Exhibit 4.1

Execution Version

VALARIS LIMITED
VALARIS FINANCE COMPANY LLC 

as Issuers

The Guarantors party hereto from time to time

and

WILMINGTON SAVINGS FUND SOCIETY, FSB,

as Trustee and Collateral Trustee

INDENTURE

Dated as of April 19, 2023

8.375% Senior Secured Second Lien Notes due 2030

TABLE OF CONTENTS

Page

Appendix A - Provisions Relating to Notes

EXHIBIT INDEX

INDENTURE, dated as of April 19, 2023, among VALARIS LIMITED, an exempted company incorporated under the laws of Bermuda (the “Company”), and VALARIS FINANCE COMPANY LLC, a Delaware limited liability company (“FinanceCo” and, together with the Company, the “Issuers”), the Guarantors party hereto and WILMINGTON SAVINGS FUND SOCIETY, FSB, as trustee (in such capacity, the “Trustee”) and as collateral trustee (in such capacity, the “Collateral Trustee”).

RECITALS

The Issuers have duly authorized the execution and delivery of this Indenture to provide for the issuance on the date hereof of $700,000,000 aggregate principal amount of the Issuers’ 8.375% Senior Secured Second Lien Notes due 2030 (the “Original Notes”) issued therefor as provided herein (the Original Notes and any Additional Notes (as defined below) together referred to herein as the “Notes”). All things necessary to make this Indenture a valid agreement of the Issuers, in accordance with its terms, have been done, and the Issuers have done all things necessary to make the Notes, when executed by the Issuers and authenticated and delivered by the Trustee and duly issued by the Issuers, the valid obligations of the Issuers as hereinafter provided.

THIS INDENTURE WITNESSETH

For and in consideration of the premises and the purchase of the Notes by the Holders thereof, the parties hereto covenant and agree, for the equal and proportionate benefit of all Holders, as follows:

Article 1
Definitions and Incorporation By Reference

Section 1.01.      Definitions.

“Acceptable Flag Jurisdiction” means (a) the Republic of the Marshall Islands, (b) the Republic of Liberia, (c) for as long as any First Lien Debt is outstanding, any flag jurisdiction otherwise approved by the First Lien Debt Representative for such Series of First Lien Debt or (d) any other flag jurisdiction so long as, in the case of this clause (d), the applicable Grantor executes and delivers a new Vessel Mortgage with respect to the relevant Collateral Vessel and delivers to the Collateral Trustee an opinion of counsel to the effect that such Vessel Mortgage has been duly executed and delivered by such Grantor, is binding on such Grantor and enforceable against such Grantor by the Collateral Trustee under the laws of the relevant jurisdiction, subject to customary enforceability exceptions, and that all necessary actions under the laws of such flag jurisdiction have been taken to perfect such lien.

“Additional Assets” means:

(a)            any Property (other than cash, cash equivalents, securities or other current assets), including any improvements thereto through capital expenditures or otherwise, to be used, or that is useful, in a Permitted Business;

(b)            Capital Stock of (i) a Person that becomes a Restricted Subsidiary as a result of the acquisition of that Capital Stock by the Company or another Restricted Subsidiary from any Person other than the Company or an Affiliate of the Company or (ii) any Person that at such time is a Restricted Subsidiary; provided, however, that, in the case of this clause (b), the Restricted Subsidiary is primarily engaged in a Permitted Business; or

(c)            all or substantially all of the assets of a Permitted Business.

“Additional Notes” means any Notes issued under this Indenture in addition to the Original Notes, but excluding any Notes issued pursuant to ‎Section 2.07, ‎2.09 or ‎3.06 or Appendix A in respect of the Original Notes.

“Administrative Agent” means the administrative agent under the Credit Agreement, which shall initially be Citibank, N.A.

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with that specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of that Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Applicable Premium” means, with respect to any Note on any Redemption Date, the greater of:

(a)            1.0% of the principal amount of such Note; and

(b)            the excess, if any, of (i) the present value on such Redemption Date of (A) the redemption price of such Notes on April 30, 2026 (such redemption price being that described in paragraph 5 of the Notes), plus (B) all required remaining scheduled interest payments due on such Note through April 30, 2026 (excluding accrued but unpaid interest to (but not including) such Redemption Date) computed using a discount rate equal to the Treasury Rate plus 50 basis points, over (ii) the principal amount of such Note.

“Approved Bank” means (a) any lender under the revolving credit facility under the Credit Agreement, (b) any United States domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (c) any bank (or parent thereof) whose short-term commercial paper rating from S&P is at least A-2 or the equivalent thereof or from Moody’s is at least P-2 or the equivalent thereof.

“ARO” means Saudi Aramco Rowan Offshore Drilling Company, a limited liability company incorporated under the laws of the Kingdom of Saudi Arabia.

“ARO JV Agreement” means the Shareholders’ Agreement, dated as of November 21, 2016, by and between Mukamala Oil Field Services Limited (as successor to Saudi Aramco Development Company) and the ARO Equity Holder relating to ARO.

“ARO JV Related Assets” means collectively, (i) the Capital Stock of ARO owned, directly or indirectly, by the Company or its Subsidiaries, (ii) the “Shareholder Instruments” (as defined in the ARO JV Agreement) and any other loans, notes or other obligations of ARO to the Company or any of its Subsidiaries, (iii) all right, title and interest of the Company or any of its Subsidiaries in and to the ARO JV Agreement, (iv) the rights of the Company or any of its Subsidiaries under (x) any Drilling Contract or agreement to operate between the Company or any of its Subsidiaries and ARO in respect of any Vessel and (y) any agreement pursuant to which the Company or any of its Subsidiaries manages a Third Party Vessel for ARO.

“Asset Sale” means:

(a)            the sale, lease (other than operating leases entered into in the ordinary course of business), conveyance or other disposition of any Property (including by way of a Sale-Leaseback Transaction or mergers, amalgamations, consolidations or otherwise); and

(b)            the issuance of Capital Stock in any Restricted Subsidiary of the Company or the sale by the Company or any Restricted Subsidiary of Capital Stock in any Restricted Subsidiary;

each of the foregoing referred to in clauses (a) and (b) of this definition, a “Disposition”, provided that, in the case of (a) or (b), the sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the Properties of the Company and its Restricted Subsidiaries (including by way of a merger, amalgamation or consolidation) will be governed by ‎Article 5 and not by ‎Section 4.07.

Notwithstanding the preceding, the following items will not be deemed to be Asset Sales:

(1)            any Disposition by a Restricted Subsidiary to the Company or by the Company or a Restricted Subsidiary to a Restricted Subsidiary;

(2)            any disposition that constitutes a Permitted Investment or Restricted Payment permitted by ‎Section 4.05;

(3)            any disposition effected in compliance with ‎Section 5.01 or any Disposition that constitutes a Change of Control;

(4)            any Disposition that does not (together with all related Dispositions) involve assets having a Fair Market Value in excess of $5 million;

(5)            any disposition of Cash Equivalents in the ordinary course of business;

(6)            any Disposition of the equipment (other than, for the avoidance of doubt, any Collateral Vessel), inventory, products, services, accounts receivable or other properties or assets in the ordinary course of business, including Dispositions of obsolete, damaged or worn out property or equipment or property or equipment that is no longer useful in the conduct of the business and its Restricted Subsidiaries;

(7)            any disposition pursuant to a Sale and Leaseback Transaction;

(8)            the creation or Incurrence of a Permitted Lien or any other Lien created or Incurred in compliance with ‎Section 4.06 and dispositions in connection therewith;

(9)            dispositions of receivables or notes payable in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;

(10)            the issuance by a Restricted Subsidiary of Preferred Stock or Disqualified Stock that is permitted by ‎Section 4.04;

(11)            a surrender or waiver of contract rights (including under notes payable) or a settlement, release or surrender of contract, tort or other claims in the ordinary course of business;

(12)            foreclosure on assets or property;

(13)            any grant of a non-exclusive license of trademarks, know-how, patents and any other intellectual property or intellectual property rights;

(14)            any sale or other disposition of Capital Stock in, or Debt or other securities of, an Unrestricted Subsidiary;

(15)            the lease, assignment, sub-lease, license or sub-license of any real or personal property in the ordinary course of business;

(16)            the lapse or abandonment of intellectual property rights in the ordinary course of business;

(17)            the issuance of directors’ qualifying shares and shares issued to foreign nationals or other third parties as required by applicable law;

(18)            sales of inventory in the ordinary course of business;

(19)            any exchange of like-kind property (excluding any securities) pursuant to Section 1031 of the Code that are used or useful in a Permitted Business;

(20)            condemnations, requisitions, takings or any similar action on assets;

(21)            dispositions of accounts receivable and related assets to a Securitization Subsidiary or to banks, investment banks, insurance companies, mutual funds or other institutional lenders in connection with a Permitted Receivables Financing;

(22)            the receipt of payment in the form of Capital Stock in respect of any note payable constituting a Permitted Investment;

(23)            dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in the joint venture agreements or any similar binding arrangements or pursuant to the terms of any joint venture or similar binding arrangements in effect on the Issue Date; and

(24)            the Company or any Restricted Subsidiary entering into, in the ordinary course of business, (x) the use or hire of a Vessel and any related assets, including pursuant to a Drilling Contract, and (y) one or more Drilling Contracts with respect to any Vessels.

“Assignments of Earnings” means, collectively, each second priority assignment of earnings to be executed in relation to each Collateral Vessel by the relevant Rig Owner in favor of the Collateral Trustee in relation to the Earnings.

“Assignments of Insurances” means, collectively, each second priority assignment of earnings to be executed in relation to each Collateral Vessel by the relevant Rig Owner and/or any other applicable Restricted Subsidiary in favor of the Collateral Trustee in relation to the Insurances and Requisition Compensation.

“Attributable Debt” in respect of a Sale and Leaseback Transaction means, at any date of determination,

(a)            if the Sale and Leaseback Transaction creates a Capital Lease Obligation or Synthetic Lease Obligation, the amount of Debt represented thereby according to the definition of “Capital Lease Obligation” or “Synthetic Lease Obligation,” as applicable, and

(b)            in all other instances, the present value (discounted at the interest rate borne by the Notes, compounded annually) of the total obligations of the lessee for rental payments during the remaining term of the lease included in the Sale and Leaseback Transaction (including any period for which the lease has been extended).

“Authentication Agent” means an institution appointed by the Issuers to authenticate the Notes.

