Exhibit 4.1
Execution Version
$1,125,000,000
NABORS INDUSTRIES, INC.
9.25% SENIOR NOTES DUE 2019
GUARANTEED BY NABORS INDUSTRIES LTD.
PURCHASE AGREEMENT
GOLDMAN, SACHS & CO.
UBS SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
DEUTSCHE BANK SECURITIES INC.
HOWARD WEIL INCORPORATED
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
TUDOR, PICKERING, HOLT & CO. SECURITIES, INC.
WELLS FARGO SECURITIES, LLC
January 7, 2009
January 7, 2009
GOLDMAN, SACHS & CO.
UBS SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
DEUTSCHE BANK SECURITIES INC.
As representatives of the Initial
Purchasers named in Schedule A
Hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Sirs and Mesdames:
Nabors Industries, Inc., a Delaware corporation (the
Company
), proposes, upon the terms and
conditions set forth in this agreement (the
Agreement
), to issue and sell to the several initial
purchasers named in Schedule A hereto (the
Initial Purchasers
) $1.125 billion aggregate principal
amount of its 9.25% Senior Notes due 2019 (the
Notes
) to be issued pursuant to the provisions of
an Indenture to be dated as of the Closing Date (as defined below) (the
Indenture
) among the
Company, the Guarantor (as defined below) and Wells Fargo Bank, National Association, as Trustee
(the
Trustee
). The Notes will be fully and unconditionally guaranteed (the
Guarantees
) by
Nabors Industries Ltd., a Bermuda exempted company (the
Guarantor
). The Notes and the Guarantees
are hereinafter collectively referred to as the
Securities
.
The Securities will be offered by the Initial Purchasers without being registered under the
Securities Act of 1933, as amended (the
Securities Act
), (i) to persons whom the Initial
Purchasers reasonably believe to be qualified institutional buyers in compliance with the exemption
from registration provided by Rule 144A of the Securities Act (
Rule 144A
), and (ii) to certain
persons who are not U.S. Persons (as defined in Regulation S promulgated under the Securities Act
(
Regulation S
))(such persons,
Non-U.S. Persons
) in offshore transactions in reliance on
Regulation S.
The Initial Purchasers and their direct and indirect transferees will be entitled to the
benefits and subject to the obligations of a Registration Rights Agreement to be dated the Closing
Date (as defined below) among the Company, the Guarantor and the Initial Purchasers (the
Registration Rights Agreement
). Pursuant to the Registration Rights Agreement, the Company and
the Guarantor will agree to file with the U.S. Securities and Exchange Commission (the
Commission
) under the circumstances set forth therein, a registration statement under the
Securities Act relating to the Companys 9.25% Senior Notes due 2019 (the
Exchange Notes
) and the
Guarantors Exchange Guarantees (the
Exchange Guarantees
) to be offered in exchange for the Notes
and the Guarantees (the
Exchange Offer
).
In connection with the sale of the Securities, the Company has prepared and delivered to the
Initial Purchasers a preliminary offering memorandum, dated subject to completion, dated January
7, 2009 (together with any exhibits thereto and the documents incorporated by reference therein,
the
Offering Memorandum
) and has prepared and delivered a pricing supplement (the
Pricing
Supplement
) dated January 7, 2009, in the form attached hereto as Schedule I, describing the terms
of the Securities, the terms of the offering and the Company and the Guarantor, each for use by the
Initial Purchasers in connection with their solicitation of offers to purchase the Securities. As
used herein,
Disclosure Package
shall mean the Offering Memorandum, as supplemented by the
Pricing Supplement and any written communications (as defined in Rule 405 under the Securities Act)
authorized for use under Section 6(j), each in the most recent form that has been prepared and
delivered by the Company to the Initial Purchasers in connection with their solicitation of offers
to purchase the Securities as of the Applicable Time.
Applicable Time
means 3:30 P.M. (New York
time) on January 7, 2009. Promptly after the Applicable Time and in any event no later than the
Closing Date (as defined in Section 4), the Company will prepare and deliver to the Initial
Purchasers a final offering memorandum (the
Final Memorandum
), which will consist of the Offering
Memorandum with only such changes therein as are required to reflect the information contained in
the Pricing Supplement. The Offering Memorandum and the Final Memorandum are each sometimes
referred to herein as a
Memorandum
. As used herein (including the schedule and annexes hereto),
the term Memorandum shall include in each case the documents incorporated by reference therein.
The terms supplement, amendment and amend as used herein with respect to the Memorandum shall
include all documents deemed to be incorporated by reference in the Memorandum that are filed
subsequent to the date of the Memorandum with the Commission pursuant to the Securities Exchange
Act of 1934, as amended (the
Exchange Act
).
1.
Representations and Warranties
. The Guarantor and the Company, jointly and severally, represent and warrant to, and agree with
each of the Initial Purchasers as of the Applicable Time and as of the Closing Date that:
(a) (i) Each document filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Memorandum complied or will comply when so filed in all
material respects with the Exchange Act and the applicable rules and regulations of the
Commission thereunder, and (ii) as of its date the Offering Memorandum did not contain, as
of the Applicable Time the Disclosure Package did not or will not contain, and on and as of
the Closing Date, the Disclosure Package and the Final Memorandum 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 Disclosure Package or the Final Memorandum based
upon information relating to the Initial Purchasers furnished to the Company in writing by
the Initial Purchasers expressly for use therein, it being understood and agreed that the
only such information is that described in Section 8(b).
(b) Each of the Guarantor and the Company has been duly incorporated, organized or
formed, is validly existing as a Bermuda exempted company and Delaware
corporation, respectively, in good standing under the laws of the jurisdiction of its
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incorporation, has the corporate power and authority to own its property and to conduct its
business as described in the Offering Memorandum and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property 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
on the Guarantor and its subsidiaries, taken as a whole (a
Material Adverse Effect
).
(c) Each Significant Subsidiary (as defined below) has been duly organized, is validly
existing as a corporation or limited partnership in good standing under the laws of the
jurisdiction of its organization, has the corporate or limited partnership power and
authority to own its property and to conduct its business to the extent described in the
Offering Memorandum and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or leasing of
property 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. All of the
issued shares of capital stock (or limited partnership interests) of each Significant
Subsidiary have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned by the Guarantor, directly or indirectly, free and clear of all
liens, encumbrances, equities or claims other than any liens, encumbrances, equities or
claims in favor of the Guarantor or another Significant Subsidiary.
Significant
Subsidiaries
shall mean the Company, Nabors International Finance, Inc., Nabors Drilling
USA, LP, Nabors Diamond Holdings, Inc., Yellow Deer Investments Corp., Nabors Holding
Company, Nabors International Management, Ltd., Nabors Drilling International Ltd., Nabors
Drilling International II Ltd., Nabors Drilling Canada ULC, Nabors International Holdings
Ltd., Oak Leaf Investments, Inc., Nabors Drilling Limited (Canada), Nabors Canada, Ryan
Energy Technologies Inc., Nabors Well Services Co., Nabors Global Holdings Ltd., Maple Leaf
Holdings Ltd. and Nabors Hungary Kft.
(d) This Agreement has been duly authorized, executed and delivered by the Company and
the Guarantor and is a valid and binding agreement of, each of the Company and the
Guarantor, enforceable in accordance with its respective terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors rights generally and general
principles of equity and implied covenants of good faith and fair dealing.
(e) The outstanding capital stock of the Company is indirectly owned by the Guarantor,
free and clear of all liens, encumbrances, equities or claims other than any liens,
encumbrances, equities or claims in favor of the Guarantor or a Significant Subsidiary.
(f) The issuance of the Securities has been duly authorized and, when the Notes have
been executed and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with the terms of this
Agreement, the Securities will be valid and binding obligations of the Company and the
Guarantor, as the case may be, enforceable in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, moratorium, fraudulent
conveyance or similar laws affecting creditors rights generally, general principles of
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equity and implied covenants of good faith and fair dealing, and will be entitled to the
benefits of the Indenture and the Registration Rights Agreement.
(g) The issuance of the Exchange Notes has been duly authorized and, when the Exchange
Notes have been executed and authenticated in accordance with the provisions of the
Indenture and delivered as contemplated in the Registration Rights Agreement, will be valid
and binding obligations of the Company enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, moratorium, fraudulent conveyance or similar laws
affecting creditors rights generally, general principles of equity and implied covenants of
good faith and fair dealing.
(h) The issuance of the Exchange Guarantees has been duly authorized and, upon the due
execution and authentication of the Exchange Notes in accordance with the Indenture and the
issuance and delivery of the Exchange Notes in the Exchange Offer contemplated by the
Registration Rights Agreement, will be valid and binding obligations of the Guarantor
enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency,
moratorium, fraudulent conveyance or similar laws affecting creditors rights generally,
general principles of equity and implied covenants of good faith and fair dealing.
(i) Each of the Indenture and the Registration Rights Agreement has been duly
authorized and, on or prior to the Closing Date will have been, executed and delivered by,
and, assuming due authorization, execution and delivery of the Indenture by the Trustee and
of the Registration Rights Agreement by the Initial Purchasers will be a valid and binding
agreement of, the Company and the Guarantor, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency or similar laws affecting creditors rights
generally and general principles of equity and implied covenants of good faith and fair
dealing and except as rights to indemnification and contribution may be limited under
applicable law.
(j) The execution and delivery by the Company and the Guarantor of, and the performance
by the Company and the Guarantor of their respective obligations under, this Agreement, the
Indenture, the Registration Rights Agreement, the Securities, the Exchange Notes and the
Exchange Guarantees (the Transaction Documents) will not contravene any provision of (i)
applicable law or the restated certificate of incorporation, as amended, or by-laws, as
amended, of the Company, the Memorandum of Association or Bye-laws, as amended, of the
Guarantor or (ii) any agreement or other instrument binding upon the Guarantor, the Company
or any of the Significant Subsidiaries that is material to the Guarantor and its
subsidiaries, taken as a whole, or, (iii) to the knowledge of the Guarantor or the Company,
any judgment, order or decree of any governmental body, agency or court having jurisdiction
over the Guarantor, the Company or any Significant Subsidiary, except, in the cases of
clauses (ii) and (iii) above, for any such default or violation that would not, individually
or in the aggregate, have a Material Adverse Effect.
(k) There are no material legal or governmental proceedings pending or, to the
knowledge of the Guarantor or the Company, threatened to which the Company or any of
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the
Significant Subsidiaries is a party or to which any of the properties of the Guarantor or
the Company or any of their subsidiaries is subject other than proceedings accurately
described in all material respects in the Offering Memorandum and proceedings that would not
have a Material Adverse Effect or material adverse effect on the power or ability of the
Guarantor or the Company to perform its obligations under this Agreement, the Indenture, the
Registration Rights Agreement, the Securities, the Exchange Notes or the Exchange Guarantees
or to consummate the transactions contemplated by the Offering Memorandum.
(l) None of the Company, the Guarantor nor any affiliate (as defined in Rule 501(b) of
Regulation D under the Securities Act, an
Affiliate
) of the Company or the Guarantor 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, (ii) engaged in any form of general
solicitation or general advertising in connection with the offering of the Securities (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 or (iii) engaged in
any directed selling efforts within the meaning of Regulation S, and all such persons have
complied with the offering restrictions requirement of Regulation S.
(m) Assuming the accuracy of the representations and warranties of the Initial
Purchasers in Section 7 and their compliance with the agreements set forth therein, 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.
(n) The Securities satisfy the requirements set forth in Rule 144A(d)(3) under the
Securities Act.
(o) Neither the Company nor the Guarantor is, and after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as described in the
Disclosure Package and the Final Memorandum neither will be, an investment company as
defined in the Investment Company Act of 1940.
(p) Other than the Offering Memorandum, the Disclosure Package and the Final
Memorandum, neither the Company nor the Guarantor (including their respective agents and
representatives, other than the Initial Purchasers in their capacity as such) has made, used
or prepared, authorized, approved or referred to nor will they prepare, make, use,
authorize, approve or refer to any written communication that constitutes an offer to sell
or solicitation of an offer to buy the Securities.
2.
Agreements to Sell and Purchase
. The Company hereby agrees to sell to the Initial Purchasers, and the Initial Purchasers, upon
the basis of the representations and warranties herein contained, but subject to the conditions
hereinafter stated, agree, severally and not jointly, to
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purchase from the Company the principal
amount of Notes set forth opposite such Initial Purchasers name on Schedule A hereto at a purchase
price of 99.398% of the principal amount thereof plus accrued interest thereon from January 12,
2009 (the
Purchase Price
).
The Company and the Guarantor hereby agree that, without the prior written consent of the
Initial Purchasers, they 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 of
the Company or warrants to purchase debt of the Company in each case of a type substantially
similar to the Securities (other than the sale of the Securities under this Agreement and the
exchange of the Securities for the Exchange Notes and the Exchange Guarantees in connection with
the Exchange Offer).
3.
Terms of Offering
. You have advised the Company and the Guarantor that the Initial Purchasers will make an offering
of the Securities to be purchased by the Initial Purchasers hereunder on the terms set forth in
this Agreement and the Offering Memorandum.
4.
Payment
and Delivery.
Payment of the Purchase Price for the Notes shall be made to the Company in Federal or other
funds immediately available in New York City against delivery of such Notes for the account of the
Initial Purchasers at 10:00 a.m., New York City time, on January 12, 2009, or at such other time on
the same or such other date, as shall hereafter be agreed upon by the Company and the Initial
Purchasers. The time and date of such payment are hereinafter referred to as the
Closing Date
.
Delivery of the Notes shall be made through the facilities of The Depository Trust Company
(
DTC
) pursuant to its Full-Fast Delivery Program unless the Initial Purchasers shall otherwise
instruct, and Notes sold by the Initial Purchasers in reliance on Rule 144A or Regulation S shall
be represented by one or more global certificates.
5.
Conditions to the Initial Purchasers Obligations
. The obligations of the several Initial Purchasers to purchase and pay for the Notes and related
Guarantees on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing
Date:
(i) There shall not have occurred any downgrading, nor shall any notice have been given
of any intended or potential downgrading, below Baa1 (Stable) from Moodys Investors
Service, Inc., BBB+ (Negative) from Standard and Poors
Ratings Services and BBB+ (Stable) from Fitch Inc., in the senior unsecured rating
accorded the Company or the Guarantor or any of the Companys or the Guarantors senior
unsecured securities or in the rating outlook for the Company or the Guarantor by any
nationally recognized statistical rating organization, as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
(ii) There shall not have occurred any change, or any development involving a
prospective change, in the financial position, or in the earnings, business or operations of
the Guarantor and its subsidiaries, taken as a whole, from that set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto
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subsequent to the date of
this Agreement) that, in your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Securities on the terms and in the manner contemplated
in the Offering Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate, dated
the Closing Date and signed by an executive officer of each of the Company, with respect to
the Company, and the Guarantor, with respect to the Guarantor, to the effect set forth in
Section 5(a) and to the effect that the representations and warranties of the Company and
the Guarantor contained in this Agreement are true and correct as of the Closing Date and
that each of the Company and the Guarantor has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Company and the Guarantor shall have furnished to the Initial Purchasers the
opinion of Laura W. Doerre, Vice President and General Counsel of Nabors Corporate Services,
Inc., dated the Closing Date, substantially to the effect set forth on Annex 5(c) hereto.
In giving such opinion, such counsel may rely as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the Company or the
Guarantor and the Significant Subsidiaries and of public officials. Such opinion may be
relied upon only by the Initial Purchasers in connection with the transactions contemplated
by this Agreement, and may not be used or relied upon by the Initial Purchasers for any
other purpose, or by any other person, firm, corporation or entity for any purpose
whatsoever, without the prior written consent of such counsel. Such opinion may be limited
to the laws of the State of Texas and the corporation, limited partnership and limited
liability company statutes of the State of Delaware.
(d) The Company and the Guarantor shall have furnished to the Initial Purchasers the
opinion of Milbank, Tweed, Hadley & McCloy LLP, special United States counsel for the
Company and the Guarantor, dated the Closing Date, substantially to the effect set forth on
Annex 5(d) hereto.
In rendering their opinions pursuant to this Section 5(d), such counsel may rely, to
the extent deemed advisable by such counsel, (i) as to factual matters on certificates of
officers of the Company or the Guarantor and (ii) upon certificates of public officials.
Such counsel shall state that such counsel has reviewed the Disclosure Package and the
Final Offering Memorandum prepared by the Company and the Guarantor, as well as certain
corporate records and documents furnished to such counsel by the Company and the Guarantor
and such counsel has participated in discussions with representatives of the Company and the
Guarantor, counsel to the Company and counsel to the Initial Purchasers regarding the
contents of the Disclosure Package and the Final Offering Memorandum and related matters;
such counsel shall also state that the purpose of their professional engagement was not to
establish or confirm factual matters set forth in the Disclosure Package or the Final
Offering Memorandum and they have not undertaken to verify independently any of such factual
matters and that moreover, many of the
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determinations required to be made in the preparation
of the Disclosure Package and the Final Offering Memorandum involve matters of a non-legal
nature; and that accordingly, they are not passing upon and do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the Disclosure
Package and the Final Offering Memorandum and shall make no representation that they have
independently verified the accuracy, completeness or fairness of such statements, except as
stated in paragraphs 2, 3, and 11 of Annex 5(d).
Such counsel shall also state that on the basis of and subject to the foregoing that
they confirm that nothing has come to such counsels attention that causes such counsel to
believe that: (i) the Disclosure Package as of the Applicable Time and at the Closing Date
contained or contains or (ii) the Final Offering Memorandum, as of its date and at the
Closing Date, contained or contains, an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (it being understood
that such counsel need not comment in respect to (i) or (ii) above with respect to the
financial statements and other financial information contained or incorporated by reference
in the Disclosure Package or the Final Offering Memorandum).
Such opinion shall be limited to the laws of the State of New York, the Federal laws of
the United States and the General Corporation Law of the State of Delaware. Such opinion
shall be rendered as of the Closing Date only in connection with this Agreement and will be
solely for the benefit of the Initial Purchasers, and may not be relied upon, nor shown to
or quoted from, for any other purpose, or to any other person, firm or corporation.
(e) The Company and the Guarantor shall have furnished to the Initial Purchasers the
opinion of Appleby, special counsel for the Guarantor, dated the Closing Date, in the form
set forth on Annex 5(e) hereto. Such opinion shall be limited to the laws of Bermuda. Such
opinion shall be rendered as of the Closing Date only in connection with the Agreement and
will be solely for the benefit of the Initial Purchasers, and may not be relied upon, nor
shown to or quoted from, for any other purpose, or to any other person, firm or corporation.
(f) The Initial Purchasers shall have received from Vinson & Elkins L.L.P., counsel for
the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Securities, the Disclosure Package, the Final
Memorandum and other related matters as the Initial Purchasers may reasonably require,
and the Company and the Guarantor shall have furnished to such counsel such documents as
such counsel reasonably requests for the purpose of enabling such counsel to pass upon such
matters.
(g) The Initial Purchasers shall have received on the date of the Applicable Time and
on the Closing Date letters, dated the date of the Applicable Time and Closing Date,
respectively, in form and substance satisfactory to the Initial Purchasers, from
PricewaterhouseCoopers LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants comfort letters to
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underwriters with respect to the financial statements and certain financial information
contained in or incorporated by reference into each Memorandum;
provided
that the letter
delivered on the Closing Date shall use a cut-off date not earlier than the date hereof.
6.
Covenants of the Company and the Guarantor
. In further consideration of the agreements of the Initial Purchasers contained in this
Agreement, the Company and the Guarantor, jointly and severally, covenant with the Initial
Purchasers as follows:
(a) To furnish to the Initial Purchasers in New York City, without charge, prior to
10:00 a.m. New York City time on January 12, 2009 and during the period mentioned in Section
6(c), as many copies of the Disclosure Package, the Memorandum, any documents incorporated
by reference therein and any supplements and amendments thereto as the Initial Purchasers
may reasonably request.
(b) Before amending or supplementing the Disclosure Package or the Memorandum, to
furnish to the Initial Purchasers a copy of each such proposed amendment or supplement and
not to use any such proposed amendment or supplement to which the Initial Purchasers
reasonably object.
(c) 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 Disclosure
Package or the Memorandum in order to make the statements therein, in the light of the
circumstances when the Disclosure Package or the 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 Disclosure Package or the 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 Disclosure Package or the Memorandum so that the statements
in the Disclosure Package or the Memorandum as so amended or supplemented will not, in the
light of the circumstances when the Disclosure Package or the Memorandum is delivered to a
purchaser, be misleading or so that the Disclosure Package or the Memorandum, as amended or
supplemented, will comply with applicable law.
(d) To endeavor to qualify the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Initial Purchasers shall reasonably request;
provided, however that neither the Company nor the Guarantor shall 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 to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not otherwise so
subject.
(e) Whether or not the transactions contemplated in this Agreement are consummated or
this Agreement is terminated, to pay or cause to be paid all expenses incident to the
performance of their respective obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Companys and the Guarantors counsel and the Companys
and the Guarantors accountants in connection with the
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issuance and sale of the Securities
and all other fees or expenses of the Company and the Guarantor in connection with the
preparation of the Disclosure Package and the Memorandum and all amendments and supplements
thereto, including all printing costs associated therewith, and the delivery of copies
thereof to the Initial Purchasers, in the quantities herein above specified, (ii) all costs
and expenses related to the issuance, transfer and delivery of the Securities to the Initial
Purchasers, including any transfer or other taxes payable thereon, (iii) the cost of
printing or producing any blue sky or legal investment memorandum in connection with the
offer and sale of the Securities under state securities laws and all expenses in connection
with the qualification of the Securities for offer and sale under state securities laws as
provided in Section 6(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Initial Purchasers in connection with such qualification
and in connection with the Blue Sky or legal investment memorandum, (iv) any fees charged by
rating agencies for the rating of the Securities, (v) the costs and charges of the Trustee
and any transfer agent, registrar or depositary, and (vi) all other costs and expenses
incident to the performance of the obligations of the Company and the Guarantor hereunder
for which provision is not otherwise made in this Section. It is understood, however, that
except as provided elsewhere in this Agreement, the Initial Purchasers will pay all of their
costs and expenses, including fees and disbursements of their counsel, transfer taxes
payable upon resale of any of the Securities by them and any advertising expenses connected
with any offers they may make.
(f) Neither the Guarantor nor any Affiliate of the Guarantor 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
that would require the registration under the Securities Act of the Securities.
(g) 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.
(h) 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.
(i) Until the issuance of the Exchange Notes or the effectiveness of the shelf
registration statement contemplated by the Registration Rights Agreement, 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.
(j) Before using, authorizing, approving or referring to any written communication that
constitutes an offer to sell or a solicitation to buy the Notes or the Guarantees (other
than the Disclosure Package and the Final Memorandum), the Company will furnish to the
Initial Purchasers a copy of such written communication for
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review and will not use,
authorize, approve or refer to any such written communication to which the Initial
Purchasers reasonably object.
7.
Offering
of Securities; Restrictions on Transfer.
(a) Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that (i)
it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a
QIB
),
and an accredited investor within the meaning of Rule 501 under the Securities Act, (ii) it has
not solicited offers for, or offered or sold, and 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, (iii) it will solicit offers for such Securities
only from, and will offer such Securities only to, persons that it reasonably believes to be QIBs
in transactions pursuant to Rule 144A and in connection with each such sale, it has taken or will
take reasonable steps to ensure that such sale is being made in reliance on Rule 144A and (iv) it
will solicit offers outside the United States only from, and will offer such Securities only to,
certain persons who are not U.S. Persons in offshore transactions in reliance on Regulation S.
Each 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
Disclosure Package or the Memorandum or any such other material, in all cases at its own expense,
except as provided in Section 6(e).
(b) Each Initial Purchaser acknowledges and agrees that the Company and, for the purposes of
the opinions to be delivered to the Initial Purchasers pursuant to Sections 5(c), 5(d), 5(e) and
5(f), counsel for the Company, counsel for the Guarantor and counsel for the Initial Purchasers,
respectively, may rely upon the accuracy of the representations and warranties of such Initial
Purchaser, and compliance of such Initial Purchaser with its agreements, contained in paragraph
7(a) above, and such Initial Purchaser hereby consents to such reliance.
8.
Indemnity and Contribution
. (a) The Company and the Guarantor, jointly and severally, agree to indemnify and hold harmless
each Initial Purchaser, the respective officers and directors of the Initial Purchasers, and each
person, if any, who controls any Initial Purchaser within the meaning of either 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, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact contained in the Offering
Memorandum, the Disclosure Package, the Final Memorandum, or in any amendment or supplement
thereto, or caused by any omission or alleged omission to state therein a material fact necessary
to make the statements therein in the light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon information
furnished to the Company in writing by the Initial Purchasers expressly for use therein, it being
understood and agreed that the only information furnished by any such Initial Purchaser consists of
the information described in Section 8(b);
(b) Each Initial Purchaser, severally and not jointly, agrees to indemnify and hold
harmless the Company, its directors, its officers, the Guarantor, its directors, its
-11-
officers and each other person, if any, who controls the Company or the Guarantor within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Company and the Guarantor to the Initial
Purchasers, but only with reference to information relating to the Initial Purchasers
furnished in writing by the Initial Purchasers to the Company expressly for use in the
Offering Memorandum, the Disclosure Package or the Final Memorandum or any amendments or
supplements thereto, it being understood and agreed that the only information furnished by
any such Initial Purchaser consists of the following information in the Offering Memorandum:
the ninth (first sentence only) and tenth paragraphs under the caption Plan of
Distribution.
(c) In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought pursuant to
Section 8(a) or 8(b), such person (the
indemnified party
) shall promptly notify the person
against whom such indemnity may be sought (the
indemnifying party
) in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and disbursements
of such counsel related to such proceeding; but the omission so to promptly notify the
indemnifying party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection provided that the party entitled to
be so notified is not prejudiced by such delay to promptly notify. In any such proceeding,
any indemnified party 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 party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not, in respect
of the legal expenses of any indemnified party in connection with any proceeding or related
proceedings 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 such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Initial Purchasers, in the case of parties indemnified pursuant to Section
8(a), and by the Guarantor, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party 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 party agrees to indemnify the indemnified party from and
against any loss or liability 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
the second and third sentences of this paragraph, 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 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with
-12-
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 of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter
of such proceeding, and (ii) does not include an admission of fault, culpability or a
culpable failure to act, by or on behalf of an indemnified party.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is
unavailable to an indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party 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 or the Guarantor on the one hand and the Initial Purchasers
on the other hand from the offering of the Notes or (ii) if the allocation provided by
clause 8(d)(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 8(d)(i) above
but also the relative fault of the Company or the Guarantor on the one hand and of the
Initial Purchasers on the other hand 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 benefits received by the Company or the Guarantor on
the one hand and the Initial Purchasers on the other hand in connection with the offering of
the Notes shall be deemed to be in the same respective proportions as the net proceeds from
the offering of the Notes (before deducting expenses) received by the Company and the total
discounts and commissions received by the Initial Purchasers, in each case as set forth in
the Offering Memorandum or herein, bear to the aggregate offering price of the Notes. The
relative fault of the Company or the Guarantor on the one hand and of the Initial Purchasers
on the other hand 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 and the Guarantor or by the Initial Purchasers, 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 Initial Purchasers agree that it would not be
just or equitable if contribution pursuant to this Section 8 were determined by
pro rata
allocation or by any other method of allocation that does not take account of the equitable
considerations referred to in Section 8(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in Section 8(d)
shall be deemed to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this Section 8, no
Initial Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes resold by it in the initial placement of such Notes
were offered to investors exceeds the amount of any damages
-13-
that such Initial Purchaser 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 remedies provided for in
this Section 8 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity. The Initial
Purchasers obligations to contribute pursuant to this Section 8 are several in proportion
to the respective principal amount of Notes they have agreed to purchase hereunder and not
joint.
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company or the Guarantor contained
in this Agreement 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 any Initial
Purchaser or any person controlling any Initial Purchaser or by or on behalf of the Company,
its officers or directors, the Guarantor, its officers or directors or any other person
controlling the Company or the Guarantor and (iii) acceptance of and payment for any of the
Notes.
9.
Termination
. This Agreement shall be subject to termination by notice given by the Initial Purchasers to the
Company and the Guarantor, if (a) after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially limited on or by, as
the case may be, either the New York Stock Exchange or The NASDAQ Stock Market LLC, or settlement
of trading shall have been materially disrupted, (ii) trading of any securities of the Guarantor
shall have been suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared by either Federal
or New York State authorities or (iv) there shall have occurred any outbreak or escalation of
hostilities (including without limitation an act of terrorism) or any change in financial markets
or any calamity or crisis that, in your judgment, is material and adverse to the financial markets
generally and (b) in the case of any of the events specified in
clauses 9(a)(i) through 9(a)(iv), such event, singly or together with any other such event, makes
it, in your judgment, impracticable to market the Securities on the terms and in the manner
contemplated by this Agreement and the Offering Memorandum.
10.
