation under the Indenture hereinafter referred to) designated as its [
]%
Senior Notes due [
] (the “
Notes
”), issued or to be issued pursuant to an Indenture dated as of
June 18, 2007, between the Company and Deutsche Bank Trust Company Americas, a New York banking
corporation, as Trustee (the “
Trustee
,” which term includes any successor trustee under such
Indenture), as amended and supplemented by the First Supplemental Indenture thereto dated as of
June 18, 2007 (such Indenture, as so amended and supplemented being referred to herein as the
“
Indenture
”). The terms of this Note include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended. Reference is hereby
made to the Indenture and all further supplemental indentures thereto for a statement of the
respective rights, limitation of rights, duties and immunities thereunder of the Company, the
Guarantor, the Trustee and the Holders and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
As provided in the Indenture, 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 Note is one of the series designated on the face hereof.
This Note is the general, unsecured, senior obligation of the Company and is guaranteed
pursuant to a guarantee (the “
Guarantee
”) by Weatherford International Ltd., a Bermuda exempted
company (the “
Guarantor
”).
The Notes are subject to redemption upon not less than 30 nor more than 60 days’ notice by
mail, at any time, as a whole or in part, at the election of the Company at a Redemption Price
equal to the greater of: (a) 100% of the principal amount of Securities then outstanding to be
redeemed, plus accrued and unpaid interest thereon to the redemption date; or (b) the sum of the
present values of the remaining scheduled payments of principal and interest on the Securities then
outstanding to be redeemed (not including any portion of such payments of interest accrued as of
the redemption date) discounted to the redemption date on a semi-annual basis (computed based on a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus [___] basis
points (0.[___]%), as calculated by an Independent Investment Banker, plus accrued and unpaid
interest thereon to the redemption date; but interest installments whose Stated Maturity 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.
“
Adjusted Treasury Rate
” means, with respect to any redemption date: (a) the yield, under the
heading which represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant maturity under the
caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the remaining life, as defined below,
yields for the two published maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Adjusted Treasury Rate will be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month); or (b) if such release (or any
successor release) is not published during the week preceding the calculation date or does not
contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption
date. 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 an
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, 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 such Securities.
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A-4
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First Supplemental Indenture
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“
Comparable Treasury Price
” means (1) the average of five Reference Treasury Dealer Quotations
for the redemption date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (2) if an Independent Investment Banker obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such quotations.
“
Independent Investment Banker
” means Deutsche Bank Securities Inc., Morgan Stanley & Co.
Incorporated or UBS Securities LLC or any of their respective successors, as designated by us, or
if all such firms are unwilling or unable to serve as such, an independent investment and banking
institution of national standing appointed by the Company.
“
Reference Treasury Dealer
” means: (a) Deutsche Bank Securities Inc., Morgan Stanley & Co.
Incorporated and UBS Securities LLC and each of their respective successors; provided that, if any
such Reference Treasury Dealer ceases to be a primary U.S. Government securities dealer in the
United States (Primary Treasury Dealer), the Company will substitute another Primary Treasury
Dealer; and (b) up to two 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 an Independent Investment Banker, 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 an Independent Investment Banker at 5:00 p.m., New York City
time, on the third business day preceding such redemption date.
In the event of redemption of this Note 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 permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the Guarantor 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 Guarantor 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 and the Guarantor 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 Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note 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 Note at the times, place(s) and rate, and
in the coin or currency, herein prescribed.
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.
The Notes are issuable only in registered form without coupons in denominations of U.S. $2,000
and any integral multiple of $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 Note for registration of transfer, the Company, the Trustee
and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this
Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and
none of the Company, the Guarantor, the Trustee nor any such agent shall be affected by notice to
the contrary.
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A-5
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First Supplemental Indenture
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No recourse under or upon any obligation, covenant or agreement of or contained in the
Indenture or of or contained in any Note, or the Guarantee endorsed thereon, or for any claim based
thereon or otherwise in respect thereof, or in any Security or in the Guarantee, 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 the Guarantor or of any successor Person, either directly or through the Company or the
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 Notes and the execution of the Indenture.
The Indenture provides that the Company and the Guarantor (a) will be discharged from any and
all obligations in respect of the Notes (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 or the 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 Notes, but such money need not be segregated from other funds
except to the extent required by law.
As more fully provided in the Indenture, no Holder may pursue any remedy under the Indenture
unless the Trustee shall have failed to act after notice of an Event of Default and written request
by Holders of at least 25% in principal amount of the Securities of the applicable Series and the
offer to the Trustee of indemnity satisfactory to it; however, such provision does not affect the
right to sue for enforcement of any overdue payment on any Security.
Except as otherwise defined herein, all terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Customary abbreviations may be used in the name of a Holder or any assignee, such as: TEN COM
( = tenants in common), TEN ENT ( = tenants by the entireties), JT TEN ( = joint tenants with right
of survivorship and not as tenants in common), CUST ( = Custodian) and U/G/M/A ( = Uniform Gifts to
Minors Act).
The Company will furnish to any holder of record of this Note, upon written request, without
charge, a copy of the Indenture. Requests may be made to: Weatherford International, Inc., 515
Post Oak Blvd., Suite 600, Houston, Texas 77027, Attention: Corporate Secretary.
The Holder of this Note is entitled to the benefits of the Registration Rights Agreement dated
as of June 18, 2007 (the “
Registration Rights Agreement
”) by and among the Company, the Guarantor
and the initial purchasers named therein, and such Holders shall also have certain obligations to
indemnify the Company and the Guarantor under certain circumstances, all as more fully set forth in
the Registration Rights Agreement. In certain events, the Company shall be required to pay to the
Holder of this Note a special interest premium on this Note, on the terms and subject to the
conditions of the Registration Rights Agreement.
This Note shall be governed by and construed in accordance with the laws of the State of New
York without regard to principles of conflicts of law.
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A-6
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First Supplemental Indenture
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ASSIGNMENT FORM
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 WEATHERFORD INTERNATIONAL, 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:
Signature Guarantee:
(Participant in a Recognized Signature
Guaranty Medallion Program)
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.
