NOBLE HOLDING INTERNATIONAL
LIMITED
ISSUER
NOBLE CORPORATION
GUARANTOR
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.
TRUSTEE
FIRST SUPPLEMENTAL
INDENTURE
7.375% SENIOR NOTES DUE
2014
DATED AS OF NOVEMBER 21,
2008
FIRST
SUPPLEMENTAL INDENTURE, dated as of November 21, 2008 and
relating to the Notes referred to below (this “ First
Supplemental Indenture ”), by and among NOBLE HOLDING
INTERNATIONAL LIMITED, a Cayman Islands exempted company limited by
shares (herein called the “ Company ”), NOBLE
CORPORATION, a Cayman Islands exempted company limited by shares
(herein called the “ Guarantor ”), and THE BANK
OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking
association duly organized and existing under the laws of the
United States of America, as Trustee (herein called the “
Trustee ”). Capitalized terms not otherwise defined in
this First Supplemental Indenture have the meanings assigned to
them in the Indenture referred to below.
WHEREAS,
the Company has heretofore executed and delivered to the Trustee an
indenture dated as of November 21, 2008 (as amended,
supplemented or otherwise modified from time to time, the “
Indenture ”), to provide for the issuance from time to
time of its unsecured senior debt securities (the “
Securities ”), the form and terms of which are to be
established pursuant to Articles Two and Three of the Indenture;
and
WHEREAS,
Article Nine of the Indenture provides, among other things,
that the Company and the Trustee may enter into indentures
supplemental to the Indenture for, among other things, the purpose
of establishing the form and terms of the Securities of any series
as permitted in Articles Two and Three of the Indenture and
otherwise amending the Indenture in a manner not prejudicial to the
interests of the Holders of the Securities of any series;
and
WHEREAS,
the Company desires to create a series of Securities under the
Indenture to be issued in an initial aggregate principal amount of
$250,000,000 designated as the 7.375% Senior Notes due 2014 (the
“ Notes ”), in furtherance of which the Board of
Directors has adopted a Board Resolution authorizing the Company to
enter into this First Supplemental Indenture without the consent of
the Holders of the Securities as provided for in Section 901
of the Indenture; and
WHEREAS,
the Guarantor owns, indirectly, all of the outstanding shares of
the Company and has agreed to (i) fully and unconditionally
guarantee the due and punctual payment of the principal of,
premium, if any, interest on and all other amounts due under the
Indenture and the Notes, which guarantee is provided in this First
Supplemental Indenture, and (ii) be bound by certain other
covenants specified herein; and
WHEREAS,
all acts necessary to make the Notes, when executed by the Company
and authenticated and delivered by the Trustee as provided in the
Indenture, the valid and binding obligations of the Company and to
make this First Supplemental Indenture a valid and binding
agreement in accordance with Article Nine of the Indenture
have been duly performed and executed;
NOW,
THEREFORE, in consideration of the promises and mutual agreements
herein contained, the Company, the Guarantor and the Trustee
mutually covenant and agree for the equal and proportionate benefit
of the Holders from time to time of the Notes as
follows:
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Section 1.
Issuance, Terms and Form of the Notes.
1.1 Issuance of
the Notes . A series of Securities is hereby created which
shall be designated as the 7.375% Senior Notes due 2014. The
aggregate principal amount of the Notes created hereby that may be
authenticated and delivered under this First Supplemental Indenture
shall initially be $250,000,000, subject to the Company’s
right to issue additional Notes from time to time in accordance
with the terms of the Indenture.
1.2 Terms of
the Notes . The Notes shall be executed, authenticated and
delivered in accordance with the provisions of, and shall in all
respects be subject to, the terms, conditions and covenants of the
Indenture and this First Supplemental Indenture.
1.3 Form of the
Notes . The Notes shall be executed, authenticated and
delivered substantially in the form attached hereto as
Exhibit A , the terms of which are incorporated in this
First Supplemental Indenture for all purposes.
1.4
Depositary . The Notes shall be issued in global form,
except as provided in the Indenture. The Company initially appoints
The Depository Trust Company to acts as Depositary with respect to
the Notes.
Section 2.
Amendments to the Indenture Relating to the Notes.
2.1 Amendments
to Article One of the Indenture (Definitions) .