Default by an Initial Purchaser
. If any one or more Initial Purchasers shall fail to purchase and pay for any of the Notes agreed
to be purchased by such Initial Purchaser hereunder and such failure to purchase shall constitute a
default in the performance of its or their obligations under this Agreement, the remaining Initial
Purchasers shall be obligated severally to take up and pay for (in the respective proportions that
the principal amount of Notes set forth opposite their names in Schedule A hereto bears to the
aggregate principal amount of Notes set forth opposite the names of all the remaining Initial
Purchasers) the Notes that the defaulting Initial Purchaser or Initial Purchasers agreed but failed
to purchase; provided, however, that in the event that the aggregate principal amount of Notes that
the defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase shall exceed
10% of the aggregate principal amount of Notes set forth in Schedule A hereto, the remaining
Initial Purchasers shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Notes, and if such nondefaulting Initial Purchasers do not purchase all the
Notes, this Agreement will
-14-
terminate without liability to any nondefaulting Initial Purchaser or
the Company. In the event of a default by any Initial Purchaser as set forth in this Section 10,
the Closing Date shall be postponed for such period, not exceeding five business days, as the
Initial Purchasers shall determine in order that the required changes in the Final Memorandum or in
any other documents or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Initial Purchaser of its liability, if any, to the Company or any
nondefaulting Initial Purchaser for damages occasioned by its default hereunder.
11.
Effectiveness;
Expense Reimbursement.
This Agreement shall become effective upon the execution and delivery hereof by the parties
hereto.
If this Agreement shall be terminated by the Initial Purchasers because of any failure or
refusal on the part of the Company or the Guarantor to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the Company or the Guarantor shall be unable
to perform its obligations under this Agreement, the Company will reimburse the Initial Purchasers
for all out-of-pocket expenses (including the fees and disbursements of their counsel up to a
maximum of $100,000) reasonably incurred by the Initial Purchasers in connection with this
Agreement or the offering contemplated hereunder.
12.
Notices
. Notices given pursuant to this Agreement shall be in writing and shall be delivered (a) if to
the Company, at 515 W. Greens Road, Suite 1200, Houston, Texas 77067, Attention: Chief Financial
Officer, or (b) if to the Guarantor, Mintflower Place, 8 Par-La-Ville Road, Hamilton, HM08,
Bermuda, or (c) if to the Initial Purchasers, to Goldman, Sachs & Co. at its offices at 85
Broad Street, New York, New York 10004, or in any case to such other address as the person to be
notified may have requested in writing.
13.
Successors
. This Agreement is made solely for the benefit of the Initial Purchasers, the Company, the
Guarantor, their respective directors and officers and other controlling persons referred to in
Section 8 hereof, and their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term successors and assigns as used in
this Agreement shall not include a purchaser from the Initial Purchasers of any of the Securities
in its status as such purchaser.
14.
Partial Unenforceability
. If any section, paragraph or provision of this Agreement is for any reason determined to be
invalid or unenforceable, such determination shall not affect the validity or enforceability of any
other section, paragraph or provision hereof.
15.
Counterparts
. This Agreement may be signed (including by facsimile) in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
16.
Applicable Law
. This Agreement shall be governed by and construed in accordance with the internal laws of the
State of New York.
17.
No Fiduciary Duty
. The Company and Guarantor hereby acknowledge that (a) the purchase and sale of the Securities
pursuant to this Agreement is an arms-length commercial transaction between the Company and the
Guarantor, on the one hand, and the Initial Purchasers and any affiliate through which they may be
acting, on the other, (b) the Initial Purchasers are
-15-
acting as principal and not as an agent or
fiduciary of the Company or the Guarantor and (c) the Companys engagement of the Initial
Purchasers in connection with the offering and the process leading up to the offering is as
independent contractors and not in any other capacity. Furthermore, the Company and the Guarantor
agree that they are solely responsible for making their own judgments in connection with the
offering (irrespective of whether any of the Initial Purchasers has advised or is currently
advising the Company or the Guarantor on related or other matters). The Company and the Guarantor
agree that they will not claim that the Initial Purchasers have rendered advisory services of any
nature or respect, or owe an agency, fiduciary or similar duty to the Company or the Guarantor, in
connection with such transaction or the process leading thereto.
18.
Headings
. The headings of the sections of this Agreement have been inserted for convenience of reference
only and shall not be deemed a part of this Agreement.
-16-
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Very truly yours,
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NABORS INDUSTRIES LTD.
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By:
Name:
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/s/ Bruce P. Koch
Bruce P. Koch
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Title:
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Vice President and
Chief Financial Officer
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NABORS INDUSTRIES, INC.
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By:
Name:
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/s/ Bruce P. Koch
Bruce P. Koch
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Title:
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Vice President and
Chief Financial Officer
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Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
UBS SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
DEUTSCHE BANK SECURITIES INC.
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By:
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/s/ Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
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On behalf of each of the Initial Purchasers
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Signature Page to Purchase Agreement
SCHEDULE I
Pricing Supplement dated January 7, 2009
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Initial Purchasers:
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Goldman, Sachs & Co.
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UBS Securities LLC
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Citigroup Global Markets Inc.
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Deutsche Bank Securities Inc.
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Howard Weil Incorporated
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J.P. Morgan Securities Inc.
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Morgan Stanley & Co. Incorporated
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Tudor, Pickering, Holt & Co. Securities, Inc.
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Wells Fargo Securities, LLC
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Amount:
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$1,125,000,000
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Security Offered:
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Senior Notes
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Issuer:
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Nabors Industries, Inc.
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Guarantor:
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Nabors Industries Ltd.
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Coupon:
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9.250%
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Price to Investor:
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99.998% (plus accrued interest thereon from January 12, 2009)
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Purchase Price:
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99.398% (plus accrued interest thereon from January 12, 2009)
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Bond Denomination:
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$2,000 and in integral multiples of $1,000 in excess thereof.
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Maturity:
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January 15, 2019
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Yield to Maturity:
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9.250%
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Call Feature:
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Make-whole call @ T + 50 bp
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Put:
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Offer to purchase by the Issuer if a Change of Control Triggering Event occurs (as defined in the Indenture)
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1st Coupon:
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July 15, 2009
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Coupon Payment Dates:
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January 15 and July 15
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Gross Spread (%)
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0.60%
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Rating:
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Baa1 (Stable) from Moody's Investors Service, Inc.
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BBB+ (Negative) from Standard & Poor's Ratings Services
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BBB+ (Stable) from Fitch Inc.
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Offering Status:
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Rule 144A/Regulation S (with registration rights)
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CUSIPS:
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Rule 144A: 629568 AS5
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Regulation S: U6295Y AB9
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Exchange: 629568 AT3
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ISIN:
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Rule 144A: US629568AS57
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Regulation S: USU6295YAB93
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Exchange: US629568AT31
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Trade Date:
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January 7, 2009
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Settlement Date:
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January 12, 2009
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Contingent Interest:
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No
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In addition:
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As of September 30, 2008, after giving effect to the offering contemplated by this
offering memorandum, and our purchase in the open market in October 2008 of $100
million par value of our 0.94% senior exchangeable notes due 2011, Nabors consolidated
total indebtedness would have been approximately $5.2 billion in debt outstanding,
resulting in a gross funded debt to capital ratio of 0.49:1 and a net funded debt to
capital ratio of 0.36:1.
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Our (i) cash and cash equivalents, and short-term and long-term investments and
other receivables, (ii) total long-term debt, (iii) total capitalization and (iv) total
short-term and long-term debt, net of cash and cash equivalents, short-term and
long-term investments and other receivables, each as of September 30, 2008 as adjusted
to give effect to this offering of the notes, after deducting estimated offering
commission and related expenses, and the application of the net proceeds thereof and
our purchase in the open market in October 2008 of $100 million par value of our 0.94%
senior exchangeable notes due 2011 for cash of $75.9 million, which resulted in a gain,
net of tax, of $14.9 million would be $2.1 billion, $5.0 billion, $10.2 billion and
$3.1 billion, respectively.
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We expect that the net proceeds we will receive from this offering of the notes
after deducting the initial purchasers commission and expenses of this offering, will
be approximately $1.1 billion.
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Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The senior notes have not been registered under the Securities Act. The notes may not be
offered or sold within the United States or to U.S. persons except to qualified institutional
buyers in reliance on the exemption from registration provided by Rule 144A and to certain non-U.S.
persons in offshore transactions in reliance on Regulation S. You are hereby notified that sellers
of the notes may be relying on the exemption from the provisions of Section 5 of the Securities Act
provided by Rule 144A. You may obtain a copy of the preliminary Offering Memorandum and the Final
Offering memorandum (when available) for this transaction by calling your Goldman, Sachs & Co., UBS
Securities LLC, Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Howard Weil
Incorporated,
J.P. Morgan Securities Inc., Morgan Stanley & Co. Incorporated, Tudor, Pickering, Holt & Co.
Securities, Inc. or Wells Fargo Securities, LLC sales representatives to request it.
SCHEDULE A
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Principal Amount of
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Initial Purchasers
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Notes to be Purchased
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Goldman, Sachs & Co.
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$
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305,710,000
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UBS Securities LLC
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305,710,000
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Citigroup Global Markets Inc.
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183,420,000
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Deutsche Bank Securities Inc.
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183,420,000
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Howard Weil Incorporated
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24,460,000
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J.P. Morgan Securities Inc.
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24,460,000
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Morgan Stanley & Co. Incorporated
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48,900,000
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Tudor, Pickering, Holt & Co. Securities, Inc.
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24,460,000
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Wells Fargo Securities, LLC
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24,460,000
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Total
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$
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1,125,000,000
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Exhibit 4.2
NABORS INDUSTRIES, INC.
as Issuer
and
NABORS INDUSTRIES LTD.,
as Guarantor
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee
INDENTURE
Dated as of January 12, 2009
9.25% SENIOR NOTES DUE 2019
TABLE OF CONTENTS
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Page
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ARTICLE I
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DEFINITIONS AND INCORPORATION BY REFERENCE
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SECTION 1.01. Definitions
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1
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SECTION 1.02. Other Definitions
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8
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act
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9
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SECTION 1.04. Rules of Construction
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9
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ARTICLE II
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THE SECURITIES
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SECTION 2.01. Form and Dating
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10
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SECTION 2.02. Execution and Authentication
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11
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SECTION 2.03. Registrar and Paying Agent
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12
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SECTION 2.04. Paying Agent to Hold Money in Trust
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12
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SECTION 2.05. Holder Lists
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13
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SECTION 2.06. Transfer and Exchange
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13
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SECTION 2.07. Replacement Securities
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26
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SECTION 2.08. Outstanding Securities
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27
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SECTION 2.09. [Reserved.]
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27
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SECTION 2.10. Temporary Securities
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28
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SECTION 2.11. Cancellation
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28
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SECTION 2.12. Defaulted Interest
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28
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SECTION 2.13. Persons Deemed Owners
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28
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SECTION 2.14. CUSIP Numbers
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28
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ARTICLE III
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COVENANTS
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SECTION 3.01. Payment of Securities
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28
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SECTION 3.02. Maintenance of Office or Agency
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29
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SECTION 3.03. SEC Reports; Financial Statements
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29
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SECTION 3.04. Compliance Certificate
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30
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SECTION 3.05. Corporate Existence
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30
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SECTION 3.06. Waiver of Stay, Extension or Usury Laws
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30
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SECTION 3.07. Limitation on Liens
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31
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SECTION 3.08. Payment of Additional Amounts
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33
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SECTION 3.09. Limitations on Sale and Lease-Back Transactions
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35
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SECTION 3.10. Change of Control Offer
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35
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ARTICLE IV
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CONSOLIDATION, MERGER AND SALE
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SECTION 4.01. Limitation on Mergers and Consolidations
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38
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SECTION 4.02. Successors Substituted
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39
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i
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Page
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ARTICLE V
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DEFAULTS AND REMEDIES
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SECTION 5.01. Events of Default
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39
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SECTION 5.02. Acceleration
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40
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SECTION 5.03. Other Remedies
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41
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SECTION 5.04. Waiver of Existing Defaults
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42
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SECTION 5.05. Control by Majority
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42
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SECTION 5.06. Limitations on Suits
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42
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SECTION 5.07. Rights of Holders to Receive Payment
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43
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SECTION 5.08. Collection Suit by Trustee
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43
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SECTION 5.09. Trustee May File Proofs of Claim
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43
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SECTION 5.10. Priorities
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44
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SECTION 5.11. Undertaking for Costs
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44
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ARTICLE VI
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TRUSTEE
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SECTION 6.01. Duties of Trustee
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44
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SECTION 6.02. Rights of Trustee
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45
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SECTION 6.03. Individual Rights of Trustee
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46
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SECTION 6.04. Trustees Disclaimer
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46
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SECTION 6.05. Notice of Defaults
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47
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SECTION 6.06. Reports by Trustee to Holders
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47
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SECTION 6.07. Compensation and Indemnity
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47
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SECTION 6.08. Replacement of Trustee
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48
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SECTION 6.09. Successor Trustee by Merger, etc
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|
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49
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SECTION 6.10. Eligibility; Disqualification
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|
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49
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SECTION 6.11. Preferential Collection of Claims Against Company
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49
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ARTICLE VII
|
DISCHARGE OF INDENTURE
|
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SECTION 7.01. Termination of Companys and Guarantors Obligations
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|
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50
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|
SECTION 7.02. Application of Trust Money
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53
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|
SECTION 7.03. Repayment to Company
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53
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SECTION 7.04. Reinstatement
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54
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ARTICLE VIII
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AMENDMENTS
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SECTION 8.01. Without Consent of Holders
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54
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SECTION 8.02. With Consent of Holders
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55
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|
SECTION 8.03. Compliance with Trust Indenture Act
|
|
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57
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|
SECTION 8.04. Revocation and Effect of Consents
|
|
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57
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|
SECTION 8.05. Notation on or Exchange of Securities
|
|
|
58
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|
SECTION 8.06. Trustee to Sign Amendments, etc
|
|
|
58
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|
ii
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Page
|
|
ARTICLE IX
|
GUARANTEES OF SECURITIES
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SECTION 9.01. Unconditional Guarantees
|
|
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58
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|
SECTION 9.02. Execution and Delivery of Notation of Guarantees
|
|
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60
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|
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|
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|
|
ARTICLE X
|
REDEMPTION
|
|
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|
|
|
SECTION 10.01. Notices to Trustee
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|
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61
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SECTION 10.02. Selection of Securities to be Redeemed
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|
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61
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|
SECTION 10.03. Notices to Holders.
|
|
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61
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|
SECTION 10.04. Effect of Notices of Redemption
|
|
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62
|
|
SECTION 10.05. Deposit of Redemption Price
|
|
|
62
|
|
SECTION 10.06. Securities Redeemed in Part
|
|
|
63
|
|
SECTION 10.07. Optional Redemption
|
|
|
63
|
|
|
|
|
|
|
ARTICLE XI
|
MISCELLANEOUS
|
|
|
|
|
|
SECTION 11.01. Trust Indenture Act Controls
|
|
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63
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|
SECTION 11.02. Notices
|
|
|
63
|
|
SECTION 11.03. Communication by Holders with Other Holders
|
|
|
64
|
|
SECTION 11.04. Certificate and Opinion as to Conditions Precedent
|
|
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64
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|
SECTION 11.05. Statements Required in Certificate or Opinion
|
|
|
65
|
|
SECTION 11.06. Rules by Trustee and Agents
|
|
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65
|
|
SECTION 11.07. Legal Holidays
|
|
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65
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|
SECTION 11.08. No Recourse Against Others
|
|
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65
|
|
SECTION 11.09. Governing Law
|
|
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65
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|
SECTION 11.10. Consent to Jurisdiction and Service of Process
|
|
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65
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SECTION 11.11. Waiver of Immunity
|
|
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66
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|
SECTION 11.12. Judgment Currency
|
|
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66
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|
SECTION 11.13. No Adverse Interpretation of Other Agreements
|
|
|
66
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|
SECTION 11.14. Successors
|
|
|
67
|
|
SECTION 11.15. Severability
|
|
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67
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|
SECTION 11.16. Counterpart Originals
|
|
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67
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|
SECTION 11.17. Table of Contents, Headings, etc
|
|
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67
|
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|
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|
EXHIBITS
|
|
|
|
|
|
|
|
|
|
EXHIBIT A Form of Security
|
|
A-1
|
EXHIBIT B Form of Certificate of Transfer
|
|
B-1
|
EXHIBIT C Form of Certificate of Exchange
|
|
C-1
|
iii
THIS INDENTURE dated as of January 12, 2009, is among Nabors Industries, Inc., a Delaware
corporation (the Company), Nabors Industries Ltd., a Bermuda exempted company (the Guarantor),
and Wells Fargo Bank, National Association, a national banking association, as trustee (the
Trustee).
Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of the Companys 9.25% Senior Notes due 2019 issued on the date
hereof (the Initial Securities), the Holders of any Additional Securities (as defined herein)
issued hereafter and, if and when issued in exchange for the Initial Securities or any Additional
Securities as provided in a Registration Rights Agreement (as hereinafter defined), the Companys
Exchange Securities (as hereinafter defined):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01.
Definitions
.
Additional Interest means, with respect to any Securities, the additional or special
interest thereon, if any, required by the Registration Rights Agreement applicable to such
Securities.
Additional Securities means any Securities (other than the Initial Securities or the
Exchange Securities) issued under this Indenture in accordance with Section 2.02, as part of the
same series as the Initial Securities to the extent outstanding and any Exchange Securities then
outstanding.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by, or under direct or indirect common control with, such specified Person. For
purposes of this definition, control of a 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 shall have
meanings correlative to the foregoing. The Trustee may request and may conclusively rely upon an
Officers Certificate to determine whether any Person is an Affiliate of any specified Person.
Agent means any Registrar or Paying Agent.
Applicable Procedures means, with respect to any transfer or exchange of or for beneficial
interests in any Global Security, the rules and procedures of the Depositary, Euroclear or
Clearstream that apply to such transfer or exchange.
Attributable Debt means, with respect to any Sale and Lease-Back 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.
Bankruptcy Law means Title 11, U.S. Code or any similar U.S. or State law or any similar
foreign law for the relief of debtors.
1
Board of Directors of any Person means the board of directors, board of managers (or other
comparable governing body) of such Person or any committee thereof duly authorized, with respect to
any particular matter, to act by or on behalf of the board of directors of such Person.
Business Day means any day that is not a Legal Holiday.
Capital Stock means (i) in the case of a corporation or a company, corporate stock or
shares; (ii) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock; (iii.) in the
case of a partnership or limited liability company, partnership or membership interests (whether
general or limited); and (iv) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of assets of, the issuing
Person.
Clearstream means Clearstream Banking, société anonyme or any successor securities clearing
agency.
Code means the Internal Revenue Code of 1986, as amended, and any successor statute.
Company means the Person named as the Company in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor Person.
Consolidated Net Tangible Assets means the total assets of the Guarantor and the
Subsidiaries as of the most recent fiscal quarter end for which a consolidated balance sheet of the
Guarantor and the Subsidiaries is available,
minus
all current liabilities (excluding the current
portion of any long-term debt) of the Guarantor and the Subsidiaries reflected on such balance
sheet and
minus
total goodwill and other intangible assets of the Guarantor and the Subsidiaries
reflected on such balance sheet, all calculated on a consolidated basis in accordance with GAAP.
Continuing Director 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 (a) on the Issue Date or (b) for at least two
consecutive years; or
(2) was nominated for election, elected or appointed 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, election or appointment (either by a specific vote or by approval of
the Guarantors proxy statement in which such member was named as a nominee for election as a
director, without objection to such nomination).
Corporate Trust Office of the Trustee means the office of the Trustee at which this
Indenture shall be principally administered, which office shall initially be located at the address
of the Trustee specified in Section 11.02 and may be located at such other address as the Trustee
may give notice to the Company and the Holders or such other address as a successor Trustee may
designate from time to time by notice to the Company and the Holders.
2
Custodian means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Default means any event, act or condition that is, or after notice or the passage of time or
both would be, an Event of Default.
Definitive Security means a certificated Security registered in the name of the Holder
thereof and issued in accordance with Section 2.06, substantially in the form of Exhibit A hereto,
except that such Security shall not bear the Global Security Legend and shall not have the
Schedule of Exchanges of Securities attached thereto.
Depositary means The Depository Trust Company and its successors.
Euroclear means Euroclear Bank N.V./S.A. or any successor securities clearance agency.
Exchange Act means the Securities Exchange Act of 1934, as amended, and any successor
statute.
Exchange Offer Registration Statement means the registration statement of the Company
relating to any offer to exchange Exchange Securities for either Initial Securities or Additional
Securities pursuant to a Registration Rights Agreement.
Exchange Securities means Securities issued in an exchange offer for Initial Securities or
Additional Securities in accordance with a Registration Rights Agreement.
Exchanging Dealer means a broker-dealer that exchanges Securities in a Registered Exchange
Offer that it has acquired for its own account as a result of market making activities or other
trading activities.
Fitch means Fitch Inc., a subsidiary of Fimalac, S.A., and its successors.
Funded Debt means indebtedness for money borrowed which by its terms matures at, or is
extendible or renewable at the option of the obligor to, a date more than twelve months after the
date of creation of such indebtedness.
GAAP means generally accepted accounting principles in the United States, as in effect from
time to time.
Global Securities means, individually and collectively, each of the Restricted Global
Securities and the Unrestricted Global Securities.
Global Security Legend means the legend set forth in Section 2.06(g)(2) which is required to
be placed on all Global Securities issued under this Indenture.
Guarantor means the Person named as a Guarantor in the first paragraph of this instrument
until a successor Person shall have assumed the obligations of such Person pursuant
3
to the applicable provisions of this Indenture, and thereafter Guarantor shall mean such
successor Person(s).
Holder means a Person in whose name a Security is registered on the Registrars books.
Indebtedness means any indebtedness for money borrowed or representing the deferred purchase
price of property or assets purchased.
Indenture means this Indenture as amended or supplemented from time to time.
Indirect Participant means a Person who holds a beneficial interest in a Global Security
through a Participant.
Initial Purchasers means, with respect to the Initial Securities, the initial purchasers
named in the Purchase Agreement, as initial purchasers of the Initial Securities in the Offering.
Interest Payment Date has the meaning assigned to such term in the Securities.
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under any
successor rating category of Moodys); a rating of BBB- or better by S&P (or its equivalent under
any successor rating category of S&P); a rating of BBB- or better by Fitch (or its equivalent under
any successor rating category of Fitch); and the equivalent investment grade rating from any
replacement Rating Agency or Agencies appointed by the Company or the Guarantor.
Issue Date means the first date on which the Securities are issued under this Indenture.
Legal Holiday means a Saturday, a Sunday or a day on which banking institutions in any of
New York, New York, Houston, Texas or a place of payment are authorized or obligated by law,
regulation or executive order to remain closed.
Letter of Transmittal means the letter of transmittal prepared by the Company and sent to
all Holders of Initial or Additional Securities, as the case may be, for use by such Holders in
connection with a Registered Exchange Offer.
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, by declaration of acceleration, call for redemption or otherwise.
Moodys means Moodys Investors Service, Inc., a subsidiary of Moodys Corporation, and its
successors.
Non-U.S. Person means a Person who is not a U.S. Person.
Offering means the offering of the Initial Securities pursuant to the Offering Memorandum.
4
Offering Memorandum means the final Offering Memorandum of the Company, dated January 7,
2009, relating to the Offering.
Officer means the Chairman of the Board, the Chief Executive Officer, the President, any
Vice Chairman of the Board, any Vice President, the Chief Financial Officer, the Chief Accounting
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Assistant
Secretary of a Person.
Officers Certificate means a certificate signed by two Officers of a Person, one of whom
must be the Persons Chief Executive Officer, Chief Financial Officer or Chief Accounting Officer
or its Vice President, and that complies with Sections 11.04 and 11.05 of this Indenture.
144A Global Security means a Global Security substantially in the form of Exhibit A hereto
bearing the Global Security Legend and the Private Placement Legend, that has the Schedule of
Exchanges of Interests in the Global Security attached thereto, and that is deposited with or on
behalf of, and registered in the name of, the Depositary or its nominee, issued in a denomination
equal to the outstanding principal amount of the Securities initially sold in reliance on Rule
144A.
Opinion of Counsel means a written opinion from legal counsel who is acceptable to the
Trustee and that complies with Sections 11.04 and 11.05 of this Indenture. Such counsel may be an
employee of or counsel to the Company, the Guarantor or the Trustee.
Participant means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to
DTC, shall include Euroclear and Clearstream).
Person means any individual, corporation, limited liability company, limited or general
partnership, joint venture, incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political subdivision thereof or other
entity of any kind.
Private Placement Legend means the legend set forth in Section 2.06(g)(1)(A) which is
required to be placed on all Securities issued under this Indenture except where otherwise
permitted by the provisions of this Indenture.
Purchase Agreement means the Purchase Agreement, dated January 7, 2009, among the Company,
the Guarantor and the Initial Purchasers.
QIB means a qualified institutional buyer as defined in Rule 144A.
Rating Agency means each of Moodys, S&P and Fitch; provided, that if any of Moodys, S&P
and Fitch ceases to rate the Securities or fails to make a rating of the Securities publicly
available, the Company or the Guarantor shall appoint a replacement for such Rating Agency that is
a nationally recognized statistical rating organization within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act.
5
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 means the price at which the Securities may be redeemed, as set forth in
paragraph 4 of the form of Securities.
Registered Exchange Offer means an offer to exchange Exchange Securities for either Initial
Securities or Additional Securities pursuant to an Exchange Offer Registration Statement as
required by a Registration Rights Agreement.
Registration Rights Agreement means, with respect to the Initial Securities, the
Registration Rights Agreement, dated as of the Issue Date, among the Company, the Guarantor and the
Initial Purchasers, or any similar registration rights agreement with respect to Additional
Securities.
Regulation S means Regulation S promulgated under the Securities Act, as such may be amended
from time to time, or any similar rule or regulation hereafter adopted by the SEC.
Regulation S Global Security means a permanent Global Security substantially in the form of
Exhibit A hereto bearing the Global Security Legend and the Private Placement Legend, that has the
Schedule of Exchanges of Interests in the Global Security attached thereto, and that is deposited
with or on behalf of, and registered in the name of, the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Securities initially sold in reliance
on Rule 903 of Regulation S.
Responsible Officer means, when used with respect to the Trustee, any officer assigned by
the Trustee to administer corporate trust matters or to whom any corporate trust matter is referred
because of such persons knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
Restricted Definitive Security means a Definitive Security bearing the Private Placement
Legend.
Restricted Global Security means a Regulation S Global Security or a 144A Global Security.
Restricted Period means the distribution compliance period as defined in Regulation S.
Rule 144 means Rule 144 promulgated under the Securities Act, as such Rule may be amended
from time to time, or any similar rule (other than Rule 144A) or regulation hereafter adopted by
the SEC providing for offers and sales of securities made in compliance therewith resulting in
offers and sales by subsequent holders that are not affiliates of the issuer of such securities
being free of the registration and prospectus delivery requirements of the Securities Act.
6
Rule 144A means Rule 144A promulgated under the Securities Act, as such Rule may be amended
from time to time, or any similar rule (other than Rule 144) or regulation hereafter adopted by the
SEC.
Rule 903 means Rule 903 promulgated under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the SEC.
Rule 904 means Rule 904 promulgated under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the SEC.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.,
and its successors.
Sale and Lease-Back Transaction means any arrangement with any Person providing for the
leasing by the Guarantor or any Subsidiary of any property, whereby such property had been sold or
transferred by the Guarantor or any Subsidiary to such Person.
SEC means the Securities and Exchange Commission.
Securities means securities issued under this Indenture. The Initial Securities, the
Exchange Securities and the Additional Securities shall be treated as a single class for all
purposes under this Indenture, including, without limitation, waivers, amendments, redemptions and
offers to purchase and unless otherwise provided or the context otherwise requires, all references
to the Securities shall include the Initial Securities, the Exchange Securities and the
Additional Securities.
Securities Act means the Securities Act of 1933, as amended, and any successor statute.
Securities Custodian means the Trustee, as custodian on behalf of the Depositary with
respect to the Securities in global form, or any successor entity thereto.
Shelf Registration Statement means a registration statement of the Company used by a Holder
in connection with its offer and sale of Securities pursuant to a Registration Rights Agreement.
Stated Maturity means, with respect to any Security, the date specified in such Security as
the fixed date on which the principal of such Security is due and payable.
Subsidiary means (1) any corporation, association or other business entity (other than a
partnership, joint venture or limited liability company) of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time of determination
owned or controlled, directly or indirectly, by the Guarantor or one or more of the other
Subsidiaries or a combination thereof and (2) any partnership, joint venture or limited liability
company of which (x) more than 50% of the capital accounts, distribution rights, total equity and
voting interests or general and limited partnership interests, as applicable, are owned or
controlled, directly or indirectly, by the Guarantor or one or more of the other Subsidiaries or
7
a combination thereof, whether in the form of membership, general, special or limited
partnership interests or otherwise, (y) the Guarantor or any of the Subsidiaries is a controlling
general partner or otherwise controls such entity and (z) such entity is consolidated in the
consolidated financial statements of the Guarantor in accordance with GAAP.