A-7
First Supplemental Indenture
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 10.10 or
11.6 of the Indenture, check the appropriate box below:
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o
Section 10.10
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o
Section 11.6
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If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 10.10 or Section 11.6 of the Indenture, state the amount you elect to have purchased:
$
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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Tax Identification No.:
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Signature
Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).
A-8
First Supplemental Indenture
EXCHANGE/TRANSFER CERTIFICATE
Re: [___]% Senior Notes due [___] of Weatherford International, Inc. (the “
Notes
”).
This
Exchange/Transfer Certificate relates to $___ principal amount of Notes held by
(the “
Transferor
”).
The Transferor has requested the Trustee by written order to exchange or register the transfer
of a Note or Notes.
In connection with such request and in respect of each such Note, the Transferor does hereby
certify that the Transferor is familiar with the Indenture relating to the above-captioned Notes
and that the transfer of this Note does not require registration under the Securities Act (as
defined below) because:**
Such Note is being acquired for the Transferor’s own account without transfer.
Such Note is being transferred (i) to a “qualified institutional buyer” (as
defined in Rule 144A under the Securities Act of 1933, as amended (the “
Securities Act
”)), in
accordance with Rule 144A under the Securities Act or (ii) pursuant to an exemption from
registration in accordance with Rule 904 of Regulation S under the Securities Act (and in the case
of clause (ii), based upon an opinion of counsel if the Company or the Trustee so requests,
together with a certification in substantially the form of the Regulation S Certificate included in
such Note).
Such Note is being transferred (i) pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act (and based upon an opinion of counsel if the
Company or the Trustee so requests) or (ii) pursuant to an effective registration statement under
the Securities Act.
Such Note is being transferred in reliance on and in compliance with another
exemption from the registration requirements of the Securities Act (and based upon an opinion of
counsel if the Company or the Trustee so requests).
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[INSERT NAME OF TRANSFEROR]
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By:
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Name:
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Title:
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Address:
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Date:
** Check appropriate box.
A-9
First Supplemental Indenture
REGULATION S CERTIFICATE
, _____
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Security Registrar
60 Wall Street, 27th Floor
Mail Stop: NYC60-2710
New York, New York 10005
Attention: Trust & Securities Services
DEUTSCHE BANK NATIONAL TRUST COMPANY
25 DeForest Avenue, Mail Stop: SUM01-0105
Summit, New Jersey 07901
Attention: Trust & Securities Services
Ladies and Gentlemen:
In connection with our proposed sale of $
principal amount of [___]% Senior
Notes due [___] (the “
Notes
”) of WEATHERFORD INTERNATIONAL, INC. (the “
Company
”), we confirm that
such sale has been effected pursuant to and in accordance with Regulation S under the United States
Securities Act of 1933, as amended (the “
Securities Act
”), and, accordingly, we represent that:
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(i)
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the offer of the Notes was not made to a person in the United States of
America;
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(ii)
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at the time the buy order was originated, the transferee was outside the United
States of America or we and any person acting on our behalf reasonably believed that
the transferee was outside the United States of America;
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(iii)
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no directed selling efforts have been made by us in contravention of Rule 903
or Rule 904 of Regulation S under the Securities Act, as applicable;
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(iv)
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the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act; and
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(v)
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if the proposed transfer is being made prior to the expiration of the 40-day
distribution compliance period as set forth in Regulation S, the transfer is not being
made to, or for the benefit or account of, a U.S. Person (other than a distributor).
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You and the Company are entitled to rely upon this Regulation S Certificate and you are
irrevocably authorized to produce this Regulation S Certificate or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with respect to the matters
covered hereby. Terms used but not defined in this Regulation S Certificate have the meanings set
forth in Regulation S under the Securities Act.
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Very truly yours,
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[Name]
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By:
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Name:
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Title:
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Address:
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A-10
First Supplemental Indenture
[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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Principal Amount of
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Decrease in
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Amount of Increase
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this Global Security
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Signature of
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Principal
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in Principal Amount
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following such
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authorized signatory
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Amount of this
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of this
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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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Depository]
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A-11
First Supplemental Indenture
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated June 18, 2007 (the “Agreement”), is entered into by
and among Weatherford International, Inc. (the “Company”), Weatherford International Ltd. (the
“Guarantor”), and Morgan Stanley & Co. Incorporated, Deutsche Bank Securities Inc., and UBS
Securities LLC, as representatives of the several initial purchasers (the “Initial Purchasers”)
listed on Schedule I to the Purchase Agreement, dated June 13, 2007 (the “Purchase Agreement”).
The Purchase Agreement provides for the sale by the Company to the Initial Purchasers of
$1,500,000,000 aggregate principal amount of the Securities (as defined below). As an inducement
to the Initial Purchasers to enter into the Purchase Agreement, the Company and the Guarantor have
agreed to provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1.
Definitions
. As used in this Agreement, the following terms shall have the
following meanings:
“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed.
“Company” shall have the meaning set forth in the Preamble and shall also include the
Company’s successors.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
“Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.
“Exchange Offer” shall mean the exchange offer by the Company of Exchange Securities for
Registrable Securities pursuant to Section 2(a) hereof.
“Exchange Offer Registration” shall mean the registration of the Securities under the
Securities Act, effected pursuant to Section 2(a) hereof.
“Exchange Offer Registration Statement” shall mean an exchange offer registration statement on
Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to
such registration statement, in each case including, but not limited to, the Prospectus contained
therein or
deemed a part thereof, all exhibits thereto and any document incorporated by reference
therein.
“Exchange Securities” shall mean notes issued by the Company and Guarantees issued by the
Guarantor under the Indenture, containing terms identical to the Securities (except that the
Exchange Securities will not be subject to restrictions on transfer or to any increase in annual
interest rate for failure to comply with this Agreement), to be offered to Holders of Registrable
Securities pursuant to the Exchange Offer.
“Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405 under the
Securities Act) prepared by or on behalf of the Company and the Guarantor or used or referred to by
the Company or the Guarantor in connection with the sale of the Securities or Exchange Securities.
“Guarantee” shall have the meaning set forth in the definition of Securities.
“Guarantor” shall have the meaning set forth in the Preamble.