Article One of the Indenture is hereby amended in respect of,
and applicable to, the Notes and only in respect of, and applicable
to, the Notes as follows:
(a) by
adding thereto the following new definitions in their appropriate
alphabetical order:
“
Attributable Indebtedness ,” when used with respect to
any Sale/Leaseback Transaction, means, as at the time of
determination, the present value (discounted at the rate set forth
or implicit in the terms of the lease included in such transaction)
of the total obligations of the lessee for rental payments (other
than amounts required to be paid on account of taxes, maintenance,
repairs, insurance, assessments, utilities, operating and labor
costs and other items that do not constitute payments for property
rights) during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such
lease has been extended). In the case of any lease that is
terminable by the lessee upon the payment of a penalty, such net
amount shall be the lesser of the net amount determined assuming
termination upon the first day such lease may be terminated (in
which case the net amount shall also include the amount of the
penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be
so terminated) or the net amount determined assuming no such
termination.
“
Capitalized Lease Obligations ” of any Person means
the obligations of such Person to pay rent or other amounts under
any lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations
are required to be classified and accounted for as capital leases
on a balance sheet of such Person under generally accepted
accounting principles in the United States, and the amount of such
obligations shall be the capitalized amount thereof determined in
accordance with generally accepted accounting principles in the
United States.
“
Consolidated Net Tangible Assets ” means the total
amount of assets (less applicable
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reserves and
other properly deductible items) after deducting (1) all
current liabilities (excluding the amount of those that are by
their terms extendable or renewable at the option of the obligor to
a date more than 12 months after the date as of which the
amount is being determined and current maturities of long-term
debt) and (2) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangible
assets, all as set forth on the most recent quarterly balance sheet
of the Guarantor and its consolidated Subsidiaries and determined
in accordance with generally accepted accounting principles in the
United States.
“ Funded
Indebtedness ” means all Indebtedness (including
Indebtedness incurred under any revolving credit, letter of credit
or working capital facility) that by its terms matures on, or that
is renewable at the option of any obligor thereon to, a date more
than one year after the date on which such Indebtedness is
originally incurred.
“
Guarantee ” has the meaning set forth in
Section 3(a).
“
Guarantor ” has the meaning set forth in the
preamble.
“
Guarantor Board of Directors ” means either the board
of directors of the Guarantor or any duly authorized committee of
that board.
“
Indebtedness ” of any Person means, without
duplication, (i) all indebtedness of such Person for borrowed
money (whether or not the recourse of the lender is to the whole of
the assets of such Person or only to a portion thereof),
(ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all
obligations of such Person in respect of letters of credit or other
similar instruments (or reimbursement obligations with respect
thereto), other than standby letters of credit, performance bonds
and other obligations issued by or for the account of such Person
in the ordinary course of business, to the extent not drawn or, to
the extent drawn, if such drawing is reimbursed not later than the
third Business Day following demand for reimbursement,
(iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services, except trade
payables and accrued expenses incurred in the ordinary course of
business, (v) all Capitalized Lease Obligations of such
Person, (vi) all Indebtedness of others secured by a Lien on
any asset of such Person, whether or not such Indebtedness is
assumed by such Person (provided that if the obligations so secured
have not been assumed in full by such Person or are not otherwise
such Person’s legal liability in full, then such obligations
shall be deemed to be in an amount equal to the greater of
(a) the lesser of (1) the full amount of such obligations and
(2) the fair market value of such assets, as determined in
good faith by the board of directors of such Person, which
determination shall be evidenced by a resolution of such board of
directors, and (b) the amount of obligations as have been
assumed by such Person or that are otherwise such Person’s
legal liability), and (vii) all Indebtedness of others (other
than endorsements in the ordinary course of business) guaranteed by
such Person to the extent of such guarantee.
“ Joint
Venture ” means any partnership, corporation or other
entity in which up to and including 50% of the partnership
interests, outstanding voting stock or other equity interests is
owned, directly or indirectly, by the Guarantor and/or one or more
of its Subsidiaries.
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“
Lien ” means any mortgage, pledge, lien, encumbrance,
charge or security interest. For purposes of the Indenture, the
Guarantor or any Subsidiary of the Guarantor shall be deemed to own
subject to a Lien any asset that it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale
agreement, Capitalized Lease Obligation or other title retention
agreement relating to such asset.
