EXHIBIT 4(d)
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (the "Second Supplemental Indenture"),
dated and effective as of February 1, 2003, is made and entered into by and
among Xxxxxx Drilling Company, a Delaware corporation (the "Company"), the
Restricted Subsidiaries executing as Subsidiary Guarantors (the "Subsidiary
Guarantors"), Xxxxxx Tools, LLC, an Oklahoma limited liability company, and a
wholly-owned indirectly by the Company ("Xxxxxx Tools"), Quail USA, LLC, an
Oklahoma limited liability company and a wholly-owned indirectly by the Company
("Quail USA"), Xxxxxx USA Resources, LLC, an Oklahoma limited liability
partnership and wholly-owned indirectly by the Company ("Xxxxxx USA Resources"),
Xxxxxx Management Resources, L.P., an Oklahoma limited partnership and wholly
owned indirectly by the Company ("Xxxxxx Management Resources"), Xxxxxx Offshore
Resources, L.P., an Oklahoma limited partnership and wholly-owned indirectly by
the Company ("Xxxxxx Offshore Resources") and Quail Tools, L.P., an Oklahoma
limited partnership and wholly-owned indirectly by the Company ("Quail LP",
together with Xxxxxx Tools, Quail USA, Xxxxxx USA Resources, Xxxxxx Management
Resources, and Xxxxxx Offshore Resources", the "New Guarantors"), and JPMorgan
Chase Bank, a New York banking organization, as Trustee (the "Trustee").
RECITALS OF THE COMPANY, THE SUBSIDIARY GUARANTORS
AND THE NEW GUARANTORS
WHEREAS, the Company, the Subsidiary Guarantors and the Trustee have
executed and delivered an Indenture dated as of May 2, 2002, by and among the
Company, the Subsidiary Guarantors and the Trustee (the "2002 Indenture") for
the benefit of one another and for the ratable benefit of the Holders of the 10
1/8% Senior Notes due 2009, (the "Notes") and pursuant to which the Subsidiary
Guarantors have agreed, jointly and severally, to unconditionally guarantee the
due and punctual payment of the principal of, premium, if any, and interest on
the Notes and all other amounts due and payable under the 2002 Indenture and the
Notes by the Company ("Indenture Obligations");
WHEREAS, Section 9.01(a)(vi) of the 2002 Indenture provides that under
certain conditions the Company and the Trustee may, without the consent of any
Holder of a Note, amend or supplement the 0000 Xxxxxxxxx (x) to add any
Restricted Subsidiary as an additional Subsidiary Guarantor as provided in
Section 10.02 of the 0000 Xxxxxxxxx or (y) to evidence the succession of another
Person to any Subsidiary Guarantor pursuant to Section 10.04 of the 2002
Indenture and the assumption by any such successor of the covenants and
agreements of such Subsidiary Guarantor contained in the 2002 Indenture and in
the Subsidiary Guarantee of such Subsidiary Guarantor;
WHEREAS, the Company and certain Restricted Subsidiaries, including the
New Guarantors, have determined that considerable operating and financial
efficiencies can be achieved by reorganizing the legal status of said Restricted
Subsidiaries, restructuring the legal and financial relationships among said
Restricted Subsidiaries and consolidating the operations of said Restricted
Subsidiaries, which efficiencies will accrue to the benefit of all Restricted
Subsidiaries involved in said reorganization and restructuring;
WHEREAS, the foregoing restructuring will involve (i) transferring
assets or real property or equipment having a fair market value or book value in
excess of $1M to certain of the New Guarantors, (ii) making an investment in
certain of the New Guarantors in excess of $1M, (iii) providing of a guarantee
under the Senior Credit Facility by the New Guarantors and (iv) merging certain
Subsidiary Guarantors into another Subsidiary Guarantor (the "Proposed
Actions");
WHEREAS, Sections 10.02 and 10.04 of the 2002 Indenture provides that
the undertaking of the
Proposed Actions requires (i) the execution by the New Guarantors of this Second
Supplemental Indenture whereby said New Guarantors agree to be bound by the
terms of the 2002 Indenture as applicable to a Subsidiary Guarantor and (ii) the
execution by the New Guarantors of a Subsidiary Guarantee in the form prescribed
by the 2002 Indenture;
WHEREAS, the execution and delivery of this Second Supplemental
Indenture has been duly authorized by resolution of the board of directors of
the Company and the Subsidiary Guarantors and the board of directors of each of
the New Guarantors has authorized this Second Supplemental Indenture and the
execution of a Subsidiary Guarantee; and
WHEREAS, all conditions and requirements necessary to make this Second
Supplemental Indenture valid and binding upon the Company, the Subsidiary
Guarantors and the New Guarantors and enforceable against the New Guarantors in
accordance with its terms, have been performed and fulfilled;
NOW, THEREFORE, in consideration of the above premises, each of the
parties hereto agrees, for the benefit of the others and for the equal and
proportionate benefit of the Holders of the Notes, as follows:
SECTION 1. Certain Terms Defined in the 2002 Indenture. All capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
them in the 2002 Indenture.