Taxes means any tax, duty, levy, impost, assessment or other governmental charge of whatever
nature imposed or levied by or on behalf of the Government of Bermuda or by an authority or agency
therein or thereof having the power to tax, including any interest, penalties or other charges in
respect thereof.
TIA or Trust Indenture Act means the Trust Indenture Act of 1939, as amended (15 U.S.C.
Sections 77aaa-77bbbb), as in effect on the Issue Date, except as provided in Section 8.03.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean the successor serving hereunder.
U.S. Government Obligations means direct obligations (or certificates representing an
ownership interest in such obligations) of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged.
U.S. Person means a U.S. person as defined in Rule 902(k) under the Securities Act.
Unrestricted Definitive Security means a Definitive Security that does not bear and is not
required to bear the Private Placement Legend.
Unrestricted Global Security means a permanent Global Security substantially in the form of
Exhibit A attached hereto that bears the Global Security Legend and that has the Schedule of
Exchanges of Securities attached thereto and that is deposited with or on behalf of and registered
in the name of the Depositary or its nominee, representing Securities that do not bear the Private
Placement Legend.
Voting Stock of any specified Person as of any date means the Capital Stock of such Person
that is at the time entitled to vote generally in the election of the Board of Directors of such
Person.
SECTION 1.02.
Other Definitions
.
|
|
|
|
|
|
|
Defined in
|
Term
|
|
Section
|
Additional Amounts
|
|
|
3.08
|
|
Authorized Agent
|
|
|
11.10
|
|
Change of Control
|
|
|
3.10
|
|
Change of Control Offer
|
|
|
3.10
|
|
Change of Control Payment Date
|
|
|
3.10
|
|
Change of Control Trigger Event
|
|
|
3.10
|
|
8
|
|
|
|
|
|
|
Defined in
|
Term
|
|
Section
|
Covenant Defeasance
|
|
|
7.01
|
(c)
|
Debt
|
|
|
3.07
|
|
DTC
|
|
|
2.03
|
|
Event of Default
|
|
|
5.01
|
|
Excluded Holder
|
|
|
3.08
|
|
Guarantees
|
|
|
9.01
|
(a)
|
Indenture Obligations
|
|
|
9.01
|
(a)
|
Initial Securities
|
|
|
Preamble
|
Judgment Currency
|
|
|
11.12
|
|
mortgage or mortgages
|
|
|
3.07
|
|
Paying Agent
|
|
|
2.03
|
|
Registrar
|
|
|
2.03
|
|
Territory
|
|
|
3.08
|
|
Trigger Period
|
|
|
3.10
|
|
SECTION 1.03.
Incorporation by Reference of Trust Indenture Act
.
Whenever this Indenture refers to a provision of the TIA, such provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
commission means the SEC;
indenture securities means the Securities;
indenture security holder means a Holder;
indenture to be qualified means this Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the indenture securities means the Company and the Guarantor.
All other terms used in this Indenture, and not otherwise defined herein, that are defined by
the TIA, defined by a TIA reference to another statute or defined by an SEC rule under the TIA have
the meanings so assigned to them. All references in this Indenture to Sections or Articles are
to Sections or Articles, as applicable, of this Indenture, unless otherwise expressly indicated.
SECTION 1.04.
Rules of Construction
. Unless the context otherwise requires: (1) a term has
the meaning assigned to it; (2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP; (3) or is not exclusive; (4) words in the singular include the
plural, and in the plural include the singular; (5) words implying any gender shall apply to all
genders; (6) the term merger includes a statutory compulsory share exchange and a conversion of a
corporation into a limited liability company, a partnership or other entity and vice versa and (7)
provisions apply to successive events and transactions.
9
ARTICLE II
THE SECURITIES
SECTION 2.01.
Form and Dating
.
(a)
General
. The Securities, any notations thereon relating to the Guarantees and the
Trustees certificate of authentication shall be substantially in the form of Exhibit A to this
Indenture, the terms of which are hereby incorporated into this Indenture. The Securities may have
notations, legends or endorsements required by law, securities exchange rule, the Companys
certificate of incorporation, bylaws, agreements to which the Company is subject, if any, or usage,
provided that any such notation, legend or endorsement is in a form acceptable to the Company. Each
Security shall be dated the date of its authentication. The Securities shall be in registered form
without coupons and issued only in minimum denominations of $2,000 and integral multiples of $1,000
in excess thereof. The terms and provisions contained in the Securities shall constitute, and are
hereby expressly made, a part of this Indenture and, to the extent applicable, the Company, the
Guarantor and the Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any provision of any
Security conflicts with the express provisions of this Indenture, the provisions of this Indenture
(to the extent permitted by law) shall govern and be controlling.
(b)
Global Securities
. Securities issued in global form shall be substantially in the form of
Exhibit A attached hereto (including the Global Security Legend thereon and the Schedule of
Exchanges of Interests in the Global Security attached thereto). Securities issued in definitive
form shall be substantially in the form of Exhibit A attached hereto (but without the Global
Security Legend thereon and without the Schedule of Exchanges of Interests in the Global Security
attached thereto). Each Global Security shall represent such of the outstanding Securities as
shall be specified therein, and each shall provide that it shall represent the aggregate principal
amount of outstanding Securities from time to time endorsed thereon and that the aggregate
principal amount of outstanding Securities represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Security to reflect the amount of any increase or decrease in the aggregate principal amount of
outstanding Securities represented thereby shall be made by the Trustee or the Securities
Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06.
(c)
Regulation S Global Securities
. Any Securities offered and sold in reliance on Regulation
S shall be issued initially in the form of a Regulation S Global Security, which shall be deposited
on behalf of the purchasers of the Securities represented thereby with the Securities Custodian,
and registered in the name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. Prior to the expiration of the Restricted
Period, any resale or transfer of beneficial interests in a Regulation S Global Security to U.S.
Persons shall not be permitted unless such resale or transfer is made pursuant to Rule 144A or
Regulation S.
10
(d)
144A Global Securities
. Any Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of a 144A Global Security, which shall be deposited on behalf of the
purchasers of the Securities represented thereby with the Securities Custodian, and registered in
the name of the Depositary or the nominee of the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided.
(e)
Definitive Securities
. Notwithstanding any other provision of this Article II, any
issuance of Definitive Securities shall be at the Companys discretion, except in the specific
circumstances set forth in Section 2.06(a).
SECTION 2.02.
Execution and Authentication
. One Officer of the Company shall sign the
Securities on behalf of the Company by manual or facsimile signature. The Companys seal may be
(but shall not be required to be) impressed, affixed, imprinted or reproduced on the Securities and
may be in facsimile form.
If an Officer of the Company 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 Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose until authenticated by the manual signature of an authorized signatory of the
Trustee, which signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate and deliver: (1) Initial Securities for original issue in an
aggregate principal amount of $1,125,000,000, (2) if and when issued, Additional Securities (which
may be issued in either a registered or a private offering under the Securities Act) and (3)
Exchange Securities for issue only in an exchange offer pursuant to a Registration Rights
Agreement, and only in exchange for Initial Securities or Additional Securities of an equal
principal amount, in each case upon a written order of the Company signed by one Officer of the
Company. Such order shall specify the amount of the Securities to be authenticated and the date on
which the issue of Securities is to be authenticated and whether the Securities are to be in global
or definitive form and whether they are to bear the Private Placement Legend. The Company may
issue Additional Securities under this Indenture subsequent to the Issue Date,
provided
that no
Additional Securities may be issued at a price that would cause such Additional Securities to have
original issue discount within the meaning of Section 1273 of the Code. In authenticating such
Securities, the Trustee shall be entitled to receive, and shall be entitled to rely upon, an
Opinion of Counsel substantially to the effect that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors rights and to general equity principles.
The aggregate principal amount of Securities outstanding at any time may not exceed the
aggregate principal amount of Securities authorized for issuance by the Company pursuant to such
written orders of the Company, except as provided in Section 2.07. Subject to the
11
foregoing, the aggregate principal amount of Securities that may be issued under this
Indenture shall not be limited.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. Unless limited by the terms of such appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company, the Guarantor or any of their respective
Affiliates.
SECTION 2.03.
Registrar and Paying Agent
. The Company shall maintain in the continental
United States an office or agency where Securities may be presented for registration of transfer or
exchange (Registrar) and an office or agency where Securities may be presented for payment
(Paying Agent). The Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more additional paying
agents. The term Registrar includes any co-registrar and the term Paying Agent includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with any Registrar or Paying
Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture
that relate to such Agent. The Company shall notify the Trustee of the name and address of any
Agent not a party to this Indenture. The Company may change any Paying Agent or Registrar without
notice to any Holder. If the Company fails to appoint or maintain another entity as Registrar or
Paying Agent, the Trustee shall act as such. The Guarantor or any of its Subsidiaries may act as
Paying Agent or Registrar.
The Company initially appoints Wells Fargo Bank, National Association, as Registrar and Paying
Agent for the Securities at its Corporate Trust Office. The place of payment with respect to the
Securities, in addition to the Corporate Trust Office of the Trustee, shall be The City of New
York, and the Company hereby appoints Wells Fargo Bank, National Association, as its Paying Agent
in The City of New York, at its corporate trust office in such city, which, at the date hereof, is
located at 45 Broadway, 14
th
Floor, New York, New York 10006-3007, the intention of the
Company being that the Securities shall at all times be payable in The City of New York.
The immunities, protections and exculpations available to the Trustee under this Indenture
shall also be available to each Agent, and the Companys obligations under Section 6.07 to
compensate and indemnify the Trustee shall extend likewise to each Agent.
The Company initially appoints The Depository Trust Company (DTC) to act as Depositary with
respect to each Global Security.
SECTION 2.04.
Paying Agent to Hold Money in Trust
. The Company shall require each Paying
Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal
of or premium, if any, Additional Amounts, if any, or interest on the Securities, whether such
money shall have been paid to it by the Company or the Guarantor, and
12
will notify the Trustee of any default by the Company or the Guarantor in making any such
payment. While any such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and to account for any funds
disbursed. Upon payment over to the Trustee and upon accounting for any funds disbursed, the Paying
Agent (if other than the Company) shall have no further liability for the money. If the Company or
a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent.
SECTION 2.05.
Holder Lists
. The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of Holders and shall
otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least seven Business Days before each Interest Payment Date, and at such
other times as the Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders, and the Company shall
otherwise comply with TIA Section 312(a).
SECTION 2.06.
Transfer and Exchange
.
(a)
Transfer and Exchange of Global Securities
. A Global Security may not be transferred as a
whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to
the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary. Global Securities also may be
exchanged or replaced, in whole, as provided in Section 2.07. Owners of beneficial interests in
Global Securities shall not be entitled to receive Definitive Securities unless:
(1) the Company delivers to the Trustee and the Registrar notice from the Depositary
that it is unwilling or unable to continue to act as Depositary or that it is no longer a
clearing agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 90 days;
(2) there has occurred and is continuing an Event of Default and the Depositary
notifies the Trustee of its decision to exchange the Global Securities for Definitive
Securities; provided that in no event shall the Regulation S Global Security be exchanged by
the Company for Definitive Securities prior to the expiration of the Restricted Period; or
(3) any such owner requests (through a Participant or an Indirect Participant) an
exchange of its beneficial interest in a Global Security for a Definitive Security, and the
Depositary gives the Trustee and the Registrar, in accordance with the Applicable
Procedures, at least 20 days prior notice of the request.
Upon the occurrence of any of the events in clause (1), (2) or (3) above, Definitive Securities
shall be issued in such names and authorized denominations as the Depositary shall instruct the
Trustee and the Registrar in accordance with the Applicable Procedures. Neither the Company,
13
the Guarantor nor the Trustee or the Registrar will be liable for any delay by the Depositary in
identifying the owners of beneficial interests in a Global Security, and each of the Company, the
Guarantor, the Trustee and the Registrar may conclusively rely on, and will be protected in relying
on, instructions from the Depository for all purposes of this Indenture.
(b)
Transfer and Exchange of Beneficial Interests in the Global Securities
. The transfer and
exchange of beneficial interests in the Global Securities shall be effected through the Depositary,
in accordance with the provisions of this Indenture and the Applicable Procedures. Transfers of
beneficial interests in the Global Securities also shall require compliance with either
subparagraph (1) or (2) below, as applicable, as well as one or more of the other following
provisions of this Section 2.06, as applicable:
(1)
Transfer of Beneficial Interests in the Same Global Security
. Beneficial interests
in any Restricted Global Security may be transferred to Persons who take delivery thereof in
the form of a beneficial interest in the same Restricted Global Security in accordance with
the transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, (A) transfers of beneficial interests in
the Regulation S Global Security may not be to a U.S. Person or for the account or benefit
of a U.S. Person (other than an Initial Purchaser) and (B) such beneficial interests may be
held only through Euroclear or Clearstream (as Indirect Participants in the Depositary).
Beneficial interests in any Unrestricted Global Security may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in such Unrestricted Global
Security. No written orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in the preceding sentence of this Section
2.06(b)(1).
(2)
All Other Transfers and Exchanges of Beneficial Interests in Global Securities
. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the
Registrar either:
(A) (i) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the Depositary
to credit or cause to be credited a beneficial interest in another Global Security
in an amount equal to the beneficial interest to be transferred or exchanged; and
(ii) instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase; or
(B) (i) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the Depositary
to cause to be issued a Definitive Security in an amount equal to the beneficial
interest to be transferred or exchanged; and
14
(ii) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Security shall be
registered to effect the transfer or exchange referred to in Section
2.06(b)(2)(B)(i) above; provided that in no event shall Definitive Securities be
issued upon the transfer or exchange of beneficial interests in the Regulation S
Global Security prior to the expiration of the Restricted Period.
Upon consummation of a Registered Exchange Offer by the Company in accordance with Section 2.06(f),
the requirements of this Section 2.06(b)(2) shall be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of
such beneficial interests in the Restricted Global Securities (or transmitted to the Registrar via
the Depositarys book-entry system). Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Securities contained in this Indenture, the Securities
or otherwise applicable under the Securities Act, the principal amount of each relevant Global
Security shall be adjusted pursuant to Section 2.06(h).
(3)
Transfer of Beneficial Interests to Another Restricted Global Security
. A
beneficial interest in any Restricted Global Security may be transferred to a Person who
takes delivery thereof in the form of a beneficial interest in another Restricted Global
Security if the transfer complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a beneficial interest
in the 144A Global Security, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Global Security, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in item (2) thereof,
and if such transfer occurs prior to the expiration of the Restricted Period, then
the transferee must hold such beneficial interest through either Euroclear or
Clearstream (as Indirect Participants in the Depositary).
(4)
Transfer and Exchange of Beneficial Interests in a Restricted Global Security for
Beneficial Interests in the Unrestricted Global Security
. A beneficial interest in any
Restricted Global Security may be exchanged by any holder thereof for a beneficial interest
in an Unrestricted Global Security or transferred to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Security if the exchange or
transfer complies with the requirements of Section 2.06(b)(2) above:
(A) such exchange or transfer is effected pursuant to a Registered Exchange
Offer in accordance with the applicable Registration Rights Agreement and the holder
of the beneficial interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal (or via the Depositarys book-entry system) that it is not (i) a
broker-dealer, (ii) a Person participating in the distribution of the Exchange
15
Securities or (iii) a Person who is an affiliate (as defined in Rule 144) of
the Company;
(B) such transfer is effected pursuant to a Shelf Registration Statement in
accordance with the applicable Registration Rights Agreement;
(C) such transfer is effected by an Exchanging Dealer pursuant to an Exchange
Offer Registration Statement in accordance with the applicable Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global Security
proposes to exchange such beneficial interest for a beneficial interest in an
Unrestricted Global Security, a certificate from such holder in the form of Exhibit
C hereto, including the certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global Security
proposes to transfer such beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Security, a
certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and state blue sky laws and that the
restrictions on transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an
Unrestricted Global Security has not yet been issued, the Company shall issue and, upon
receipt of a written order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Securities in an aggregate principal amount
equal to the aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
(5)
Exchange or Transfer Prohibited.
Beneficial interests in an Unrestricted Global
Security cannot be exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Security.
(c)
Transfer or Exchange of Beneficial Interests for Definitive Securities
.
(1)
Beneficial Interests in Restricted Global Securities to Restricted Definitive
Securities
. If any holder of a beneficial interest in a Restricted Global Security proposes
to exchange such beneficial interest for a Restricted Definitive Security or to transfer
such beneficial interest to a Person who takes delivery thereof in the form of a
16
Restricted Definitive Security, then, upon receipt by the Registrar of the following
documentation:
(A) if the holder of such beneficial interest in a Restricted Global Security
proposes to exchange such beneficial interest for a Restricted Definitive Security,
a certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance
with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof; or
(C) if such beneficial interest is being transferred to a non-U.S. Person in an
offshore transaction in accordance with Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2) thereof,
the Registrar shall cause the aggregate principal amount of the applicable Global Security
to be reduced accordingly pursuant to Section 2.06(h), and the Company shall execute and the
Trustee shall authenticate and deliver to the Person designated in the instructions a
Definitive Security in the appropriate principal amount. Any Definitive Security issued in
exchange for a beneficial interest in a Restricted Global Security pursuant to this Section
2.06(c) shall be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Securities to the Persons in whose names such Securities are
so registered. Any Definitive Security issued in exchange for a beneficial interest in a
Restricted Global Security pursuant to this Section 2.06(c)(1) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained therein.
Notwithstanding Sections 2.06(c)(1)(A) and (C), a beneficial interest in the Regulation S
Global Security may not be exchanged for a Definitive Security or transferred to a Person
who takes delivery thereof in the form of a Definitive Security prior to the expiration of
the Restricted Period, except in the case of a transfer pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 904.
(2)
Beneficial Interests in Restricted Global Securities to Unrestricted Definitive
Securities
. A holder of a beneficial interest in a Restricted Global Security may exchange
such beneficial interest for an Unrestricted Definitive Security or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Security only if:
(A) such exchange or transfer is effected pursuant to a Registered Exchange
Offer in accordance with the applicable Registration Rights Agreement and the holder
of such beneficial interest, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal (or via the
Depositarys book-entry system) that it is not (i) a broker-dealer, (ii) a
17
Person participating in the distribution of the Exchange Securities or (iii) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf Registration Statement in
accordance with the applicable Registration Rights Agreement;
(C) such transfer is effected by an Exchanging Dealer pursuant to an Exchange
Offer Registration Statement in accordance with the applicable Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global Security
proposes to exchange such beneficial interest for an Unrestricted Definitive
Security, a certificate from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global Security
proposes to transfer such beneficial interest to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Security, a certificate from such
holder in the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and state blue sky laws and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(3)
Beneficial Interests in Unrestricted Global Securities to Unrestricted Definitive
Securities
. If any holder of a beneficial interest in an Unrestricted Global Security
proposes to exchange such beneficial interest for a Definitive Security or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a Definitive
Security, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2)(B), the
Registrar shall cause the aggregate principal amount of the applicable Global Security to be
reduced accordingly pursuant to Section 2.06(h), and the Company shall execute and the
Trustee shall authenticate and deliver to the Person designated in the instructions a
Definitive Security in the appropriate principal amount. Any Definitive Security issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(3) shall be registered
in such name or names and in such authorized denomination or denominations as the holder of
such beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall deliver such
Definitive Securities to the Persons in whose names such Securities are so registered. Any
Definitive Security issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(3) shall not bear the Private Placement Legend.
18
(d)
Transfer and Exchange of Definitive Securities for Beneficial Interests
.
(1)
Restricted Definitive Securities to Beneficial Interests in Restricted Global
Securities
. If any Holder of a Restricted Definitive Security proposes to exchange such
Security for a beneficial interest in a Restricted Global Security or to transfer such
Restricted Definitive Security to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Security, then, upon receipt by the Registrar of
the following documentation:
(A) if the Holder of such Restricted Definitive Security proposes to exchange
such Security for a beneficial interest in a Restricted Global Security, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Security is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof; or
(C) if such Restricted Definitive Security is being transferred to a non-U.S.
Person in an offshore transaction in accordance with Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item (2)
thereof,
the Trustee shall cancel the Restricted Definitive Security, the Registrar shall increase or
cause to be increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Security, in the case of clause (B) above, the 144A Global
Security, and in the case of clause (C) above, the Regulation S Global Security.
(2)
Restricted Definitive Securities to Beneficial Interests in Unrestricted Global
Securities
. A Holder of a Restricted Definitive Security may exchange such Security for a
beneficial interest in an Unrestricted Global Security or transfer such Restricted
Definitive Security to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security only if:
(A) such exchange or transfer is effected pursuant to a Registered Exchange
Offer in accordance with applicable Registration Rights Agreement and the Holder, in
the case of an exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal (or via the Depositarys book-entry system)
that it is not (i) a broker-dealer, (ii) a Person participating in the distribution
of the Exchange Securities or (iii) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) such transfer is effected pursuant to a Shelf Registration Statement in
accordance with the applicable Registration Rights Agreement;
(C) such transfer is effected by an Exchanging Dealer pursuant to an Exchange
Offer Registration Statement in accordance with the applicable Registration Rights
Agreement; or
19
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Securities proposes to exchange such
Securities for a beneficial interest in the Unrestricted Global Security, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(ii) if the Holder of such Definitive Securities proposes to transfer such
Securities to a Person who shall take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Security, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and state blue sky laws and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(2),
the Trustee shall cancel the Definitive Securities and the Registrar shall increase or cause
to be increased the aggregate principal amount of the Unrestricted Global Security.
(3)
Unrestricted Definitive Securities to Beneficial Interests in Unrestricted Global
Securities
. A Holder of an Unrestricted Definitive Security may exchange such Security for
a beneficial interest in an Unrestricted Global Security or transfer such Definitive
Security to a Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Unrestricted Definitive Security and the
Registrar shall increase or cause to be increased the aggregate principal amount of one of
the Unrestricted Global Securities.
If any such exchange or transfer from a Definitive Security to a beneficial interest is
effected pursuant to subparagraphs (2)(B), (2)(D) or (3) of this Section 2.06(d) at a time when an
Unrestricted Global Security has not yet been issued, the Company shall issue and, upon receipt of
an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the principal amount of
Definitive Securities so transferred.
(e)
Transfer and Exchange of Definitive Securities for Definitive Securities
. Upon request by
a Holder of Definitive Securities and such Holders compliance with the provisions of this Section
2.06(e), the Registrar shall register the transfer or exchange of Definitive Securities. Prior to
such registration of transfer or exchange, the requesting Holder shall present or surrender to the
Registrar the Definitive Securities duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney,
duly authorized in writing. In addition, the
20
requesting Holder shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section 2.06(e).
(1)
Restricted Definitive Securities to Restricted Definitive Securities
. Any
Restricted Definitive Security may be transferred to and registered in the name of Persons
who take delivery thereof in the form of a Restricted Definitive Security if the Registrar
receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 904, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the certifications
in item (2) thereof; and
(C) if the transfer will be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications required
by item (3) thereof.
(2)
Restricted Definitive Securities to Unrestricted Definitive Securities
. Any
Restricted Definitive Security may be exchanged by the Holder thereof for an Unrestricted
Definitive Security or transferred to a Person or Persons who take delivery thereof in the
form of an Unrestricted Definitive Security if:
(A) such exchange or transfer is effected pursuant to a Registered Exchange
Offer in accordance with the applicable Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal (or via the Depositarys
book-entry system) that it is not (i) a broker-dealer, (ii) a Person participating
in the distribution of the Exchange Securities or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to a Shelf Registration Statement in
accordance with the applicable Registration Rights Agreement;
(C) any such transfer is effected by an Exchanging Dealer pursuant to an
Exchange Offer Registration Statement in accordance with the applicable Registration
Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Securities proposes to exchange
such Securities for an Unrestricted Definitive Security, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item (1)(d)
thereof; or
21
(ii) if the Holder of such Restricted Definitive Security proposes to transfer
such Securities to a Person who shall take delivery thereof in the form of an
Unrestricted Definitive Security, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and state blue sky laws and
that the restrictions on transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the Securities Act.
(3)
Unrestricted Definitive Securities to Unrestricted Definitive Securities
. A Holder
of Unrestricted Definitive Securities may transfer such Securities to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Security. Upon receipt of a
request to register such a transfer, the Registrar shall register the Unrestricted
Definitive Security pursuant to the instructions from the Holder thereof.
(f)
Registered Exchange Offer
. Upon the occurrence of a Registered Exchange Offer in
accordance with the applicable Registration Rights Agreement, the Company shall issue and, upon
receipt of a written order in accordance with Section 2.02, the Trustee shall authenticate:
(1) one or more Unrestricted Global Securities in an aggregate principal amount equal
to the principal amount of the beneficial interests in the Restricted Global Securities
tendered for acceptance by Persons that certify in the applicable Letters of Transmittal (or
via the Depositarys book-entry system), among other things, that (A) they are not
broker-dealers, (B) they are not participating in a distribution of the Exchange Securities
and (C) they are not affiliates (as defined in Rule 144) of the Company, and accepted for
exchange in the Registered Exchange Offer; and
(2) Unrestricted Definitive Securities in an aggregate principal amount equal to the
principal amount of any Restricted Definitive Securities accepted for exchange in the
Registered Exchange Offer.
Concurrently with the issuance of such Securities, the Registrar shall cause the aggregate
principal amount of the applicable Restricted Global Securities to be reduced accordingly, and the
Company shall execute and the Trustee shall authenticate, and deliver to the Persons designated by
the Holders of any Definitive Securities so accepted, Unrestricted Definitive Securities in the
appropriate principal amount.
(g)
Legends
. The following legends shall appear on the face of all Global Securities and
Definitive Securities issued under this Indenture unless specifically stated otherwise in the
applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below or as otherwise agreed
between the Company and the Holder, each Global Security and each
22
Definitive Security (and all Securities issued in exchange therefor or
substitution thereof) shall bear a legend, until the Resale Restriction Termination
Date referred to therein, in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT (RULE 144A)), OR (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY
IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, PURSUANT TO RULE 904 OF REGULATION S, AND (2) AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE RESALE RESTRICTION
TERMINATION DATE) WHICH IS ONE YEAR (OR SUCH OTHER DATE WHEN RESALES OF SECURITIES
BY NON-AFFILIATES ARE FIRST PERMITTED UNDER RULE
144(d)
) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR ANY PREDECESSOR OF THIS SECURITY) OR THE DATE OF ANY
SUBSEQUENT REOPENING OF THE SECURITIES AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH
SECURITY), ONLY (A) TO NABORS INDUSTRIES LIMITED OR ANY OF ITS SUBSIDIARIES, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PURCHASERS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND
23
THE SECURITIES LAWS OF ANY OTHER JURISDICTION, INCLUDING ANY STATE OF THE
UNITED STATES, SUBJECT TO THE COMPANYS AND THE TRUSTEES RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL
SATISFACTORY TO EACH OF THEM AND/OR A CERTIFICATE OF TRANSFER OR EXCHANGE IN THE
FORM PRESCRIBED IN THE INDENTURE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
BY ITS ACQUISITION AND HOLDING OF THIS SECURITY THE HOLDER THEREOF WILL BE
DEEMED TO HAVE REPRESENTED, WARRANTED AND AGREED THAT EITHER (I) IT IS NOT AN
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE FIDUCIARY RESPONSIBILITY
REQUIREMENT OF TITLE I OF U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED (ERISA), A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE U.S.
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE), OR AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF SUCH EMPLOYEE BENEFIT PLAN OR
PLANS INVESTMENT IN THE ENTITY, OR A GOVERNMENTAL, NON-U.S., CHURCH OR OTHER PLAN
WHICH IS SUBJECT TO ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS
THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (SIMILAR LAWS), OR (II)
THE PURCHASE, HOLDING AND DISPOSITION OF THIS SECURITY WILL NOT CONSTITUTE A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE OR, IN THE CASE OF A GOVERNMENTAL, NON-U.S., CHURCH OR OTHER PLAN, A SIMILAR
VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
(B) Notwithstanding the foregoing, any Global Security or Definitive Security
issued pursuant to subparagraph (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2),
(e)(3) or (f) of this Section 2.06 (and all Securities issued in exchange therefor
or substitution thereof) shall not bear the Private Placement Legend.
(2)
Global Security Legend
. Each Global Security shall bear a legend in substantially
the following form:
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE REGISTRAR MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.06 OF THE INDENTURE, (II)
24
THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.
06(a)
OF THE INDENTURE AND (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO
THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (DTC) TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
(h)
Cancellation and/or Adjustment of Global Securities
. At such time as all beneficial
interests in a particular Global Security have been exchanged for Definitive Securities or a
particular Global Security has been redeemed, repurchased or canceled in whole and not in part,
each such Global Security shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.11. At any time prior to such cancellation, if any beneficial interest
in a Global Security is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Security or for Definitive Securities, the
principal amount of Securities represented by such Global Security shall be reduced accordingly and
an endorsement shall be made on such Global Security by the Trustee or by the Securities Custodian
at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial
interest in another Global Security, such other Global Security shall be increased accordingly and
an endorsement shall be made on such Global Security by the Trustee or by the Securities Custodian
at the direction of the Trustee to reflect such increase.