“
Make-Whole Premium ” with respect to any Note (or
portion of a Note) to be redeemed shall be equal to the excess, if
any, of:
(i) the sum
of the present values, calculated as of the Redemption Date,
of:
(A)
each interest payment that, but for the redemption, would have been
payable on the Note (or its portion) being redeemed on each
Interest Payment Date occurring after the Redemption Date
(excluding any accrued interest for the period before the
Redemption Date); and
(B)
the principal amount that, but for the redemption, would have been
payable at the final maturity of the Note (or its portion) being
redeemed;
(ii) the
principal amount of the Note (or its portion) being
redeemed.
The present values
of interest and principal payments referred to in clause
(i) above will be determined in accordance with generally
accepted principles of financial analysis. Those present values
will be calculated by discounting the amount of each payment of
interest or principal from the date that each payment would have
been payable, but for the redemption, to the Redemption Date at a
discount rate equal to the Treasury Yield plus 50 basis
points.
The Make-Whole
Premium will be calculated by an independent investment banking
institution of national standing appointed by the Company, provided
that if the Company fails to make such appointment at least 45
Business Days prior to the Redemption Date, or if the institution
so appointed is unwilling or unable to make the calculation, such
calculation will be made by Goldman, Sachs & Co. or, if that
firm is unwilling or unable to make the calculation, by an
independent investment banking institution of national standing
appointed by the Trustee (in any such case, the “
Independent Investment Banker ”).
“
Non-Recourse Indebtedness ” means any Indebtedness of
the Guarantor or any Subsidiary of the Guarantor in respect of
which (a) the recourse of the holder of such Indebtedness,
whether direct or indirect and whether contingent or otherwise, is
effectively limited to (i) Liens on specified assets and
(ii) in respect of Indebtedness of a Subsidiary of the
Guarantor, Liens on assets of the Subsidiary acquired after the
date of original issuance of the Notes, and with respect to such
Indebtedness of the Guarantor or a Subsidiary of the Guarantor,
neither the Guarantor nor any Subsidiary of the Guarantor (other
than the issuer of such Indebtedness) provides any credit support
or is otherwise liable or obligated and (b) the occurrence of
any event, or the existence of any condition under any agreement or
instrument
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relating to
such Indebtedness, shall not at any time have the effect of
accelerating, or permitting the acceleration of, the maturity of
any other Indebtedness of the Guarantor or any of its Subsidiaries
or otherwise permitting any such other Indebtedness to be declared
due and payable, or to be required to be prepaid, purchased or
redeemed, prior to the stated maturity thereof.
“ Pari
Passu Indebtedness ” means any Indebtedness of the
Guarantor, whether outstanding on the issue date of the Notes or
thereafter created, incurred or assumed, unless, in the case of any
particular Indebtedness, the instrument creating or evidencing the
same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall be subordinated in right of
payment to the Guarantee.
“
Permitted Liens ” means (i) Liens existing on the
date of original issuance of the Notes; (ii) Liens on property
or assets of, or any shares of stock of, or other equity interests
in, or indebtedness of, any Person existing at the time such Person
becomes a Subsidiary of the Guarantor or at the time such Person is
merged into or consolidated with the Guarantor or any of its
Subsidiaries or at the time of a sale, lease or other disposition
of all or substantially all of the properties and assets of a
Person to the Guarantor or a Subsidiary of the Guarantor;
(iii) Liens in favor of the Guarantor or any of its
Subsidiaries; (iv) Liens in favor of governmental bodies to
secure progress or advance payments; (v) Liens securing
industrial revenue or pollution control bonds or similar
indebtedness; (vi) Liens on property securing (a) all or
any portion of the cost of acquiring, constructing, altering,
improving or repairing any property or assets, real or personal, or
improvements used or to be used in connection with such property or
(b) Indebtedness incurred by the Guarantor or any Subsidiary
of the Guarantor prior to or within one year after the later of the
acquisition, the completion of construction, alteration,
improvement or repair or the commencement of commercial operation
thereof, which Indebtedness is incurred for the purpose of
financing all or any part of the purchase price thereof or
construction or improvements thereon; (vii) statutory liens or
landlords’, carriers’, warehouseman’s,
mechanics’, suppliers’, materialmen’s,
repairmen’s or other like Liens arising in the ordinary
course of business and with respect to amounts not yet delinquent
or being contested in good faith by appropriate proceedings;
(viii) Liens on current assets of the Guarantor or any
Subsidiary of the Guarantor securing Indebtedness of the Guarantor
or such Subsidiary, respectively; (ix) Liens on the stock,
partnership or other equity interest of the Guarantor or any
Subsidiary of the Guarantor in any Joint Venture or any Subsidiary
of the Guarantor that owns an equity interest in such Joint Venture
to secure Indebtedness, provided the amount of such Indebtedness is
contributed and/or advanced solely to such Joint Venture;
(x) Liens under workers compensation or similar legislation;
(xi) Liens in connection with legal proceedings or securing
tax assessments, which in each case are being contested in good
faith; (xii) good faith deposits in connection with bids,
tenders, contracts or Liens; (xiii) deposits made in
connection with maintaining self-insurance, to obtain the benefits
of laws, regulations or arrangements relating to unemployment
insurance, old age pensions, social security or similar matters or
to secure surety, appeal or customs bonds; and (xiv) any
extensions, substitutions, replacements or renewals in whole or in
part of a Lien enumerated in clauses (i) through
(xiii) above.