SECTION 2. Additional Guarantors; Subsidiary Guarantee.
Section 2.1. The New Guarantors, by execution and delivery of
this Second Supplemental Indenture, hereby agree to be bound by the
terms of the 2002 Indenture as a Subsidiary Guarantor.
Section 2.2 Attached hereto as Exhibit A is a Subsidiary
Guarantee of the New Guarantors in the form prescribed by the 2002
Indenture, by which each New Guarantor agrees to guarantee the
obligations of the Company in accordance with the terms of the
Subsidiary Guarantee.
SECTION 3. Merger and Succession of Subsidiary Guarantors. In
accordance with Section 10.04, Xxxxxx Drilling U.S.A., Ltd., a Nevada
corporation ("PDUSA"), and Xxxxxx Drilling Company Limited, an Oklahoma
corporation ("PDCL"), have merged into Xxxxxx Drilling Offshore Corporation, a
Nevada corporation, the latter of which is a Subsidiary Guarantor, and Quail
Tools, LLP has converted into Quail Tools, LP, the latter of which has assumed
the covenants and agreements of Quail Tools, LLP by executing this Second
Supplemental Indenture as a New Guarantor and the Subsidiary Guarantee attached
hereto as Exhibit A.
SECTION 4. Effectiveness. This Second Supplemental Indenture shall
become effective upon:
(a) the execution and delivery of this Second
Supplemental Indenture by the Company, the
Subsidiary Guarantors, the New Guarantors
and the Trustee; and
(b) the delivery by the Company to the Trustee
of the Opinion of Counsel and an Officers'
Certificate as required pursuant to Sections
11.04 and 11.05 of the 2002 Indenture and
addressing the matters required pursuant to
such sections.
SECTION 5. Particular Representations and Covenants.
Section 5.1. Authority. The Company, the Subsidiary
Guarantors and the New Guarantors are duly authorized to
execute and deliver this Second Supplemental Indenture, and
all corporate action on their part required for the execution
and delivery of this Second Supplemental Indenture has been
duly and effectively taken.
Section 5.2. Correctness of Recitals. The Company and
the Subsidiary Guarantors and the New Guarantors represent and
warrant that all recitals and statements in this Second
Supplemental Indenture are true and correct.
SECTION 6. Concerning the Trustee.
Section 6.1 Acceptance of Trusts. The Trustee accepts
the trusts hereunder and agrees to perform same, but only upon
the terms and conditions set forth in the Indenture.
Section 6.2 Responsibility for Recitals. The recitals
and statements contained in this Second Supplemental Indenture
shall be taken as recitals and statements of the Company, the
Subsidiary Guarantors and the New Guarantors and the Trustee
assumes no responsibility for the correctness of same. The
Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture, except that
the Trustee is duly authorized to execute and deliver it.
SECTION 7. Miscellaneous Provisions.
Section 7.1 Counterparts. This Second Supplemental
Indenture may be executed in several counterparts, each of
which shall be deemed an original, but all of which together
shall constitute one instrument.