“Average Life” means, as of any date of determination, with respect to any Debt or Preferred Stock, the quotient obtained by dividing:

(a)            the sum of the product of the numbers of years (rounded to the nearest one-twelfth of one year) from the date of determination to the dates of each successive scheduled principal payment of that Debt or redemption or similar payment with respect to that Preferred Stock multiplied by the amount of the payment, by

(b)            the sum of all payments of this kind.

“Bankruptcy Code” means Title 11 of the United States Code, as amended.

“Bankruptcy Law” means the Bankruptcy Code and any similar Federal, state or foreign law for the relief of debtors.

“Beneficial Owner” means a beneficial owner as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that:

(a)            a Person will be deemed to be the Beneficial Owner of all shares that the Person has the right to acquire, whether that right is exercisable immediately or only after the passage of time, and

(b)            for purposes of clause (a) of the definition of “Change of Control,” any “person” or “group” (as those terms are defined in Sections 13(d) and 14(d) of the Exchange Act or any successor provisions to either of the foregoing), including any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act, shall be deemed to be the Beneficial Owners of any Voting Stock of a corporation or other legal entity held by any other corporation or legal entity (the “parent corporation”), so long as that person or group Beneficially Owns, directly or indirectly, in the aggregate a majority of the total voting power of the Voting Stock of that parent corporation.

The term “Beneficially Own” shall have a corresponding meaning.

“Board of Directors” means (1) with respect to a corporation, the board of directors of the corporation or a duly authorized committee of the board of directors; (2) with respect to a partnership, the board of directors (or other governing body) of the general partner of the partnership or a duly authorized committee thereof; (3) with respect to a limited liability company, the managing member or members or any controlling committee or board of managers of such company or the Board of Directors of the sole member or the managing member thereof; and (4) with respect to any other Person, the board or committee of such Person serving a similar function.

“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York, Houston, Texas or the city in which the corporate trust office of the Trustee is located (or in connection with a payment, the place of payment) are authorized or required by law to close.

“Capital Lease Obligation” 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 GAAP and, for the purposes of this Indenture, the amount of such obligations shall be the amount thereof required to be capitalized and reflected as a liability on a balance sheet (other than the notes thereto) prepared in accordance with GAAP and the Stated Maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty, in each case. For purposes of ‎Section 4.06, a Capital Lease Obligation shall be deemed secured by a Lien on the Property being leased. Notwithstanding the foregoing or any other provision contained herein or any other Note Document, any lease (or similar arrangement) that would have been characterized, classified or reclassified as an operating lease in accordance with GAAP prior to the date of the Company’s adoption of Accounting Standards Codification 842 (or any other Accounting Standards Codification having a similar result or effect) (and related interpretations) (whether or not such lease was in effect on such date) shall not constitute a Capital Lease Obligation, and any such lease shall be, for all purposes of this Indenture and the other Note Documents, treated as though it were reflected on the Company’s consolidated financial statements in the same manner as an operating lease would have been reflected prior to the Company’s adoption of Accounting Standards Codification 842.

“Capital Stock” means, with respect to any Person, any shares or other equivalents (however designated) of any class of corporate stock or partnership interests or any other participation, rights, warrants, options or other interests in the nature of an equity interest in that Person, including Preferred Stock, but excluding any debt security convertible or exchangeable into that equity interest.

“Capital Stock Sale Proceeds” means the aggregate proceeds (including the Fair Market Value of property other than cash) received by the Company from the issuance or sale (other than to a Subsidiary of the Company, an employee stock ownership plan or trust established by the Company or the Subsidiary for the benefit of their employees) by the Company of its Capital Stock (other than Disqualified Stock) after the Issue Date, net of attorneys’ fees, accountants’ fees, underwriters’, initial purchasers’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with the issuance or sale and net of taxes paid or payable as a result thereof.

“Cash Equivalents” means any of the following types of Investments, to the extent owned by the Company or any Restricted Subsidiary: (a) Temporary Cash Investments, securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) or any other country whose sovereign debt has a rating of at least A3 from Moody’s or A- from S&P or any agency or instrumentality thereof, having maturities of not more than 24 months from the date of acquisition, (b) demand deposits, time deposits, certificates of deposit or bankers’ acceptances of any Approved Bank, in each case with maturities of not more than 364 days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody’s, and maturing within 24 months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company (including any Approved Bank) or recognized securities dealer having capital and surplus in excess of $500.0 million for direct obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least one hundred percent (100%) of the amount of the repurchase obligations, (e) Investments (classified in accordance with GAAP as current assets) in money market investment programs registered under the Investment Company Act of 1940 that are administered by financial institutions having capital of at least $500.0 million and the portfolios of which are limited to Investments of the character described in the foregoing subclauses hereof, (f) other short-term investments utilized by the Company or any Restricted Subsidiary in accordance with normal investment practices for cash management in investments of a type analogous to the foregoing, (g) U.S. Dollars or foreign currencies held from time to time in the ordinary course of business, and (h) interests in any investment company or money market fund which invests 95% or more of its assets in instruments specified in clauses (a) through (g) above.

“Cash Management Arrangement” means with respect to any Person, any obligations of such person in respect of treasury management arrangements including any of the following products, services or facilities: (a) demand deposit or operating account relationships or other cash management services including, without limitation, any services provided in connection with operating, collections, payroll, trust, or other depository or disbursement accounts, zero balance accounts, including automated clearinghouse fund transfer services, e-payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository, information reporting, automated clearinghouse transactions, return items, overdrafts, interstate depository network services, lockbox and stop payment services; and (b) treasury management line of credit, commercial card, merchant card services, purchase or debit cards, including, without limitation, stored value cards and non-card e-payables services.

“Cash Management Obligations” means obligations with respect to any Cash Management Arrangement.

“Change of Control” means the occurrence of any of the following events:

(a)            any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act or any successor provisions to either of the foregoing), including any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act, becomes the ultimate Beneficial Owner, directly or indirectly, of 50% or more of the total voting power of the Voting Stock of the Company; or

(b)            the sale, transfer, assignment, lease, conveyance or other disposition (other than by way of merger, amalgamation, consolidation, plan or scheme of arrangement, exchange offer, business combination or similar transaction of the Company), directly or indirectly, in one or a series of related transactions, of all or substantially all the Property of the Company and the Restricted Subsidiaries, considered as a whole (other than a disposition of assets to the Company or a Restricted Subsidiary) shall have occurred; or

(c)            the shareholders of the Company shall have approved any plan of liquidation or dissolution of the Company.

Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control under clause (a) above if (i) the Company becomes a direct or indirect Wholly Owned Subsidiary of an ultimate parent holding company and (ii)(a) the direct or indirect holders of the Voting Stock of such ultimate parent holding company immediately following that transaction are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction or (b) immediately following that transaction, no “person” or “group” (each as defined in clause (a) above) is the Beneficial Owner, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the ultimate parent holding company.

“Change of Control Triggering Event” means, with respect to the Notes, the occurrence of (x) a Change of Control that is accompanied or followed by a downgrade of the Notes as a result of a Change of Control within the applicable Ratings Decline Period by each of Moody’s and S&P (or, in the event Moody’s or S&P or both shall cease rating the Notes (for reasons outside the control of the Company) and the Company shall select any other Rating Agency, the equivalent of such ratings by such other Rating Agency) and (y) the rating of the Notes on any day during such Ratings Decline Period is below the lower of the rating by such Rating Agency in effect (i) immediately preceding the first public announcement of the Change of Control (or occurrence thereof if such Change of Control occurs prior to public announcement) and (ii) the Issue Date.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral” means (a) each Collateral Vessel; (b) the Insurances and Requisition Compensation in respect of each Collateral Vessel; (c) second priority pledges of all equity interests in (i) Rowan Rex Limited, (ii) the Issue Date Rig Owners and (iii) each subsidiary that holds joint venture interests in the joint ventures that own Vessels DS-4 and V106; (d) the Earnings in respect of each Collateral Vessel; (e) all future assets of the Company and the Guarantors that are pledged to secure the Senior Secured Credit Facility Obligations; and (f) all proceeds thereof, but excluding any Excluded Assets.

“Collateral Trust Agreement” means the Collateral Trust Agreement, dated as of the date hereof, among the Issuers, the other Grantors party from time to time thereto, the Trustee, the Collateral Trustee, the Administrative Agent and the other parties thereto from time to time, as such agreement may be amended, supplemented, amended and restated or otherwise modified from time to time.

“Collateral Trust Joinder” means a joinder to the Collateral Trust Agreement in accordance with the terms thereof.

“Collateral Vessel” means each Vessel that is subject to a Vessel Mortgage pursuant to the terms of the Second Lien Documents, other than any Excluded Vessel and any Vessel that ceases to be a Collateral Vessel as a result of the release of any Lien in accordance with the terms of the Note Documents.

“Collateral Vessel Requirements” means, with respect to a Collateral Vessel and subject to the Collateral Trust Agreement and only to the extent delivered to (or, in respect of (a), below, the Rig Owner becomes a guarantor of any First Lien Obligations) any First Lien Debt Representative in connection with the First Lien Obligations:

(a)            to the extent such Rig Owner is not already a Guarantor, the Rig Owner shall have become a Guarantor in accordance with the provisions of ‎Section 4.14 and ‎Section 4.15 of this Indenture;

(b)            the Rig Owner shall have duly authorized, executed and delivered to the Collateral Trustee, and caused to be recorded in an Acceptable Flag Jurisdiction, a Vessel Mortgage with respect to such Collateral Vessel;

(c)            the Equity Owner(s) shall have duly authorized, executed and delivered share, quota or other equity pledge or charge agreements (or equivalent share security agreements) (as modified, supplemented or amended from time to time, each a “Share Pledge Agreement”), pursuant to which the Capital Stock owned by the Company or a Restricted Subsidiary of each Rig Owner of each Collateral Vessel shall have been pledged, mortgaged, charged or collaterally assigned (as applicable) to the Collateral Trustee (and, as applicable, the other Notes Secured Parties) to secure the Notes Obligations and shall have to the extent such Capital Stock constitutes possessory collateral, delivered to the Collateral Trustee all the pledged Capital Stock referred to therein (if applicable, by delivery of the original share or quota certificates), together with executed and undated transfer powers or forms (if applicable) and all other customary ancillary documentation (such as (but not limited to) registers of shareholders (which, if applicable, have been appropriately annotated to reflect the grant of security over the relevant shares) or quotaholders and of the ultimate beneficial owner(s), letters of undertaking, irrevocable proxies and powers of attorney, in each case as applicable), in each case, to the extent necessary under applicable laws to perfect the security interest granted pursuant to the applicable Share Pledge Agreement;