25
(i)
General Provisions Relating to Transfers and Exchanges
.
(1) To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Global Securities and Definitive Securities upon the
Companys order or at the Registrars request.
(2) No service charge shall be made to a holder of a beneficial interest in a Global
Security or to a Holder of a Definitive Security for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any transfer tax
or similar governmental charge or other fee required by law and payable in connection
therewith (other than any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 8.05 and 10.06).
(3) All Global Securities and Definitive Securities issued upon any registration of
transfer or exchange of Global Securities or Definitive Securities shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Global Securities or Definitive Securities surrendered upon
such registration of transfer or exchange.
(4) None of the Company, the Trustee or the Registrar shall be required (A) to issue,
to register the transfer of or to exchange any Securities during a period beginning at the
opening of business 15 days before the day of mailing of a notice of redemption under
Section 10.03 and ending at the close of business on such day or (B) to register the
transfer of or to exchange any Securities so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
(5) Prior to the due presentation for registration of transfer of any Security, the
Company, the Guarantor, the Trustee, the Paying Agent or the Registrar may deem and treat
the Person in whose name a Security is registered as the absolute owner of such Security for
the purpose of receiving any payment on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Company, the Guarantor, the
Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.
(6) The Trustee shall authenticate Global Securities and Definitive Securities upon
receipt of a written order of the Company signed by one of its Officers and in accordance
with the other provisions of Section 2.02 to the extent applicable.
(7) All certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or
exchange may be submitted by facsimile.
SECTION 2.07.
Replacement Securities
. If a mutilated Security is surrendered to the Registrar
or if the Holder of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement Security if the
requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Securityholder
(a) satisfies the Company or the Trustee within a reasonable time after such Securityholder has
notice of such loss, destruction or wrongful taking and the Registrar
26
does not register a transfer prior to receiving such notification, (b) makes such request to
the Company or Trustee prior to the Security being acquired by a protected purchaser as defined in
Section 8-303 of the Uniform Commercial Code (a protected purchaser) and (c) satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or the Company, such Holder
must furnish an indemnity bond that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent or any authenticating agent from any loss which any of
them may suffer if a Security is replaced. The Company and the Trustee may charge for their
expenses in replacing a Security. If, after the delivery of such replacement Security, a protected
purchaser of the original Security in lieu of which such replacement Security was issued presents
for payment or registration such original Security, the Trustee shall be entitled to recover such
replacement Security from the Person to whom it was delivered or any Person taking therefrom,
except a protected purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by the Trustee or the
Company in connection therewith. Every replacement Security is a contractual obligation of the
Company.
In case any such mutilated, destroyed, lost or wrongfully taken 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.
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 wrongfully taken Securities.
SECTION 2.08.
Outstanding Securities
. The Securities outstanding at any time are all the
Securities authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by the Trustee
hereunder and those described in this Section 2.08 as not outstanding; provided, however, that in
determining whether the Holders of the requisite principal amount of outstanding Securities are
present at a meeting of Holders of Securities for quorum purposes or have consented to or voted in
favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or
modification hereunder, Securities held for the account of the Company or any of its Affiliates
shall be disregarded and deemed not to be outstanding, except that in determining whether the
Trustee shall be protected in making such a determination or relying upon any such quorum, consent
or vote, only Securities which a Responsible Officer of the Trustee actually knows to be so owned
shall be so disregarded.
If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a protected
purchaser.
If the principal amount of any Security is considered paid under Section 3.01, it ceases to be
outstanding and interest on it ceases to accrue.
SECTION 2.09. [Reserved.]
27
SECTION 2.10.
Temporary Securities
. Until Definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of Definitive Securities, but may have variations that the
Company considers appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Definitive Securities in exchange for temporary
Securities. Until so exchanged, temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as Definitive Securities.
SECTION 2.11.
Cancellation
. The Company or the Guarantor at any time may deliver Securities
to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee
shall cancel all Securities surrendered for registration of transfer, exchange, payment,
replacement or cancellation. All canceled Securities held by the Trustee shall be disposed of in
accordance with the usual disposal procedures of the Trustee. The Company may not issue new
Securities to replace Securities that have been paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.12.
Defaulted Interest
. If the Company defaults in a payment of interest on the
Securities, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest on the defaulted interest, in each case at the rate provided in the Securities and in the
manner provided in Section 3.01. The Company may pay the defaulted interest to the Persons who are
Holders on a subsequent special record date. At least 15 days before any special record date, the
Company (or the Trustee, in the name of and at the expense of the Company) shall mail to Holders a
notice that states the special record date, the related payment date and the amount of such
interest to be paid.
SECTION 2.13.
Persons Deemed Owners
. The Company, the Guarantor, the Trustee, any Agent and
any authenticating agent may treat the Person in whose name any Security is registered as the owner
of such Security for the purpose of receiving payments of principal of or premium, if any,
Additional Amounts, if any, or interest on such Security and for all other purposes. None of the
Company, the Guarantor, the Trustee, any Agent or any authenticating agent shall be affected by any
notice to the contrary.
SECTION 2.14.
CUSIP Numbers
. The Company in issuing the Securities may use CUSIP, ISIN or
similar numbers (if then generally in use), and, if so, the Trustee shall use such numbers in
notices of redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the 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 numbers. The Company will promptly notify the Trustee of any
change in any such number.
ARTICLE III
COVENANTS
SECTION 3.01.
Payment of Securities
. The Company shall pay the principal of and premium, if
any, Additional Amounts, if any, and interest on the Securities on the dates and in
28
the manner provided in the Securities, this Indenture and, in the case of any Additional
Interest, the applicable Registration Rights Agreement. Principal, premium, if any, Additional
Amounts, if any, and interest shall be considered paid on the date due if the Paying Agent, other
than the Company or a Subsidiary of the Company, holds by 11:00 a.m., Eastern time, on that date
money deposited by or on behalf of the Company designated for and sufficient to pay all principal,
premium, if any, Additional Amounts, if any, and interest then due.
Further, to the extent lawful, the Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal, premium, if any,
Additional Amounts, if any, and interest (without regard to any applicable grace period), from time
to time on demand at the rate then in effect on the Securities.
All references in this Indenture, the Securities or the Guarantees to interest shall be
deemed to include Additional Interest unless the context otherwise requires. The Company shall
give the Trustee advance written notice of the amount of any Additional Interest that may be
payable with respect to the Securities.
SECTION 3.02.
Maintenance of Office or Agency
. So long as any of the Securities shall remain
outstanding, the Company will, in accordance with Section 2.03, maintain an office or agency (which
may be an office of the Trustee or an affiliate of the Trustee, or the Registrar) in the
continental United States where the Securities may be surrendered for exchange or registration of
transfer as provided in this Indenture, where notices and demands to or upon the Company in respect
to the Securities may be served, and where the Securities may be presented or surrendered for
payment. The Company may also from time to time designate one or more other offices or agencies in
the continental United States where Securities may be presented or surrendered for any and all such
purposes and may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its obligation under Section
2.03 to maintain an office or agency in The City of New York where any Securities may be presented
or surrendered for payment. The Company will give to the Trustee prompt written notice of the
location of any such office or agency and of any change of location thereof. In case the Company
shall fail to maintain any such office or agency or shall fail to give such notice of the location
or of any change in the location thereof, such surrenders, presentations and demands may be made
and notices may be served at the designated Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee its agent to receive at the aforesaid office all such surrenders,
presentations, notices and demands.
SECTION 3.03.
SEC Reports; Financial Statements
.
(a) The Guarantor covenants and agrees, so long as any Securities are outstanding, to file
with the Trustee copies, within 15 days after the Guarantor is required to file the same with the
SEC, of the annual reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from time to time by rules and regulations
prescribe) which the Guarantor may be required to file with the SEC pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Guarantor is not required to file information,
documents or reports pursuant to either of such sections, then to file with the Trustee and the
SEC, in accordance with rules and regulations prescribed from time to time by the SEC, such of the
supplementary and periodic information, documents and reports, if any,
29
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) At any time when neither the Guarantor nor the Company is subject to Section 13 or 15(d)
of the Exchange Act and the Securities are not freely transferable under the Securities Act, upon
the request of a Holder, the Guarantor and the Company will promptly furnish or cause to be
furnished the information specified under Rule 144A(d)(4) of the Securities Act to such Holder, or
to a prospective purchaser of a Security designed by such Holder, in order to permit compliance
with Rule 144A.
SECTION 3.04.
Compliance Certificate
. The Company and the Guarantor shall deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company, a statement signed by
two Officers of the Company (one of whom shall be the Chief Executive Officer, Chief Financial
Officer or Chief Accounting Officer of the Company) and two Officers of the Guarantor (one of whom
shall be the Chief Executive Officer, Chief Financial Officer or Chief Accounting Officer of the
Guarantor), which statement need not constitute an Officers Certificate, complying with TIA
Section 314(a)(4) and stating that in the course of performance by the signing Officers of the
Company and Officers of the Guarantor of their duties as such Officers, they would normally obtain
knowledge of the keeping, observing, performing and fulfilling by the Company and the Guarantor,
respectively, of their obligations under this Indenture, and further stating, as to each such
Officer signing such statement, that to the best of his knowledge, each of the Company and the
Guarantor has kept, observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the terms, provisions
and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all
such Defaults or Events of Default of which such Officer may have knowledge and what action the
Company or the Guarantor, as the case may be, are taking or proposes to take with respect thereto).
SECTION 3.05.
Corporate Existence
. Subject to Article IV, each of the Company and the
Guarantor will do or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, under the laws of its jurisdiction of incorporation or formation.
SECTION 3.06.
Waiver of Stay, Extension or Usury 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 or any usury law or other law, which would prohibit or forgive the Company or the Guarantor
from paying all or any portion of the principal of or premium, if any, Additional Amounts, if any,
or interest on the Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this Indenture; and (to
the extent that they may lawfully do so) each of the Company and the Guarantor 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.
30
SECTION 3.07.
Limitation on Liens
. So long as any Securities are outstanding, the Guarantor
will not, nor will it permit any Subsidiary to, issue, assume, guarantee or suffer to exist any
debt for money borrowed (Debt) if such Debt is secured by a mortgage, pledge, security interest
or lien (a mortgage or mortgages) upon any properties of the Guarantor or any Subsidiary or
upon any securities or indebtedness of any Subsidiary (whether such properties, securities or
indebtedness is now owned or hereafter acquired) without in any such case effectively providing
that the Securities shall be secured equally and ratably with (or prior to) such Debt, except that
the foregoing restrictions shall not apply to:
(a) mortgages on any property acquired, constructed or improved by the Guarantor or any
Subsidiary (or mortgages on the securities of a special purpose Subsidiary which holds no material
assets other than the property being acquired, constructed or improved) after the date of this
Indenture which are created within 360 days after such acquisition (or in the case of property
constructed or improved, after the completion and commencement of commercial operation of such
property, whichever is later) to secure or provide for the payment of the purchase price or cost
thereof; provided that in the case of such construction or improvement the mortgages shall not
apply to any property owned by the Guarantor or any Subsidiary before such construction or
improvement other than (1) unimproved real property on which the property so constructed, or the
improvement, is located or (2) personal property which is so improved;
(b) mortgages existing on the Issue Date, existing mortgages on property acquired (including
mortgages on any property acquired from a Person which is consolidated with or merged with or into
the Guarantor or a Subsidiary) or mortgages outstanding at the time any corporation, partnership or
other entity becomes a Subsidiary; provided that such mortgages shall only apply to property owned
by such corporation, partnership or other entity at the time it becomes a Subsidiary or that is
acquired thereafter other than from the Guarantor or another Subsidiary;
(c) mortgages in favor of the Guarantor or any Subsidiary;
(d) mortgages in favor of domestic or foreign governmental bodies to secure advances or other
payments pursuant to any contract or statute or to secure indebtedness incurred to finance the
purchase price or cost of constructing or improving the property subject to such mortgages,
including mortgages to secure Debt of the pollution control or industrial revenue bond type;
(e) mortgages consisting of pledges or deposits by the Guarantor or any Subsidiary under
workers compensation laws, unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases
to which the Guarantor or any Subsidiary is a party, or deposits to secure public or statutory
obligations of the Guarantor or any Subsidiary or deposits of cash or United States government
bonds to secure surety or appeal bonds to which it is a party, or deposits as security for
contested taxes or import or customs duties or for the payment of rent, in each case incurred in
the ordinary course of business;
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(f) mortgages imposed by law, including carriers, warehousemens, repairmans, landlords and
mechanics liens, in each case for sums not yet due or being contested in good faith by appropriate
proceedings if a reserve or other appropriate provisions, if any, as shall be required by GAAP
shall have been made in respect thereof;
(g) mortgages for taxes, assessments or other governmental charges that are not yet delinquent
or which are being contested in good faith by appropriate proceedings provided appropriate reserves
required pursuant to GAAP have been made in respect thereof;
(h) mortgages in favor of issuers of surety or performance bonds or letters of credit or
bankers acceptances issued pursuant to the request of and for the account of the Guarantor or any
Subsidiary in the ordinary course of its business;
(i) mortgages consisting of encumbrances, easements or reservations of, or rights of others
for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or mortgages consisting of zoning or other restrictions as to the use of real
properties or mortgages incidental to the conduct of the business of the Guarantor or a Subsidiary
or to the ownership of its properties which do not materially adversely affect the value of said
properties or materially impair their use in the operation of the business of the Guarantor or a
Subsidiary;
(j) mortgages arising by virtue of any statutory or common law provisions relating to bankers
liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds
maintained with a depository institution; provided that:
(i) such deposit account is not a dedicated cash collateral account and is not
subject to restrictions against access by the Guarantor or any Subsidiary in excess
of those set forth by regulations promulgated by the Federal Reserve Board; and
(ii) such deposit account is not intended by the Guarantor or any Subsidiary to
provide collateral to the depository institution;
(k) mortgages arising from Uniform Commercial Code financing statement filings regarding
operating leases the Guarantor and its Subsidiaries enter into in the ordinary course of business;
(l) any mortgage over goods (or any documents relating thereto) arising either in favor of a
bank issuing a form of documentary credit in connection with the purchase of such goods or by way
of retention of title by the supplier of such goods where such goods are supplied on credit,
subject to such retention of title, and in both cases where such goods are acquired in the ordinary
course of business;
(m) any mortgage pursuant to any order of attachment, execution, enforcement, distraint or
similar legal process arising in connection with court proceedings; provided that such process is
effectively stayed, discharged or otherwise set aside within 30 days;
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(n) any lease, sublease and sublicense granted to any third party constituting a mortgage and
any mortgage pursuant to farm-in and farm-out agreements, operating agreements, development
agreements and any other similar arrangements, which are customary in the oil and gas industry or
in the ordinary course of business of the Guarantor or any Subsidiary; or
(o) any extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any mortgage referred to in the foregoing clauses (a)
through (n), inclusive; provided 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, and
that such extension, renewal or replacement shall be limited to all or a part of the property which
secured the mortgage so extended, renewed or replaced (plus improvements in such property).
In addition to the foregoing, the Guarantor and any Subsidiary may, without securing the
Securities, issue, assume or guarantee secured Debt that, with certain other Debt described in the
following sentence, does not exceed 10% of Consolidated Net Tangible Assets. The other Debt to be
aggregated for purposes of this exception is all Attributable Debt in respect of Sale and
Lease-Back Transactions of the Guarantor and its Subsidiaries under the exception in clause (e)(2)
of Section 3.09 existing at such time.
SECTION 3.08.
Payment of Additional Amounts
. Unless otherwise required by Bermudan law,
neither the Company nor the Guarantor will deduct or withhold from payments made with respect to
the Securities and the Guarantees on account of any present or future Taxes. In the event that
either the Company or the Guarantor is required to withhold or deduct on account of any Taxes due
from any payment made under or with respect to the Securities or the Guarantees, as the case may
be, the Company or the Guarantor, as the case may be, will pay such additional amounts (Additional
Amounts) as may be necessary so that the net amount received by each Holder of Securities will
equal the amount that the Holder would have received if the Taxes had not been required to be
withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment
made to a Holder (an Excluded Holder) to the extent: (i) that any Taxes would not have been so
imposed but for the existence of any present or former connection between the Holder and Bermuda,
other than the mere receipt of the payment, acquisition, ownership or disposition of such
Securities or the exercise or enforcement of rights under the Securities, the Guarantees or this
Indenture; (ii) of any estate, inheritance, gift, sales, transfer or personal property Taxes
imposed with respect to the Securities or any other Taxes payable other than by withholding or
deduction, except as described below or as otherwise provided in this Indenture; (iii) that any
such Taxes would not have been imposed but for the presentation of the Securities, where
presentation is required, for payment on a date more than 30 days after the date on which the
payment became due and payable or the date on which payment thereof is duly provided for, whichever
is later, except to the extent that the beneficiary or Holder thereof would have been entitled to
Additional Amounts had the Securities been presented for payment on any date during such 30-day
period; or (iv) that the Holder would not be liable or subject to such withholding or deduction of
Taxes but for the failure to make a valid declaration of non-residence or other similar claim for
exemption, if: (a) the making of the declaration or claim is required or imposed by statute,
treaty, regulation, ruling or administrative practice of the relevant taxing authority as a
precondition to an exemption from, or reduction in, the relevant Taxes; and (b) at least 60 days
prior to the first payment with respect to which the Company or
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the Guarantor shall apply this clause (iv), the Company or the Guarantor shall have notified
all Holders of the Securities in writing that they shall be required to provide this declaration or
claim. The Company and the Guarantor shall also (i) withhold or deduct such Taxes as required; (ii)
remit the full amount of Taxes deducted or withheld to the relevant taxing authority in accordance
with all applicable laws; (iii) use reasonable efforts to obtain from each relevant taxing
authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes
deducted or withheld; and (iv) upon request, make available to the Holders of the Securities,
within 60 days after the date the payment of any Taxes deducted or withheld is due pursuant to
applicable law, certified copies of tax receipts evidencing such payment by the Company or the
Guarantor and, notwithstanding the Companys or the Guarantors efforts to obtain the receipts, if
the same are not obtainable, other evidence of such payments.
In addition, the Company or the Guarantor will pay any stamp, issue, registration, documentary
or other similar taxes and duties, including interest, penalties and additional amounts with
respect thereto, payable in Bermuda or the United States, or any political subdivision or taxing
authority of or in the foregoing with respect to the creation, issue, offering, enforcement,
redemption or retirement of the Securities or Guarantees.
At least 30 days prior to each date on which any payment under or with respect to the
Securities is due and payable, if the Company or the Guarantor becomes obligated to pay Additional
Amounts with respect to such payment, the Company (or in respect of the Guarantees, the Guarantor)
shall deliver to the Trustee an Officers Certificate stating the fact that such Additional Amounts
will be payable, and the amounts so payable and will set forth such other information as is
necessary to enable the Trustee to pay such Additional Amounts to the Holders on the payment date.
Whenever in this Indenture there is mentioned, in any context, the payment of principal of and
premium, if any, Additional Amounts, if any, or interest (including defaulted interest) or any
other amount payable on or with respect to any of the Securities, such mention shall be deemed to
include mention of the payment of Additional Amounts provided for in this Section 3.08 to the
extent that, in such context, Additional Amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section 3.08 and express mention of the payment of Additional
Amounts in those provisions hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made (if applicable).
If payments with respect of the Securities or the Guarantees become subject generally to the
taxing jurisdiction of any Territory or any political subdivision or taxing authority thereof or
therein having power to tax, other than or in addition to Bermuda or the United States or any
political subdivision or taxing authority therein or thereof having power to tax, immediately upon
becoming aware thereof the Company shall notify the Trustee of such event, and thereupon the
Company or the Guarantor, as the case may be, shall be obligated to pay Additional Amounts in
respect thereof on terms corresponding to the terms of the foregoing provisions of this Section
3.08 with the substitution for (or, as the case may be, in addition to) the references herein to
Bermuda or any political subdivision or authority therein or thereof having power to tax of
references to that other or additional Territory or any political subdivision or authority therein
or thereof having power to tax to whose taxing jurisdiction such payments shall have become subject
as aforesaid. The term Territory means for this purpose any jurisdiction in which the
34
Company or the Guarantor, as the case may be, is incorporated or in which it has its place of
central management or central control.
The obligations of the Company and the Guarantor under this Section 3.08 shall survive the
termination of this Indenture and the payment of all amounts under or with respect to this
Indenture and the Securities.
SECTION 3.09.
Limitations on Sale and Lease-Back Transactions
. So long as any Securities are
outstanding, the Guarantor will not, nor will it permit any Subsidiary to, enter into any Sale and
Lease-Back Transaction, other than any Sale and Lease-Back Transaction:
(a) entered into within 360 days of the later of the acquisition or placing into service of
the property subject thereto by the Guarantor or such Subsidiary;
(b) involving a lease of less than five years;
(c) entered into in connection with an industrial revenue bond or pollution control financing;
(d) between the Guarantor and/or one or more Subsidiaries;
(e) as to which the Guarantor or such Subsidiary would be entitled to incur Debt secured by a
mortgage on the property to be leased in an amount equal to the Attributable Debt with respect to
such Sale and Lease-Back Transaction without equally and ratably securing the Securities (1) under
clauses (a) through (n) of Section 3.07 or (2) under the last paragraph of Section 3.07; or
(f) as to which the Guarantor will apply an amount equal to the net proceeds from the sale of
the property so leased to (1) the retirement (other than any mandatory retirement), within 360 days
of the effective date of any such Sale and Lease-Back Transaction, of Securities or of Funded Debt
of the Guarantor or a Subsidiary or (2) the purchase or construction of other property, provided
that such property is owned by the Guarantor or a Subsidiary free and clear of all mortgages.
SECTION 3.10.
Change of Control Offer
. Upon the occurrence of a Change of Control Triggering
Event, each Holder shall have the right to require the Company to purchase all or any part (equal
to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holders Securities at a
purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, up to, but not including, the date of purchase; provided, however, that if such
date of purchase is after the taking of a record of the Holders on a record date and on or prior to
the related Interest Payment Date, the accrued and unpaid interest shall be payable to the Person
in whose name the repurchased Securities are registered on such record date. Notwithstanding the
foregoing, the Company shall have no obligation to repurchase any Securities pursuant to this
Section 3.10 to the extent that the Company shall have exercised its right to redeem the Securities
pursuant to Section 10.07.
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For purposes of this Section 3.10, the term Change of Control means the occurrence of any
one of the following:
(a) the sale, lease, transfer, conveyance or other disposition (other than by way of merger,
amalgamation or consolidation), in one or a series of related transactions, of all or substantially
all of the assets of the Guarantor and the Subsidiaries taken as a whole to any person (as that
term is used in Section 13(d)(3) of the Exchange Act) other than to the Guarantor or one or more of
the Subsidiaries or a combination thereof or a Person controlled by the Guarantor or one or more of
the Subsidiaries or a combination thereof;
(b) the consummation of any transaction (including without limitation, any merger,
amalgamation or consolidation) the result of which is that any person (as that term is used in
Section 13(d)(3) of the Exchange Act) (other than any Subsidiary) becomes the beneficial owner
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than
50% of the outstanding Voting Stock of the Guarantor, measured by voting power rather than number
of shares (excluding a redomestication of the Guarantor); or
(c) the first day on which the majority of the members of the Board of Directors of the
Guarantor cease to be Continuing Directors.
Notwithstanding the foregoing, a transaction shall not be deemed to involve a Change of Control
under clause (b) above if (i) the Guarantor becomes a direct or indirect wholly owned Subsidiary of
a holding company and (ii)(A) the direct or indirect holders of the Voting Stock of such holding
company immediately following such transaction are substantially the same as the holders of the
Voting Stock of the Guarantor immediately prior to such transaction or (B) immediately following
such transaction no person (as that term is used in Section 13(d)(3) of the Exchange Act) (other
than a holding company satisfying the requirements of this sentence) is the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50%
of the outstanding Voting Stock of such holding company, measured by voting power rather than
number of shares.
For purposes of this Section 3.10, the term Change of Control Triggering Event means the
ratings of the Securities are lowered by at least two of the three Rating Agencies and the
Securities cease to be rated Investment Grade by at least two of the three Rating Agencies in any
case on any date during the period (the Trigger Period) commencing on the date of the first
public announcement by the Guarantor of any Change of Control (or pending Change of Control) and
ending 60 days following consummation of such Change of Control (which 60-day period will be
extended for so long as the rating of the notes is under publicly announced consideration for a
possible downgrade by any of the Rating Agencies). Notwithstanding the foregoing, no Change of
Control will be deemed to have occurred in connection with any particular Change of Control unless
and until such Change of Control has actually been consummated.
Within 60 days following the date upon which the Change of Control Triggering Event has
occurred, or at the Companys option, prior to any Change of Control but after the public
announcement of the transaction that constitutes or may constitute the Change of Control, except to
the extent that the Company shall have exercised its right to redeem the Securities pursuant to
Section 10.07, the Company shall mail a notice (a Change of Control Offer) to each Holder
36
with a copy to the Trustee, which notice will govern the terms of the Change of Control Offer,
stating:
(1) that a Change of Control Triggering Event has occurred and that such Holder has the
right to require us to purchase such Holders Securities at a purchase price in cash equal
to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the
date of purchase (subject to the right of holders of record on a record date to receive
interest on the relevant Interest Payment Date as provided in the first paragraph of this
Section 3.10);
(2) the circumstances regarding such Change of Control Triggering Event;
(3) the purchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed, other than as may be required by law) (such date, the
Change of Control Payment Date); and
(4) the instructions that a Holder must follow in order to have its Securities
purchased.
Holders of Securities electing to have Securities purchased pursuant to a Change of Control
Offer must surrender their Securities, with the form entitled Option of Holder to Elect Purchase
on the reverse of the Security completed, to the Paying Agent at the address specified in the
notice, or transfer their Securities to the Paying Agent by book-entry transfer pursuant to the
Applicable Procedures, prior to the close of business on the third Business Day prior to the Change
of Control Payment Date.
On the Change of Control Payment Date, all Securities purchased by the Company under this
Section shall be delivered to the Trustee for cancellation, and the Company shall pay the purchase
price plus accrued and unpaid interest to the Holders entitled thereto.
The Company may make a Change of Control Offer in advance of a Change of Control and the
Change of Control Payment Date, and its Change of Control Offer may be conditioned upon such
Change of Control, if a definitive agreement is in place for the Change of Control at the time of
making the Change of Control Offer.
The Company shall have no obligation to make a Change of Control Offer if a third party makes
such an offer in the manner, at the times and otherwise in compliance with the requirements of this
Section 3.10 for such an offer made by the Company, and such third party purchases all Securities
properly tendered and not withdrawn under its offer.
The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of
the Exchange Act and any other securities laws or regulations in connection with the repurchase of
Securities pursuant to a Change of Control Offer. To the extent that the provisions of any
securities laws or regulations conflict with this Section 3.10, the Company shall comply with the
applicable securities laws and regulations and will not be deemed to have breached its obligations
by virtue thereof.
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ARTICLE IV
CONSOLIDATION, MERGER AND SALE
SECTION 4.01.
Limitation on Mergers and Consolidations
. The Company shall not consolidate or
amalgamate with or merge into any other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person unless:
(i) the Person formed by such consolidation or amalgamation or into which the
Company is merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an entirety shall
be a Person organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia, 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
interest on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed;
(ii) immediately after giving effect to such transaction, no Default or Event
of Default shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that such consolidation, amalgamation, merger,
conveyance, transfer or lease and such supplemental indenture comply with this
Article IV and that all conditions precedent herein provided for relating to such
transaction have been complied with.
The Guarantor shall not consolidate or amalgamate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety to any Person
unless:
(i) the Person formed by such consolidation or amalgamation or into which the
Guarantor is merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Guarantor substantially as an entirety
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
all obligations in respect of the Guarantees and the performance of every covenant
of this Indenture on the part of the Guarantor to be performed;
(ii) immediately after giving effect to such transaction, no Default or Event
of Default shall have occurred and be continuing; and
(iii) the Guarantor has delivered to the Trustee an Officers Certificate and
an Opinion of Counsel, each stating that such consolidation, amalgamation, merger,
conveyance, transfer or lease and such supplemental indenture comply with this
Article IV and that all conditions precedent herein provided for relating to such
transaction have been complied with.
38
SECTION 4.02.
Successors Substituted
. Upon any consolidation or amalgamation of the Company
or the Guarantor with, or merger of the Company or the Guarantor into, any other Person, or any
conveyance, transfer or lease of the properties and assets of the Company or the Guarantor
substantially as an entirety in accordance with Section 4.01, the successor Person formed by such
consolidation or amalgamation or into which the Company or the Guarantor 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 to another Person, the
predecessor Person shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.01.