“Holders” shall mean the Initial Purchasers, for so long as they own any Registrable
Securities, and each of their successors, assigns and direct and indirect transferees who become
owners of Registrable Securities under the Indenture;
provided that,
for purposes of Sections 4 and
5 of this Agreement, the term “Holders” shall include Participating Broker-Dealers.
“Indemnified Person” shall have the meaning set forth in Section 5(c) hereof.
“Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof.
“Indenture” shall mean the Indenture, dated as of June 18, 2007, between the Company, the
Guarantor and Deutsche Bank Trust Company Americas, as trustee, as the same may be amended or
supplemented from time to time in accordance with the terms thereof.
“Initial Purchasers” shall have the meaning set forth in the preamble.
“Issuer Information” shall have the meaning set forth in Section 5(a) hereof.
“Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of
the outstanding Registrable Securities;
provided that
whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder, any Registrable
Securities owned directly or indirectly by the Company or any of its subsidiaries shall not be
2
counted in determining whether such consent or approval was given by the Holders of such
required percentage or amount; and
provided, further
, that if the Company shall issue any
additional Securities under the Indenture prior to consummation of the Exchange Offer or, if
applicable, the effectiveness of any Shelf Registration Statement, such additional Securities and
the Registrable Securities to which this Agreement relates shall be treated together as one class
for purposes of determining whether the consent or approval of Holders of a specified percentage of
Registrable Securities has been obtained.
“Participating Broker-Dealer” shall have the meaning set forth in Section 4(a) hereof.
“Person” shall mean an individual, partnership, limited liability company, corporation, trust
or unincorporated organization, or a government or agency or political subdivision thereof.
“Prospectus” shall mean the prospectus included in, or, pursuant to the rules and regulations
of the Securities Act, deemed a part of, a Registration Statement, including any preliminary
prospectus, and any such prospectus, as amended or supplemented by a prospectus supplement,
including a prospectus supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and
supplements to such prospectus, in each case including any document incorporated by reference
therein.
“Purchase Agreement” shall have the meaning set forth in the Preamble.
“Registrable Securities” shall mean the Securities;
provided that
the Securities shall cease
to be Registrable Securities upon the earliest to occur of (a) the date on which such Securities
are exchanged in the Exchange Offer and entitled to be resold to the public by the Holder thereof
without complying with the prospectus delivery requirements of the Securities Act, (b) the date on
which such Securities have been effectively registered under the Securities Act and disposed of in
accordance with a Shelf Registration Statement, (c) the date on which such Securities are
distributed to the public pursuant to Rule 144 without restriction or are saleable pursuant to Rule
144(k) under the Securities Act and (d) the date when such Securities cease to be outstanding.
“Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company or Guarantor with this Agreement, including without limitation: (i) all
SEC, stock exchange or National Association of Securities Dealers, Inc. registrations and filing
fees, (ii) all fees and expenses incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of counsel for any Underwriters or
Holders in connection with blue sky qualification of any Exchange Securities or Registrable
Securities), (iii) all expenses of any Persons
3
in preparing or assisting in preparing, word processing, printing and distributing any
Registration Statement, Prospectus, or Free Writing Prospectus and any amendments or supplements
thereto, any underwriting agreements, securities sales agreements or other similar agreements and
any other documents relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and disbursements relating to the qualification of the Indenture
under applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel,
(vii) the fees and disbursements of counsel for the Company and the Guarantor and, in the case of a
Shelf Registration Statement, the reasonable fees and disbursements of one counsel for the Holders
(which counsel shall be selected by the Majority Holders and which counsel may also be counsel for
the Initial Purchasers) and (viii) the fees and disbursements of the independent public accountants
of the Company, including the expenses of any special audits or “comfort” letters required by or
incident to the performance of and compliance with this Agreement, but excluding fees and expenses
of counsel to the Underwriters (other than fees and expenses set forth in clause (ii) above) or the
Holders and underwriting discounts and commissions, brokerage commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Securities by a Holder.
“Registration Statement” shall mean any registration statement of the Company and the
Guarantor that covers any of the Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement and all amendments and supplements to any such registration statement,
including post-effective amendments, in each case, including the Prospectus contained therein or
deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“SEC” shall mean the United States Securities and Exchange Commission.
“Securities” means $600,000,000 of 5.95% Senior Notes due 2012, $600,000,000 of 6.35% Senior
Notes due 2017, and $300,000,000 of 6.80% Senior Notes due 2037 of the Company to be issued
pursuant to the Indenture. Each Security or Exchange Security is entitled to the benefit of the
guarantee provided for in the Indenture (the “Guarantee”) and, unless the context otherwise
requires, any reference herein to a “Security,” an “Exchange Security” or a “Registrable Security”
shall include a reference to the related Guarantee.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof.
4
“Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.
“Shelf Registration Statement” shall mean a shelf registration statement of the Company and
the Guarantor that covers all or a portion of the Registrable Securities (but no other securities,
unless approved by a majority of the Holders whose Registrable Securities are to be covered by such
Shelf Registration Statement) on an appropriate form under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case including the Prospectus
contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by
reference therein.
“Staff” shall mean the staff of the SEC.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time to
time.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Underwriter” shall have the meaning set forth in Section 3(e) hereof.
“Underwritten Offering” shall mean an offering in which Registrable Securities are sold to an
Underwriter for reoffering to the public.
2.
Registration under the Securities Act
.
(a) To the extent not prohibited by any applicable law or applicable interpretations of the
Staff, the Company and the Guarantor shall (1) cause to be filed within 150 days after the date
hereof an Exchange Offer Registration Statement covering an offer to the Holders to exchange all
the Registrable Securities for Exchange Securities and (2) use its reasonable best efforts to cause
such Registration Statement to be declared effective within 180 days after the date hereof. The
Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement
is declared effective by the SEC and use its reasonable best efforts to complete the Exchange Offer
not later than 210 days after the date hereof.