(d) the Rig Owner shall have duly authorized, executed and delivered an Assignment of Earnings substantially in the form of the Assignments of Earnings initially delivered in connection with the Issue Date with such changes as determined by the Company in good faith to be necessary or advisable with respect to the Earnings, thereby granting a security interest in favor of the Collateral Trustee to secure the Notes Obligations in all of such Rig Owner’s present and future Earnings;

(e)            the Rig Owner and/or any other Grantor, if applicable, shall have duly authorized, executed and delivered an Assignment of Insurances with respect to all policies and contracts of insurance and all entries of such Collateral Vessel, including (i) all claims, return of premium, rebated or other amounts and other moneys and claims for moneys due and to become due to the Rig Owner under such insurances, (ii) any compensation paid or payable by a governmental authority for the requisition for title, confiscation or compulsory acquisition to the Rig Owner and/or such other Grantor, (iii) all other rights of the Rig Owner and/or such other Grantor under or in respect of such insurances and (iv) any proceeds of any of the foregoing;

(f)            all filings (including appropriate financing statements (Form UCC-1) for filing under the Uniform Commercial Code of each relevant jurisdiction or similar filings in foreign jurisdictions), registrations, recordations, notifications, deliveries of instruments and other actions necessary to perfect and preserve the security interests described above shall have been duly effected within any applicable statutory time periods;

(g)            the Collateral Trustee shall have received certificates of ownership or encumbrance (or similar certificates as well as results of maritime registry searches with respect to each Collateral Vessel) from appropriate authorities evidencing (or confirmation updating previously reviewed certificates and indicating) that such Collateral Vessel is registered in the name of the Rig Owner in the register of an applicable Acceptable Flag Jurisdiction and that such Collateral Vessel is free from Liens other than Permitted Liens; and

(h)            the Collateral Trustee shall have received, to the extent applicable and to the extent delivered to any First Lien Debt Representative, opinions in similar scope and substance as delivered by the Grantors in connection with the Issue Date Rigs.

“Commodity Price Protection Agreement” means, in respect of a Person, any forward contract, commodity swap agreement, commodity option agreement or other similar agreement or arrangement designed to protect that Person against fluctuations in commodity prices.

“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 EBITDA” means, with respect to any Person and its Restricted Subsidiaries on a consolidated basis for any period, Consolidated Net Income for such period, plus

(a)            without duplication and, other than with respect to clauses (viii) and (ix), to the extent deducted and not added back in determining such Consolidated Net Income for such period, the sum of:

(b)           without duplication

provided that Consolidated EBITDA shall be calculated so as to exclude the effect of any gain or loss that represents after-tax gains or losses attributable to any sale, transfer or other disposition of assets by the Company or any Restricted Subsidiary, other than dispositions in the ordinary course of business, provided further that for the purposes of clause (b) of the definition of “Permitted Debt” in ‎Section 4.04, Consolidated EBITDA shall be calculated on a pro forma basis with such pro forma adjustments as are appropriate and consistent with the pro forma provisions set forth in the definition of “Consolidated Fixed Charges Coverage Ratio.”

“Consolidated Fixed Charges” means, for any period for any Person and its Restricted Subsidiaries on a consolidated basis, the sum, without duplication, of,

(a)           Consolidated Interest Expense for such period, plus

(b)           Disqualified Stock Dividends paid, accrued or scheduled to be paid or accrued during such period, excluding dividends paid in Qualified Capital Stock, plus

(c)           Preferred Stock Dividends paid, accrued or scheduled to be paid or accrued during such period, excluding dividends paid in Qualified Capital Stock.

“Consolidated Fixed Charges Coverage Ratio” means, as of any date of determination, the ratio of:

(a)           the aggregate amount of Consolidated EBITDA for the most recent four consecutive fiscal quarters ending prior to such determination date for which internal financial statements are available to

(b)           Consolidated Fixed Charges for those four fiscal quarters;

provided, however, that:

(1)           if:

(2)           if:

then Consolidated EBITDA for that period shall be calculated on a pro forma basis after giving effect to the Asset Sale, Investment or acquisition as if the Asset Sale, Investment or acquisition occurred on the first day of that period, provided, further, that any pro forma calculations giving effect, pursuant to clause (d) above, to the acquisition of a Qualified Vessel or sale, transfer or other disposition of a Vessel (including a committed construction contract with respect to a Qualified Vessel) shall be made as follows:

(a)           the amount of Consolidated EBITDA attributable to such Qualified Vessel or Vessel shall be calculated in good faith by the Company’s Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer or Treasurer;

(b)           in the case of a Qualified Services Contract, the Consolidated EBITDA shall be based on revenues actually earned pursuant to the Qualified Services Contract relating to such Qualified Vessels or Vessels, and shall take into account, where applicable, only actual expenses incurred without duplication in any measurement period;

(c)           with respect to any Qualified Vessels, the amount of Consolidated EBITDA shall be the lesser of the Consolidated EBITDA derived on a pro forma basis from revenues for (i) the first full year of the Qualified Services Contract and (ii) the average of the Consolidated EBITDA of each year of such Qualified Services Contract for the term of the Qualified Services Contract; and

(d)           with respect to any expenses attributable to a Qualified Vessel or Vessel, if the actual expenses differ from the estimate, the actual amount shall be used in such calculation.

If any Debt bears a floating rate of interest and is being given pro forma effect, the interest expense on that Debt shall be calculated as if the base interest rate in effect for the floating rate of interest on the date of determination had been the applicable base interest rate for the entire period (taking into account any Interest Rate Agreement applicable to that Debt if the applicable Interest Rate Agreement has a remaining term in excess of 12 months). In the event the Capital Stock of any Restricted Subsidiary is sold during the period, the Company shall be deemed, for purposes of clause (1) above, to have Repaid during that period the Debt of that Restricted Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are no longer liable for that Debt after the sale.

“Consolidated Funded Debt” means, without duplication, all Debt of the type described in clauses (a) (but excluding surety bonds, performance bonds or other similar instruments), (b), (f) (in respect of Debt of the type described in clauses (a), (b) (but excluding Debt constituting surety bonds, performance bonds or other similar instruments) and (i) of the definition of “Debt”) and (i) of the definition of “Debt,” of a Person and its Restricted Subsidiaries on a consolidated basis.

“Consolidated Interest Expense” means, for any period for any Person and its Restricted Subsidiaries, the sum of (a) all interest expense on a consolidated basis determined in accordance with GAAP, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income, but including, in any event, the interest component under Capital Lease Obligations, Synthetic Lease Obligations and any premiums, fees, discounts, expenses and losses on the sale of accounts receivable (and any amortization thereof) payable by the Company or any Restricted Subsidiary in connection with a Permitted Receivables Financing, but excluding any non-cash interest expense attributable to the movement in the mark-to-market valuation of Debt, Hedging Obligations or other derivative instruments, all amortization and write-offs of deferred financing fees, debt issuance costs, Hedging Obligations in connection with the early termination thereof, commissions, discounts, fees and expenses and expensing of any bridge, commitment or other financing fees, costs of surety bonds, charges owed with respect to letters of credit, bankers’ acceptances or similar facilities, all discounts, commissions, fees and other charges associated with any receivables financing and any expense resulting from the discounting of Debt in connection with the application of recapitalization or purchase accounting minus (b) interest income of the referent Person and its Restricted Subsidiaries for such period.

“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a) the aggregate principal amount of all Consolidated Funded Debt of the Company and its Restricted Subsidiaries minus the amount of unrestricted cash and Cash Equivalents of the Company and its Restricted Subsidiaries (on a pro forma basis, including reflecting any Incurrence of Debt and Repayment of Debt made on such date) to (b) the aggregate amount of Consolidated EBITDA for the Company for the four full fiscal quarters, treated as one period, ending prior to the date of the transaction giving rise to the need to calculate the Consolidated Leverage Ratio for which financial statements are required to be filed pursuant to ‎Section 4.03. In addition to and without limitation of the foregoing, for purposes of this definition, this ratio shall be calculated in a manner consistent with the definition of the “Consolidated Fixed Charges Coverage Ratio,” including any pro forma calculations.

“Consolidated Net Income” means, for any period, the net income or loss of the Company and the Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded

(a)            the income of any Person (other than the Company) that is not a Restricted Subsidiary except to the extent of the amount of dividends or similar distributions or other returns on investment actually paid by such Person to the Company or, subject to clauses (b) and (c) below, any of the Restricted Subsidiaries during such period in cash (or converted into cash by the Company or such Restricted Subsidiary),

(b)            the income of, and any amounts referred to in clause (a) above paid to, any Restricted Subsidiary (other than a Guarantor) to the extent that, on the date of determination, the declaration or payment of cash dividends or similar cash distributions by such Restricted Subsidiary is restricted by operation of the terms of its organizational documents or any agreement, instrument, judgment, decree, statute, rule or regulation applicable to such Restricted Subsidiary,

(c)            the income or loss of, and any amounts referred to in clause (a) above paid to, any Restricted Subsidiary (other than a Guarantor) that is not wholly owned by the Company to the extent such income or loss or such amounts are attributable to the noncontrolling interest in such Restricted Subsidiary,

(d)            any (i) non-cash compensation charge or expense arising from any issue or grant of shares or stock, stock options or other equity based awards and any non-cash deemed finance charges in respect of any pension liabilities or other provisions and (ii) income (loss) attributable to deferred compensation plans or trusts,

(e)            any gain or loss (less all fees and expenses relating thereto) realized upon sales or other dispositions of assets of the Company or such Restricted Subsidiary, other than in the ordinary course of business,

(f)            non-cash gains and losses due solely to fluctuations in currency values,

(g)            any after-tax effect of income (loss) from the early extinguishment of Debt or Hedging Obligations or other derivative instruments,

(h)            the cumulative effect of a change in accounting principles,

(i)            the effects from applying purchase accounting, including applying purchase accounting to inventory, property and equipment, software and other intangible assets and deferred revenue required or permitted by GAAP and related authoritative pronouncements, as a result of any other past or future acquisitions or the amortization or write-off of any amounts thereof,

(j)            goodwill write-downs or other non-cash impairments of assets,

(k)            gains or losses attributable to discontinued operations, and

(l)            any restructuring charges and any fees, expenses and charges related to any proposed or consummated equity offering, investment, acquisition, disposition, Incurrence of Debt or recapitalization.