“
Principal Property ” means any jackup,
semisubmersible, drillship, submersible or other mobile offshore
drilling unit, or integral portion thereof, owned or leased by the
Guarantor or any Subsidiary of the Guarantor and used for drilling
offshore oil and gas wells, which, in the
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opinion of the
Guarantor Board of Directors, is of material importance to the
business of the Guarantor and its Subsidiaries taken as a whole,
but no such jackup, semisubmersible, drillship, submersible or
other mobile offshore drilling unit, or portion thereof, shall be
deemed of material importance if its net book value (after
deducting accumulated depreciation) is less than 2.0% of
Consolidated Net Tangible Assets of the Guarantor and its
consolidated Subsidiaries.
“
Sale/Leaseback Transaction ” means any arrangement
with any Person pursuant to which the Guarantor or any Subsidiary
of the Guarantor leases any Principal Property that has been or is
to be sold or transferred by the Guarantor or the Subsidiary to
such Person, other than (i) temporary leases for a term, including
renewals at the option of the lessee, of not more than five years,
(ii) leases between the Guarantor and a Subsidiary of the
Guarantor or between Subsidiaries of the Guarantor, or
(iii) leases of Principal Property executed by the time of, or
within 12 months after the later of, the acquisition, the
completion of construction, alteration, improvement or repair or
the commencement of commercial operation of the Principal
Property.
“ Tax
Additional Amounts ” has the meaning set forth in
Section 2.2.
“ Taxing
Jurisdiction ” has the meaning set forth in
Section 2.2.
“
Treasury Yield ” means a rate of interest per annum
equal to the weekly average yield to maturity of United States
Treasury Notes that have a constant maturity that corresponds to
the remaining terms to maturity of the Notes, calculated to the
nearest 1/12th of a year (the “ Remaining Term
”). The Treasury Yield will be determined as of the third
Business Day immediately before the applicable Redemption
Date.
The weekly average
yields of United States Treasury Notes will be determined by
referring to the most recent statistical release published by the
Federal Reserve Bank of New York and designated “H.15(519)
Selected Interest Rates” or any successor release (the
“ H.15 Statistical Release ”). If the H.15
Statistical Release contains a weekly average yield for United
States Treasury Notes having a constant maturity that is the same
as the Remaining Term, then the Treasury Yield will be equal to
that weekly average yield. In all other cases, the Treasury Yield
will be calculated by interpolation, on a straight-line basis,
between the weekly average yields on the United States Treasury
Notes that have a constant maturity closest to and greater than the
Remaining Term and the United States Treasury Notes that have a
constant maturity closest to and less than the Remaining Term (in
each case as set forth in the H.15 Statistical Release). Any weekly
average yields as calculated by interpolation will be rounded to
the nearest 1/100th of 1% with any figure of 1/200% or above being
rounded upward. If weekly average yields for United States Treasury
Notes are not available in the H.15 Statistical Release or
otherwise, then the Treasury Yield will be calculated by
interpolation of comparable rates selected by the Independent
Investment Banker.
“
Withholding Tax ” has the meaning set forth in
Section 2.2.
(b) for
purposes of this First Supplemental Indenture only, by adding the
following definitions:
“Officers’ Certificate”, when used with respect
to the Guarantor, means a certificate signed by (i) the Chairman of
the Board, the Chief Executive Officer, the President or a Vice
President, and (ii) the Treasurer, the Controller, the Secretary or
an Assistant Treasurer, Assistant Controller or Assistant Secretary
of the Guarantor, and delivered to the Trustee, which certificate
shall be in compliance with Section 103 hereof.