The Company shall commence the Exchange Offer by mailing the related Prospectus, appropriate
letters of transmittal and other accompanying documents to each Holder stating, in addition to such
other disclosures as are required by applicable law, substantially the following:
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(i)
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that the Exchange Offer is being made pursuant to this Agreement and that all Registrable
Securities validly tendered and not properly withdrawn will be accepted for exchange;
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(ii)
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the dates of acceptance for exchange (which shall be a period of at least 20 Business Days
from the date such notice is mailed) (the “Exchange Dates”);
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(iii)
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that any Registrable Security not validly tendered will remain outstanding and continue to
accrue interest but will not retain any rights under this Agreement, except as otherwise
specified herein;
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(iv)
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that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange
Offer will be required to (A) surrender such Registrable Security, together with the
appropriate letters of transmittal, to the institution, at the address and in the manner
specified in the notice, or (B) effect such exchange otherwise in compliance with the
applicable procedures of the depositary for such Registrable Security, in each case prior to
the close of business on the last Exchange Date; and
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(v)
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that any Holder will be entitled to withdraw its election, not later than the close of
business on the last Exchange Date, by (A) sending to the institution, at the address
specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Securities delivered for exchange and
a statement that such Holder is withdrawing its election to have such Securities exchanged or
(B) effecting such withdrawal in compliance with the applicable procedures of the depositary
for the Registrable Securities.
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As a condition to participating in the Exchange Offer, a Holder will be required to represent
to the Company that (i) any Exchange Securities to be received by it will be acquired in the
ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer, it has
no arrangement or understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the
Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities
Act) of the Company and (iv) if such Holder is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable Securities that were acquired as a
result of market-making or other trading activities, then such Holder will deliver a Prospectus
(or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with
any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Company shall:
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(i)
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accept for exchange Registrable Securities or portions thereof validly tendered and not
properly withdrawn pursuant to the Exchange Offer; and
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(ii)
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deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities
or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee
to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal
amount to the principal amount of the Registrable Securities tendered by such Holder.
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The Company shall use its reasonable best efforts to complete the Exchange Offer as provided
above and shall comply in all material respects with the applicable requirements of the Securities
Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange
Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange
Offer does not violate any applicable law or applicable interpretations of the Staff.
(b) In the event that (i) the Company determines that the Exchange Offer Registration provided
for in Section 2(a) above is not available or the Exchange Offer may not be completed as soon as
practicable after the last Exchange Date because it would violate any applicable law or applicable
interpretations of the Staff, (ii) the Exchange Offer is not for any other reason consummated
within 210 days of the date hereof, (iii) in the case of any Holder that participates in the
Exchange Offer, such Holder does not receive Exchange Securities on the date of the exchange that
may be sold without restriction under state and federal securities laws (other than due solely to
the status of such Holder as an affiliate of the Company within the meaning of the Securities Act
or as a broker-dealer) or (iv) the Company so elects, the Company shall (1) promptly deliver to the
Holders written notice of such event and (2) at the Company’s sole expense, (a) file, as promptly
as practicable (but in no event more than 30 days after so required hereby), a Shelf Registration
Statement providing for the sale of all the Registrable Securities by the Holders thereof and (b)
use the Company’s and the Guarantor’s reasonable best efforts to cause the Shelf Registration
Statement to be declared effective under the Securities Act.
The Company and the Guarantor agree to use reasonable best efforts to keep the Shelf
Registration Statement continuously effective until the expiration of the period referred to in
Rule 144(k) (or any similar rule then in force, but not Rule 144A) under the Securities Act, with
respect to the Registrable Securities, or such shorter period that will terminate when all the
Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantor
further agree to supplement or amend the Shelf Registration Statement, the related Prospectus and
any Free Writing Prospectus, if required by the rules, regulations or instructions applicable to
the registration form used by
7
the Company for such Shelf Registration Statement or by the Securities Act or by any other
rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities
with respect to information relating to such Holder, and to use its reasonable best efforts to
cause any such amendment to become effective, if required, and such Shelf Registration Statement,
Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter
practicable. The Company agrees to furnish to the Holders of Registrable Securities copies of any
such supplement or amendment promptly after its initial use or its being filed with the SEC.
(c) The Company shall pay all Registration Expenses in connection with any registration
pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all underwriting discounts
and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be
deemed to have become effective unless it has been declared effective by the SEC. A Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC or is automatically effective upon filing with the
SEC as provided in Rule 462 under the Securities Act.
If: (i) neither the Exchange Offer Registration Statement nor the Shelf Registration Statement
is filed with the SEC on or before the 150
th
day following the date hereof, (ii) no
Shelf Registration Statement has been filed and the Exchange Offer Registration Statement is not
declared effective on or before the 180
th
day following the date hereof, or (iii) the
Exchange Offer is not consummated and the Shelf Registration Statement is not declared effective on
or before the 210
th
day following the date hereof (each such event referred to in
clauses (i) through (iii), a “Registration Default”), then a special interest premium will accrue
in respect of the Securities from and including the next calendar day following each of (a) the 150
day period, in the case of clause (i) above, (b) the 180 day period, in the case of clause (ii)
above, and (c) the 210 day period, in the case of clause (iii) above, in each case, at a rate equal
to 0.25% per annum (the “Special Interest Premium”) until all Registration Defaults have been cured
(on the date of which, the interest rate will be reduced to the original interest rate for the
Registrable Securities). The accrued Special Interest Premium shall be paid to the Holders by the
Company by wire transfer of immediately available funds or by federal funds check on the dates that
interest payments are made as provided in the Indenture. If the Exchange Offer Registration
Statement is not declared effective on or before the 180
th
day following the date
hereof, and the Company requests Holders of the Registrable Securities to provide the information
called for hereby for inclusion in the Shelf Registration Statement, the Registrable Securities
owned by Holders who do not deliver such information to the
8
Company when required hereby will not be entitled to any such increase in the interest rate
for any day after the filing of such Shelf Registration Statement.