Events of Default
. Event of Default 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):
(i) default in the payment of the principal of or premium, if any, on any
Security at its Maturity, and continuance of such default for a period of 10 days;
or
(ii) default in the payment of interest or Additional Amounts, if any, upon any
Security when they become due and payable, and continuance of such default for a
period of 30 days; or
(iii) default in the observance or performance, or breach, of any covenant of
the Company or the Guarantor in any Security or this Indenture (other than a
covenant a default in whose performance or whose breach is elsewhere in this Section
5.01 specifically dealt with), 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 and the Guarantor by the Trustee or to the Company, the Guarantor and
the Trustee by the Holders of at least 25% in aggregate principal amount of the
outstanding Securities 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
(iv) the entry by a court having jurisdiction in the premises of (A) a decree
or order for relief in respect of the Company or the Guarantor in an involuntary
case or proceeding under any applicable Bankruptcy Law or (B) a decree or order
adjudging the Company or the Guarantor a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or the Guarantor under any applicable
Bankruptcy Law, or appointing a custodian, receiver, receiver and manager, interim
receiver, administrator, monitor, liquidator,
39
assignee, trustee, sequestrator or other similar official of the Company or the
Guarantor or of any substantial part of the property of the Company or the
Guarantor, or ordering the winding up or liquidation of the affairs of the Company
or the Guarantor, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90 consecutive
days;
(v) the commencement by the Company or the Guarantor of a voluntary case or
proceeding under any applicable Bankruptcy Law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by either of them to the
entry of a decree or order for relief in respect of the Company or the Guarantor in
an involuntary case or proceeding under any applicable Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or proceeding against any of them,
or the filing by any of them of a petition or answer or consent seeking
reorganization or relief under any applicable Bankruptcy Law, or the consent by any
of them to the filing of such petition or to the appointment of or taking possession
by a custodian, receiver, receiver and manager, interim receiver, administrator,
monitor, liquidator, assignee, trustee, sequestrator or similar official of the
Company or the Guarantor or of any substantial part of the property of the Company
or the Guarantor, or the making by either of them of an assignment for the benefit
of creditors, or the admission by either of them in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Company or the Guarantor in furtherance of any such action; or
(vi) the Guarantees cease to be in full force and effect or become
unenforceable or invalid or are declared null and void (other than in accordance
with the terms of such Guarantees) or the Guarantor denies or disaffirms its
obligations under such Guarantees.
The Trustee shall not be deemed to know of a Default or Event of Default unless a Responsible
Officer at the Corporate Trust Office of the Trustee has actual knowledge of such Default or Event
of Default or the Trustee receives written notice at the Corporate Trust Office of the Trustee of
such Default or Event of Default with specific reference to such Default, the Securities and this
Indenture.
When a Default is cured, or when an Event of Default is deemed cured pursuant to Section 5.04,
such Default, or Event of Default, as the case may be, ceases.
SECTION 5.02.
Acceleration
. If an Event of Default (other than an Event of Default specified
in clause (iv) or (v) of Section 5.01) occurs and is continuing, the Trustee by notice to the
Company and the Guarantor, or by the Holders of at least 25% in aggregate principal amount of the
then outstanding Securities by written notice to the Company, the Guarantor and the Trustee, may
declare the principal of, premium, if any, Additional Amounts, if any, and accrued and unpaid
interest on all then outstanding Securities to be due and payable immediately. Upon any such
declaration the amounts due and payable on the Securities, as determined in accordance with the
next succeeding paragraph, shall be due and payable immediately. If an Event of
40
Default specified in clause (iv) or (v) of Section 5.01 occurs, the principal of, premium, if
any, Additional Amounts, if any, and interest on all Securities then outstanding shall
ipso facto
become and be immediately due and payable without any declaration, notice or other act on the part
of the Trustee or any Holder.
At any time after such an acceleration has occurred and before a judgment for payment of the
money due has been obtained by the Trustee as hereinafter in this Article V provided, the Holders
of a majority in aggregate principal amount of the outstanding Securities, by written notice to the
Company, the Guarantor and the Trustee, may rescind and annul such acceleration and its
consequences if:
(1) the Company or the Guarantor has paid or deposited with the Trustee a sum
sufficient to pay:
(A) the principal of and premium, if any, on any Securities which have become
due otherwise than by such declaration of acceleration and Additional Amounts, if
any, and any interest thereon at the rate or rates prescribed therefor in such
Securities or in this Indenture,
(B) all overdue interest and Additional Amounts, if any, on all Securities,
(C) to the extent that payment of such interest is lawful, interest upon
overdue interest and overdue Additional Amounts, if any, at the rate or rates
prescribed therefor in such Securities or in this Indenture, 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, other than the non-payment of the principal of Securities
which have become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 5.04.
No such rescission shall affect any subsequent Event of Default or impair any right consequent
thereon.
If the Maturity of the Securities is accelerated pursuant to this Section 5.02, 100% of the
principal amount thereof and premium, if any, shall become due and payable plus Additional Amounts,
if any, and accrued and unpaid interest to the date of payment.
SECTION 5.03.
Other Remedies
. If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal of, premium, if any, Additional
Amounts, if any, or interest on the Securities or to enforce the performance of any provision of
the Securities, the Guarantees or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any
41
Holder in exercising any right or remedy accruing upon an Event of Default shall not impair
the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 5.04.
Waiver of Existing Defaults
. Subject to Sections 5.07 and 8.02, the Holders of
a majority in aggregate principal amount of the Securities then outstanding by notice to the
Trustee may waive an existing Default or Event of Default and its consequences (including waivers
obtained in connection with a tender offer or exchange offer for the Securities or a solicitation
of consents in respect of the Securities, provided that in each case such offer or solicitation is
made to all Holders of the Securities then outstanding on equal terms), except (1) a continuing
Default or Event of Default in the payment of the principal of or premium, if any, Additional
Amounts, if any, or interest on the Securities or (2) a continuing Default in respect of a
provision that under Section 8.02 cannot be amended without the consent of each Holder affected.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 5.05.
Control by Majority
. The Holders of a majority in aggregate principal amount of
the Securities then outstanding may 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 it hereunder.
The Trustee, however, may refuse to follow any direction that conflicts with applicable law or this
Indenture that the Trustee determines may be unduly prejudicial to the rights of other Holders, or
that may involve the Trustee in personal liability; provided, however, that the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior
to taking any action hereunder, the Trustee shall be entitled to receive reasonable indemnification
satisfactory to it against all losses and expenses caused by taking or not taking such action
subject to the Trustees duty to act with the required standard of care during a default.
SECTION 5.06.
Limitations on Suits
. Subject to Section 5.07, a Holder may pursue a remedy
with respect to this Indenture (including the Guarantees) or the Securities only if:
(i) such Holder gives to the Trustee written notice of a continuing Event of
Default;
(ii) the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders furnish to the Trustee reasonable indemnity
satisfactory to the Trustee against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60 days after receipt
of the request and the furnishing of indemnity; and
42
(v) during such 60-day period the Holders of a majority in aggregate principal
amount of the Securities then outstanding do not give the Trustee a direction
inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.
SECTION 5.07.
Rights of Holders to Receive Payment
. Notwithstanding any other provision of
this Indenture, the right of any Holder of a Security to receive payment of principal of and
premium, if any, Additional Amounts, if any, and interest on the Security, on or after the
respective due dates expressed in the Security, or to bring suit against the Company or the
Guarantor for the enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of such Holder.
SECTION 5.08.
Collection Suit by Trustee
. If an Event of Default specified in clause (i) or
(ii) of Section 5.01 occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company and the Guarantor (i) for the
amount of principal of and premium, if any, Additional Amounts, if any, and interest remaining
unpaid on any Securities and (ii) interest on overdue principal, premium, if any, Additional
Amounts, if any, and, to the extent lawful, interest on overdue interest, and such further amount
as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 5.09.
Trustee May File Proofs of Claim
. The Trustee is authorized to file such proofs
of claim and other papers or documents and to take such actions, including participating as a
member, voting or otherwise, of any committee of creditors, as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders
allowed in any judicial proceedings relative to the Company and the Guarantor or their respective
creditors or properties and shall be entitled and empowered to collect, receive and distribute any
money or other property payable or deliverable on any such claims and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.07. To the extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.07 out of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties which the Holders of the Securities may be
entitled to receive in such proceeding whether in liquidation or under any plan of reorganization
or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities 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.
43
SECTION 5.10.
Priorities
. If the Trustee collects any money pursuant to this Article V, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 6.07;
Second: to Holders for amounts due and unpaid on the Securities for principal, premium, if
any, Additional Amounts, if any, and interest ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for principal, premium, if
any, Additional Amounts, if any, and interest, respectively; and
Third: to the Company and the Guarantor.
The Trustee, upon prior written notice to the Company and the Guarantor, may fix a record date
and payment date for any payment to Holders pursuant to this Article V. At least 15 days before
such record date, the Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and amount to be paid.
SECTION 5.11.
Undertaking for Costs
. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a
trustee, a court in its discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party litigant. This
Section 5.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 5.07,
or a suit by a Holder or Holders of more than 10% in aggregate principal amount of the Securities
then outstanding.
ARTICLE VI
TRUSTEE
SECTION 6.01.
Duties of Trustee
.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
such exercise, as a prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are specifically set forth
in this Indenture and no others, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee shall
44
examine such certificates and opinions to determine whether or not, on their
face, they appear to conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this Section
6.01;
(ii) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant
to Section 5.05.
(d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 6.01.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power
unless it receives indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law. All money received by the Trustee
shall, until applied as herein provided, be held in trust for the payment of the principal of and
premium, if any, Additional Amounts, if any, and interest on the Securities.
SECTION 6.02.
Rights of Trustee
.
(a) The Trustee may rely conclusively on any resolution, certificate, statement, direction,
consent, order, bond, note or other paper or document believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need not investigate any fact or matter
stated in any such paper or document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the 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.
(c) The Trustee may act through agents or attorneys and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due care.
45
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers conferred upon it by this
Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company or the Guarantor shall be sufficient if signed by an Officer of the
Company or the Guarantor, as the case may be.
(f) The Trustee is not required to give any bond or surety with respect to the performance of
its duties or the exercise of its powers under this Indenture.
(g) In the event the Trustee receives inconsistent or conflicting requests and indemnity from
two or more groups of Holders of Securities, each representing less than a majority in aggregate
principal amount of the outstanding Securities, pursuant to the provisions of this Indenture, the
Trustee may determine what action, if any, shall be taken.
(h) The Trustees immunities and protections from liability and its right to indemnification
in connection with the performance of its duties under this Indenture shall extend and be
enforceable by the Trustee in each of its capacities hereunder and shall extend to the Trustees
officers, directors, agents, attorneys and employees. Such immunities and protections and right to
indemnity, together with the Trustees right to compensation, shall survive the Trustees
resignation or removal, the discharge of this Indenture and final payment of the Securities.
(i) The permissive right of the Trustee to take the actions permitted by this Indenture shall
not be construed as an obligation or duty to do so.
(j) Except for information provided by the Trustee concerning the Trustee, the Trustee shall
have no responsibility for any information in the Offering Memorandum or other disclosure material
distributed with respect to the Securities, and the Trustee shall have no responsibility for
compliance with any U.S. Federal or State securities or employee benefit plan laws in connection
with the Securities.
(k) The Trustee may request that the Company or the Guarantor, as the case may be, deliver an
Officers Certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture, which Officers Certificate may
be signed by any person authorized to sign an Officers Certificate, including any person specified
as so authorized in any such certificate previously delivered and not superseded.
SECTION 6.03.
Individual Rights of Trustee
. The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal with the Company, the
Guarantor or any of their Affiliates with the same rights it would have if it were not the Trustee.
Any Agent may do the same with like rights. However, the Trustee is subject to Sections 6.10 and
6.11.
SECTION 6.04.
Trustees Disclaimer
. The Trustee makes no representation as to the validity or
adequacy of this Indenture, the Securities or the Guarantees, it shall not be
46
accountable for the Companys use of the proceeds from the Securities or any money paid to the
Company or upon the Companys direction under any provision hereof, it shall not be responsible for
the use or application of any money received by any Paying Agent other than the Trustee and it
shall not be responsible for any statement or recital herein or any statement in the Securities
other than its certificate of authentication.
SECTION 6.05.
Notice of Defaults
. If a Default or Event of Default occurs and is continuing
and it is actually known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders
a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of or premium, if any, Additional Amounts, if
any, or interest on any Security, the Trustee may withhold the notice if and so long as a committee
of its Responsible Officers in good faith determines that withholding the notice is in the
interests of Holders.
SECTION 6.06.
Reports by Trustee to Holders
. Within 60 days after May 15 of each year,
beginning with May 15, 2008, the Trustee shall mail to Holders a brief report dated as of May 15 of
such year that complies with TIA Section 313(a); provided, however, that if no event described in
TIA Section 313(a) has occurred within the 12 months preceding the reporting date, no report need
be transmitted. The Trustee also shall comply with TIA Section 313(b). The Trustee shall also
transmit by mail all reports as required by TIA Sections 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders shall be filed with the SEC and
each securities exchange, if any, on which the Securities are listed. The Company shall notify the
Trustee if and when the Securities are listed on any securities exchange.
SECTION 6.07.
Compensation and Indemnity
. The Company and the Guarantor jointly and severally
agree to pay to the Trustee from time to time such compensation as agreed to by the Company, the
Guarantor and the Trustee, for its acceptance of this Indenture and its services hereunder. The
Trustees compensation shall not be limited by any law on compensation of a trustee of an express
trust. The Company and the Guarantor jointly and severally agree to reimburse the Trustee upon
request for all reasonable disbursements, advances and expenses incurred by it. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustees agents and
counsel.
The Company and the Guarantor jointly and severally agree to indemnify the Trustee or any
predecessor Trustee and their agents, employees, stockholders, officers and directors for and to
hold them harmless against any and all loss, liability, damage, claim, or expense (including
reasonable fees and expenses of counsel and taxes, other than taxes based upon, measured by or
determined by the income of the Trustee) incurred by it arising out of or in connection with this
Indenture or the administration of this trust, including the costs and expenses of enforcing this
Indenture against the Company and of defending itself against any claim (whether asserted by the
Company, the Guarantor, any Holder or any other Person), except as set forth in the next paragraph.
The Trustee shall notify the Company and the Guarantor promptly of any claim for which it may seek
indemnity; however, failure to give such notice shall not relieve the Company or the Guarantor of
their obligations. The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel, and the Company and the Guarantor shall pay the
reasonable fees and expenses of such counsel. The Company need not
47
pay for any settlement made without its consent, which consent shall not be unreasonably
withheld.
Neither the Company nor the Guarantor shall be obligated to reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or bad faith.
To secure the payment obligations of the Company and the Guarantor in this Section 6.07, the
Trustee shall have a lien prior to the Securities on all money or property held or collected by the
Trustee, except that held in trust to pay principal of and premium, if any, and Additional Amounts,
if any, and interest on the Securities. Such lien shall survive the satisfaction and discharge of
this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 5.01(iv) or (v) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
SECTION 6.08.
Replacement of Trustee
. A resignation or removal of the Trustee and appointment
of a successor Trustee shall become effective only upon the successor Trustees acceptance of
appointment as provided in this Section 6.08.
The Trustee may resign and be discharged from the trust hereby created by so notifying the
Company and the Guarantor. The Holders of a majority in aggregate principal amount of the then
outstanding Securities may remove the Trustee by so notifying the Trustee and the Company. The
Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 6.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an order for relief
is entered with respect to the Trustee under any Bankruptcy Law;
(iii) a Custodian or public officer takes charge of the Trustee or its
property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company and the Guarantor shall promptly appoint a successor Trustee. Within one year
after the successor Trustee takes office, the Holders of a majority in principal amount of the
Securities then outstanding may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of at least 10% in aggregate
principal amount of the Securities then outstanding may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor Trustee.
48
If the Trustee fails to comply with Section 6.10, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company and the Guarantor. Thereupon, the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section 6.07.
Notwithstanding replacement of the Trustee pursuant to this Section 6.08, the obligations of the
Company and the Guarantor under Section 6.07 shall continue for the benefit of the retiring
Trustee.
SECTION 6.09.
Successor Trustee by Merger, etc
. Subject to Section 6.10, if the Trustee
consolidates, merges or converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further act shall be the
successor Trustee; provided, however, that in the case of a transfer of all or substantially all of
its corporate trust business to another corporation, the transferee corporation expressly assumes
all of the Trustees liabilities hereunder.
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; and in case at that time any
of the Securities shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name of the successor to
the Trustee; and in all such cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
SECTION 6.10.
Eligibility; Disqualification
. 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 and authorized under such laws to exercise
corporate trust power, shall be subject to supervision or examination by Federal or State (or the
District of Columbia) authority and shall have, or be a Subsidiary of a bank or bank holding
company having, a combined capital and surplus of at least $50 million as set forth in its most
recent published annual report of condition.
This Indenture shall always have a Trustee that satisfies the requirements of TIA Sections
310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is subject to and shall comply with the provisions
of TIA Section 310(b) during the period of time required by this Indenture. Nothing in this
Indenture shall prevent the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).
SECTION 6.11.
Preferential Collection of Claims Against Company
. The Trustee is subject to
and shall comply with the provisions of TIA Section 311(a), excluding any creditor relationship
listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
49
ARTICLE VII
DISCHARGE OF INDENTURE
SECTION 7.01.
Termination of Companys and Guarantors Obligations
.
(a)
Satisfaction and Discharge of Indenture
. This Indenture shall cease to be of further
effect (except as provided in the last paragraph of this Section 7.01(a)), and the Trustee, on
demand of the Company, shall execute proper instruments acknowledging the satisfaction and
discharge of this Indenture, when:
(1) either
(A) all outstanding Securities theretofore authenticated and issued (other than
destroyed, lost or wrongfully taken Securities that have been replaced or paid) have
been delivered to the Trustee for cancellation; or
(B) all outstanding Securities not theretofore delivered to the Trustee for
cancellation:
(i) have become due and payable,
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) will be scheduled for redemption by their terms within one year, and the
Company, in the case of clause (i) or (ii) above or this clause (iii), has deposited
or caused to be deposited with the Trustee as funds (immediately available to the
Holders in the case of clause (i)) in trust for such purpose an amount of cash or,
in the case of clause (ii) or this clause (iii), U.S. Government Obligations or a
combination thereof which, together with earnings thereon, will be sufficient, in
the case of clause (ii) or this clause (iii), in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the entire
indebtedness on such Securities for principal, premium, if any, Additional Amounts,
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 all other sums payable by it hereunder; and
(3) the Company has delivered to the Trustee an Officers Certificate stating that all
conditions precedent to satisfaction and discharge of this Indenture have been complied
with, together with an Opinion of Counsel to the same effect.
However, the Companys obligations in Sections 2.03, 2.06, 2.07, 3.02 and 7.01, the Companys
and the Guarantors obligations in Sections 6.07, 6.08 and 7.04 and the Trustees and Paying
Agents obligations in Section 7.03 shall survive the satisfaction and discharge of this Indenture
until the Securities are no longer outstanding. Thereafter, only the Companys and the
50
Guarantors obligations in Section 6.07 and the Trustees and Paying Agents obligations in
Section 7.03 shall survive.
(b)
Legal Defeasance
. The Company and the Guarantor may, subject as provided herein,
terminate by legal defeasance all of their obligations under this Indenture if:
(i) the Company has irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust for the purpose of making the following
payments dedicated solely to the benefit of the Holders (A) cash in an amount, or
(B) U.S. Government Obligations, or (C) 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, without
consideration of the reinvestment of any such amounts and after payment of all taxes
or other charges or assessments in respect thereof payable by the Trustee, the
principal of and premium, if any, Additional Amounts, if any and interest on all
Securities on each date that such principal, premium, if any, Additional Amounts, if
any, or interest is due and payable and to pay all other sums payable by it
hereunder; provided that the Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such U.S. Government Obligations to the payment of
said principal, premium, if any, Additional Amounts, if any, and interest with
respect to the Securities as the same shall become due;
(ii) the Company has delivered to the Trustee an Officers Certificate stating
that all conditions precedent to such legal defesance have been complied with, and
an Opinion of Counsel to the same effect;
(iii) no Default or Event of Default shall have occurred and be continuing on
the date of such deposit or, insofar as clauses (iv) and (v) of Section 5.01 are
concerned, at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be deemed satisfied
until the expiration of such period);
(iv) the Company shall have delivered to the Trustee an Opinion of Counsel from
nationally recognized counsel acceptable to the Trustee to the effect that, based on
a ruling of the Internal Revenue Service or a change in U.S. Federal income tax law
occurring after the date of this Indenture, the Holders of Securities will not
recognize income, gain or loss for U.S. Federal income tax purposes as a result of
the Companys exercise of its option under this Section 7.01(b) and will be subject
to U.S. Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such option had not been exercised;
(v) such deposit and legal defeasance will not result in a breach or violation
of, or constitute a default under, any other agreement or instrument to which the
Company or the Guarantor is a party or by which it is bound;
51
(vi) such deposit and legal defeasance shall not cause the Trustee to have a
conflicting interest as defined in TIA Section 310(b); and
(vii) the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that after the passage of 91 days following the deposit, the trust funds
will not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors rights generally.
In such event, payment of the Securities may not be accelerated because of an Event of
Default, Article IX and the other provisions of this Indenture shall cease to be of further effect
(except as provided in the next succeeding paragraph), and the Trustee, on demand of the Company,
shall execute proper instruments acknowledging such legal defeasance.
However, the Companys obligations in Sections 2.03, 2.06, 2.07, 3.02 and 7.01, the Companys
and the Guarantors obligations in Sections 6.07, 6.08 and 7.04 and the Trustees and Paying
Agents obligations in Section 7.03 shall survive such legal defeasance until the Securities are no
longer outstanding. Thereafter, only the Companys and the Guarantors obligations in Section 6.07
and the Trustees and Paying Agents obligations in Section 7.03 shall survive.
(c)
Covenant Defeasance
. The Company and the Guarantor may, subject as provided herein, be
released from their respective obligations to comply with, and shall have no liability in respect
of any term, condition or limitation, set forth in Sections 3.07, 3.08, 3.09 and 4.01 and in
Article IX, and such omission to comply with any of Sections 3.07, 3.08, 3.09 and 4.01 and Article
IX shall not constitute an Event of Default under Section 5.01 (Covenant Defeasance), with the
remainder of this Indenture and such Securities unaffected thereby if:
(i) the Company has irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust for the purpose of making the following
payments dedicated solely to the benefit of the Holders (A) cash in an amount, or
(B) U.S. Government Obligations, or (C) 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, without
consideration of the reinvestment of any such amounts and after payment of all taxes
or other charges or assessments in respect thereof payable by the Trustee, the
principal of and premium, if any, Additional Amounts, if any and interest on all
Securities on each date that such principal, premium, if any, Additional Amounts, if
any, or interest is due and payable and to pay all other sums payable by it
hereunder; provided that the Trustee shall have been irrevocably instructed to apply
such money and/or the proceeds of such U.S. Government Obligations to the payment of
said principal, premium, if any, Additional Amounts, if any, and interest with
respect to the Securities as the same shall become due;
(ii) the Company has delivered to the Trustee an Officers Certificate stating
that all conditions precedent to the Covenant Defeasance contemplated by
52
this provision have been complied with, and an Opinion of Counsel to the same
effect;
(iii) no Default or Event of Default shall have occurred and be continuing on
the date of such deposit or, insofar as clauses (iv) and (v) of Section 5.01 are
concerned, at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be deemed satisfied
until the expiration of such period);
(iv) the Company shall have delivered to the Trustee an Opinion of Counsel from
nationally recognized counsel acceptable to the Trustee to the effect that the
Holders of Securities will not recognize income, gain or loss for U.S. Federal
income tax purposes as a result of the Companys exercise of its option under this
Section 7.01(c) and will be subject to U.S. Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such option
had not been exercised;
(v) such Covenant Defeasance will not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the Company
or the Guarantor is a party or by which it is bound;
(vi) such Covenant Defeasance shall not cause the Trustee to have a conflicting
interest as defined in TIA Section 310(b); and
(vii) the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that after the passage of 91 days following the deposit, the trust funds
will not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors rights generally.
(d) In order to have money available on a payment date to pay principal of or premium, if any,
Additional Amounts, if any, or interest on the Securities, the U.S. Government Obligations shall be
payable as to principal or interest on or before such payment date in such amounts as will provide
the necessary money. U.S. Government Obligations shall not be callable at the issuers option.
(e) The Company may exercise its option under Section 7.01(b) notwithstanding its prior
exercise of its Covenant Defeasance option under Section 7.01(c).
SECTION 7.02.
Application of Trust Money
. The Trustee or a trustee satisfactory to the
Trustee and the Company shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to Section 7.01. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to the payment of
principal of and premium, if any, Additional Amounts, if any, and interest on Securities with
respect to which the deposit was made.
SECTION 7.03.
Repayment to Company
. The Trustee and the Paying Agent shall promptly pay to
the Company upon written request any excess money or securities held by them at any time. Subject
to the requirements of any applicable abandoned property laws, the Trustee
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and the Paying Agent shall pay to the Company upon written request any money held by them for
the payment of principal of, premium, if any, Additional Amounts, if any, or interest that remains
unclaimed for two years after the date upon which such payment shall have become due; provided,
however, that the Company shall have either caused notice of such payment to be mailed to each
Holder entitled thereto no less than 30 days prior to such repayment or within such period shall
have published such notice in a financial newspaper of widespread circulation published in The City
of New York. After payment to the Company, Holders entitled to the money must look to the Company
for payment as unsecured general creditors unless an applicable abandoned property law designates
another Person, and all liability of the Trustee and the Paying Agent with respect to such money
shall cease.
SECTION 7.04.
Reinstatement
. If the Trustee or the Paying Agent is unable to apply any money
or U.S. Government Obligations in accordance with Section 7.01 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the obligations of the Company and the Guarantor under this
Indenture and the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 7.01 until such time as the Trustee or the Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance with Section 7.01; provided, however,
that if the Company or the Guarantor has made any payment of principal of or interest on any
Securities because of the reinstatement of its obligations, the Company or the Guarantor, as the
case may be, shall be subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or the Paying Agent.
ARTICLE VIII
AMENDMENTS
SECTION 8.01.
Without Consent of Holders
. The Company, the Guarantor and the Trustee may
amend or supplement this Indenture or any of the Securities or waive any provision hereof or
thereof without the consent of any Holder:
(i) to convey, transfer, assign, mortgage or pledge to the Trustee as security
for the Securities any property or assets;
(ii) to evidence the succession of another Person to the Company or the
Guarantor, or successive successions, and the assumption by the successor Person of
the covenants, agreements and obligations of the Company or the Guarantor pursuant
to Section 4.01 or 4.02;
(iii) to add to the covenants of the Company or the Guarantor such further
covenants, restrictions, conditions or provisions as the Company or the Guarantor
and the Trustee shall consider to be for the protection of the Holders of
Securities, 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, provided that in respect of any such
54
additional covenant, restriction, condition or provision such amendment or
supplement 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
to waive such an Event of Default;
(iv) to cure any ambiguity or omission or to correct or supplement any
provision contained herein or in any supplemental indenture which may be defective
or inconsistent with any other provision contained herein or in any supplemental
indenture, provided that no such action shall adversely affect the interests of the
Holders of the Securities;
(v) to provide for uncertificated Securities in addition to or in place of
certificated Securities, provided that the uncertificated Securities are issued in
registered form for purposes of Section 163(f) of the Code, or in a manner such that
uncertificated notes are described in Section 163(f)(2)(B) of the Code;
(vi) to provide for the issuance of Exchange Securities and related Guarantees
or Additional Securities and related Guarantees in accordance with this Indenture;
(vii) to effect or maintain, or otherwise comply with the requirements of the
SEC in connection with, the qualification of this Indenture under the TIA;
(viii) to effect any provision of this Indenture; or
(ix) to make any other change that does not adversely affect the rights of any
Holder.
Upon the request of the Company and the Guarantor accompanied by a resolution of the Board of
Directors of each of the Company and the Guarantor authorizing the execution of any supplemental
indenture entered into to effect any such amendment, supplement or waiver, and upon receipt by the
Trustee of the documents described in Section 8.06, the Trustee shall join with the Company and the
Guarantor in the execution of such supplemental indenture. After an amendment, supplement or
waiver under this Section 8.01 becomes effective, the Company shall mail to the Holders of each
Security affected thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such amendment, supplement or waiver.
SECTION 8.02.
With Consent of Holders
. Except as provided below in this Section 8.02, the
Company, the Guarantor and the Trustee may amend or supplement this Indenture with the consent
(including consents obtained in connection with a tender offer or exchange offer for the Securities
or a solicitation of consents in respect of the Securities, provided that in each case such offer
or solicitation is made to all Holders of the Securities then outstanding on equal terms)
55
of the Holders of at least a majority in aggregate principal amount of the Securities then
outstanding affected thereby.
The Holders of a majority in aggregate principal amount of the Securities then outstanding may
waive compliance in a particular instance by the Company or the Guarantor with any provision of
this Indenture or the Securities (including waivers obtained in connection with a tender offer or
exchange offer for the Securities or a solicitation of consents in respect of the Securities,
provided that in each case such offer or solicitation is made to all Holders of the Securities then
outstanding on equal terms).