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“
Redemption Price ” shall be the price equal to 100% of
the principal amount of the Notes being redeemed plus
accrued interest to the Redemption Date (subject to the right of
holders of record on the relevant record date to receive interest
due on an interest payment date that is on or prior to the
Redemption Date), plus a Make-Whole Premium, if any is
required to be paid. The Redemption Price will never be less than
100% of the principal amount of the Notes being redeemed
plus accrued interest to the Redemption Date.
“
Subsidiary ” means, with respect to the Guarantor at
any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be
consolidated with those of the Guarantor in the Guarantor’s
consolidated financial statements if such financial statements were
prepared in accordance with generally accepted accounting
principles in the United States as of such date, as well as any
other corporation, limited liability company, partnership,
association or other entity (i) of which securities or other
ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held, or (ii) that
is, as of such date, otherwise controlled, by the Guarantor or one
or more Subsidiaries of the Guarantor.
2.2
Amendments to Article Three of the Indenture (Tax
Additional Amounts). Article Three is hereby amended in respect
of, and applicable to, the Notes and only in respect of, and
applicable to, the Notes by adding the following section as
Section 312:
SECTION
312. Tax Additional Amounts.
The Company shall
pay any amounts due with respect to the payments on the Notes
without deduction or withholding for any and all present and future
withholding taxes, levies, imposts and charges (each, a “
Withholding Tax ”) imposed by or for the account of
the Cayman Islands or any other jurisdiction in which the Company
is resident for tax purposes or any political subdivision or taxing
authority of such jurisdiction (the “ Taxing
Jurisdiction ”), unless such withholding or deduction is
required by law. If such deduction or withholding is at any time
required, the Company will (subject to compliance by such Holder
with any relevant administrative requirements) pay each Holder
additional amounts (“ Tax Additional Amounts ”)
as will result in such Holder’s receipt of such amounts as it
would have received had no such withholding or deduction been
required.
If the Taxing
Jurisdiction requires the Company to deduct or withhold any
Withholding Tax, the Company will (subject to compliance by a
Holder with any relevant administrative requirements) pay such Tax
Additional Amounts in respect of principal amount, Redemption Price
and interest (if any) in accordance with the terms of the Notes and
the Indenture; provided , however, that the foregoing shall
not apply to:
(a) any
Withholding Tax that would not be payable or due but for the fact
that (1) the Holder of a Note (or a fiduciary, settlor,
beneficiary of, member
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or shareholder
of, such Holder, if such Holder is an estate, trust, partnership or
corporation) is a domiciliary, national or resident of, or engaging
in business or maintaining a permanent establishment or being
physically present in, the Taxing Jurisdiction or otherwise having
some present or former connection with the Taxing Jurisdiction
other than the holding or ownership of the Note or the collection
of principal amount, Redemption Price and interest (if any), in
accordance with the terms of the Note and the Indenture or the
enforcement of the Note or (2) where presentation is required,
the Note was presented more than 30 days after the date such
payment became due or was provided for, whichever is
later;
(b) any
Withholding Tax attributable to any estate, inheritance, gift,
sales, transfer, excise, personal property or similar tax, levy,
impost or charge;
(c) any
Withholding Tax attributable to any tax, levy, impost or charge
that is payable otherwise than by withholding from payment of
principal amount, Redemption Price and interest (if
any);
(d) any
Withholding Tax that would not have been imposed but for the
failure to comply with certification, information, documentation or
other reporting requirements concerning the nationality, residence,
identity or connections with the relevant tax authority of the
Holder or beneficial owner of the Senior Note, if this compliance
is required by statute or by regulation as a precondition to relief
or exemption from such Withholding Tax;
(e) to the extent
a Holder of a Note is entitled to a refund or credit in the Taxing
Jurisdiction of amounts required to be withheld by such Taxing
Jurisdiction; or
(f) any
combination of the instances described in (a) through
(e).
With respect to
clause (e), above, in the absence of evidence satisfactory to the
Company, the Company may conclusively presume that a Holder of a
Note is entitled to a refund or credit of all amounts required to
be withheld. The Company shall not be required to pay any Tax
Additional Amounts to any Holder of a Note who is a fiduciary or
partnership or other than the sole beneficial owner of the Note to
the extent that a beneficiary or settlor with respect to such
fiduciary, or a member of such partnership or a beneficial owner
thereof, would not have been entitled to the payment of such Tax
Additional Amounts had such b
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