If the Shelf Registration Statement, if required hereby, has become effective and thereafter
either (A) ceases to be effective or (B) the Prospectus contained therein ceases to be usable, in
each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness
Period, and such failure to remain effective or usable exists for more than 90 days (whether or not
consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be
increased by the Special Interest Premium, commencing on the 91
st
day and for each day
thereafter (whether or not consecutive) in such 12-month period, and such increase in the interest
rate shall cease accruing on (i) the date that the Shelf Registration Statement again becomes
effective or the Prospectus again becomes usable, (ii) the date that is the second anniversary of
the date hereof or the issuance of any fungible additional notes (or, if Rule 144(k) is amended to
provide a shorter restrictive period, such shorter period) or (iii) the date as of which all of the
Registrable Securities are sold pursuant to the Shelf Registration Statement.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the
Company and the Guarantor acknowledge that any failure by either of them to comply with its
obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to
the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it may not
be possible to measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may seek to obtain such relief as may be required to
specifically enforce the obligations of the Company or the Guarantor under Section 2(a) and Section
2(b) hereof.
3.
Registration Procedures
.
(a) In connection with its obligations pursuant to Section 2(a) and Section 2(b) hereof, the
Company and the Guarantor shall:
(i) prepare and file with the SEC a Registration Statement on the appropriate form under the
Securities Act, which form (x) shall be selected by the Company, (y) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities by the Holders thereof and
(z) shall comply as to form in all material respects with the requirements of the applicable form
and include all financial statements required by the SEC to be filed therewith; and use its
reasonable best efforts to cause such Registration Statement to become effective and remain
effective for the applicable period in accordance with Section 2 hereof;
(ii) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such
9
Registration Statement effective for the applicable period in accordance with Section 2 hereof
and cause each Prospectus to be supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act; and keep each Prospectus
current during the period described in Section 4(3) hereof and Rule 174 under the Securities Act
that is applicable to transactions by brokers or dealers with respect to the Registrable Securities
or Exchange Securities;
(iii) to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing
Prospectus that is required to be filed by the Company or the Guarantor with the SEC in accordance
with the Securities Act and to retain any Free Writing Prospectus not required to be filed;
(iv) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities, to
counsel for the Initial Purchasers, to counsel for such Holders and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each
Prospectus, preliminary prospectus or Free Writing Prospectus, and any amendment or supplement
thereto, as such Holder, counsel or Underwriter may reasonably request in order to facilitate the
sale or other disposition of the Registrable Securities thereunder; and the Company and the
Guarantor consent to the use of such Prospectus, preliminary prospectus or Free Writing Prospectus
and any amendment or supplement thereto, in accordance with applicable law, by each of the Holders
of Registrable Securities and any such Underwriters in connection with the offering and sale of the
Registrable Securities covered by and in the manner described in such Prospectus, preliminary
prospectus or Free Writing Prospectus and any amendment or supplement thereto, in accordance with
applicable law;
(v) use its reasonable best efforts to register or qualify the Registrable Securities under
all applicable state securities or blue sky laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement becomes effective; cooperate with such Holders in connection with
any filings required to be made with the National Association of Securities Dealers, Inc. or other
governmental agencies or authorities; and do any and all other acts and things that may be
reasonably necessary or advisable to enable each Holder to complete the disposition in each such
jurisdiction of the Registrable Securities owned by such Holder;
provided that
neither the Company
nor the Guarantor shall be required to (1) qualify as a foreign corporation or other entity or as a
dealer in securities in any such jurisdiction where it would not otherwise be required to so
qualify, (2) file any general consent to service of process in any such jurisdiction or (3) subject
itself to taxation in any such jurisdiction if it is not otherwise so subject;
10
(vi) notify counsel for the Initial Purchasers and, in the case of a Shelf Registration,
notify each Holder of Registrable Securities and counsel for such Holders promptly and, if
requested by any such Holder or counsel, confirm in writing (1) when a Registration Statement has
become effective, when any post-effective amendment thereto has been filed and becomes effective,
when any Free Writing Prospectus has been filed or any amendment or supplement to the Prospectus or
any Free Writing Prospectus has been filed, (2) any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement, Prospectus or any Free
Writing Prospectus or for additional information relating to the Registration Statement after the
Registration Statement has become effective, (3) the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, including (A) the receipt by the Company or the
Guarantor of any notice of objection of the SEC to the use of a Shelf Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act or (B)
suspension of a qualification or exemption from qualification of the Registrable Securities under
state securities or Blue Sky laws, (4) if, between the applicable effective date of a Shelf
Registration Statement and the closing of any sale of Registrable Securities covered thereby, the
representations and warranties of the Company or the Guarantor contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any, relating to an offering
of such Registrable Securities, cease to be true and correct in all material respects or if the
Company or the Guarantor receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (5) the happening of any event during the period a Registration
Statement is effective that makes any statement made in such Registration Statement, the related
Prospectus or any Free Writing Prospectus untrue in any material respect or that requires the
making of any changes in such Registration Statement, Prospectus or Free Writing Prospectus in
order to make the statements therein not misleading and (6) any determination by the Company or the
Guarantor that a post-effective amendment to a Registration Statement or any amendment or
supplement to the Prospectus or any Free Writing Prospectus would be appropriate;
(vii) use their reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement or, in the case of a Shelf Registration, the resolution
of any objection of the SEC pursuant to Rule 401(g)(2), including by filing an amendment to such
Shelf Registration Statement on the proper form, at the earliest possible time and provide prompt
notice to each Holder of the withdrawal of any such order or such resolution;
(viii) use their reasonable best efforts to cause the Registrable Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if so requested by the
Holders of a majority in aggregate
11
principal amount of the Securities covered thereby or the Underwriter(s) in connection with
such sale, if any, unless such Registrable Securities are already so rated;
(ix) furnish to each Holder of Registrable Securities, upon request, without charge, at least
one conformed copy of each Registration Statement and any post-effective amendment thereto (without
any documents incorporated therein by reference or exhibits thereto, unless requested);
(x) comply with all applicable rules and regulations of the SEC and provide promptly to each
Holder, upon reasonable request, each document filed with the SEC pursuant to the requirements of
the Exchange Act;
(xi) cooperate with the Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold, and free of any
restrictive legends, and enable such Registrable Securities to be issued in such denominations and