Upon the request of the Company and the Guarantor accompanied by a resolution of the Board of
Directors of each of the Company and the Guarantor authorizing the execution of any supplemental
indenture entered into to effect any such amendment, supplement or waiver, and upon the filing with
the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee
of the documents described in Section 8.06, the Trustee shall join with the Company and the
Guarantor in the execution of such supplemental indenture. After an amendment, supplement or waiver
under this Section 8.02 becomes effective, the Company shall mail to the Holders of each Security
affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such amendment, supplement or waiver.
It shall not be necessary for the consent of the Holders under this Section 8.02 to approve
the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if
such consent approves the substance thereof.
Without the consent of each Holder affected, an amendment, supplement or waiver under this
Section 8.02 may not:
(i) extend the final maturity of the principal of any of the Securities;
(ii) reduce the principal amount of any of the Securities;
(iii) reduce the rate or extend the time of payment of interest, including
default interest, or Additional Amounts, if any, on any of the Securities;
(iv) reduce any amount payable on redemption of any of the Securities;
(v) change the currency in which the principal of or premium, if any,
Additional Amounts, if any, or interest on any of the Securities is payable;
(vi) impair the right to institute suit for the enforcement of any payment of
principal of or premium, if any, Additional Amounts, if any, or interest on any
Security pursuant to Sections 5.07 and 5.08, except as limited by Section 5.06;
(vii) make any change in the percentage of principal amount of the Securities
necessary to waive compliance with or to modify certain provisions of
56
this Indenture pursuant to Section 5.04 or 5.07 or this clause of this Section
8.02; or
(viii) waive a continuing Default or Event of Default in the payment of
principal of or premium, if any, Additional Amounts, if any, or interest, including
default interest, on the Securities.
The right of any Holder to participate in any consent required or sought pursuant to any
provision of this Indenture (and the obligation of the Company to obtain any such consent otherwise
required from such Holder) may be subject to the requirement that such Holder shall have been the
Holder of record of the Securities as of a record date fixed by the Company in accordance with
Section 8.04 of this Indenture.
SECTION 8.03.
Compliance with Trust Indenture Act
. Every amendment or supplement to this
Indenture or the Securities shall comply in form and substance with the TIA as then in effect.
SECTION 8.04.
Revocation and Effect of Consents
. A consent to an amendment, a supplement or a
waiver by a Holder is a continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holders Security, even if
notation of the consent is not made on any Security. However, any such Holder or subsequent Holder
may revoke the consent as to its Security or portion of a Security if the Trustee receives written
notice of revocation at any time prior to (but not after) the date the Trustee receives an
Officers Certificate certifying that the Holders of the requisite principal amount of Securities
have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver.
An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter
binds every Holder, and a consent thereto given in connection with a tender of a Holders
Securities shall not be rendered invalid by such tender.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver or to take any
other action with respect to the Securities under this Indenture. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph, those Persons who were
Holders at the close of business on such record date (or their duly designated proxies), and only
those Persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke
any consent previously given, whether or not such Persons continue to be Holders after such record
date, and for this purpose the Securities then outstanding shall be computed as of such record
date. No consent shall be valid or effective for more than 90 days after such record date unless
consents from Holders of the principal amount of the Securities required hereunder for such
amendment, supplement or waiver to be effective shall have also been given and not revoked within
such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it is of the type described in any of clauses (i) through (viii) of Section 8.02. In such case, the
amendment, supplement or waiver shall bind each Holder who has consented to it and every subsequent
Holder that evidences the same debt as the consenting Holders Security.
57
SECTION 8.05.
Notation on or Exchange of Securities
. If an amendment or supplement changes
the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security regarding the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security
that reflects the changed terms. Failure to make the appropriate notation or to issue a new
Security shall not affect the validity of such amendment or supplement.
SECTION 8.06.
Trustee to Sign Amendments, etc
. The Trustee shall sign any supplemental
indenture authorized pursuant to this Article VIII if the supplemental indenture does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may,
but need not, sign it. In signing or refusing to sign such supplemental indenture, the Trustee
shall receive, and subject to Section 6.01, shall be fully protected in relying upon, an Opinion of
Counsel and an Officers Certificate, as conclusive evidence that all conditions precedent to such
supplemental indenture have been complied with, that such supplemental indenture is authorized or
permitted by this Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company and the Guarantor in accordance with its terms.
ARTICLE IX
GUARANTEES OF SECURITIES
SECTION 9.01.
Unconditional Guarantees
.
(a) For value received, the Guarantor hereby fully, irrevocably, unconditionally and
absolutely guarantees to the Holders and to the Trustee the due and punctual payment of the
principal of and premium, if any, Additional Amounts, if any, and interest on the Securities and
all other amounts due and payable under this Indenture and the Securities by the Company
(including, without limitation, all costs and expenses (including reasonable legal fees and
disbursements) incurred by the Trustee or the Holders in connection with the enforcement of this
Indenture, the Securities and the Guarantees) (collectively, the Indenture Obligations), when and
as such principal, premium, if any, Additional Amounts, if any, and interest and such 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 the Securities and this Indenture. The
guarantees by the Guarantor set forth in this Article IX are referred to herein as the
Guarantees. Without limiting the generality of the foregoing, the Guarantors liability shall
extend to all amounts that constitute part of the Indenture Obligations and would be owed by the
Company under this Indenture and the 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.
(b) Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever
reason, the Guarantor will be obligated to pay the same immediately to the Trustee, without set-off
or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). The
Guarantees are intended to be general, unsecured, senior obligations of the Guarantor and to rank
pari passu
in right of payment with all indebtedness of
58
the Guarantor that is not, by its terms, expressly subordinated in right of payment to the
Guarantees of the Guarantor. The Guarantor hereby agrees that its obligations hereunder shall be
full, irrevocable, unconditional and absolute, irrespective of the validity, regularity or
enforceability of the obligations and liabilities of any other obligor with respect to the
Securities, the Guarantees or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder with respect to any provisions hereof or thereof with respect to
the same, the recovery of any judgment against the Company, 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, Additional Amounts, if any, or interest on the Securities or any other amounts
payable under this Indenture and the Securities by the Company, 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 the Holders or, subject to Section 5.06, by the Holders, on the terms
and conditions set forth in this Indenture, directly against the Guarantor to enforce the
Guarantees without first proceeding against the Company.
(c) To the fullest extent permitted by applicable law, the obligations of the Guarantor under
this Article IX 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 any
other obligor with respect to the Securities contained in any of the Securities or this Indenture,
(ii) any impairment, modification, release or limitation of the liability of the Company, the
Guarantor or any of their respective 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, or other statute or from the decision of any court, (iii) the assertion or exercise
by the Company, the Guarantor or the Trustee of any rights or remedies under any of the Securities
or this Indenture or its 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 the
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 the 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 set forth in this Indenture of any other obligor
with respect to the Securities, (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 of, or other similar proceeding affecting,
either of the Company or the Guarantor or any of its assets, or the disaffirmance of any of the
Securities, the Guarantees 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 the obligations of any of the other obligors under the Securities, the
Guarantees or this Indenture, (x) any change in the name,
59
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.
(d) 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, insolvency or bankruptcy of
the Company or the Guarantor, and all demands and notices whatsoever, (ii) acknowledges that any
agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit
of its obligations hereunder shall extend to each holder of any agreement, instrument or document
evidencing the Guarantees without notice to them and (iii) covenants that its Guarantees will not
be discharged except by complete performance of the Guarantees or of the obligations guaranteed
thereby. The Guarantor further agrees that if at any time all or any part of any payment
theretofore applied by any Person to the Guarantees is, or must be, rescinded or returned for any
reason whatsoever, including, without limitation, the insolvency, bankruptcy or reorganization of
the Guarantor, the Guarantees 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
Guarantees shall continue to be effective or be reinstated, as the case may be, as though such
application had not been made.
(e) 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 the
Securities until all of the Securities and the Guarantees thereof shall have been paid in full or
discharged.
(f) 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 IX and the Guarantees 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 IX shall limit the right of the Trustee or the Holders to take any action to accelerate the
Maturity of the Securities pursuant to Article V or to pursue any rights or remedies hereunder or
under applicable law.
SECTION 9.02.
Execution and Delivery of Notation of Guarantees
. To further evidence the
Guarantees, the Guarantor hereby agrees that a notation of such Guarantees may be endorsed on each
Security authenticated and delivered by the Trustee and that such notation shall be executed by
either manual or facsimile signature of an Officer of the Guarantor.
The Guarantor hereby agrees that its Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of the Guarantees.
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 Guarantors guarantee of such Security shall be valid nevertheless.
60
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantees set forth in this Indenture on behalf of the Guarantor.
ARTICLE X
REDEMPTION
SECTION 10.01.
Notices to Trustee
. If the Company elects to redeem the Securities pursuant to
the redemption provisions of Section 10.07, it shall furnish to the Trustee, at least five days
before notice of such redemption is to be given pursuant to Section 10.03, an Officers Certificate
setting forth the Redemption Date, the principal amount of such Securities to be redeemed and the
Redemption Price (or the method of calculating the Redemption Price).
SECTION 10.02.
Selection of Securities to be Redeemed
. If less than all of the Securities are
to be redeemed, the Trustee shall select the Securities to be redeemed by such method as the
Trustee in its sole discretion shall deem fair and appropriate. The particular Securities to be
redeemed shall be selected by the Trustee from the outstanding Securities not previously called for
redemption.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the principal amount
thereof to be redeemed. Securities and portions of them selected shall be in minimum amounts of
$2,000 and integral multiples of $1,000 in excess thereof. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
SECTION 10.03.
Notices to Holders
.
(a) At least 20 days but not more than 75 days before a Redemption Date (unless a different
notice period is specified in the Securities), the Company shall mail in conformity with Section
11.02 a notice of redemption to each Holder whose Securities are to be redeemed. The notice shall
identify the Securities to be redeemed (including CUSIP, ISIN or similar numbers, if any) and shall
state:
(i) the Redemption Date;
(ii) the Redemption Price (or the method of calculating the Redemption Price);
(iii) if any Security is being redeemed in part, the portion of the principal
amount of such Security to be redeemed and that, after the Redemption Date, upon
surrender of such Security, a new Security or Securities in principal amount equal
to the unredeemed portion will be issued;
(iv) the name and address of the Paying Agent;
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(v) that Securities called for redemption must be surrendered to the Paying
Agent at the address specified in such notice to collect the Redemption Price;
(vi) that unless the Company defaults in making the redemption payment,
interest on Securities called for redemption ceases to accrue on and after the
Redemption Date and the only remaining right of the Holders is to receive payment of
the Redemption Price upon surrender to the Paying Agent of the Securities; and
(vii) the aggregate principal amount of Securities being redeemed.
If any of the Securities to be redeemed is in the form of a Global Security, then the Company
shall modify such notice to the extent necessary to accord with the procedures of the Depositary
applicable to redemptions.
(b) At the Companys request, the Trustee shall give the notice required in Section 10.03(a)
in the Companys name; provided, however, that the Company shall deliver to the Trustee, at least
15 days prior to the requested mailing date (unless the Trustee consents in writing to a shorter
period), an Officers Certificate requesting that the Trustee give such notice and setting forth
the information to be stated in such notice as provided in Section 10.03(a).
SECTION 10.04.
Effect of Notices of Redemption
. Once notice of redemption is mailed pursuant
to Section 10.03, Securities called for redemption become due and payable on the Redemption Date at
the Redemption Price. Upon surrender to the Paying Agent, such Securities shall be paid out at the
Redemption Price, plus accrued and unpaid interest up to, but not including, the Redemption Date;
provided, however, that if the Redemption Date is after the taking of a record of the Holders on a
record date and on or prior to the related Interest Payment Date, the accrued and unpaid interest
shall be payable to the Person in whose name the redeemed Securities are registered on such record
date. Failure to give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
SECTION 10.05.
Deposit of Redemption Price
. At or prior to 11:00 a.m. New York City time on
the Redemption Date, the Company shall deposit with the Trustee or with the Paying Agent
immediately available funds sufficient to pay the Redemption Price of all Securities to be redeemed
on that date, plus accrued and unpaid interest thereon up to, but not including, the Redemption
Date. The Trustee or the Paying Agent shall return to the Company any money not required for that
purpose less the expenses of the Trustee as provided herein.
If the Company complies with the preceding paragraph, interest on the Securities or portions
thereof to be redeemed (whether or not such Securities are presented for payment) will cease to
accrue on the applicable Redemption Date. If any Security called for redemption shall not be so
paid upon surrender because of the failure of the Company to comply with the preceding paragraph,
then interest will be paid on the unpaid principal, premium, if any, and Additional Amounts, if
any, from the Redemption Date until such principal, premium, if any, and Additional Amounts, if
any, are paid and, to the extent lawful, on any interest not paid on such unpaid principal, in each
case at the rate provided in the Securities and in Section 3.01.
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SECTION 10.06.
Securities Redeemed in Part
. Upon surrender of a Security that is redeemed in
part, the Company shall issue and the Trustee shall authenticate for the Holder, at the expense of
the Company, a new Security equal in principal amount to the unredeemed portion of the Security
surrendered.
SECTION 10.07.
Optional Redemption
. The Securities may be redeemed at any time on such terms
and subject to such conditions as are specified in such Securities.
Any redemption pursuant to this Section 10.07 shall be made, to the extent applicable,
pursuant to the provisions of Sections 10.01 through 10.06.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01.
Trust Indenture Act Controls
. Any reference to a requirement under the TIA
shall apply to this Indenture irrespective of whether or not this Indenture is then qualified
thereunder. If any provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA (or in any other indenture
qualified thereunder), the provision required by the TIA shall control.
SECTION 11.02.
Notices
. Any notice or communication by the Company, the Guarantor or the
Trustee to the others is duly given if in writing and delivered in person, by facsimile or by
overnight air courier guaranteeing next day delivery or if mailed by first-class mail (registered
or certified, return receipt requested), in each case to the others address:
If to either the Company or the Guarantor, to it at:
Nabors Industries, Inc.
515 West Greens Road, Suite 1200
Houston, Texas 77067
Attention: General Counsel
Facsimile: (281) 775-8431
If to the Trustee:
Wells Fargo Bank, National Association
201 Main Street, Suite 301
Fort Worth, Texas 76102
Attention: Corporate Trust Services
Facsimile: (817) 885-8650
Each of the Company, the Guarantor and the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All 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 receipt acknowledged, if telecopied; and the next Business Day after
timely delivery to the courier, if sent by overnight air courier guaranteeing next day
63
delivery. Notwithstanding the foregoing, notices to the Trustee shall be effective only upon
receipt.
Any notice or communication to a Holder shall be mailed by first-class mail, postage prepaid,
to the Holders address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is delivered or mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.
If the Company or the Guarantor mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
All notices or communications, including, without limitation, notices to the Trustee or the
Company or the Guarantor by Holders, shall be in writing, except as set forth below, and in the
English language.
In case by reason of the suspension of regular mail service, or by reason of any other cause,
it shall be impossible to mail any notice required by this Indenture, then such method of
notification as shall be made with the approval of the Trustee shall constitute a sufficient
mailing of such notice.
SECTION 11.03.
Communication by Holders with Other Holders
. Holders may communicate pursuant
to TIA Section 312(b) with other Holders with respect to their rights under this Indenture, the
Securities or the Guarantees. The Company, the Guarantor, the Trustee, the Registrar and anyone
else shall have the protection of TIA Section 312(c).
SECTION 11.04.
Certificate and Opinion as to Conditions Precedent
. Upon any request or
application by the Company or the Guarantor to the Trustee to take any action under this Indenture,
the Company or the Guarantor shall, if requested by the Trustee, furnish to the Trustee:
(i) an Officers Certificate (which shall include the statements set forth in
Section 11.05) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(ii) an Opinion of Counsel (which shall include the statements set forth in
Section 11.05) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
Notwithstanding the foregoing, no such Opinion of Counsel shall be required in connection with
the issuance of the Initial Securities pursuant to the Offering.
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SECTION 11.05.
Statements Required in Certificate or Opinion
. Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture shall
include:
(i) a statement that the Person making such certificate or opinion has read
such covenant or condition;
(ii) 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;
(iii) a statement that, in the opinion of such Person, 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
(iv) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.
SECTION 11.06.
Rules by Trustee and Agents
. The Trustee may make reasonable rules for action
by or at a meeting of Holders. The Registrar or the Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.07.
Legal Holidays
. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a record date is a Legal Holiday, the record
date shall not be affected.
SECTION 11.08.
No Recourse Against Others
. A director, officer, employee or stockholder of
the Company or the Guarantor, as such, shall not have any liability for any obligations of the
Company or the Guarantor under the Securities, the Guarantees or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and release shall be part
of the consideration for the issue of the Securities.
SECTION 11.09.
Governing Law
. This Indenture, the Securities and the Guarantees shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 11.10.
Consent to Jurisdiction and Service of Process
. The Guarantor is not organized
under the laws the United States (including the States thereof and the District of Columbia) and
therefore it hereby appoints the Company as the authorized agent thereof (the Authorized Agent)
upon whom process may be served in any action, suit or proceeding arising out of or based on this
Indenture or the Securities which may be instituted in the Supreme Court of the State of New York
or the United States District Court for the Southern District of New York, in either case in the
Borough of Manhattan, The City of New York, by the Holder of any Security, and to the fullest
extent permitted by applicable law, the Guarantor hereby waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding and expressly and irrevocably accepts
and submits, for the benefit of the Holders from time to time
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of the Securities, to the nonexclusive jurisdiction of any such court in respect of any such
action, suit or proceeding, for itself and with respect to its properties, revenues and assets.
Such appointment shall be irrevocable unless and until the appointment of a successor authorized
agent for such purpose, and such successors acceptance of such appointment, shall have occurred.
The Guarantor agrees to take any and all actions, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent with respect to any such action shall be
deemed, in every respect, effective service of process upon the Guarantor. Notwithstanding the
foregoing, any action against the Guarantor arising out of or based on any Security or the
Guarantees may also be instituted by the Holder of such Security in any court in the jurisdiction
of organization of the Guarantor, and the Guarantor expressly accepts the jurisdiction of any such
court in any such action. The Company hereby accepts the foregoing appointment as agent for
service of process.
SECTION 11.11.
Waiver of Immunity
. To the extent that the Guarantor or any of its properties,
assets or revenues may have or may hereafter become entitled to, or have attributed to it, any
right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any thereof, from set-off or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from
attachment in aid of execution of judgment, or from execution of judgment, or other legal process
or proceeding for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with this Indenture or the
Securities, the Guarantor, to the maximum extent permitted by law, hereby irrevocably and
unconditionally waives, and agrees not to plead or claim, any such immunity and consents to such
relief and enforcement.
SECTION 11.12.
Judgment Currency
. The Guarantor agrees to indemnify the Trustee and each
Holder against any loss incurred by it as a result of any judgment or order being given or made and
expressed and paid in a currency (the Judgment Currency) other than U.S. dollars and as a result
of any variation as between (a) the rate of exchange at which the U.S. dollar amount is converted
into the Judgment Currency for the purpose of such judgment or order and (b) the spot rate of
exchange in The City of New York at which the Trustee or such Holder on the date of payment of such
judgment or order is able to purchase U.S. dollars with the amount of the Judgment Currency
actually received by the Trustee or such Holder. The foregoing indemnity shall constitute a
separate and independent obligation of the Guarantor and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term spot rate of exchange shall
include any premiums and costs of exchange payable in connection with the purchase of, or
conversion into, U.S. dollars.
SECTION 11.13.
No Adverse Interpretation of Other Agreements
. This Indenture may not be used
to interpret another indenture, loan or debt agreement of the Company, the Guarantor or any other
Subsidiary of the Guarantor. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
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SECTION 11.14.
Successors
. All agreements of the Company and the Guarantor in this Indenture
and the Securities shall bind their respective successors. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 11.15.
Severability
. In case any provision in this Indenture or in the Securities
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 11.16.
Counterpart Originals
. The parties may sign any number of copies of this
Indenture by manual or facsimile signature. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 11.17.
Table of Contents, Headings, etc
. The Table of Contents and headings of the
Articles and Sections of this Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
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IN WITNESS WHEREOF
, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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Company:
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NABORS INDUSTRIES, INC.
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By:
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/s/ Bruce P. Koch
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Bruce P. Koch
Vice President and
Chief Financial Officer
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Guarantor:
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NABORS INDUSTRIES LTD.
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By:
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/s/ Bruce P. Koch
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Bruce P. Koch
Vice President and
Chief Financial Officer
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Trustee:
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WELLS FARGO BANK, NATIONAL ASSOCIATION
, as Trustee
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By:
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/s/ John C. Stohlmann
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John C. Stohlmann
Vice President
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EXHIBIT A
FACE OF SECURITY
GLOBAL SECURITY LEGEND
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS
SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE REGISTRAR MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL
SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.
06(a)
OF THE INDENTURE AND
(III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (DTC) TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
*
PRIVATE PLACEMENT LEGEND
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
SECURITIES ACT), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
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*
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This paragraph should be included only if the Security is a Global Security.
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Exhibit A-1
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (RULE 144A)),
OR (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, AND (2)
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE RESALE
RESTRICTION TERMINATION DATE) WHICH IS ONE YEAR (OR SUCH OTHER DATE WHEN RESALES OF SECURITIES BY
NON-AFFILIATES ARE FIRST PERMITTED UNDER RULE
144(d)
) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR ANY PREDECESSOR OF THIS SECURITY) OR THE DATE OF ANY SUBSEQUENT REOPENING OF THE
SECURITIES AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO NABORS INDUSTRIES LIMITED OR ANY
OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PURCHASERS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND THE
SECURITIES LAWS OF ANY OTHER JURISDICTION, INCLUDING ANY STATE OF THE UNITED STATES, SUBJECT TO THE
COMPANYS AND THE TRUSTEES RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL SATISFACTORY TO EACH OF THEM AND/OR A CERTIFICATE OF TRANSFER OR EXCHANGE
IN THE FORM PRESCRIBED IN THE INDENTURE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
BY ITS ACQUISITION AND HOLDING OF THIS SECURITY THE HOLDER THEREOF WILL BE DEEMED TO HAVE
REPRESENTED, WARRANTED AND AGREED THAT EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO THE FIDUCIARY RESPONSIBILITY REQUIREMENT OF TITLE I OF U.S. EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (ERISA), A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE
U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE), OR AN ENTITY WHOSE UNDERLYING ASSETS
Exhibit A-2
INCLUDE PLAN ASSETS BY REASON OF SUCH EMPLOYEE BENEFIT PLAN OR PLANS
INVESTMENT IN THE ENTITY, OR A GOVERNMENTAL, NON-U.S., CHURCH OR OTHER PLAN WHICH IS SUBJECT TO ANY
FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF
ERISA OR THE CODE (SIMILAR LAWS), OR (II) THE PURCHASE, HOLDING AND DISPOSITION OF THIS SECURITY
WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975
OF THE CODE OR, IN THE CASE OF A GOVERNMENTAL, NON-U.S., CHURCH OR OTHER PLAN, A SIMILAR VIOLATION
UNDER ANY APPLICABLE SIMILAR LAWS.
**
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**
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These paragraphs should be included only if the
Security is a Restricted Definitive Security or a Restricted Global Security.
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Exhibit A-3
NABORS INDUSTRIES, INC.
9.25% SENIOR NOTE DUE 2019
Nabors Industries, Inc., a Delaware corporation (the Company), for value received promises
to pay to
or registered assigns, the principal sum of
Dollars [or such
greater or lesser amount as is indicated on the Schedule of Exchanges of Interests in the Global
Securities on the other side of this Security*] on January 15, 2019.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
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.
IN WITNESS WHEREOF
, the Company has caused this Security to be signed manually or by facsimile
by one of its duly authorized officers.
Dated:
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NABORS INDUSTRIES, INC.
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By:
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Certificate of Authentication:
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee, certifies that this is one of
the
Securities
referred to in the within-
mentioned Indenture.
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By:
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Authorized Signatory
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*
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This phrase should be included only if the Security is a Global Security.
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Exhibit A-4
REVERSE OF SECURITY
NABORS INDUSTRIES, INC.
9.25% SENIOR NOTE DUE 2019
This Security is one of a duly authorized issue of 9.25% Senior Notes due 2019 (the
Securities) of Nabors Industries, Inc., a Delaware corporation (the Company).
1.
Interest
. The Company promises to pay interest on the principal amount of this Security at
a rate of 9.25% per annum until Maturity. The Company will pay interest semiannually on January 15
and July 15 of each year (each an Interest Payment Date), beginning July 15, 2009, or if any such
day is not a Business Day, on the next succeeding Business Day. Interest on this Security will
accrue from the most recent Interest Payment Date on which interest has been paid or, if no
interest has been paid, from January 12, 2009; provided that if there is no existing Default in the
payment of interest, and if this Security is authenticated between a record date referred to on the
face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date. Further, to the extent lawful, the Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal,
premium, if any, Additional Amounts, if any, and interest (without regard to any applicable grace
period), from time to time on demand at the rate then in effect on the Securities. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2.
Method of Payment
. The Company will pay interest on this Security (except defaulted
interest) to the Persons who are registered Holders of this Security at the close of business on
the record date next preceding the Interest Payment Date, even if this Security is canceled after
such record date and on or before such Interest Payment Date. The Holder must surrender this
Security to a Paying Agent to collect payments of principal and premium, if any. The Company will
pay the principal of and premium, if any, and Additional Amounts, if any, and interest on this
Security in money of the United States of America that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Securities represented by a Global
Security (including principal, premium, if any, Additional Amounts, if any, and interest) will be
made by wire transfer of immediately available funds to the accounts specified by The Depository
Trust Company. The Company will make all payments in respect of a certificated Security (including
principal, premium, if any, Additional Amounts, if any, and interest) at the Corporate Trust Office
of the Trustee or at the office or agency of the Paying Agent maintained for such purpose in The
City of New York or, at its option, by mailing a check to the registered address of each Holder
thereof; provided, however, that payments on a certificated Security will be made by wire transfer
to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder
elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such
effect designating such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
3.
Ranking and Guarantees
. This Security is a senior unsecured obligation of the Company and
is guaranteed pursuant to guarantees (the Guarantees) by Nabors Industries Ltd.,
Exhibit A-5
a Bermuda exempted company (the Guarantor). The Guarantees are senior unsecured obligations
of the Guarantor. References herein to the Indenture or the Securities shall be deemed also to
refer to the Guarantees set forth in the Indenture except where the context otherwise requires.
4.
Optional Redemption; Purchases Upon Change of Control
.
(a) This Security is redeemable, in whole or in part, at any time, at the Companys option, at
a Redemption Price equal to the greater of (1) 100% of the principal amount of this Security then
outstanding to be redeemed, or (2) the sum of the present values of the remaining scheduled
payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date)
computed by discounting such payments to the Redemption Date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at a rate equal to the sum of 50 basis points plus
the Adjusted Treasury Rate on the third Business Day prior to the Redemption Date, as calculated by
an Independent Investment Banker, plus accrued and unpaid interest hereon up to, but not including,
the Redemption Date (subject to the right of the holder of record of this Security on the relevant
record date to receive interest on the relevant Interest Payment Date as provided in Section 10.04
of the Indenture).
Adjusted Treasury Rate means, with respect to any Redemption Date, 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 U.S. Treasury securities adjusted to constant maturity under the caption
Treasury Constant Maturities for the maturity corresponding to the Optional Redemption Comparable
Treasury Issue (if no maturity is within three months before or after the remaining term of this
Security, yields for the two published maturities most closely corresponding to the Optional
Redemption 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 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 annum equal to the semiannual
equivalent yield to maturity of the Optional Redemption Comparable Treasury Issue, calculated using
a price for the Optional Redemption Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Optional Redemption Comparable Treasury Price for such redemption
date.
Independent Investment Banker means Goldman, Sachs & Co., or if such firm is unwilling or
unable to serve as such, an independent investment and banking institution of national standing
appointed by the Trustee.
Optional Redemption Reference Treasury Dealer means each of up to five dealers to be
selected by the Company and the Guarantor, and their respective successors; provided that if any of
the foregoing ceases to be, and has no affiliate that is, a primary U.S. governmental securities
dealer (a Primary Treasury Dealer), the Company and the Guarantor will substitute for it another
Primary Treasury Dealer.
Exhibit A-6
Optional Redemption Comparable Treasury Issue means the U.S. 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 utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of this Security, or, if, in the reasonable judgment of the
Independent Investment Banker, there is no such security, then the Optional Redemption Comparable
Treasury Issue will mean the U.S. Treasury security or securities selected by the Independent
Investment Banker as having an actual or interpolated maturity or maturities comparable to the
remaining term of this Security.
Optional Redemption Comparable Treasury Price means (1) the average of five Optional
Redemption Reference Treasury Dealer Quotations for the applicable redemption date, after excluding
the highest and lowest Optional Redemption Reference Treasury Dealer Quotations, or (2) if the
Independent Investment Banker obtains fewer than five such Optional Redemption Reference Treasury
Dealer Quotations, the average of all such quotations.
Optional Redemption Reference Treasury Dealer Quotations means, with respect to each
Optional Redemption Reference Treasury Dealer and any Redemption Date for this Security, the
average, as determined by the Independent Investment Banker of the bid and asked prices for the
Optional Redemption Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker and the Trustee at 5:00
p.m., New York City time, on the third Business Day preceding such Redemption Date.