Section 7.2 Compliance with Trust Indenture Act. This
Second Supplemental Indenture shall be interpreted to comply
in every respect with the Trust Indenture Act of 1939, as
amended, (the "TIA"). If any provision of this Second
Supplemental Indenture limits, qualifies or conflicts with the
duties imposed by the TIA, the imposed duties shall control.
Section 7.3 Headings. The section headings herein are
for convenience only and shall not affect the construction
hereof.
Section 7.4 Binding Effect. All covenants and
agreements in this Second Supplemental Indenture by the
Company or by any of the Subsidiary Guarantors shall bind
their successors and assigns, whether so expressed or not.
Section 7.5 Governing Law. The internal laws of the
State of New York shall govern and be used to construe this
Second Supplemental Indenture.
Section 7.6 Continuation of 2002 Indenture. Except as
amended by this Second Supplemental Indenture, the terms and
conditions of the 2002 Indenture shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all as of the date first above
written.
XXXXXX DRILLING COMPANY
By: /s/ XXXXX X. XXXXXX
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President and
Chief Financial Officer
JPMORGAN CHASE BANK, as Trustee
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------
Name: XXXXXXX X. XXXXXX
Title: VICE PRESIDENT & TRUST OFFICER
SUBSIDIARY GUARANTORS:
Xxxxxx Drilling Company of Oklahoma, Incorporated
Xxxxxx Drilling Company Limited (Nevada)
Choctaw International Rig Corp.
Xxxxxx Drilling Company of New Guinea, Inc.
Xxxxxx Drilling Company North America, Inc.
Xxxxxx-VSE, Inc. (formerly Xxxxx Systems
Engineering, Inc.)
DGH, Inc.
Xxxxxx Drilling Company International Limited
Xxxxxx USA Drilling Company (formerly
Parcan Limited)
Xxxxxx Technology, Inc.
Xxxxxx Drilling Offshore Corporation (formerly
Hercules Offshore Corporation)
Xxxxxx Drilling Offshore International, Inc.
Anachoreta, Inc.
Pardril, Inc.
Xxxxxx Aviation, Inc.
Xxxxxx Drilling (Kazakhstan), Ltd.
Xxxxxx Drilling Company of Niger
Xxxxxx North America Operations, Inc.
Selective Drilling Corporation
Universal Rig Service Corp.
Creek International Rig Corp.
International Equipment Leasing Company
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Its: Vice President & Treasurer
Xxxxxx Technology, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Its: Vice President & Manager
Xxxxxx Drilling Offshore USA, L.L.C. (formerly
Mallard Bay Drilling, L.L.C.)
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Its: Treasurer & Manager
Xxxxxx Drilling Management Services, Inc.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Its: President
Xxxxxx Drilling Company of Colombia Limited
By: /s/ Xxxxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Its: Vice President
NEW GUARANTORS:
Xxxxxx Tools, LLC
By: /s/ Xxx Junk
-------------------------------------------
Name: Xxx Junk
Its: President and Manager
Quail USA, LLC
By: /s/ W. Xxxx Xxxxxxxxxx
-------------------------------------------
Name: W. Xxxx Xxxxxxxxxx
Its: President and Manger
Xxxxxx USA Resources, LLC
By: /s/ Xxx Junk
-------------------------------------------
Name: Xxx Junk
Its: President and Manager
Xxxxxx Management Resources, L.P.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President of its General Partner, Xxxxxx
Drilling Management Services, Inc.
Xxxxxx Offshore Resources, L.P.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President of its General Partner, Xxxxxx
Drilling Management Services, Inc.
Quail Tools, L.P.
By: /s/ W. Xxxx Xxxxxxxxxx
-------------------------------------------
Name: W. Xxxx Xxxxxxxxxx
Title: President of its General Partner, Quail
USA, LLC
Exhibit "A"
SUBSIDIARY GUARANTEE
This Subsidiary Guarantee is hereby executed as of the 1st day of
February, 2003, by the each of the undersigned Restricted Subsidiaries. Terms
not defined herein shall have the meanings as set forth in the 2002 Indenture
(as described below).