registered in such names (consistent with the provisions of the Indenture) as such Holders may
reasonably request at least one Business Day prior to the closing of any sale of Registrable
Securities;
(xii) in the case of a Shelf Registration, upon the occurrence of any event contemplated by
Section 3(a)(vi)(5) hereof, use their reasonable best efforts to prepare and file with the SEC a
supplement or post-effective amendment to such Shelf Registration Statement, the related Prospectus
or any Free Writing Prospectus or any document incorporated therein by reference or to file any
other required document so that, as thereafter delivered (or, to the extent permitted by law, made
available) to purchasers of the Registrable Securities, such Prospectus or Free Writing Prospectus,
as the case may be, will not contain any 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 under
which they were made, not misleading; and the Company shall notify the Holders of Registrable
Securities to suspend use of the Prospectus or any Free Writing Prospectus as promptly as
practicable after the occurrence of such an event, and such Holders hereby agree to suspend use of
the Prospectus or any Free Writing Prospectus, as the case may be, until the Company has amended or
supplemented the Prospectus or the Free Writing Prospectus, as the case may be, to correct such
misstatement or omission;
(xiii) a reasonable time, but at least three Business Days, prior to the filing of any
Registration Statement, Prospectus, Free Writing Prospectus, amendment to a Registration Statement
or amendment or supplement to a Prospectus or a Free Writing Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial Purchasers and its counsel
and make such of the representatives of the Company or the Guarantor, as shall be reasonably
requested by the Initial Purchasers or their counsel,
12
available for discussion of such document; and the Company and the Guarantor shall not, at any
time after the initial filing of a Registration Statement, use or file any Prospectus, Free Writing
Prospectus, or amendment of or supplement to a Registration Statement, Prospectus or Free Writing
Prospectus of which the Initial Purchasers and their counsel shall not have previously been advised
and furnished a copy or to which the Initial Purchasers or their counsel shall reasonably object;
(xiv) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case
may be, not later than the initial effective date of a Registration Statement;
(xv) cause the Indenture to be qualified under the Trust Indenture Act, in connection with the
registration of the Exchange Securities or Registrable Securities, as the case may be; cooperate
with the Trustee and the Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute,
and use its reasonable best efforts to cause the Trustee to execute, all documents as may be
required to effect such changes and all other forms and documents required to be filed with the SEC
to enable the Indenture to be so qualified in a timely manner;
(xvi) in the case of a Shelf Registration, make available for inspection by any Underwriter
participating in any disposition pursuant to such Shelf Registration Statement, any attorneys and
accountants designated by Holders of a majority in aggregate principal amount of the Registrable
Securities to be included in such Shelf Registration and any attorneys and accountants designated
by such Underwriter, at reasonable times and in a reasonable manner, all pertinent financial and
other records, documents and properties of the Guarantor, the Company and its subsidiaries, and
cause the officers, directors and employees of the Guarantor and the Company to supply all
information reasonably requested by any such Underwriter, attorney or accountant in connection with
a Shelf Registration Statement;
provided that
if any such information is identified by the Company
as being confidential or proprietary, each Person receiving such information shall take such
actions as are reasonably necessary to protect the confidentiality of such information to the
extent such action is otherwise not inconsistent with, an impairment of or in derogation of the
rights and interests of any Holder or Underwriter;
(xvii) if reasonably requested by any Holder of Registrable Securities covered by a Shelf
Registration Statement, promptly include in a Prospectus supplement or post-effective amendment
such information with respect to such Holder as such Holder reasonably requests to be included
therein and make all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable thereafter; and
13
(xviii) in the case of a Shelf Registration, enter into such customary agreements and take all
such other actions in connection therewith (including those reasonably requested by the Holders of
a majority in principal amount of the Registrable Securities covered by the Shelf Registration
Statement) in order to expedite or facilitate the disposition of such Registrable Securities,
including, but not limited to, an Underwritten Offering and in such connection, (1) to the extent
possible, make such representations and warranties to the Holders and any Underwriters of such
Registrable Securities, with respect to the business of the Company, the Guarantor and its
subsidiaries and with respect to the Registration Statement, Prospectus, any Free Writing
Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in
each case, in form, substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (2) obtain opinions of counsel
to the Company and the Guarantor (which counsel and opinions, in form, scope and substance, shall
be reasonably satisfactory to the Holders and such Underwriters and their respective counsel),
addressed to each selling Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings, (3) obtain “comfort” letters
from the independent certified public accountants of the Company and the Guarantor (and, if
necessary, any other certified public accountant of any subsidiary of the Company or of any
business acquired by the Company or the Guarantor for which financial statements and financial data
are or are required to be included in the Registration Statement), addressed to each selling Holder
(to the extent permitted by applicable professional standards) and Underwriter of Registrable
Securities, such letters to be in customary form and covering matters of the type customarily
covered in “comfort” letters in connection with underwritten offerings, including, but not limited
to, financial information contained in any preliminary prospectus, Prospectus or Free Writing
Prospectus, (4) deliver such documents and certificates, as may be reasonably requested by the
Holders of a majority in principal amount of the Registrable Securities being sold or the
Underwriters, and which are customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of the Company and/or Guarantor made
pursuant to clause (1) above and to evidence compliance with any customary conditions contained in
an underwriting agreement, (5) cause the Registrable Securities covered by the Registration
Statement to be listed on each securities exchange on which similar securities issued by the
Company or the Guarantor are then listed, if requested by the Holders of a majority in aggregate
principal amount of the Securities or the managing Underwriter(s), if any, and (6) incorporate by
reference or otherwise in the underwriting agreement, if any, the indemnification provisions of
Section 5 hereof with respect to the parties to be indemnified pursuant to said Section.
(b) In the case of a Shelf Registration Statement, the Company may require each Holder of
Registrable Securities to furnish to the Company such information regarding such Holder and the
proposed disposition by such Holder
14
of such Registrable Securities as the Company may from time to time reasonably request in
writing.
(c) In the case of a Shelf Registration Statement, each Holder of Registrable Securities
covered in such Shelf Registration Statement agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(a)(vi)(3) or 3(a)(vi)(5)
hereof, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to
the Shelf Registration Statement until such Holder’s receipt of the copies of the supplemented or
amended Prospectus and any Free Writing Prospectus contemplated by Section 3(a)(x) hereof, and, if
so directed by the Company, such Holder will deliver to the Company all copies in its possession,
other than permanent file copies then in such Holder’s possession, of the Prospectus and any Free
Writing Prospectus covering such Registrable Securities that is current at the time of receipt of
such notice.