Notwithstanding the foregoing, (i) for purposes of ‎Section 4.05 only, there shall be excluded from Consolidated Net Income any dividends, repayment of loans or advances or other transfers of assets from Unrestricted Subsidiaries to the Company or a Restricted Subsidiary to the extent the dividends, repayments or transfers increase the amount of Restricted Payments permitted under that covenant pursuant to clause (c)(4) thereof, and (ii) any net income (loss) of any Person (other than the Company) that is not a Restricted Subsidiary shall be excluded in calculating Consolidated Net Income, except that the Company’s equity in the net income of any such Person for any period shall be included without duplication, in such Consolidated Net Income up to the aggregate amount of cash distributed (or distributions converted into cash by the Company or a Restricted Subsidiary) by the Person during such period to the Company or a Restricted Subsidiary as a dividend or distribution or other return on investment.

“Consolidated Secured Leverage Ratio” means, as of any date of determination, the ratio of (a) the aggregate principal amount of all Consolidated Funded Debt of the Company and its Restricted Subsidiaries (on a pro forma basis reflecting any Incurrence of Debt and Repayment of Debt made on such date), secured by a Lien as of such date minus the amount of unrestricted cash and Cash Equivalents of the Company and its Restricted Subsidiaries (on a pro forma basis reflecting any Incurrence of Debt and Repayment of Debt made on such date) to (b) the aggregate amount of Consolidated EBITDA for the Company for the four full fiscal quarters, treated as one period, ending prior to the date of the transaction giving rise to the need to calculate the Consolidated Secured Leverage Ratio for which financial statements are required to be filed pursuant to ‎Section 4.03. In addition to and without limitation of the foregoing, for purposes of this definition, this ratio shall be calculated in a manner consistent with the definition of the “Consolidated Fixed Charges Coverage Ratio,” including any pro forma calculations.

“Credit Agreement” means the Senior Secured Revolving Credit Agreement, dated as of April 3, 2023, by and among Valaris Limited, the lenders and issuing banks from time to time party thereto, Citibank, N.A., as administrative agent, and Wilmington Savings Fund Society, FSB, as collateral trustee, as amended, restated, supplemented, modified, renewed, refunded, replaced (whether at maturity or thereafter) or refinanced from time to time in one or more agreements (in each case with the same or new agents, lenders or institutional investors), including any agreement adding or changing the borrower or extending the maturity thereof or otherwise restructuring all or any portion of the Debt thereunder or increasing the amount loaned or issued thereunder or altering the maturity thereof.

“Credit Facilities” means, with respect to the Company or any Restricted Subsidiary, (1) the facilities provided in the Credit Agreement and (2) one or more debt or commercial paper facilities, debt issuances, debt instruments or arrangements (including related Guarantees) with banks, investment banks, insurance companies, mutual funds or other institutional lenders or investors providing for revolving credit loans, term loans, notes, debentures, indentures, debt securities, or receivables or inventory financing (including through the sale of receivables or inventory to institutional lenders or to special purpose, bankruptcy remote entities formed to borrow from institutional lenders against those receivables or inventory); in each case together with any Refinancing thereof.

“Currency Exchange Protection Agreement” means, in respect of a Person, any foreign exchange contract, currency swap agreement, currency option or other similar agreement or arrangement designed to protect that Person against fluctuations in currency exchange rates.

“Debt” means, with respect to any Person on any date of determination (without duplication), in each case, if and to the extent that any of the foregoing Debt (other than letters of credit and Hedging Obligations) would appear as a liability on a balance sheet (excluding the notes thereto) of such Person prepared in accordance with GAAP:

(a)           the principal of:

(b)            all Capital Lease Obligations and Synthetic Lease Obligations of the Person and all Attributable Debt in respect of Sale and Leaseback Transactions entered into by the Person;

(c)            all obligations of the Person representing the balance deferred and unpaid of the purchase price of any Property due more than six months after such Property is acquired, all conditional sale obligations of the Person and all obligations of the Person under any title retention agreement;

(d)            all obligations of the Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction (other than obligations with respect to letters of credit securing obligations (other than obligations described in clauses (a) through (c) above) entered into in the ordinary course of business of the Person to the extent those letters of credit are not drawn upon or, if and to the extent drawn upon, the drawing is reimbursed no later than the tenth Business Day following receipt by the Person of a demand for reimbursement following payment on the letter of credit);

(e)            [reserved];

(f)            to the extent not otherwise included in this definition, any Guarantee of the Debt of other Persons of the type referred to in clauses (a) through (e);

(g)            to the extent not otherwise included in this definition, all Debt of the type referred to in clauses (a) through (f) of other Persons secured by any Lien on any Property of such Person (whether or not such obligation is assumed by such Person), the amount of such Debt being deemed to be the lesser of the value of that Property or the amount of the Debt so secured;

(h)            to the extent not otherwise included in this definition, Hedging Obligations of such Person (the amount of any such Hedging Obligations to be equal at any time to the termination value of such agreement or arrangement giving rise to such Hedging Obligations that would be payable by such Person at such time); and

(i)            the amount of any obligations under a Permitted Receivables Financing to which such Person is a party.

The amount of Debt of any Person at any date shall be the outstanding balance at that date of all unconditional obligations as described above and the maximum liability, upon the occurrence of the contingency giving rise to the obligation, of any contingent obligations at that date. Notwithstanding the foregoing, “Debt” shall not include any customary earn-out obligations or other contingent acquisition consideration until the same becomes a liability on the balance sheet of such Person in accordance with GAAP, trade payables and accrued expenses (or intercompany reimbursement obligations in respect thereof) arising in the ordinary course of business, deferred taxes, obligations assumed or liabilities incurred under any Drilling Contract, Internal Charter, stacking agreements or other forms of service agreement in the ordinary course of business (e.g., bid bonds and performance guaranties), prepayments for property or services under any Drilling Contract, Internal Charter, stacking agreements or other forms of service agreement in the ordinary course of business or any indebtedness with respect to which cash or cash equivalents in an amount sufficient to repay in full the principal and accrued interest on such indebtedness has been escrowed with the trustee or other depository for the benefit of the holders in respect of such indebtedness but only to the extent the foregoing constitutes a complete defeasance of such indebtedness pursuant to the applicable agreement governing such indebtedness.

“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.

“Designated Non-Cash Consideration” means the Fair Market Value of non-cash consideration received by the Company or one of its Restricted Subsidiaries in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate, setting forth the basis of such valuation, less the amount of cash and Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.

“Discharge of First Lien Obligations” means the occurrence of all of the following:

(1)            termination or expiration of all commitments to extend credit that would constitute First Lien Debt;

(2)            with respect to each Series of First Lien Debt, either (x) payment in full in cash of the principal of and interest and premium (if any) on all First Lien Debt of such Series (other than any undrawn letters of credit and any indemnification and other contingent obligations not then due and payable and as to which no claim has been made at such time) or (y) there has been a legal defeasance or covenant defeasance pursuant to the terms of the applicable First Lien Documents for such Series of First Lien Debt;

(3)            with respect to any undrawn letters of credit constituting First Lien Debt, either (x) discharge or cash collateralization (at the lower of (A) 105% of the aggregate undrawn amount and (B) the percentage of the aggregate undrawn amount required for release of liens under the terms of the applicable First Lien Document) of all outstanding letters of credit constituting First Lien Debt or (y) the issuer of each such letter of credit has notified the Collateral Trustee in writing that alternative arrangements satisfactory to such issuer have been made; and

(4)            payment in full in cash of all other First Lien Obligations that are outstanding and unpaid at the time the First Lien Debt is paid in full in cash.

“Disposition” has the meaning set forth in the definition of “Asset Sale.”

“Disqualified Stock” means, with respect to any Person, any Capital Stock that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, in either case at the option of the holder thereof) or upon the happening of any event (other than at the option of such Person):

(a)            matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise,

(b)            is or may become redeemable or repurchaseable at the option of the holder thereof, in whole or in part, or

(c)            is convertible or exchangeable at the option of the holder thereof for Debt or Disqualified Stock,

on or prior to, in the case of clause (a), (b) or (c), the date that is 91 days after the original Stated Maturity of the Notes. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase or redeem such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with ‎Section 4.05. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

“Disqualified Stock Dividends” means all dividends with respect to Disqualified Stock of the Company or any Restricted Subsidiary held by Persons other than the Company or a Wholly Owned Restricted Subsidiary. The amount of any dividend of this kind shall be equal to the quotient of the dividend divided by the difference between one and the maximum statutory consolidated federal, state and local income tax rate (expressed as a decimal number between 1 and 0) then applicable to the issuer of the Disqualified Stock.

“Domestic Restricted Subsidiary” means, a Restricted Subsidiary that is any direct or indirect Subsidiary of the Company that is organized under the laws of the United States, any state of the United States or the District of Columbia.

“Drilling Contract” means any drilling contract in respect of any Vessel or other contract for the use or hire of any Vessel, including charters, bareboat charters, sub-charters, pool agreements, leases and other contracts of employment (except for an Internal Charter).

“DS-13” means the vessel, expected to be named “ATWOOD ARCHER,” which as of the date hereof is under construction pursuant to that certain Contract for the Construction and Sale of Drillship dated September 2012 between Alpha Admiral Company and Daewoo Shipbuilding & Marine Engineering Co., Ltd.

“DS-14” means the vessel, expected to be name “ATWOOD ADMIRAL,” which as of the date hereof is under construction pursuant to that certain Contract for the Construction and Sale of Drillship dated June 24, 2013 between Alpha Admiral Company and Daewoo Shipbuilding & Marine Engineering Co., Ltd.

“Earnings” means, in respect of any Collateral Vessel, (i) all freight, hire, income and passage moneys directly payable to the applicable Rig Owner as a consequence of the ownership or charter of such Collateral Vessel, including without limitation all payments directly payable to the applicable Rig Owner under any intercompany charter with respect to such Collateral Vessel, including any termination payments or settlement payments in respect thereof, (ii) any claim under any guarantee in respect of such intercompany charter or otherwise related to freight, hire, income or passage moneys, in each case directly payable directly or indirectly to the applicable Rig Owner as a consequence of the ownership or charter of such Collateral Vessel and (iii) any other money whatsoever due or to become due directly to the applicable Rig Owner in relation to such Collateral Vessel.

“Eligible LCE” means a Local Content Entity (a) with respect to which the provision of a Guarantee of the Note Obligations by such Local Content Entity (subject to inclusion of any local law-required limitations and such other changes as the Administrative Agent may reasonably agree) would not be prohibited by its organizational or constitutional documents, by applicable laws or by any applicable limitation, rule and/or principle, (b) that is controlled by the Company (which, for this purpose means that the Company or a Subsidiary of the Company has the unilateral ability to cause such Local Content Entity to enter into any Guarantee of the Note Obligations), and (c) that is a Restricted Subsidiary of the Company.