RECITALS:
WHEREAS, in connection with the restructuring and reorganization of certain
subsidiaries of the Company each of undersigned Restricted Subsidiaries has
received property having a value in excess of $1 million from the Company or
another Restricted Subsidiary; and
WHEREAS, pursuant to Section 10.02(a) of the Indenture dated May 2, 2002, (as
heretofore amended, the "2002 Indenture") by and between Xxxxxx Drilling Company
(the "Company"), the Restricted Subsidiaries which are already Subsidiary
Guarantors, and JPMorgan Chase Bank, as Trustee, pursuant to which the Company
has issued its 10 1/8% Senior Notes due 2009 (the "Notes"), it is a requirement
that each of the undersigned Restricted Subsidiaries execute a supplemental
indenture agreeing to be bound by the terms of the 2002 Indenture and to execute
a Subsidiary Guarantee in accordance with the terms of the 2002 Indenture; and
WHEREAS, each of the undersigned Restricted Subsidiaries has executed the Second
Supplemental Indenture to the 2002 Indenture pursuant to which it agrees to be a
Subsidiary Guarantor thereof and to execute a Subsidiary Guarantee;
NOW, THEREFORE:
Each of the undersigned Restricted Subsidiaries jointly and severally and
unconditionally guarantees, on a senior basis (each such guarantee being a
"Subsidiary Guarantee"), to each Holder of a Note authenticated and delivered by
the Trustee irrespective of the validity or enforceability of the 2002
Indenture, the Notes or the obligations of the Company under the 2002 Indenture
or the Notes, that: (i) the principal of, premium, if any, and interest on the
Notes of every series issued hereunder shall be paid in full when due, whether
at the maturity or interest payment or mandatory redemption date, by
acceleration, call for redemption or otherwise, and interest on the overdue
principal and interest, if any, of the Notes and all other obligations of the
Company to the Holders or the Trustee under the 2002 Indenture or the Notes
shall be promptly paid in full or performed, all in accordance with the terms of
the 2002 Indenture and the Notes; and (ii) in case of any extension of time of
payment or renewal of and Notes or any of such other obligations, they shall be
paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at maturity, by acceleration or otherwise. Failing payment
when due of any amount so guaranteed for whatever
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reason, each Subsidiary Guarantor shall be obligated to pay the same whether or
not such failure to pay has become an Event of Default that could cause
acceleration pursuant to Section 6.02 of the 2002 Indenture. Each Subsidiary
Guarantor agrees that this is a guarantee of payment, not a guarantee of
collection. Capitalized terms used herein have the meanings assigned to them in
the 2002 Indenture unless otherwise indicated, and the obligations of the
Subsidiary Guarantors pursuant to the Subsidiary Guarantees are subject to the
terms of the 2002 Indenture, to which reference is hereby made for the precise
terms thereof. The obligations of each subsidiary Guarantor to the Holders of
Notes and to the Trustee pursuant to the Subsidiary Guarantee and the 2002
Indenture are expressly set forth, and are senior unsecured obligations of each
such Subsidiary Guarantor to the extent and in the manner provided, in Article
10 of the 2002 Indenture, and may be released or limited under certain
circumstances. Reference is hereby made to such 0000 Xxxxxxxxx for the precise
terms of the Subsidiary Guarantee therein made.
Xxxxxx Tools, LLC
By: /s/ Xxx Junk
-------------------------------------------
Name: Xxx Junk
Its: President and Manager
Quail USA, LLC
By: /s/ W. Xxxx Xxxxxxxxxx
-------------------------------------------
Name: W. Xxxx Xxxxxxxxxx
Its: President and Manager
Xxxxxx USA Resources, LLC
By: /s/ Xxx Junk
-------------------------------------------
Name: Xxx Junk
Its: President and Manager
Xxxxxx Management Resources, L.P.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President of its General Partner, Xxxxxx
Drilling Management Services, Inc.
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Xxxxxx Offshore Resources, L.P.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President of its General Partner, Xxxxxx
Drilling Management Services, Inc.
Quail Tools, L.P.
By: /s/ W. Xxxx Xxxxxxxxxx
-------------------------------------------
Name: W. Xxxx Xxxxxxxxxx
Title: President of its General Partner, Quail
USA, LLC
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