(d) If the Company shall give any notice to suspend the disposition of Registrable Securities
pursuant to a Registration Statement, the Company shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this Agreement by the number of
days during the period, from and including the date of the giving of such notice to and including
the date when the Holders of such Registrable Securities shall have received copies of the
supplemented or amended Prospectus or any Free Writing Prospectus necessary to resume such
dispositions. The Company may give any such notice only four times during any 365-day period and
any such suspensions shall not exceed an aggregate of 120 days during any 365-day period.
(e) The Holders of Registrable Securities covered by a Shelf Registration Statement, who
desire to do so, may sell such Registrable Securities in an Underwritten Offering. In any such
Underwritten Offering, the investment bank or investment banks and manager or managers (each an
“Underwriter”) that will administer the offering will be selected by the Holders of a majority in
principal amount of the Registrable Securities included in such offering.
4.
Participation of Broker-Dealers in Exchange Offer
.
(a) Certain broker-dealers may receive Exchange Securities for their own account in the
Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a “Participating Broker-Dealer”). Such broker-dealers
may be deemed to be “underwriters” within the meaning of the Securities Act and may be required to
deliver a prospectus meeting the requirements of the Securities Act in connection with any resale
of such Exchange Securities.
15
The Company and the Guarantor understand that it is the Staff’s position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and a means by which Participating Broker-Dealers may
resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their
prospectus delivery obligation under the Securities Act in connection with resales of Exchange
Securities for their own accounts, other than a resale of an unsold allotment from the original
sale thereof, so long as the Prospectus otherwise meets the requirements of the Securities Act.
(b) In light of Section 4(a) above, and notwithstanding the other provisions of this
Agreement, to the extent required by the applicable rules of the SEC, the Company and the Guarantor
agree to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement
for a period of not less than 90 days after the last Exchange Date (as such period may be extended
pursuant to Section 3(d) of this Agreement), in order to expedite or facilitate the disposition of
any Exchange Securities by Participating Broker-Dealers, consistent with the positions of the Staff
recited in Section 4(a) above. The Company and the Guarantor further agree that Participating
Broker-Dealers shall be authorized to deliver such Prospectus (or, to the extent permitted by law,
make available) during such period in connection with the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Company, the Guarantor, or any
Holder with respect to any request that they may make pursuant to Section 4(b) above.
5.
Indemnification and Contribution
.
(a) The Company and the Guarantor, jointly and severally, agree to indemnify and hold
harmless each Initial Purchaser and each Holder, their respective affiliates, directors and
officers and each Person, if any, who controls such Initial Purchaser or any Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation, legal fees and
other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as
such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (1)
any untrue statement or alleged untrue statement of a material fact contained in any Registration
Statement or amendment or supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the statements therein
not misleading, or (2) any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus, any Free Writing Prospectus or any “issuer information” (“Issuer
Information”) filed or required to
16
be filed pursuant to Rule 433(d) under the Securities Act, or any amendment or supplement
thereto, or any omission or alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading, in each case except insofar as such losses, claims, damages or liabilities arise out
of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to any Initial Purchaser or
information relating to any Holder furnished to the Company in writing through any Initial
Purchaser or any selling Holder, respectively, expressly for use therein. In connection with any
Underwritten Offering permitted by Section 3, the Company and the Guarantor will also indemnify the
Underwriters, if any, participating in the distribution, their respective affiliates and each
Person who controls such Persons (within the meaning of the Securities Act and the Exchange Act),
to the same extent as provided above with respect to the indemnification of the Holders, if
requested in connection with any Registration Statement, Prospectus, Free Writing Prospectus or
Issuer Information.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company,
the Guarantor, the Initial Purchasers and the other selling Holders, the directors of each of the
Company and the Guarantor, each officer of the Company or the Guarantor who signed the Registration
Statement and each Person, if any, who controls the Company or the Guarantor, any Initial Purchaser
and any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only
with respect to any losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with any information relating to such Holder furnished to the Company in writing by
such Holder expressly for use in any Registration Statement, Prospectus or Free Writing Prospectus,
or any amendment or supplement thereto.
(c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified Person”)
shall promptly notify the Person against whom such indemnification may be sought (the “Indemnifying
Person”) in writing;
provided that
the failure to notify the Indemnifying Person shall not relieve
it from any liability that it may have under this Section 5, except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure;
and
provided, further
, that the failure to notify the Indemnifying Person shall not relieve it from
any liability that it may have to an Indemnified Person otherwise than under this Section 5. If
any such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person to
17
represent the Indemnified Person, and any others entitled to indemnification pursuant to this
Section 5 that the Indemnifying Person may designate in such proceeding, and shall pay the fees and
expenses of such proceeding and shall pay the fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such
Indemnified Person, unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm (x) for any Initial Purchaser, its
affiliates, directors and officers and any control Persons of such Initial Purchaser shall be
designated in writing by the Initial Purchasers, (y) for any Holder, its directors and officers and
any control Persons of such Holder shall be designated in writing by the Majority Holders and (z)
in all other cases, shall be designated in writing by the Company. The Indemnifying Person shall
not be liable for any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person
shall be liable for any settlement of any proceeding effected without its written consent, if (i)
such settlement is entered into more than 45 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person, unless such settlement
(A) includes an unconditional release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are the subject matter
of such proceeding and (B) does not
18
include any statement as to or any admission of fault, culpability or a failure to act by or on
behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company from the
offering of the Securities and the Exchange Securities, on the one hand, and by the Holders from
receiving Securities or Exchange Securities registered under the Securities Act, on the other hand,
or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Company and/or the Guarantor, on the one hand, and the Holders,
on the other, in connection with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations. The relative fault
of the Company and the Guarantor, on the one hand, and the Holders, on the other, shall 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 Guarantor or by the Holders and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) The Company, the Guarantor and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 5 were determined by
pro rata
allocation (even if the
Holders were treated as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 5, in no event shall a Holder be
required to contribute any amount in excess of the amount by which the total price at which the
Securities or Exchange Securities sold by such Holder exceeds the amount of any damages that such
Holder 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) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation. The Holders’ obligations to contribute pursuant
to this Section 5 are several and not joint.