“Equity Offering” means (i) an underwritten public equity offering of Qualified Capital Stock of the Company pursuant to an effective registration statement under the Securities Act, or any direct or indirect parent company of the Company but only to the extent contributed to the Company in the form of Qualified Capital Stock of the Company or (ii) a private equity offering of Qualified Capital Stock of the Company, or any direct or indirect parent company of the Company but only to the extent contributed to the Company in the form of Qualified Capital Stock of the Company, other than any public offerings registered on Form S-8.

“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated by the SEC thereunder.

“Excluded Assets” means, collectively:

(1)            the Excluded Vessels;

(2)            the ARO JV Related Assets if and to the extent any restrictions on assignments and/or the creation of Liens with respect thereto remain outstanding;

(3)            any assets (other than any Collateral Vessel and asset and proceeds related thereto), to the extent the grant of a Liens on such assets is prohibited or restricted by applicable law, rule or regulation (including as a result of the requirement to obtain the consent, approval, license or authorization of any governmental authority unless such consent has been obtained (and it being understood and agreed that no Grantor shall have any obligation to procure any such consent, approval, license or authorization));

(4)            (i) margin stock and (ii) minority interests or Capital Stock in joint ventures and non-wholly owned Subsidiaries (other than Capital Stock in any Guarantor or Rig Owner), in any such case of this clause (ii), to the extent the grant of a Lien on such interest would require a consent, approval, license or authorization from any governmental authority or any other Person (other than the Company or a Restricted Subsidiary);

(5)            (i) except with respect to any Collateral Vessel and asset and proceeds related thereto, any Grantor’s right, title or interest in any lease, license, contract, or agreement to which such Grantor is a party or any of its right, title or interest thereunder, (ii) any property subject to a Lien securing Debt permitted by clause (l) of the definition of “Permitted Debt” in ‎Section 4.04 (or any Permitted Refinancing Debt with respect thereto) or (iii) any other permitted purchase money Lien, Capitalized Lease Obligation or similar arrangement, in each case to the extent, but only to the extent that a grant of a security interest therein to secure the Secured Obligations would violate or invalidate such lease, license, contract, or agreement or purchase money or similar arrangement (including as a result of any requirement to obtain the consent, approval, license or authorization of any third party unless such consent has been obtained (and it being understood and agreed that no Grantor shall have any obligation to procure any such consent, approval, license or authorization)) or create a right of termination in favor of any other party thereto (other than the Company or a Restricted Subsidiary) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition;

(6)            any assets (other than any Collateral Vessel and assets and proceeds related thereto) to the extent the grant of a security interest in such assets would result in material adverse tax consequences to the Company or any Restricted Subsidiary as reasonably determined by the Company;

(7)            any assets (other than any Vessel and assets and proceeds related thereto) as to which the Collateral Trustee and the Company shall reasonably agree in writing that the cost of obtaining a security interest therein is excessive in relation to the practical benefit to the Secured Parties afforded thereby;

(8)            any after-acquired property (including property acquired through acquisition or merger or amalgamation of another entity, but excluding any Collateral Vessel and assets and proceeds related thereto) if at the time such acquisition is consummated the granting of a security interest therein or the pledge thereof is prohibited by any enforceable contract or other agreement (in each case, binding on the assets at the time of such consummation and not created or entered into in contemplation thereof), solely to the extent and for so long as such contract or other agreement (or a permitted refinancing or replacement thereof) prohibits such security interest or pledge; and

(9)            the Capital Stock of (i) Unrestricted Subsidiaries, (ii) Excluded Subsidiaries (other than, in the case of this clause (ii), any Subsidiary that guarantees the Notes) and (iii) other than with respect to any Rig Owner, any Eligible LCE to the extent the organizational or constitutional documents of such Eligible LCE prohibit a pledge of Capital Stock of such Eligible LCE;

provided, in each case, that such assets are not pledged to secure any First Lien Obligations.

“Excluded Subsidiary” means any Subsidiary that is excluded from the requirement to provide a Guarantee of the Senior Secured Credit Facility Obligations pursuant to the terms of the Credit Agreement.

“Excluded Vessels” means (a) the DS-13 and the DS-14; and (b) the V145, V54, V109, V104, V111, V75, V102, DPS-3, DPS-6 and ENSCO DS-10, provided, in each case, that such Vessels are not pledged to secure any First Lien Obligations.

“Fair Market Value” means, with respect to any asset or liability, the fair market value of such asset or liability, as determined by an Officer of the Company in good faith.

“FinanceCo” means the Person named as “FinanceCo” 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 “FinanceCo” shall mean such successor Person.

“First Lien Debt” means (1) the Obligations under the Credit Agreement and Cash Management Obligations and obligations under Swap Agreements entered into in connection with, or secured by the collateral securing, such Obligations and (2) any other Funded Debt (including borrowings under any other First Lien Documents) that is secured by a first-priority Lien on the Collateral and that was permitted to be Incurred and permitted to be so secured under the applicable First Lien Documents and Second Lien Documents, including this Indenture; provided, that, in the case of this clause (2), (a) on or before such Funded Debt is Incurred such Funded Debt is designated by the Company as “First Lien Debt” for the purposes of the Secured Debt Documents in an Additional Secured Debt Designation (as defined in the Collateral Trust Agreement), (b) unless such Funded Debt is Incurred under an existing Secured Debt Document for any Series of First Lien Debt whose Secured Debt Representative is already party to the Collateral Trust Agreement, the First Lien Debt Representative for such Funded Debt executes and delivers a Collateral Trust Joinder in respect of and in accordance with the Collateral Trust Agreement.

“First Lien Debt Representative” means, (a) in the case of the Credit Agreement, the Administrative Agent and (b) in the case of any other Series of First Lien Debt, the trustee, agent or representative of the holders of such Series of First Lien Debt who maintains the transfer register for such Series of First Lien Debt or is appointed as a representative of such First Lien Debt (for purposes related to the administration of the Security Documents) pursuant to this Indenture, credit agreement or other agreement governing such Series of First Lien Debt and who has executed a Collateral Trust Joinder, in each case, together with its successors and assigns in such capacity.

“First Lien Documents” means any indenture, notes, credit agreement, including the Credit Agreement, or other agreement or instrument pursuant to which any First Lien Debt is Incurred and the First Lien Security Documents.

“First Lien Obligations” means, collectively, the First Lien Debt and all other Obligations in respect of First Lien Debt, including any post-petition interest whether or not allowable, and all guarantees of any of the foregoing. In addition to the foregoing, all obligations owing to the Collateral Trustee in its capacity as such, whether pursuant to the Collateral Trust Agreement or one or more of the Secured Debt Documents, shall in each case be deemed to constitute First Lien Obligations (with the obligations described in this sentence being herein the “Collateral Trustee Obligations”), which Collateral Trustee Obligations shall be entitled to the priority provided in clause FIRST under Section 3.04(a) of the Collateral Trust Agreement.

“First Lien Secured Parties” means the holders of First Lien Obligations, including the Senior Secured Credit Facility Secured Parties, each First Lien Debt Representative and the Collateral Trustee.

“First Lien Security Documents” means all security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, collateral agency agreements, control agreements, consent or direct arrangements, or other grants or transfers for security executed and delivered by the Company or any Guarantor creating or perfecting (or purporting to create or perfect) or governing rights of enforcement with respect to, a Lien upon Collateral in favor of the Collateral Trustee, for the benefit of any of the First Lien Secured Parties (or, in certain jurisdictions, in favor of the Collateral Trustee acting for itself and as direct representative of the First Lien Secured Parties), in each case, as amended, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms and as described in Section 7.01 of the Collateral Trust Agreement.

“Fitch” means Fitch Ratings Inc., or any successor to the rating agency business thereof.

“Foreign Subsidiary” means any Restricted Subsidiary of the Company that is not a Domestic Restricted Subsidiary.

“Funded Debt” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:

(a)            in respect of borrowed money or advances (including drawn letters of credit not yet reimbursed); or

(b)            evidenced by loan agreements, bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof), whether or not then available or drawn; or

(c)            in respect of Cash Management Obligations secured by the same collateral securing the obligations in (a) or (b) above; or

(d)            in respect of obligations under Swap Agreements secured by the same collateral securing the obligations in (a) or (b) above.

“Future Rig Owners” means any other Restricted Subsidiary of the Company owning a Collateral Vessel.

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board Accounting Standards Codification or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, as in effect from time to time; provided that leases (regardless of when entered into) will be accounted for using the generally accepted accounting principles in the United States of America in effect for fiscal years ending on or before December 15, 2018 and any changes in the accounting for leases for fiscal years beginning after December 15, 2018 will be disregarded. For the purposes of this Indenture, the term “consolidated,” with respect to any Person, shall mean such Person consolidated with its Restricted Subsidiaries, and shall not include any Unrestricted Subsidiary, but the interest of such Person in an Unrestricted Subsidiary will be accounted for as an Investment. If at any time the SEC permits or requires U.S. domiciled companies subject to the reporting requirements of the Exchange Act to use IFRS in lieu of GAAP for financial reporting purposes, the Company may elect by written notice to the Trustee to so use IFRS in lieu of GAAP and, upon any such notice, references herein to GAAP shall thereafter be construed to mean (a) for periods beginning on and after the date specified in such notice, IFRS as in effect on the date specified in such notice and as in effect from time to time (for all other purposes of this Indenture) and (b) for prior periods, GAAP as defined in the first sentence of this definition.

“Grantor” means the Company and any Guarantor.

“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Debt of any other Person and any obligation, direct or indirect, contingent or otherwise, of that Person:

(a)            to purchase or pay (or advance or supply funds for the purchase or payment of) the Debt of such other Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise), or

(b)            entered into for the purpose of assuring in any other manner the obligee against loss in respect of such Debt (in whole or in part);

provided, however, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.

The term “Guarantee” used as a verb has a corresponding meaning.

“Guarantor” means (a) the Restricted Subsidiaries of the Company, other than FinanceCo, executing this Indenture as initial Guarantors and (b) any other Restricted Subsidiary of the Company that becomes a Guarantor in accordance with the provisions of this Indenture and their respective successors and assigns, in each case until such Guarantor is released from its Note Guaranty in accordance with the terms of this Indenture.

“Hedging Obligation” of any Person means any obligation of that Person pursuant to any Interest Rate Agreement, Currency Exchange Protection Agreement, Commodity Price Protection Agreement or any other similar agreement or arrangement.