(b) Upon the occurrence of a Change of Control Triggering Event, each Holder shall have the
right to require the Company to purchase all or any part (equal to $2,000 or an integral multiple
of $1,000 in excess thereof) of this Security, pursuant to a Change of Control Offer made in
accordance with Section 3.10 of the Indenture, at a purchase price in cash equal to 101% of the
principal amount hereof, plus accrued and unpaid interest hereon up to, but not including, the
Redemption Date (subject to the right of the holder of record of this Security on the relevant
record date to receive interest on the relevant Interest Payment Date as provided in Section 3.10
of the Indenture), except to the extent that the Company shall have exercised its right to redeem
this Security pursuant to the preceding paragraph (a).
(c) 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, purchases all
of the Securities validly tendered and not withdrawn by such holders, the Company shall 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 such Change of Control Offer, to redeem this Security and all
other Securities that remain outstanding following such purchase at a Redemption Price in cash
equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, up to, but
not including, the Redemption Date (subject to the right of the holder of record of this Security
on the relevant record date to receive interest on the relevant Interest Payment Date as provided
in Section 10.04 of the Indenture).
Exhibit A-7
5.
Paying Agent and Registrar
. Initially, Wells Fargo Bank, National Association (the
Trustee), the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent, Registrar, co-registrar or additional paying agent without notice to
any Holder. The Guarantor or any of its Subsidiaries may act in any such capacity.
6.
Indenture
. The Company issued this Security under an Indenture dated as of January 12,
2009 (as amended, supplemented or otherwise modified from time to time, the Indenture) among the
Company, the Guarantor and the Trustee. The terms of this Security include those stated in the
Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbbb). This Security and the Guarantees are subject to all
such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement
of such terms. To the extent any provision of this Security conflicts with the express provisions
of the Indenture, the provisions of the Indenture shall govern and be controlling (to the extent
permitted by law). The Securities are unsecured obligations of the Company. The Company initially
has issued $1,125,000,000 aggregate principal amount of Securities. The Company may issue
Additional Securities under the Indenture, provided that no Additional Securities may be issued at
a price that would cause such Additional Securities to have original issue discount within the
meaning of Section 1273 of the Code. Capitalized terms used but not defined in this Security have
the respective meanings given to such terms in the Indenture.
7.
Denominations, Transfer, Exchange
. The Securities are issuable only in registered form
without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess
thereof. The transfer of this Security may be registered and this Security may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required
by law or permitted by the Indenture. The Registrar need not exchange or register the transfer of
this Security during the period between a record date and the corresponding Interest Payment Date.
8.
Persons Deemed Owners
. The registered Holder of a Security shall be treated as its owner
for all purposes.
9.
Amendments and Waivers
. Subject to certain exceptions and limitations, the Indenture or
this Security may be amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the then outstanding Securities, and compliance in a particular
instance by the Company or the Guarantor with any provision of the Indenture with respect to the
Securities may be waived (other than certain provisions, including any continuing Default or Event
of Default in the payment of the principal of or premium, if any, Additional Amounts, if any, or
interest on the Securities) by the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding in accordance with the terms of the Indenture. Without the consent
of any Holder, the Company, the Guarantor and the Trustee may amend or supplement the Indenture or
this Security to: (i) convey, transfer, assign, mortgage or pledge to the Trustee as security for
this Security any property or assets; (ii) to evidence the succession of another entity to the
Company or the Guarantor, or successive successions, and the assumption by the successor entity of
the covenants, agreements and obligations of the Company
Exhibit A-8
or the Guarantor pursuant to Section 4.01 or 4.02 of the Indenture; (iii) to add to the
covenants of the Company or the Guarantor such further covenants, restrictions, conditions or
provisions as the Company or the Guarantor and the Trustee shall consider to be for the protection
of the Holders of Securities, to surrender any right or power 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 the Indenture, provided that in
respect of any such additional covenant, restriction, condition or provision such amendment or
supplement 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 to waive such an Event of Default; (iv) to cure any ambiguity or omission
or to correct or supplement any provision contained in the Indenture or in any supplemental
indenture which may be defective or inconsistent with any other provision contained in the
Indenture or in any supplemental indenture, provided that no such action shall adversely affect the
interests of the Holders of this Security; (v) to provide for uncertificated Securities in addition
to or in place of certificated Securities, subject to any restrictions contained in the Indenture;
(vi) to provide for the issuance of Exchange Securities and related Guarantees or Additional
Securities and related Guarantees in accordance with the Indenture; (vii) to effect or maintain, or
otherwise comply with the requirements of the SEC in connection with, the qualification of the
Indenture under the TIA; (viii) to effect any provision of the Indenture; or (ix) to make any other
change that does not adversely affect the rights of any Holder
The right of any Holder to participate in any consent required or sought pursuant to any
provision of the Indenture (and the obligation of the Company to obtain any such consent otherwise
required from such Holder) may be subject to the requirement that such Holder shall have been the
Holder of record of this Security as of a record date fixed by the Company in accordance with the
terms of the Indenture.
10.
Defaults and Remedies
. Events of Default include: (i) default in the payment of the
principal of or premium, if any, on any Security at its Maturity, and continuance of such default
for a period of 10 days; or (ii) default in the payment of interest or Additional Amounts, if any,
upon any of the Securities when they become due and payable, and continuance of such default for a
period of 30 days; or (iii) default in the performance or observance, or breach, of any covenant of
the Company or the Guarantor in any Security or the Indenture (other than a covenant a default in
whose performance or whose breach is elsewhere in Section 5.01 of the Indenture specifically dealt
with), 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 and the Guarantor by the Trustee or to the
Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount
of the outstanding Securities a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a Notice of Default under the Indenture; or (iv)
certain events specified in the Indenture relating to the bankruptcy, insolvency or reorganization
of the Company or the Guarantor; or (vi) the Guarantees cease to be in full force and effect or
become unenforceable or invalid or are declared null and void (other than in accordance with the
terms of such Guarantees) or the Guarantor denies or disaffirms its obligations under such
Guarantees.
Exhibit A-9
If an Event of Default (other than an Event of Default referred to in clause (iv) of the
preceding paragraph) with respect to this Security occurs and is continuing, the Trustee by notice
to the Company and the Guarantor, or by the Holders of at least 25% in aggregate principal amount
of the then outstanding Securities by written notice to the Company, the Guarantor and the Trustee,
may declare all of the then outstanding Securities to be due and payable immediately. If an Event
of Default referred to in such clause (iv) occurs, acceleration of all amounts payable on the
Securities shall be automatic. The amount due and payable upon the acceleration of any Security is
equal to 100% of the principal amount thereof plus premium, if any, Additional Amounts, if any, and
accrued and unpaid interest to the date of payment. Holders may not enforce the Indenture or this
Security except as provided in the Indenture. The Trustee does require indemnity reasonably
satisfactory to it before it enforces the Indenture or this Security. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then outstanding Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders
notice of any continuing default (except a default in payment of principal, premium, if any,
Additional Amounts, if any, or interest) if it determines that withholding notice is in their
interests. Each of the Company and the Guarantor must furnish an annual compliance certificate to
the Trustee.
11.
Additional Amounts
. If the Company or the Guarantor is required to withhold or deduct any
amount for or on account of any Taxes for any payment made under or with respect to this Security,
it will pay any Additional Amounts.
12.
Discharge or Defeasance Prior to Maturity
. The Indenture shall be satisfied and
discharged upon the payment of all of the Securities, and it may be satisfied and discharged
(except for certain obligations) upon the irrevocable deposit with the Trustee of cash, or U.S.
Government Obligations or a combination thereof sufficient for such payment. The Indenture also
contains provisions for defeasance of (i) the entire indebtedness of the Company on the Securities
and (ii) certain restrictive covenants and the related Events of Default, subject to compliance by
the Company with certain conditions set forth in the Indenture.
13.
Trustee Dealings with the Company and the Guarantor
. The Trustee in its individual or any
other capacity may become the owner or pledgee of this Security and may otherwise deal with the
Company, the Guarantor or any of their Affiliates with the same rights it would have if it were not
the Trustee.
14.
No Recourse Against Others
. A director, officer, employee or stockholder of the Company
or the Guarantor, as such, shall not have any liability for any obligations of the Company or the
Guarantor under this Security, the Guarantees or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each Holder by accepting this
Security waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Security.
15.
Authentication
. This Security shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose until authenticated by the manual signature of an authorized
signatory of the Trustee, which signature shall be conclusive evidence that this Security has been
authenticated under the Indenture.
Exhibit A-10
16.
CUSIP Numbers
. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused a CUSIP number to be printed on this
Security as a convenience to the Holders of this Security. No representation is made as to the
correctness of such number either as printed on this Security or as contained in any notice of a
redemption and that reliance may be placed only on the other identification numbers printed on this
Security.
17.
Abbreviations
. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
18. [
Additional Rights of Holders of Restricted Global Securities and Restricted Definitive
Securities
. In addition to the rights provided to Holders of Securities under the Indenture,
Holders of Securities will have the rights set forth in the Registration Rights Agreement, dated as
of January 12, 2009, among the Company, the Guarantor and the other parties named on the signature
pages thereof.]*
19.
Governing Law
. The Indenture, this Security and the Guarantees shall be governed by and
construed in accordance with, the laws of the State of New York.
The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Request may be made to it at:
Nabors Industries, Inc.
515 West Greens Road, Suite 1200
Houston, Texas 77067
Attention: General Counsel
Telephone No.: (281) 874-0035
Telecopier No.: (281) 775-8431
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*
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Delete for Exchange Security
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Exhibit A-11
FORM OF NOTATION ON SECURITY
RELATING TO GUARANTEES
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, Additional Amounts, if any, and interest on these Securities and all other amounts
due and payable under the Indenture and these Securities by the Company.
The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to
the Guarantees and the Indenture are expressly set forth in Article IX of the Indenture and
reference is hereby made to the Indenture for the precise terms of the Guarantees.
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Guarantor:
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NABORS INDUSTRIES LTD.
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By:
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Name:
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Title:
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Exhibit A-12
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this
Security to:
(Insert assignees social security or tax I.D. number)
(Print or type assignees name, address and zip code)
and irrevocably appoint
as agent to transfer
this Security on the books of the Company. The agent may substitute another to act for him.
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Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Security)
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Signature Guarantee:
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(Participant in a Recognized Signature Guaranty Medallion Program)
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Exhibit A-13
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
**
The following increases or decreases in the principal amount of this Global Security have been
made:
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Principal Amount of
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Global Security
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Amount of Decrease
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Amount of Increase
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Following Such
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Signature of Authorized
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Date of
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in Principal Amount
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in Principal Amount
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Decrease (or
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Signatory, Trustee or Securities
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Transaction
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of Global Security
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of Global Security
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Increase)
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Custodian
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**
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This Schedule should be included only if the Security
is a Global Security.
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Exhibit A-14
Option of Holder to Elect Purchase
If you want to elect to have this Security purchased by the Company pursuant to Section 3.10
of the Indenture, check the box below:
o
If you want to elect to have only part of the Security purchased by the Company pursuant to
Section 3.10 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 Security)
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Tax Identification No.:
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Signature Guarantee:
**
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**
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor acceptable to the Trustee).
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Exhibit A-15
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Nabors Industries, Inc.
515 West Greens Road, Suite 1200
Houston, Texas 77067
Attention: General Counsel
Wells Fargo Bank, National Association
201 Main Street, Suite 301
Fort Worth, Texas 76102
Attention: Corporate Trust Services
Re: 9.25% Senior Notes due 2019
Reference is hereby made to the Indenture, dated as of January 12, 2009 (the Indenture),
among Nabors Industries, Inc., as issuer (the Company), Nabors Industries Ltd., as guarantor (the
Guarantor), and Wells Fargo Bank, National Association, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
(the Transferor) owns and proposes to transfer the Security[ies] or
beneficial interest in such Security[ies] specified in Annex A hereto, in the principal amount of
$___(the Transfer), to ___(the Transferee), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE IS A QIB IN ACCORDANCE WITH RULE 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the U.S. Securities Act of 1933, as
amended (the Securities Act), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Security is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Security for its own
account, or for one or more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a qualified institutional buyer within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the 144A Global Security or the
Restricted Definitive Security and in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY PURSUANT TO REGULATION S. The Transfer is being
effected pursuant to and in accordance with Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was
Exhibit B-1
originated, the Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no directed selling
efforts have been made in contravention of the requirements of Rule 904(b) of Regulation S under
the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the Transfer is being made prior to the expiration
of the Restricted Period, the Transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred beneficial interest or
Definitive Security will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Regulation S Global Security or the Restricted Definitive Security
and in the Indenture and the Securities Act.
3. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY PURSUANT TO ANY PROVISION OF THE SECURITIES ACT
OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in compliance with the
transfer restrictions applicable to beneficial interests in Restricted Global Securities and
Restricted Definitive Securities and pursuant to and in accordance with the Securities Act (other
than Rule 144A or Regulation S) and any applicable blue sky securities laws of any state of the
United States.
4. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED DEFINITIVE SECURITY:
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected pursuant
to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Securities or Restricted Definitive Securities and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 904 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Securities or Restricted Definitive Securities and in the Indenture.
Exhibit B-2
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act. Upon consummation
of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Security will not be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Securities or Restricted Definitive
Securities and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit
of the Company and the Guarantor.
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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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Dated: ___, ___
Exhibit B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1.
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The Transferor owns and proposes to transfer the following:
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[CHECK ONE OF (a) OR (b)]
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(a)
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[ ] a beneficial interest in a Global Security
(CUSIP [ ]), or
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(b)
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[ ] a Restricted Definitive Security (CUSIP [ ]).
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2.
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After the Transfer the Transferee will hold:
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[CHECK ONE]
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(a)
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[ ] a beneficial interest in a Global Security (CUSIP [ ]); or
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(b)
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[ ] a Restricted Definitive Security (CUSIP [ ]); or
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(c)
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[ ] an Unrestricted Definitive Security (CUSIP [ ]), in accordance with the terms of
the Indenture.
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Exhibit B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Nabors Industries, Inc.
515 West Greens Road, Suite 1200
Houston, Texas 77067
Attention: General Counsel
Wells Fargo Bank, National Association
201 Main Street, Suite 301
Fort Worth, Texas 76102
Attention: Corporate Trust Services
Attention: Corporate Trust Services
Re: 9.25% Senior Notes due 2019
CUSIP 629568 AS5
1
CUSIP U6295Y AB9
2
Reference is hereby made to the Indenture, dated as of January 12, 2009 (the Indenture),
among Nabors Industries, Inc., as issuer (the Company), Nabors Industries Ltd., as guarantor (the
Guarantor), and Wells Fargo Bank, National Association, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
___(the Owner) owns and proposes to exchange the Security[ies] or beneficial
interest in such Security[ies] specified herein, in the principal amount of $___(the
Exchange). In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL
SECURITY FOR UNRESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL
SECURITY:
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In connection with the Exchange of the
Owners beneficial interest in a Restricted Global Security for a beneficial interest in an
Unrestricted Global Security in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owners own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to the Global
Securities and pursuant to and in accordance
1
For Securities sold in reliance on Rule 144A.
2
For Securities sold in reliance on Regulation S.
Exhibit C-1
with the Securities Act of 1933, as amended (the Securities Act), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted
Global Security is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO
UNRESTRICTED DEFINITIVE SECURITY. In connection with the Exchange of the Owners beneficial
interest in a Restricted Global Security for an Unrestricted Definitive Security, the Owner hereby
certifies (i) the Definitive Security is being acquired for the Owners own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Securities and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act and (iv)
the Definitive Security is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL SECURITY. In connection with the Owners Exchange of a Restricted Definitive
Security for a beneficial interest in an Unrestricted Global Security, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owners own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Securities and pursuant to and in accordance with the Securities Act, (iii)
the restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the beneficial interest
is being acquired in compliance with any applicable blue sky securities laws of any state of the
United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO UNRESTRICTED DEFINITIVE
SECURITY. In connection with the Owners Exchange of a Restricted Definitive Security for an
Unrestricted Definitive Security, the Owner hereby certifies (i) the Unrestricted Definitive
Security is being acquired for the Owners own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to Restricted Definitive
Securities and pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Security is being
acquired in compliance with any applicable blue sky securities laws of any state of the United
States.
2. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL
SECURITIES FOR RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL
SECURITIES:
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO
RESTRICTED DEFINITIVE SECURITY. In connection with the Exchange of the Owners beneficial interest
in a Restricted Global Security for a Restricted Definitive Security with an equal principal
amount, the Owner hereby certifies
Exhibit C-2
that the Restricted Definitive Security is being acquired for the Owners own account without
transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture,
the Restricted Definitive Security issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Security
and in the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY. In connection with the Exchange of the Owners Restricted Definitive
Security for a beneficial interest in the [CHECK ONE] [ ] 144A Global Security or [ ]
Regulation S Global Security in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owners own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Securities and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Security and in the Indenture and the Securities
Act.
This certificate and the statements contained herein are made for your benefit and the benefit
of the Company and the Guarantor.
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[Insert Name of Owner]
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By:
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Name:
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Title:
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Dated:_________________, ___
Exhibit C-3
Exhibit 4.3
Execution Version
NABORS INDUSTRIES, INC.
$1,125,000,000 9.25% Senior Notes due 2019
REGISTRATION RIGHTS AGREEMENT
New York, New York
January 12, 2009
GOLDMAN, SACHS & CO.
UBS SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
DEUTSCHE BANK SECURITIES INC.
As Representatives of the Initial
Purchasers named in Schedule A
to the Purchase Agreement
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Nabors Industries, Inc., a corporation organized under the laws of the State of Delaware (the
Company
), proposes to issue and sell to the several initial purchasers named in Schedule A hereto
(the
Initial Purchasers
), upon the terms set forth in a purchase agreement, dated January 7, 2009
(the
Purchase Agreement
), $1,125,000,000 aggregate principal amount of its 9.25% Senior Notes due
2019 (the
Notes
) relating to the initial placement of the Notes (the
Initial Placement
). The
Notes will be unconditionally guaranteed (the
Guarantees
and together with the Notes, the
Securities
) on a senior basis by Nabors Industries Ltd., a Bermuda company (the
Guarantor
). To
satisfy a condition to the obligations of the Initial Purchasers under the Purchase Agreement, the
Company and the Guarantor agree with the Initial Purchasers for the benefit of the holders from
time to time of the Securities (including the Initial Purchasers) and the New Securities (as
defined herein) (each a
Holder
and, together, the
Holders
), as follows:
1.
Definitions
. Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this Registration Rights
Agreement (this
Agreement
), the following capitalized defined terms shall have the following
meanings:
Act
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
Affiliate
of any specified Person shall have the same meaning as in Rule 501(b) of
Regulation D of the Securities Act.
Agreement
shall have the meaning set forth in Section 1 hereof.
Broker-Dealer
shall mean any broker or dealer registered as such under the Exchange Act.
Business Day
shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
Closing Date
shall mean the date on which the Securities are initially issued.
Commission
shall mean the Securities and Exchange Commission.
Exchange Act
shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
Exchange Offer Registration Period
shall mean the 180-day period following the effective
date of the Exchange Offer Registration Statement, exclusive of any period during which any stop
order shall be in effect suspending the effectiveness of the Exchange Offer Registration Statement,
or such shorter period as will terminate when all New Securities held by Exchanging Dealers or
Initial Purchasers have been sold pursuant thereto.
Exchange Offer Registration Statement
shall mean a registration statement of the Company and
the Guarantor on an appropriate form under the Act with respect to the Registered Exchange Offer,
all amendments and supplements to such registration statement, including post-effective amendments
thereto, in each case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
Exchanging Dealer
shall mean any Holder (which may include any of the Initial Purchasers)
that is a Broker-Dealer and elects to exchange for New Securities any Securities that it acquired
for its own account as a result of market-making activities or other trading activities (but not
directly from the Company or any Affiliate of the Company).
Free Writing Prospectus
shall mean each free writing prospectus (as defined in Rule 405
under the Securities Act) prepared by or on behalf of the Company (or any of its agents or
representatives) or used or referred to by the Company (or any of its agents or representatives) in
connection with the sale of the Notes or the New Notes.
Holder
shall have the meaning set forth in the preamble hereto.
Indenture
shall mean the Indenture relating to the Securities, dated as of January 12, 2009,
among the Company, the Guarantor and Wells Fargo Bank, National Association, as trustee, as the
same may be amended from time to time in accordance with the terms thereof.
Initial Placement
shall have the meaning set forth in the preamble hereto.
Initial Purchasers
shall have the meaning set forth in the preamble hereto.
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Losses
shall have the meaning set forth in Section 7(a) hereof.
Majority Holders
shall mean the Holders of a majority of the aggregate principal amount of
Notes and/or New Notes, as applicable, registered under a Registration Statement.
Managing Underwriters
shall mean the investment banker or investment bankers and manager or
managers that shall administer an underwritten offering.
Memorandum
shall have the meaning set forth in the Purchase Agreement.
New Notes
shall mean debt securities of the Company, guaranteed by the Guarantor, identical
in all material respects to the Notes (except that the cash interest and interest rate step-up
provisions and the transfer restrictions shall be modified or eliminated, as appropriate) and to be
issued under the Indenture or the New Securities Indenture.
New Securities
shall mean debt securities of the Company and the related guarantees of the
Guarantor, identical in all material respects to the Securities (except that the cash interest and
interest rate step-up provisions and the transfer restrictions shall be modified or eliminated, as
appropriate) and to be issued under the Indenture or the New Securities Indenture.
New Securities Indenture
shall mean an indenture among the Company, the Guarantor and the
New Securities Trustee, identical in all material respects to the Indenture (except that the
interest rate step-up provisions will be modified or eliminated, as appropriate).
New Securities Trustee
shall mean a bank or trust company reasonably satisfactory to the
Initial Purchasers, as trustee with respect to the New Securities under the New Securities
Indenture.
Prospectus
shall mean the prospectus included in any Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Securities or the New Securities covered by such Registration Statement, and all
amendments and supplements thereto and all material incorporated by reference therein.
Purchase Agreement
shall have the meaning set forth in the preamble hereto.
Registered Exchange Offer
shall mean the proposed offer of the Company to issue and deliver
to the Holders of the Securities that are not prohibited by any law or policy of the Commission
from participating in such offer, in exchange for the Securities, a like aggregate principal amount
of the New Notes and Related Guarantees.
Registration Statement
shall mean any Exchange Offer Registration Statement or Shelf
Registration Statement that covers any of the Securities or the New Securities pursuant to the
provisions of this Agreement, any amendments and supplements to such registration
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statement, including post-effective amendments (in each case including the Prospectus
contained therein), all exhibits thereto and all material incorporated by reference therein.
Related Guarantees
shall mean the guarantees of the Guarantor to be issued under the
Indenture or the New Securities Indenture in respect of New Notes.
Securities
shall have the meaning set forth in the preamble hereto.
Shelf Registration
shall mean a registration effected pursuant to Section 3 hereof.
Shelf Registration Period
has the meaning set forth in Section 3(b) hereof.
Shelf Registration Statement
shall mean a shelf registration statement of the Company and
the Guarantor pursuant to the provisions of Section 3 hereof which covers some or all of the
Securities and/or New Securities, as applicable, on an appropriate form under Rule 415 under the
Act, or any similar rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by reference therein.
Trust Indenture Act
shall mean the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission promulgated thereunder and any successor act, rules and
regulations.
Trustee
shall mean the trustee with respect to the Securities and New Securities under the
Indenture.
Underwriter
shall mean any underwriter of Securities or New Securities in connection with an
offering thereof under a Registration Statement.
2.
Registered Exchange Offer
.
(a) Except as set forth in Section 3 below, the Company and the Guarantor shall
prepare, at their cost, and, not later than 90 days following the Closing Date (or if such
90th day is not a Business Day, the next succeeding Business Day)
shall file with
the Commission the Exchange Offer Registration Statement with respect to the Registered
Exchange Offer. The Company and the Guarantor shall use their reasonable best efforts to
cause the Exchange Offer Registration Statement to become effective under the Act not later
than July 12, 2009.
(b) Upon the effectiveness of the Exchange Offer Registration Statement, the Company
and the Guarantor shall promptly commence the Registered Exchange Offer.
(c) In connection with the Registered Exchange Offer, the Company and the Guarantor
shall:
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(i) mail to each Holder a copy of the Prospectus forming part of the Exchange
Offer Registration Statement, together with an appropriate letter of transmittal and
related documents;
(ii) commence and use their reasonable best efforts to complete the Registered
Exchange Offer promptly, but no later than September 12, 2009, and hold the
Registered Exchange Offer open for not less than 20 Business Days;
(iii) use their reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act, supplemented and amended as required
under the Act to ensure that it is available for sales of New Securities by
Exchanging Dealers or the Initial Purchasers during the Exchange Offer Registration
Period;
(iv) utilize the services of a depositary for the Registered Exchange Offer,
which may be the Trustee, the New Securities Trustee or an Affiliate of either of
them;
(v) permit Holders to withdraw tendered Securities at any time prior to the
close of business, New York time, on the last Business Day on which the Registered
Exchange Offer is open; and
(vi) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange Offer, the
Company and the Guarantor shall:
(i) accept for exchange all Notes tendered and not validly withdrawn pursuant
to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with Section 5(r)
all Notes so accepted for exchange; and
(iii) cause the Trustee or New Securities Trustee, as the case may be, promptly
to authenticate and deliver to each Holder of Securities a principal amount of New
Notes equal to the principal amount of the Notes of such Holder so accepted for
exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such
Holder using the Registered Exchange Offer to participate in a distribution of the New
Securities (x) could not under Commission policy as in effect on the date of this Agreement
rely on the position of the Commission in
Morgan Stanley and Co., Inc.
(pub. avail.
June 5, 1991) and
Exxon Capital Holdings Corporation
(pub. avail. May 13, 1988), as
interpreted in the Commissions letter to Shearman & Sterling dated July 2, 1993 and similar
no-action letters; and (y) must comply with the registration and prospectus delivery
requirements of the Act in connection with any secondary resale transaction which must be
covered by an effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of
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Regulation S-K under the Act if the resales are of New Securities obtained by such
Holder in exchange for Securities acquired by such Holder directly from the Company or one
of its Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer
shall be required to represent to the Company and the Guarantor that, at the time of the
consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder will be acquired in the ordinary
course of business;
(ii) such Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Securities or the New Securities within the
meaning of the Act;
(iii) such Holder is not an Affiliate of the Company or the Guarantor or if it
is an Affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Act to the extent applicable;
(iv) if such Holder is not a Broker-Dealer, that it is not engaged in, and does
not intend to engage in, the distribution of the New Securities; and
(v) if such Holder is a Broker-Dealer, that it will receive New Securities for
its own account in exchange for Securities that were acquired as a result of
market-making activities or other trading activities and that it will deliver a
prospectus in connection with any resale of such New Securities.
3.
Shelf Registration
.
(a) If (i) due to any change in law or applicable interpretations thereof by the
Commissions staff, the Company determines upon advice of its outside counsel that it is not
permitted to effect the Registered Exchange Offer as contemplated by Section 2 hereof;
(ii) for any other reason the Exchange Offer Registration Statement is not declared
effective by July 12, 2009 or the Registered Exchange Offer is not consummated by September
12, 2009; (iii) the Initial Purchasers determine upon advice of their counsel that a Shelf
Registration Statement must be filed in connection with any public offering or sale of
Securities that are not eligible to be exchanged for New Securities in the Registered
Exchange Offer and that are held by them following consummation of the Registered Exchange
Offer; or (iv) any Holder (other than the Initial Purchasers) is not eligible to participate
in the Registered Exchange Offer or does not receive freely tradeable New Securities in the
Registered Exchange Offer other than by reason of such Holder being an Affiliate of the
Company (it being understood that the requirement that a participating Broker-Dealer deliver
the prospectus contained in the Exchange Offer Registration Statement in connection with
sales of New Securities shall not result in such New Securities being not freely
tradeable), the Company and the Guarantor shall effect a Shelf Registration Statement in
accordance with subsection (b) below.