19
(f) The remedies provided for in this Section 5 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 5 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Initial Purchasers or any Holder or any Person
controlling any Initial Purchaser or any Holder, or by or on behalf of the Company or the Guarantor
or the officers or directors of or any Person controlling the Company or the Guarantor (iii)
acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant
to a Shelf Registration Statement.
6.
General
.
(a)
No Inconsistent Agreements.
The Company and the Guarantor represent, warrant and agree
that (i) the rights granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of any other outstanding securities issued or
guaranteed by the Company or the Guarantor under any other agreement and (ii) neither the Company
nor the Guarantor has entered into, and on or after the date of this Agreement will enter into, any
agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(b)
Amendments and Waivers.
The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given unless the Company has obtained the written consent of
the Guarantor and of the Majority Holders affected by such amendment, modification, supplement,
waiver or consent;
provided that,
no amendment, modification, supplement, waiver or consent to any
departure from the provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder. Any amendments,
modifications, supplements, waivers or consents pursuant to this Section 6(b) shall be by a writing
executed by each of the parties hereto.
(c)
Notices.
All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, registered first-class mail, telex, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the provisions of this Section
6(c), which address initially is, with respect to the Initial Purchasers, the address set forth in
the Purchase Agreement; (ii) if to the Company, initially at the Company’s address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is given in accordance
with the provisions of this
20
Section 6(c); and (iii) to the Guarantor and such other persons, at their respective addresses
as provided in the Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 6(c). All such notices and communications
shall be deemed to have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if telecopied or faxed; and on the next Business
Day, if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such
notices, demands or other communications shall be concurrently delivered by the Person giving the
same to the Trustee, at the address specified in the Indenture.
(d)
Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon
the successors, assigns and transferees of each of the parties, including, without limitation and
without the need for an express assignment, subsequent Holders;
provided that
nothing herein shall
be deemed to permit any assignment, transfer or other disposition of Registrable Securities in
violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder
shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and
holding such Registrable Securities, such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement and such Person shall be
entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as Initial
Purchasers) shall have no liability or obligation to the Company or the Guarantor with respect to
any failure by a Holder to comply with, or any breach by any Holder of, any of the obligations of
such Holder under this Agreement.
(e)
Third Party Beneficiaries
. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Company and the Guarantor, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
(f)
Counterparts.
This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(g)
Headings.
The headings in this Agreement are for convenience of reference only, are not a
part of this Agreement and shall not limit or otherwise affect the meaning hereof. As used
throughout this Agreement, “including” means “including, without limitation.”
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(h)
Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(i)
Entire Agreement; Severability.
This Agreement contains the entire agreement between the
parties relating to the subject matter hereof and supersedes all oral statements and prior writings
with respect thereto. If any term, provision, covenant or restriction contained in this Agreement
is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated. The
Company, the Guarantor and the Initial Purchasers shall endeavor in good faith negotiations to
replace the invalid, void or unenforceable provisions with valid provisions, the economic effect of
which come as close as possible to that of the invalid, void or unenforceable provisions.
(j)
Submission to Jurisdiction and Waiver
. By the execution and delivery of this Agreement, to
the fullest extent permitted by applicable law, the Company and the Guarantor submit to the
non-exclusive jurisdiction of any federal or New York State court located in the City of New York
in any suit or proceeding arising out of or relating to the Securities or this Agreement. Each of
the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any New
York state or federal court in the City of New York, or any appellate court with respect to any of
the foregoing. Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court. To the extent that the Company or the Guarantor has or hereafter may
acquire any immunity from jurisdiction of any court (including, without limitation, any court in
the United States, the State of New York, Bermuda or any political subdivision thereof) or from any
legal process (whether through service of notice, attachment prior to judgment, attachment in aid
of execution, execution or otherwise) with respect to itself or its property or assets, this
Agreement, or any other actions to enforce judgments in respect of any thereof, the Company and the
Guarantor hereby irrevocably waive such immunity, and any defense based on such immunity, in
respect of their respective obligations under the above-referenced documents and the transactions
contemplated thereby, to the fullest extent permitted by law.
In addition to the foregoing, each of the Company and the Guarantor hereby irrevocably
designates and appoints CT Corporation System, 111 Eighth Avenue, New York, New York 10011, as
their authorized agent (for purposes of this Section 6) on which any and all legal process may be
served in any such action, suit or proceeding brought in the courts specified in the preceding
paragraph. Each of the Company and the Guarantor agrees that service of process in respect of it
upon such agent shall be deemed to be effective service
22
of process upon it in any such action, suit or proceeding. Each of the Company and the
Guarantor agrees that the failure of such agent to give notice to it of any such service shall not
impair or affect the validity of such service or any judgment rendered in any such action, suit or
proceeding based thereon. If for any reason such agent shall cease to be available to act as such,
each of the Company and the Guarantor agrees to irrevocably appoint another such agent in New York
City as its authorized agent for service of process, on the terms and for the purposes of this
Section. Nothing herein shall in any way be deemed to limit the ability of the Initial Purchasers
or any other person to serve any such legal process in any other manner permitted by applicable law
or to obtain jurisdiction over the Company or the Guarantor or bring actions, suits or proceedings
against them in such other jurisdiction, and in such matter, as may be permitted by applicable law.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
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Weatherford International, Inc.
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By:
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/s/ BURT M. MARTIN
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Name: Burt M. Martin
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Title: Senior Vice President
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Weatherford International Ltd.
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By:
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/s/ BURT M. MARTIN
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Name: Burt M. Martin
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Title: Senior Vice President
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Signature Page to Registration Rights Agreement
Confirmed and accepted as of the date first above written:
MORGAN STANLEY & CO. INCORPORATED
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By
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/s/ [Signature illegible]
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Authorized Signatory
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DEUTSCHE BANK SECURITIES INC.
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By
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/s/ [Signature illegible]
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Authorized Signatory
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UBS SECURITIES LLC
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By
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/s/ [Signature illegible]
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Authorized Signatory
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Signature Page to Registration Rights Agreement