“Holder” or “Noteholder” means the Person in whose name the Note is registered on the Note register described in ‎Section 2.04.

“Incur” means, with respect to any Debt or other obligation of any Person, to create, issue, incur (by merger, conversion, exchange or otherwise), extend, assume, Guarantee or become liable in respect of that Debt or other obligation or the recording, as required pursuant to GAAP or otherwise, of any Debt or obligation on the balance sheet of that Person (and “Incurrence” and “Incurred” shall have meanings correlative to the foregoing); provided, however, that a change in GAAP that results in an obligation of that Person that exists at such time, and is not theretofore classified as Debt, becoming Debt shall not be deemed an Incurrence of that Debt; provided further, however, that any Debt or other obligations of a Person existing at the time the Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by that Subsidiary at the time it becomes a Subsidiary; and provided further, however, that solely for purposes of determining compliance with ‎Section 4.04, amortization of debt discount or premium shall not be deemed to be the Incurrence of Debt, provided that in the case of Debt sold at a discount or at a premium, the amount of the Debt Incurred shall at all times be the aggregate principal amount at Stated Maturity.

“Indenture” means this Indenture as amended or supplemented from time to time.

“Independent Financial Advisor” means an investment banking firm of national standing or any third party appraiser of national standing, provided that the firm or appraiser is not an Affiliate of the Company.

“Insurances” means all policies and contracts of insurance and all entries of such Collateral Vessel, including (i) all claims, return of premium, rebates or other amounts and other moneys and claims for moneys due and to become due to a Guarantor under such insurances, (ii) all other rights of a Guarantor under or in respect of such insurances, and (ii) any proceeds of any of the foregoing.

“Interest Rate Agreement” means, for any Person, any interest rate swap agreement, interest rate option agreement or other similar agreement or arrangement designed to protect against fluctuations in interest rates.

“Internal Charter” means any charter or other contract respecting the use or operations of any Vessel between any Restricted Subsidiary that is a Vessel owner (or an Internal Charterer of such Vessel), on the one hand, and any Internal Charterer, on the other hand.

“Internal Charterer” means the Company or any Restricted Subsidiary that is not the owner of the relevant Vessel and that is a party to any Drilling Contract in respect of a Vessel.

“Investment” by any Person means any direct or indirect loan (other than advances or extensions of credit to customers and suppliers in the ordinary course of business), advance or other extension of credit or capital contribution (by means of transfers of cash or other Property to others or payments for Property or services for the account or use of others, or otherwise) to, or Incurrence of a Guarantee of any Debt of, or purchase or acquisition of Capital Stock, bonds, notes, debentures or other securities or evidence of Debt issued by, any other Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor undertakes any Support Obligation with respect to Debt of such other Person. For purposes of ‎Section 4.05 and ‎Section 4.10 and the definition of “Restricted Payment,” “Investment” shall include the portion (proportionate to the Company’s equity interest in the Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of the Company at the time that the Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of that Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary of an amount (if positive) equal to:

(a)            the Company’s “Investment” in that Subsidiary at the time of such redesignation, less

(b)            the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of that Subsidiary at the time of such redesignation.

In determining the amount of any Investment made by transfer of any Property other than cash, the Property shall be valued at its Fair Market Value at the time of the Investment.

“Investment Grade Rating” means a rating equal to or higher than “Baa3” (or the equivalent) by Moody’s, a rating equal to or higher than BBB- (or the equivalent) by Fitch, and a rating equal to or higher than BBB- (or the equivalent) by S&P or, in the event S&P, Fitch or Moody’s shall cease rating the Notes (for reasons outside the control of the Company) and the Company shall select any other Rating Agency, the equivalent of such ratings by such other Rating Agency.

“Issue Date” means April 19, 2023, the date on which the Notes are originally issued under this Indenture.

“Issue Date Rig” means each Vessel subject to a Vessel Mortgage on the Issue Date.

“Issue Date Rig Owners” means all existing Restricted Subsidiaries of the Company owning an Issue Date Rig.

“Issuers” means the Company and FinanceCo.

“Lien” means, with respect to any Property of any Person, any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, security interest, lien, charge, easement (other than any easement not materially impairing usefulness or marketability), encumbrance, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to that Property (including any Capital Lease Obligation, Synthetic Lease Obligation, conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing or any Sale and Leaseback Transaction).

“Limited Recourse Debt” means Debt Incurred by a Restricted Subsidiary that has no assets or operations other than those related to the Vessels referred to below for the purpose of financing a portion of the purchase price of one or more Vessels, as and to the extent permitted pursuant to clause (22) of the definition of “Permitted Debt” in ‎Section 4.04, which Debt may be secured by Liens on such Vessels and on any other assets acquired with the proceeds of such Debt pursuant to clause (jj) of the definition of “Permitted Liens” and any related assets related to the operation of such Vessels, including related Drilling Contracts, and the sole recourse of the holder of such Debt shall be to the Restricted Subsidiary that is the obligor of such Debt, to the assets permitted to secure such Debt pursuant to clause (jj) of the definition of “Permitted Liens” (including the Capital Stock in such Restricted Subsidiary), and such holder shall have no recourse to the Company or any other Restricted Subsidiary, or to any other of their respective assets (other than such Capital Stock); provided that such Debt may be guaranteed on an unsecured basis by the Company.

“Local Content Entity” means any Affiliate of the Company (a) that owns or is contemplated to own a Vessel or that is party to or contemplated to be party to a charter party agreement, Drilling Contract or any demise, bareboat, time, voyage, other charter, lease or other right to use of a Vessel owned by it or by the Company, any Restricted Subsidiary or another Local Content Entity and (b) the capital stock, shares or other Capital Stock of which is jointly owned by the Company or any Restricted Subsidiary and any other Person that is required or necessary under local law or custom to own capital stock, shares or other Capital Stock in the Local Content Entity as a condition for (i) the operation of a Vessel in such jurisdiction, (ii) the ownership of any asset owned, or contemplated to be acquired, by such entity in such jurisdiction or (iii) the business transacted, or contemplated to be transacted, by such entity in such jurisdiction; provided that Local Content Entities shall not include joint ventures that are formed in the ordinary course and for purposes other than local law requirements or local law customs.

“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.

“Net Available Cash” from any Asset Sale means cash payments received therefrom (including any cash payments received upon the sale or other disposition of any Designated Non-Cash Consideration received in any Asset Sale, any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Debt or other obligations relating to the Property that is the subject of that Asset Sale or received in any other non-cash form), in each case net of:

(a)            all legal, accounting, title and recording tax expenses, commissions and other fees (including, without limitation, brokers’ or investment bankers’ commissions or fees) and expenses incurred, and all federal, state, provincial, foreign and local taxes paid or reasonably estimated to be payable, as a consequence of the Asset Sale and any repatriation costs associated with receipt or distribution by the applicable taxpayer of such proceeds,

(b)            all payments made on any Debt that is secured by any Property subject to the Asset Sale (other than property constituting Collateral), in accordance with the terms of any Lien upon or other security agreement of any kind with respect to that Property, or which must by its terms, or in order to obtain a necessary consent to the Asset Sale, or by applicable law, be repaid out of the proceeds from the Asset Sale,

(c)            all distributions and other payments required to be made to noncontrolling interest holders in Subsidiaries or joint ventures as a result of the Asset Sale,

(d)            the deduction of appropriate amounts provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the Property disposed in the Asset Sale and retained by the Company or any Restricted Subsidiary after the Asset Sale, and

(e)            any amounts used to repay or return any customer deposits required to be repaid or returned as a result of any disposition

provided, that, to the extent that any portion of the consideration for an Asset Sale is required by contract to be held in a separate escrow or deposit account to support indemnification, adjustment of purchase price or similar obligations, such portion of the consideration shall become Net Available Cash only at such time as it is released to the Company or a Restricted Subsidiary from the escrow or deposit account.

“Net Cash Proceeds” means with respect to any incurrence or issuance of Debt, the aggregate principal amount actually received in cash by the Company or any Restricted Subsidiary in connection therewith, net of direct costs (including legal, accounting and investment banking fees and expenses, sales brokerage commissions and underwriting discounts).

“Note Documents” means the Notes (including Additional Notes), the Note Guaranties, this Indenture, the Security Documents and the Collateral Trust Agreement.

“Note Guaranty” means the guarantee of the Notes by a Guarantor pursuant to this Indenture.

“Noteholder” has the meaning ascribed to it under the definition of Holder.

“Note Obligations” means Obligations in respect of the Note Documents.

“Notes Secured Parties” means the Trustee, the Collateral Trustee and the Holders of the Notes.

“Obligations” means any principal, interest, penalties, fees, premiums, expenses, indemnifications, damages, reimbursements (including reimbursement obligations with respect to letters of credit) and Cash Management Obligations and other liabilities payable under documentation governing any indebtedness (including post-petition interest and fees accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Issuers or any Guarantor whether or not a claim for post-petition interest or fees is allowed in such proceedings).

“Offering Memorandum” means the final offering memorandum relating to the offering of the Original Notes dated April 4, 2023.

“Officer” means the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, any President, any Vice President, the Chief Accounting Officer, any Executive Vice President, the Controller, any Senior Vice President, the Treasurer, or the Secretary of the Company or any other officer designated by the Company’s Board of Directors; provided that any Guarantor shall be permitted to authorize an Officer of the Company to act as its Officer (including its Financial Officer) regardless of whether such Officer holds one of the foregoing positions with such Guarantor.

“Officers’ Certificate” means a certificate signed by two Officers of the Company, and delivered to the Trustee.

“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.

“Pari Passu Indebtedness” means Debt of the Company which ranks equally in right of payment to the Notes or of any Guarantor if such Debt ranks equally in right of payment to the Note Guaranties.

“Permitted Business” means the businesses engaged in by the Company and its Subsidiaries on the Issue Date and businesses that are reasonably related, incidental or ancillary thereto or reasonable extensions thereof as determined by the Board of Directors of the Company.

“Permitted Business Investment” means an Investment in any Person (other than an Unrestricted Subsidiary) made in the course of conducting a Permitted Business, whether through agreements, transactions, joint ventures, expenditures or other arrangements that permit one to share risks or costs of such activities or comply with regulatory requirements regarding local ownership, including, without limitation, direct or indirect ownership interests in all types of drilling, transportation and oilfield services assets, property and equipment.