(b) If required pursuant to subsection (a) above,
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(i) the Company and the Guarantor, at their cost, shall as promptly as
practicable, but in no event later than 90 days after such obligation to file
arises, file with the Commission and cause to be declared effective under the Act as
soon as practicable, but in no event later than September 11, 2009, a Shelf
Registration Statement relating to the offer and sale of the Securities or the New
Securities, as applicable, by the Holders thereof from time to time in accordance
with the methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement;
provided
,
however
, that no Holder (other
than the Initial Purchasers) shall be entitled to have the Securities or New
Securities held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder; and
provided
further
, that with respect
to New Securities received by the Initial Purchasers in exchange for Securities
constituting any portion of an unsold allotment, the Company and the Guarantor may,
if permitted by current interpretations by the Commissions staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing the
information required by Item 507 or 508 of Regulation S-K, as applicable, in
satisfaction of their obligations under this subsection with respect thereto, and
any such Exchange Offer Registration Statement, as so amended, shall be referred to
herein as, and governed by the provisions herein applicable to, a Shelf Registration
Statement;
(ii) the Company and the Guarantor shall use their reasonable best efforts to
keep the Shelf Registration Statement continuously effective, supplemented and
amended as required by the Act, in order to permit the Prospectus forming part
thereof to be usable by Holders for a period the earlier of (A) the time when all of
the Securities or New Securities, as applicable, covered by the Shelf Registration
Statement can be sold pursuant to Rule 144 without limitation by non-affiliates of
the Company under clause (d) of Rule 144, (B) the date on which all the Securities
or New Securities, as applicable, covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement, and (C) one year from the
date the Shelf Registration Statement is declared effective by the Commission (in
any such case, such period being called the
Shelf Registration Period
); it being
understood that the Company and the Guarantor shall be deemed not to have used their
reasonable best efforts to keep the Shelf Registration Statement effective during
the requisite period if they voluntarily take any action that would result in
Holders of Securities or New Securities covered thereby not being able to offer and
sell such Securities or New Securities during that period, unless (A) such action is
required by applicable law; or (B) such action is taken by the Company and the
Guarantor in good faith and for valid business reasons (not including avoidance of
the Companys and the Guarantor obligations hereunder), including, but not limited
to, the acquisition or divestiture of assets, so long as the Company and the
Guarantor promptly thereafter comply with the requirements of Section 5(k) hereof,
if applicable; and
(iii) the Company and the Guarantor shall cause the Shelf Registration
Statement and the related Prospectus and any amendment or supplement thereto, as of
the effective date of the Shelf Registration Statement or
7
such amendment or supplement, (A) to comply in all material respects with the
applicable requirements of the Securities Act and the rules and regulations of the
Commission; and (B) not to contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
4.
Special Interest
. If (a) on or prior to September 12, 2009, the Registered
Exchange Offer has not been consummated, or (b) after either the Exchange Offer Registration
Statement or the Shelf Registration Statement has been declared effective, such Registration
Statement thereafter ceases to be effective or usable in connection with resales of Securities or
New Securities in accordance with and during the periods specified in this Agreement (each such
event referred to in clauses (a) and (b), a
Registration Default
), then, as liquidated damages,
interest (
Special Interest
) will accrue on the principal amount of the Securities and the New
Securities (in addition to the stated interest on the Securities and New Securities) from and
including the date on which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured. Special Interest will accrue at a rate of 0.25%
per annum.
All obligations of the Company and the Guarantor set forth in the preceding paragraph that are
outstanding with respect to any Security at the time such Security is exchanged for a New Security
shall survive until such time as all such obligations with respect to such Security have been
satisfied in full.
5.
Additional Registration Procedures
. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration Statement, the following
provisions shall apply.
(a) The Company and the Guarantor shall:
(i) furnish to the Initial Purchasers, not less than five Business Days prior
to the filing thereof with the Commission, a draft copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each amendment
thereof and each amendment or supplement, if any, to the Prospectus included therein
(including all documents incorporated by reference therein after the initial filing)
and shall use their reasonable best efforts to reflect in each such document, when
so filed with the Commission, such comments as the Initial Purchasers reasonably
propose;
(ii) include the information to the effect of that set forth in:
(A) Annex A and Annex B hereto in the forepart of the Prospectus
contained in the Exchange Offer Registration Statement,
(B) Annex C hereto in the underwriting or plan of distribution section
of the Prospectus contained in the Exchange Offer Registration Statement,
and
8
(C) Annex D hereto in the letter of transmittal delivered pursuant to
the Registered Exchange Offer;
(iii) if requested by the Initial Purchasers, include the information required
by Item 507 or 508 of Regulation S-K, as applicable, in the Prospectus contained in
the Exchange Offer Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the names of the
Holders that propose to sell Securities or New Securities, as applicable, pursuant
to the Shelf Registration Statement as selling security holders.
(b) The Company and the Guarantor shall ensure that:
(i) any Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto complies in all
respects with the Act and the rules and regulations thereunder; and
(ii) any Registration Statement and any amendment thereto does not, when it
becomes effective (within the meaning of Rule 430B under the Securities Act),
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 not
misleading.
(c) The Company and the Guarantor shall advise the Initial Purchasers, the Holders of
Securities or New Securities covered by any Shelf Registration Statement and any Exchanging
Dealer under any Exchange Offer Registration Statement that has provided in writing to the
Company and the Guarantor a telephone or facsimile number and address for notices, and, if
requested by the Initial Purchasers or any such Holder or Exchanging Dealer shall confirm
such advice in writing (which notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the Prospectus until the Company and the
Guarantor shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto has been filed with
the Commission and when the Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the Commission for any amendment or supplement to the
Registration Statement or the Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings for
that purpose;
(iv) of the receipt by the Company and the Guarantor of any notification with
respect to the suspension of the qualification of the Securities or
9
New Securities included therein for sale in any jurisdiction or the initiation
of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in the Registration
Statement or the Prospectus so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading.
(d) The Company and the Guarantor shall use their reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration Statement or the
qualification of the Securities or New Securities therein for sale in any jurisdiction at
the earliest possible time.
(e) The Company and the Guarantor shall furnish to each Holder of Securities or New
Securities covered by any Shelf Registration Statement, without charge, at least one copy of
such Shelf Registration Statement and any post-effective amendment thereto, and, if the
Holder so requests in writing, all material incorporated therein by reference and all
exhibits thereto (including exhibits incorporated by reference therein).
(f) The Company and the Guarantor shall, during the Shelf Registration Period, deliver
to each Holder of Securities or New Securities covered by any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including each preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request. The Company and the Guarantor consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling Holders of
Securities or New Securities in connection with the offering and sale of the Securities or
New Securities covered by the Prospectus, or any amendment or supplement thereto, included
in the Shelf Registration Statement.
(g) The Company and the Guarantor shall furnish to each Exchanging Dealer or the
Initial Purchasers which so requests, without charge, at least one copy of the Exchange
Offer Registration Statement and any post-effective amendment thereto, including all
material incorporated by reference therein, and, if the Exchanging Dealer so requests in
writing, all exhibits thereto (including exhibits incorporated by reference therein).
(h) The Company and the Guarantor shall promptly deliver to the Initial Purchasers,
each Exchanging Dealer and each other Person required to deliver a Prospectus during the
Exchange Offer Registration Period, without charge, as many copies of the Prospectus
included in such Exchange Offer Registration Statement and any amendment or supplement
thereto as any such Person may reasonably request. The Company and the Guarantor consent to
the use of the Prospectus or any amendment or supplement thereto by the Initial Purchasers,
any Exchanging Dealer and any such other Person that may be required to deliver a Prospectus
following the Registered Exchange
10
Offer in connection with the offering and sale of the New Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Exchange Offer
Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of Securities or New
Securities pursuant to any Registration Statement, the Company and the Guarantor shall
arrange, if necessary, for the qualification of the Securities or the New Securities for
sale under the laws of such jurisdictions as any Holder shall reasonably request and will
maintain such qualification in effect so long as required; provided that in no event shall
the Company and the Guarantor be obligated to qualify to do business in any jurisdiction
where they are not then so qualified or to take any action that would subject them to
service of process in suits or taxation, other than those arising out of the Initial
Placement, the Registered Exchange Offer or any offering pursuant to a Shelf Registration
Statement, in any such jurisdiction where they are not then so subject.
(j) The Company and the Guarantor shall cooperate with the Holders of Securities and
New Securities to facilitate the timely preparation and delivery of certificates
representing New Securities or Securities to be issued or sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and registered in such
names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections (c)(ii) through (v)
above, the Company and the Guarantor shall promptly prepare a post-effective amendment to
the applicable Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter delivered to the
Initial Purchasers or Exchanging Dealers, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading. In such circumstances, the period of effectiveness of the Exchange Offer
Registration Statement provided for in Section 2 and the Shelf Registration Statement
provided for in Section 3(b) shall each be extended by the number of days from and including
the date of the giving of a notice of suspension pursuant to Section 5(c) to and including
the date when the Initial Purchasers, the Holders of the Securities or New Securities and
any known Exchanging Dealer shall have received such amended or supplemented Prospectus
pursuant to this Section.
(l) Not later than the effective date of any Registration Statement, the Company and
the Guarantor shall provide a CUSIP number for the Securities or the New Securities, as the
case may be, registered under such Registration Statement and provide the Trustee with
printed certificates for such Securities or New Securities, in a form eligible for deposit
with The Depository Trust Company.
(m) The Company and the Guarantor shall comply with all applicable rules and
regulations of the Commission and shall make generally available to their security holders
as soon as practicable after the effective date of the applicable Registration Statement an
earnings statement satisfying the provisions of Section 11(a) of the Act.
11
(n) The Company and the Guarantor shall cause the Indenture or the New Securities
Indenture, as the case may be, to be qualified under the Trust Indenture Act in a timely
manner.
(o) The Company and the Guarantor may require each Holder of Securities or New
Securities to be sold pursuant to any Shelf Registration Statement to furnish to the Company
and the Guarantor such information regarding the Holder and the distribution of such
Securities as the Company and the Guarantor may from time to time reasonably require for
inclusion in such Registration Statement. The Company and the Guarantor may exclude from
such Shelf Registration Statement the Securities or New Securities of any Holder that fails
to furnish such information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company and the Guarantor
shall enter into such agreements and take all other appropriate actions (including if
requested an underwriting agreement in customary form) in order to expedite or facilitate
the registration or the disposition of the Securities or New Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set forth in Section
7 (or such other provisions and procedures acceptable to the Majority Holders and the
Managing Underwriters, if any, with respect to all parties to be indemnified pursuant to
Section 7).
(q) In the case of any Shelf Registration Statement, the Company and the Guarantor
shall use their reasonable best efforts to:
(i) make reasonably available for inspection by the Holders of Securities or
New Securities to be registered thereunder, any Underwriter participating in any
disposition pursuant to such Registration Statement, and any attorney, accountant or
other agent retained by the Holders or any such Underwriter all relevant financial
and other records, pertinent corporate documents and properties of the Company and
its subsidiaries;
(ii) cause the Companys officers, directors and employees to supply all
relevant information reasonably requested by the Holders or any such Underwriter,
attorney, accountant or agent in connection with any such Registration Statement as
is customary for similar due diligence examinations;
provided
,
however
, that any information that is designated in writing by the Company,
in good faith, as confidential at the time of delivery of such information shall be
kept confidential by the Holders or any such Underwriter, attorney, accountant or
agent, unless such disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the public generally or
through a third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of Securities or
New Securities registered thereunder and the Underwriters, if any, in
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form, substance and scope as are customarily made by issuers to Underwriters in
primary underwritten offerings and covering matters including, but not limited to,
those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and the Guarantor and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any) addressed to each
selling Holder and the Underwriters, if any, covering such matters as are
customarily covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such Holders and Underwriters;
(v) obtain cold comfort letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and financial data
are, or are required to be, included in the Registration Statement), addressed to
each selling Holder of Securities or New Securities registered thereunder and the
Underwriters, if any, in customary form and covering matters of the type customarily
covered in cold comfort letters in connection with primary underwritten offerings;
and
(vi) deliver such documents and certificates as may be reasonably requested by
the Majority Holders and the Managing Underwriters, if any, including those to
evidence compliance with Section 5(k) and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Company and the
Guarantor.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall be performed at
(A) the effectiveness of such Registration Statement and each post-effective amendment thereto; and
(B) each closing under any underwriting or similar agreement as and to the extent required
thereunder.
(r) If a Registered Exchange Offer is to be consummated, upon delivery of the
Securities by Holders to the Company (or to such other Person as directed by the Company) in
exchange for the New Securities, the Company shall mark, or caused to be marked, on the
Securities so exchanged that such Securities are being canceled in exchange for the New
Securities. In no event shall the Securities be marked as paid or otherwise satisfied.
(s) If any Broker-Dealer shall underwrite any Securities or New Securities or
participate as a member of an underwriting syndicate or selling group or assist in the
distribution (within the meaning of the Rules of Fair Practice and the By-Laws of the
Financial Industry Regulatory Authority, Inc.) thereof, whether as a Holder of such
Securities or New Securities or as an Underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, will assist such Broker-Dealer in complying with
the requirements of such Rules and By-Laws, including, without limitation, by:
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(i) if such Rules or By-Laws shall so require, engaging a qualified
independent underwriter (as defined in such Rules) to participate in the
preparation of the Registration Statement, to exercise usual standards of due
diligence with respect thereto and, if any portion of the offering contemplated by
such Registration Statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such Securities or New
Securities;
(ii) indemnifying any such qualified independent underwriter to the extent of
the indemnification of Underwriters provided in Section 7 hereof; and
(iii) providing such information to such Broker-Dealer as may be required in
order for such Broker-Dealer to comply with the requirements of such Rules.
(t) The Company and the Guarantor shall use their reasonable best efforts to take all
other steps necessary to effect the registration of the Securities or the New Securities, as
the case may be, covered by a Registration Statement.
6.
Registration Expenses
. The Company and the Guarantor shall bear all expenses
incurred in connection with the performance of their obligations under Sections 2, 3 and 5 hereof
and, in the event of any Shelf Registration Statement, will reimburse the Holders for the
reasonable fees and disbursements of one firm or counsel designated by the Majority Holders to act
as counsel for the Holders in connection therewith, but excluding fees and expenses of counsel to
the Initial Purchasers or the Holders, all agency fees and commissions, underwriting discounts and
commissions and transfer taxes attributable to the sale or disposition of Securities by a Holder.
7.
Indemnification and Contribution
.
(a) The Company and the Guarantor agree, jointly and severally, to indemnify and hold
harmless (i) the Initial Purchasers, (ii) each Holder of Securities or New Securities, as
the case may be, covered by any Registration Statement (including with respect to any
Prospectus delivery as contemplated in Section 5(h) hereof, each Exchanging Dealer), (iii)
each Person, if any, who controls (within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act) any of the foregoing (any of the Persons referred to
in this clause (iii) being hereinafter referred to as a controlling person), and (iv) the
respective officers, directors, partners, employees, representatives and agents of the
Initial Purchasers, the Holders (including predecessor Holders) or any controlling person
(any person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as
an Indemnified Holder), from and against any and all losses, claims, damages, and
liabilities (including, without limitation, reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim asserted)
(collectively Losses) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, preliminary Prospectus, Prospectus,
Free Writing Prospectus or any issuer information (as defined
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in Rule 433 of the Securities Act) filed or required to be filed pursuant to Rule
433(d) under the Securities Act, or any amendment or supplement thereto, or caused by any
omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with information
relating to any Indemnified Holder furnished to the Company or the Guarantor in writing by
such Indemnified Holder expressly for use therein; the Company or the Guarantor shall notify
such Indemnified Holder promptly of the institution, threat or assertion of any claim,
proceeding (including any governmental investigation) or litigation in connection with the
matters addressed by this Agreement which involves the Company or the Guarantor or such
Indemnified Holder.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company and the Guarantor, each of their respective directors and officers and each Person
who controls the Company or the Guarantor within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company and the Guarantor to each Holder, but only with reference to such
losses, claims, damages or liabilities which are caused by any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with
information relating to a Holder furnished to the Company or the Guarantor in writing by
such Holder expressly for use in any Registration Statement, preliminary Prospectus or
Prospectus, or any amendment or supplement thereto. This indemnity agreement will be in
addition to any liability which any such Holder may otherwise have.
(c) Each of the Initial Purchasers, severally and not jointly, agrees to indemnify and
hold harmless the Company and the Guarantor, each of their respective directors and officers
and each Person who controls the Company or the Guarantor within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company and the Guarantor to the Initial Purchasers, but only
with reference to such losses, claims, damages or liabilities which are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to the Initial Purchasers furnished to the Company or
the Guarantor in writing by the Initial Purchasers expressly for use in any Registration
Statement, preliminary Prospectus or Prospectus, or any amendment or supplement thereto.
This indemnity agreement will be in addition to any liability which the Initial Purchasers
may otherwise have.
(d) 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 indemnity may be sought pursuant to either of the three preceding paragraphs, such
Person (the Indemnified Person) shall promptly notify the Person or Persons against whom
such indemnity may be sought (each an Indemnifying Person) in writing, and such
Indemnifying Person, upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section
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7 that the Indemnifying Person may designate in such proceeding and shall pay the fees
and expenses of such counsel related to such proceeding. In any such proceeding, the
Indemnifying Person shall be able to participate in such proceeding and, to the extent that
it so elects, jointly with any other similarly situated Indemnifying Person, to assume the
defense thereof, subject to the right of the Indemnified Person to be separately represented
and to direct its own defense if the named parties to any such proceeding include both the
Indemnified Person and the Indemnifying Person and the Indemnified Person has been advised
by counsel that representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. 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) such
Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary or
(ii) the named parties in any such proceeding (including any impleaded parties) include an
Indemnifying Person and an 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 that an Indemnifying Person shall not, in connection with any proceeding or
related proceedings 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 for the Indemnified Holders shall be designated in writing by the Holders of the
majority in amount of Securities and New Securities offered in the Prospectus to which the
claim relates, any such separate firm for the Company, its directors, respective officers
and such control Persons of the Company shall be designated in writing by the Company, and
any such separate firm for the Guarantor, its directors, respective officers and such
control Persons of the Guarantor shall be designated in writing by the Guarantor. 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, such Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or judgment. No
Indemnifying Person shall, without the prior 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 indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
(e) If the indemnification provided for in the first, second and third paragraphs of
this Section 7 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 Indemnifying Person on the one hand and the
Indemnified Person on the other hand pursuant to the Purchase Agreement or from the offering
of the Securities or New Securities pursuant to any Registration Statement which resulted in
such losses, claims, damages or liabilities or (ii) if the
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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 Indemnifying Person on the one hand and the
Indemnified Person 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 benefits received by the Company and the Guarantor on the one
hand and any Indemnified Holder on the other shall be deemed to be in the same proportion as
the total net proceeds from the Initial Placement received by the Company and the Guarantor
bear to the total net proceeds received by such Indemnified Holder from sales of Securities
or New Securities giving rise to such obligations. The relative fault of the parties 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 such Indemnified Holder
and the parties relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(f) Each of the Company, the Guarantor and the Initial Purchasers agree that it would
not be just and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph 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 investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall any Holder of any
Securities or New Securities be required to contribute any amount in excess of the amount by
which the net proceeds received by such Holder from the sale of the Security or New Security
pursuant to a Registration Statement exceeds the amount of damages which such Holder would
have 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.
(g) The remedies provided for in this Section 7 are not exclusive and shall not limit
any rights or remedies that may otherwise be available to any indemnified party at law or in
equity.
(h) The indemnity and contribution agreements contained in this Section 7 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 any Holder or any Person controlling any
Holder or by or on behalf of the Company or the Guarantor, their respective officers or
directors or any other Person controlling any of the Company or the Guarantor and (iii)
acceptance of and payment for any of the Securities or New Securities.
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8.
Underwritten Registrations
.
(a) If any of the Securities or New Securities, as the case may be, covered by any
Shelf Registration Statement are to be sold in an underwritten offering, the Managing
Underwriters shall be selected by the Majority Holders and shall be reasonably satisfactory
to the Company and the Guarantor.
(b) No Person may participate in any underwritten offering pursuant to any Shelf
Registration Statement, unless such Person (i) agrees to sell such Persons Securities or
New Securities, as the case may be, on the basis reasonably provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such arrangements; and
(ii) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms of such
underwriting arrangements.
9.
No Inconsistent Agreements
. The Company has not, as of the date hereof, entered
into, nor shall it, on or after the date hereof, enter into, any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
10.
Amendments and Waivers
. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, qualified, 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 Majority Holders (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, of New Securities);
provided
,
however
, that, with respect to any matter that directly or indirectly affects the rights of
the Initial Purchasers hereunder, the Company shall obtain the written consent of the Initial
Purchasers. Notwithstanding the foregoing (except the foregoing proviso), a waiver or consent to
departure from the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities or New Securities, as the case may be, are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect the rights of other
Holders may be given by the Majority Holders, determined on the basis of Securities or New
Securities, as the case may be, being sold rather than registered under such Registration
Statement.
11.
Notices
. All notices and other communications (including without limitation any
notices or other communications to the Trustee) provided for or permitted hereunder shall be made
in writing by hand-delivery, registered first-class mail, next-day air courier or facsimile:
(1) if to a Holder, at the most current address of such Holder set forth on the records
of the registrar under the Indenture and the stock ledger of the Guarantor;
(2) if to the Initial Purchasers:
Goldman, Sachs & Co.
UBS Securities LLC
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Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
As Representatives of the Initial Purchasers named on Schedule A of the Purchase Agreement
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: General Counsel
with copies to:
Vinson & Elkins L.L.P.
First City Tower
1001 Fannin Street, Suite 2500
Houston, Texas 77002-6760
Attention: Mark Kelly
Facsimile No.: (713) 615-5531
(3) if to the Company, at the addresses as follows:
Nabors Industries, Inc.
c/o Nabors Corporate Services, Inc.
515 West Greens Road, Suite 1200
Houston, Texas 77067
Attention: General Counsel
Facsimile No.: (281) 775-8431
with copies to:
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, NY 10005
Attention: Arnold B. Peinado III
Facsimile No. (212) 822-5546
(4) if to the Guarantor:
Nabors Industries Ltd.
Mintflower Place
8 Par-La-Ville Road
Hamilton, HM08, Bermuda
All such notices and communications shall be deemed to have been duly given: when delivered by
hand, if personally delivered; five Business Days after being deposited in the
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mail, postage prepaid, if mailed; one Business Day after being timely delivered to a next-day
air courier; and when the addressor receives facsimile confirmation, if sent by facsimile.
The Initial Purchasers or the Company or the Guarantor by notice to the other parties may
designate additional or different addresses for subsequent notices or communications.
12.
Successors
. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties, including, without the need for an express
assignment or any consent by the Company or the Guarantor thereto, subsequent Holders of Securities
or New Securities. The Company and the Guarantor hereby agree to extend the benefits of this
Agreement to any Holder of Securities and the New Securities, and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
13.
Counterparts
. This Agreement may be executed (including by facsimile) 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.
14.
Headings
. The headings used herein are for convenience only and shall not affect
the construction hereof.
15.
Applicable Law
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
16.
Severability
. If any one of more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
17.
Securities Held by the Company, etc.
Whenever the consent or approval of Holders
of a specified percentage of principal amount of Securities or New Securities is required
hereunder, Securities or New Securities, as applicable, held by the Company or its Affiliates
(other than subsequent Holders of Securities or New Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or New Securities)
shall not be counted in determining whether such consent or approval was given by the Holders of
such required percentage.
18.
No Fiduciary Duty
. The Company and Guarantor hereby acknowledge that (a) the
Initial Purchasers are acting as principal and not as an agent or fiduciary of the Company or the
Guarantor and (b) the Companys engagement of the Initial Purchasers in connection with the
offering and the process leading up to the offering pursuant to the Purchase Agreement is as
independent contractors and not in any other capacity. Furthermore, the Company and the
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Guarantor agree that they are solely responsible for making their own judgments in connection
with the offering, the Registered Exchange Offer or a Shelf Registration (irrespective of whether
any of the Initial Purchasers has advised or is currently advising the Company or the Guarantor on
related or other matters). The Company and the Guarantor agree that they will not claim that the
Initial Purchasers have rendered advisory services of any nature or respect, or owe an agency,
fiduciary or similar duty to the Company or the Guarantor, in connection with such transaction or
the process leading thereto
[Remainder Of This Page Is Intentionally Left Blank]
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If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall
represent a binding agreement among the Company, the Guarantor and you.
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Very truly yours,
NABORS INDUSTRIES, INC.
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By:
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/s/ Bruce P. Koch
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Name:
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Bruce P. Koch
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Title:
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Vice President and
Chief
Financial Officer
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NABORS INDUSTRIES LTD.
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By:
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/s/ Bruce P. Koch
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Name:
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Bruce P. Koch
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Title:
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Vice President and
Chief
Financial Officer
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written
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GOLDMAN, SACHS & CO.
UBS SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
DEUTSCHE BANK SECURITIES INC.
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By:
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/s/ Goldman, Sachs & Co.
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(Goldman, Sachs & Co.)
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On behalf of each of the Initial Purchasers listed
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on Schedule A to the Purchase Agreement
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Signature Page to Registration Rights Agreement
SCHEDULE A
Initial Purchasers
Goldman, Sachs & Co
UBS Securities LLC
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
Howard Weil Incorporated
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
Tudor, Pickering, Holt & Co. Securities, Inc.
Wells Fargo Securities, LLC
ANNEX A
Each broker or dealer that receives new notes for its own account in exchange for old notes
that were acquired as a result of market-making or other trading activities must acknowledge that
it will comply with the registration and prospectus delivery requirements of the Securities Act in
connection with any offer, resale, or other transfer of the new notes issued in the exchange offer,
including information with respect to any selling holder required by the Securities Act in
connection with any resale of the new notes.
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Furthermore, any broker-dealer that acquired any of its old notes directly from us:
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may not rely on the applicable interpretation of the staff of the SECs position
contained in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), Morgan
Stanley and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the
Commissions letter to Shearman & Sterling dated July 2, 1993 and similar no-action
letters; and
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must also be named as a selling noteholder in connection with the registration
and prospectus delivery requirements of the Securities Act relating to any resale
transaction. See Plan of Distribution and The Exchange Offer Purpose and Effect
of Exchange Offer Registration Rights.
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ANNEX B
Each broker-dealer that receives new notes for its own account in exchange for old notes,
where such old notes were acquired by such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any offer, resale or other transfer
of such new notes, including information with respect to any selling holder required by the
Securities Act in connection with the resale of the new notes. We have agreed that for a period of
180 days after the effective date of the registration statement of which this prospectus is a part,
we will make this prospectus available to any broker-dealer for use in connection with any such
resale. See Plan of Distribution.
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in connection with any resale of such New
Securities. This Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in exchange for Securities
where such Securities were acquired as a result of market-making activities or other trading
activities. We have agreed that, starting on the effective date of the registration statement of
which this Prospectus is a part and ending on the close of business 180-days after such date or
such shorter period as will terminate when all New Securities held by Exchanging Dealers or Initial
Purchasers have been sold pursuant hereto, we will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such resale. In
addition, until ___, 200___, all dealers effecting transactions in the New Securities may be
required to deliver a prospectus.
We will not receive any proceeds from any sale of New Securities by brokers-dealers. New
Securities received by Broker-Dealers for their own account pursuant to the Exchange Offer may be
sold from time to time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Securities or a combination of such methods
of resale, at market prices prevailing at the time of resale, at prices related to such prevailing
market prices or negotiated prices. Any such resale may be made directly to purchasers or to or
through brokers or dealers who may receive compensation in the form of commissions or concessions
from any such Broker-Dealer and/or the purchasers of any such New Securities. Any Broker-Dealer
that resells New Securities that were received by it for its own account pursuant to the Exchange
Offer and any broker or dealer that participates in a distribution of such New Securities may be
deemed to be an underwriter within the meaning of the Securities Act and any profit of any such
resale of New Securities and any commissions or concessions received by any such Persons may be
deemed to be underwriting compensation under the Securities Act. The Letter of Transmittal states
that by acknowledging that it will deliver and by delivering a prospectus, a Broker-Dealer will not
be deemed to admit that it is an underwriter within the meaning of the Securities Act.
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Furthermore, any broker-dealer that acquired any of the old notes directly from us:
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may not rely on the applicable interpretation of the staff of the SECs position
contained in
Exxon Capital Holdings Corporation
(pub. avail. May 13, 1988),
Morgan Stanley and Co., Inc.
(pub. avail. June 5, 1991), ), as interpreted
in the Commissions letter to Shearman & Sterling dated July 2, 1993 and similar
no-action letters; and
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must also be named as a selling noteholder in connection with the registration
and prospectus delivery requirements of the Securities Act relating to any resale
transaction.
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For a period of 180-days after the effective date of the registration statement of which this
Prospectus is a part or such shorter period as will terminate when all New Securities held by
Exchanging Dealers or Initial Purchasers have been sold pursuant hereto, we will promptly send
additional copies of this Prospectus and any amendment or supplement to this Prospectus to any
Broker-Dealer that requests such documents in the Letter of Transmittal. We have agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one counsel for the holder of
the Securities) other than commissions or concessions of any brokers or dealers and will indemnify
the holders of the Securities (including any Broker-Dealers) against certain liabilities, including
liabilities under the Securities Act.
[
If applicable, add information required by Regulation S-K Items 507 and/or 508.
]
ANNEX D
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CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
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Name:
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Address:
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If the undersigned is not a Broker-Dealer, the undersigned represents that it acquired the New
Securities in the ordinary course of its business, it is not engaged in, and does not intend to
engage in, a distribution of New Securities and it has no arrangements or understandings with any
Person to participate in a distribution of the New Securities. If the undersigned is a
Broker-Dealer that will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired by it as a result
of market-making activities or other trading activities and acknowledges that it will deliver a
prospectus in connection with any resale of such New Securities; however, by so acknowledging and
by delivering a prospectus, the undersigned will not be deemed to admit that it is an underwriter
within the meaning of the Securities Act.