“Permitted Investment” means any Investment by the Company or a Restricted Subsidiary:

(a)            in any Restricted Subsidiary or any Person that will, upon the making of such Investment, become a Restricted Subsidiary (and in any Investments of such Person not made in contemplation of such transaction), provided that the primary business of the Restricted Subsidiary is a Permitted Business;

(b)            in any Person (and in any Investments of such Person not made in contemplation of such transaction) if as a result of the Investment that Person is merged, amalgamated or consolidated with or into, or transfers or conveys all or substantially all its Property to, the Company or a Restricted Subsidiary, provided that the Person’s primary business is a Permitted Business;

(c)            in cash or Cash Equivalents;

(d)            consisting of commission, payroll, relocation, travel and similar expenses that are made in the ordinary course of business;

(e)            consisting of loans and advances to directors, officers and employees (i) made in the ordinary course of business or (ii) to finance the purchase of Capital Stock of the Company, in compliance with applicable laws, provided that those loans and advances do not exceed $10 million at any one time outstanding;

(f)             received in settlement of debts created in the ordinary course of business and owing to the Company or a Restricted Subsidiary or in satisfaction of judgments;

(g)            to the extent the Investment represents (i) the non-cash portion of the consideration received in connection with an Asset Sale consummated in compliance with ‎Section 4.07 or (ii) consideration received in respect of a Disposition that does not constitute an Asset Sale (other than pursuant to clause (2) of the definition thereof);

(h)            in Hedging Obligations permitted under clauses ‎(5), ‎(6), ‎(7) or ‎(15) of the definition of “Permitted Debt” in ‎Section 4.04;

(i)             in customers or suppliers of the Company or any of its Subsidiaries in the form of extensions of credit or transfers of Property, to the extent otherwise constituting an Investment, and in the ordinary course of business and any Investments received in the ordinary course of business in satisfaction or partial satisfaction thereof;

(j)             in any Person if the Investments (or binding commitments in respect thereof) are outstanding on the Issue Date or on the date such Person became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into a Restricted Subsidiary to the extent that such Investments were not made in contemplation of such merger, amalgamation or consolidation, and any Investment consisting of an extension, modification or renewal of such Investment; provided, that the amount of any such Investment may be increased (x) as required under the terms of such Investment as in existence on the Issue Date or (y) as otherwise permitted under the Indenture;

(k)            consisting of any securities, derivative instruments or other Investments of any kind that are acquired and held for the benefit of Issuer employees in the ordinary course of business pursuant to deferred compensation plans or arrangements approved by the Board of Directors; provided, however, that (i) the amount of such Investment represents funds paid or payable in respect of deferred compensation previously included as an expense in the calculation of Consolidated Net Income (and not excluded pursuant to clause (d) of the definition of “Consolidated Net Income”), and (ii) the terms of such Investment shall not require any additional Investment by the Company or any Restricted Subsidiary;

(l)            in any Person in an aggregate amount not to exceed the greater of (x) $150 million or (y) 5.25% of Total Assets (measured at the time of Investment);

(m)           acquired in exchange for shares of Capital Stock of the Company or acquired with the proceeds of such sale of Capital Stock (other than Disqualified Stock); provided that the proceeds of such issuance shall be excluded from the definition of “Capital Stock Sale Proceeds”;

(n)            consisting of any receivable owing to the Company or any Restricted Subsidiary created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as the Company or any such Restricted Subsidiary deems reasonable under the circumstances;

(o)            (i) in exchange for any other Investment or accounts receivable held by the Company or any such Restricted Subsidiary in connection with or as a result of bankruptcy, workout, reorganization or recapitalization of any Restricted Subsidiary of such other Investment or accounts receivable, (ii) in satisfaction of judgments or in compromise, settlement or resolution of any litigation, arbitration or other dispute, (iii) in exchange for any other Restricted Investment, Permitted Investments permitted under clauses (e), (j), (l), (r) or (s) of this definition or accounts receivable held by the Company or any Restricted Subsidiary, or (iv) as a result of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;

(p)            consisting of Guarantees of Debt issued in accordance with ‎Section 4.04;

(q)            made in connection with the funding of contributions under any nonqualified retirement plan or similar employee compensation plan in an amount not to exceed the amount of compensation expense recognized by the Company and its Restricted Subsidiaries in connection with such plans;

(r)             in any Person engaged in a Permitted Business in an aggregate amount not to exceed the greater of (x) $75 million or (y) 2.5% of Total Assets (measured at the time of Investment);

(s)            in Unrestricted Subsidiaries or Joint Ventures in an aggregate amount not to exceed the greater of (x) $50 million or (y) 2.0% of Total Assets (measured at the time of Investment);

(t)            consisting of Debt in respect of overdraft facilities, employee credit card programs and other cash management arrangements in the ordinary course of business;

(u)            in a Securitization Subsidiary that are necessary or desirable to effect any Permitted Receivables Financing;

(v)            if, on a pro forma basis after giving effect to such Investment, the Consolidated Leverage Ratio would not be greater than 1.50 to 1.00;

(w)            comprising any Permitted Business Investment;

(x)            consisting of intercompany current liabilities Incurred in the ordinary course of business in connection with the cash management operations of the Company and its Restricted Subsidiaries and Joint Ventures;

(y)            consisting of non-cash Investments made in connection with tax planning and reorganization activities;

(z)            comprised of management services provided by the Company or any Restricted Subsidiary;

(aa)          comprised of pledges, deposits, or liens constituting “Permitted Liens”;

(bb)         in the ordinary course of business in Restricted Subsidiaries and Joint Ventures consisting of spare parts and equipment;

(cc)          consisting of workers’ compensation, utility, lease and similar deposits and prepaid expenses in the ordinary course of business and endorsements of negotiable instruments and documents in the ordinary course of business; and

(dd)         consisting of repurchases of the Notes.

For the avoidance of doubt, any Investment that is a Permitted Investment hereunder may be transferred to the Company or another Restricted Subsidiary, or exchanged for other assets of the Company or another Restricted Subsidiary.

“Permitted Liens” means:

(a)            Liens on the Collateral securing Debt and other Obligations (which Liens may rank, at the option of the Company, senior in priority to the Liens on the Collateral securing the Notes), Incurred under clause ‎(2) of the definition of “Permitted Debt” in ‎Section 4.04 regardless of whether the Company and the Restricted Subsidiaries are actually subject to ‎Section 4.04 at the time the Lien is incurred;

(b)            Liens for taxes, assessments or governmental charges or claims or levies on the Property of the Company or any Restricted Subsidiary and deposits in respect thereof if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings promptly instituted and diligently concluded, provided that any reserve or other appropriate provision that shall be required in conformity with GAAP shall have been made therefor;

(c)            Liens of carriers, warehousemen, materialmen, repairmen, landlords, suppliers and mechanics’ Liens and other similar Liens, on the Property of the Company or any Restricted Subsidiary arising in the ordinary course of business and securing payment of obligations that are not more than 90 days past due or are being contested in good faith and by appropriate proceedings;

(d)            Liens on the Property of the Company or any Restricted Subsidiary Incurred in the ordinary course of business to secure performance of obligations with respect to statutory or regulatory requirements, importation bonds, performance or return-of-money bonds, surety bonds or other obligations of a like nature and Incurred in the ordinary course of business, including banker’s liens and rights of set-off;

(e)            Liens on Property at the time the Company or any Restricted Subsidiary acquired the Property, including Property acquired pursuant to any acquisition by means of a merger, amalgamation or consolidation with or into the Company or any Restricted Subsidiary; provided, however, that such Liens are limited to all or a portion of the assets or property (and improvements on such assets or property) that secured (or, under the written arrangements under which the Liens arose, could secure) the obligations to which such Liens relate; provided further, however, that the Liens shall not have been Incurred in anticipation of or in connection with the transaction or series of transactions pursuant to which the Property was acquired by the Company or any Restricted Subsidiary;

(f)            Liens on the Property of a Person at the time that Person becomes a Restricted Subsidiary; provided, however, that any Lien of this kind may not extend to any other Property of the Company or any other Restricted Subsidiary that is not a direct Subsidiary of that Person (other than after-acquired property that is (a) affixed or incorporated into the property covered by such Lien, (b) subject to a Lien securing such Debt, the terms of which Debt requires or includes a pledge of after-acquired property and (c) the proceeds and products thereof); provided further, however, that the Lien was not Incurred in anticipation of or in connection with the transaction or series of transactions pursuant to which the Person became a Restricted Subsidiary;

(g)            pledges or deposits by the Company or any Restricted 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 Company or any Restricted Subsidiary is party, or deposits to secure public or statutory obligations of the Company or any Restricted Subsidiary, or deposits for the payment of rent, in each case Incurred in the ordinary course of business;

(h)            Liens (including, without limitation and to the extent constituting Liens, negative pledges), assignments and pledges of rights to receive premiums, interest or loss payments or otherwise arising in connection with workers’ compensation loss portfolio transfer insurance transactions or any insurance or reinsurance agreements pertaining to losses covered by insurance, and Liens (including, without limitation and to the extent constituting Liens, negative pledges) in favor of insurers or reinsurers on pledges or deposits by the Company or any Restricted Subsidiary under workmen’s compensation laws, unemployment insurance laws or similar legislation;

(i)             Liens of landlords on fixtures, equipment and movable property located on leased premises and utility easements, building restrictions and such other encumbrances or charges against real Property as are of a nature generally existing with respect to properties of a similar character;

(j)             Liens arising out of judgments or awards against the Company or a Restricted Subsidiary with respect to which the Company or the Restricted Subsidiary shall then be proceeding with an appeal or other proceeding for review;

(k)            Liens in favor of issuers of performance, stay, appeal, indemnification, surety or similar bonds, completion guarantees or letters of credit issued pursuant to the request of and for the account of the Company or a Restricted Subsidiary in the ordinary course of its business, provided that these letters of credit do not constitute Debt;

(l)             leases or subleases of real property granted by the Company or a Restricted Subsidiary to any other Person and not interfering in any material respect with the business of the Company and its Subsidiaries, taken as a whole;

(m)            Liens (including, without limitation and to the extent constituting Liens, negative pledges) on intellectual property arising from intellectual property licenses entered into in the ordinary course of business;

(n)            Liens or negative pledges attaching to or related to joint ventures engaged in a Permitted Business, restricting Liens on interests in those joint ventures or other legal or equitable Liens deemed to exist by reason of negative pledge covenants and other covenants or undertakings of a like nature;

(o)            Liens existing on the Issue Date (but excluding Liens securing the Credit Agreement, the Notes (including any Additional Notes), and, in each case, any Guarantees thereof);

(p)            Liens securing Debt Incurred pursuant to clause ‎(12) of the definition of “Permitted Debt” in ‎Section 4.04 on the Property that is the subject of such Debt;

(q)            Liens on the Property of the Company or any Restricted Subsidiary to secure any Refinancing, in whole or in part, of any Debt secured by Liens referred to in clause (e), (f), (l), (o) or (p) above or (x), (y) or (jj) below; provided, however, that any (i) Lien of this kind shall be limited to all or part of the same Property that secured the original Lien (together with improvements and accessions to such Property) and (ii) any Lien of this kind shall be equal or junior in priority to the Liens securing the Debt or other obligations being Refinanced (or, if such original Lien was on the Collateral and ranked junior to the Lien securing the Notes or the Note Guaranties, such Lien securing the Refinanced Lien also ranks junior to the Lien securing the Notes or the Note Guaranties) and (iii) the aggregate principal amount of Debt that is secured by the Lien shall not be increased to an amount greater than the sum of:

(r)            Liens on cash or Cash Equivalents held as proceeds of Permitted Refinancing Debt pending the payment, purchase, defeasance or other retirement of the Debt being Refinanced;

(s)            Liens (which Liens may be on the Collateral and may rank, at the option of the Company, pari passu or junior in priority to the Liens on the Collateral securing the Notes), not otherwise permitted by clauses (a) through (r) above securing obligations with an aggregate principal amount not to exceed the greater of $225 million or (y) 8.0% of Total Assets (measured at the time of incurrence) at any one time outstanding;

(t)            Liens securing Hedging Obligations permitted under clause ‎(5), ‎(6), ‎(7) or ‎(15) of the definition of “Permitted Debt” in ‎Section 4.04 which Liens may rank senior to the Liens securing the Notes to the extent secured by the Collateral;

(u)            Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

(v)            Liens on escrowed proceeds for the benefit of the related holders of debt securities or other Debt (or the underwriters or arrangers thereof) or on cash set aside at the time of the Incurrence of any Debt or government securities purchased with such cash, in either case to the extent such cash or government securities prefund the payment of interest on such Debt and are held in an escrow account or similar arrangement to be applied for such purpose;

(w)           Liens on escrow accounts created for the benefit of or to secure, directly or indirectly, the Notes;

(x)            Liens on the Collateral to secure additional Second Lien Debt permitted to be Incurred under ‎Section 4.04 with an aggregate principal amount that does not cause the Consolidated Secured Leverage Ratio, on a pro forma basis, to exceed (i) 2.00 to 1.00, or (ii) if such Debt is to be Incurred in connection with an acquisition or similar Investment, the Consolidated Secured Leverage Ratio immediately prior to such Incurrence;

(y)           Liens securing Debt Incurred pursuant to clause ‎(11) or ‎(14) of the definition of “Permitted Debt” in ‎Section 4.04;

(z)            Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course of business;

(aa)          any interest or title of a lessor under any Capital Lease Obligation or operating lease;

(bb)         Liens (i) of a collection bank arising under Section 4-208 of the Uniform Commercial Code or any comparable or successor provision on items in the course of collection, (ii) attaching to pooling, commodity trading accounts or other commodity brokerage accounts Incurred in the ordinary course of business and (iii) in favor of banking or other financial institutions or electronic payment service providers arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking or finance industry;

(cc)          Liens solely on any cash earnest money deposits made by Issuer or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted under this Indenture;

(dd)         Liens on property or assets used to defease or to irrevocably satisfy and discharge Debt; provided that such defeasance or satisfaction and discharge is not prohibited by this Indenture;

(ee)          Liens in connection with the sale or transfer of any equity interests or other assets in a transaction permitted under this Indenture, customary rights and restrictions contained in agreements relating to such sale or transfer pending the completion thereof;

(ff)           Liens on accounts receivable and related assets and proceeds thereof arising in connection with a Permitted Receivables Financing;

(gg)         Liens arising from Uniform Commercial Code financing statement filings regarding supply chain finance programs or other receivables sale transactions in the ordinary course of business;

(hh)         Liens securing Debt and other Obligations in respect of the Notes (other than any Additional Notes) and the Note Guaranties;

(ii)            Permitted Rig Liens;

(jj)            Liens on assets acquired with the proceeds of Debt or Debt Incurred within 365 days of the acquisition of such assets (including Permitted Refinancing Debt in respect thereof) pursuant to clause ‎(22) of the definition of “Permitted Debt” in ‎Section 4.04 and, with respect to such Debt, (x) Liens on the Capital Stock of the Restricted Subsidiary that directly owns such assets, Liens on the insurances in respect of such assets or the operation thereof and Liens on the Drilling Contract and earnings relating to such assets and (y) Liens on other assets and property owned by any such Restricted Subsidiary that are used in the operation, maintenance or repair of such assets acquired with the proceeds of such Debt, and in respect of the foregoing, proceeds, improvements, refurbishments, additions and improvements thereto or which are incidental thereto, which Liens, in each case, secure only such Debt; provided that such Restricted Subsidiary that owns such assets does not hold any assets that are not Excluded Assets or property of the type referred to in clause (y) above;

(kk)          Liens in favor of the Company or a Guarantor;

(ll)            Liens on the Capital Stock of an Unrestricted Subsidiary;

(mm)        Liens securing obligations under clause ‎(23) of the definition of “Permitted Debt” in ‎Section 4.04;

(nn)         Liens to secure liabilities in respect of reimbursement or indemnification obligations of insurance carriers providing property, casualty or liability insurance or any other customary insurance of the Company or any Restricted Subsidiary;

(oo)         Liens encumbering inventory, work-in-process and related property in favor of customers or suppliers securing obligations and other liabilities to such customers or suppliers to the extent such Liens are granted in the ordinary course of business;

(pp)         Liens arising under any retention of title or conditional sale arrangement or arrangements having similar effect in respect of goods supplied in the ordinary course of business; and

(qq)         minor defects, irregularities and deficiencies in title to, and survey exceptions, 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 zoning or other restrictions as to the use of real property, including with respect to the physical placement and location of pipelines, that were not incurred in connection with Debt and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of the applicable Person.

For purposes of determining compliance with this definition, (x) a Lien need not be Incurred solely by reference to one category of Permitted Liens described in this definition but may be Incurred under any combination of such categories (including in part under one such category and in part under any other such category), (y) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Permitted Liens, the Company shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this definition, and (z) in the event that a portion of the Debt secured by a Lien could be classified as secured in part pursuant to one or more Permitted Liens (giving effect to the Incurrence of such portion of such Debt), the Company, in its sole discretion, may classify such portion of such Debt (and any Obligations in respect thereof) as having been secured pursuant to one or more Permitted Liens in this definition and thereafter the remainder of the Debt as having been secured pursuant to one or more of the other clauses of this definition.

“Permitted Receivables Financing” means any receivables financing facility or arrangement pursuant to which a Securitization Subsidiary purchases, otherwise acquires or receives Lien on accounts receivable of the Company or any Restricted Subsidiaries and enters into a third party financing thereof on terms that the officers of the Company have concluded are customary and market-standard.

“Permitted Refinancing Debt” means any Debt that Refinances any other Debt, including any successive Refinancings, so long as:

(a)          the new Debt is in an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price) not in excess of the sum of:

(b)          the Average Life of the new Debt is equal to or greater than the Average Life of the Debt being Refinanced,

(c)          the Stated Maturity of the new Debt is no earlier than the Stated Maturity of the Debt being Refinanced, and

(d)          the new Debt shall not be senior in right of payment to the Debt that is being Refinanced;

provided, however, that Permitted Refinancing Debt shall not include:

(x)          Debt of a Subsidiary that is not FinanceCo or a Guarantor that Refinances Debt of the Company, FinanceCo or any Guarantor, or

(y)          Debt of the Company, FinanceCo or a Restricted Subsidiary that Refinances Debt of an Unrestricted Subsidiary.

“Permitted Rig Liens” means, at any time, with respect to a Vessel:

(a)            Liens for crews’ wages (including the wages of the master of the Vessel that are discharged in the ordinary course of business and have accrued for not more than ninety (90) days (or such longer period provided for under any First Lien Documents) unless any such Lien is being contested in good faith and by appropriate proceedings or other acts by the Company or relevant Restricted Subsidiary, and the Company or relevant Restricted Subsidiary shall have set aside on its books adequate reserves with respect to such Lien and so long as such deferment in payment shall not subject the Vessel to sale, forfeiture or loss;

(b)            Liens for salvage (including contract salvage) or general average, and Liens for wages of stevedores employed by the owner of the Vessel, the master of the Vessel or a charterer or lessee of such Vessel, which in each case have accrued for not more than ninety (90) days (or such longer period provided for under any First Lien Documents), unless any such Lien is being contested in good faith and by appropriate proceedings or other acts by the Company or relevant Restricted Subsidiary, and the Company or relevant Restricted Subsidiary shall have set aside on its books adequate reserves with respect to such Lien and so long as such deferment in payment shall not subject the Vessel to sale, forfeiture or loss;

(c)            shipyard Liens and other Liens arising by operation of law arising in the ordinary course of business in operating, maintaining, repairing, modifying, refurbishing, or rebuilding the Vessel (other than those referred to in clauses (a) and (b) above), including maritime Liens for necessaries, which in each case have accrued for not more than ninety (90) days (or such longer period provided for under any First Lien Documents), unless any such Lien is being contested in good faith and by appropriate proceedings or other acts by the Company or relevant Restricted Subsidiary, and the Company or relevant Restricted Subsidiary shall have set aside on its books adequate reserves with respect to such Lien and so long as such deferment in payment shall not subject the Vessel to sale, forfeiture, or loss;

(d)            Liens for damages arising from maritime torts which are unclaimed or are covered by insurance (subject to reasonable deductibles), or in respect of which a bond or other security has been posted on behalf of the Company or relevant Restricted Subsidiary with the appropriate court or other tribunal to prevent the arrest or secure the release of the Vessel from arrest, unless any such Lien is being contested in good faith and by appropriate proceedings or other acts by the Company or relevant Restricted Subsidiary, and the Company or relevant Restricted Subsidiary shall have set aside on its books adequate reserves with respect to such Lien, and so long as such deferment in payment shall not subject the Vessel to sale, forfeiture, or loss;

(e)            Liens that, as indicated by the written admission of liability therefor by an insurance company, are covered by insurance (subject to reasonable deductibles); and

(f)            Liens under Drilling Contracts or subcharters or subleases with Persons that are not Affiliates and that do not secure Debt for borrowed money.

“Person” means any individual, corporation, company (including any limited liability company or exempted company), association, partnership, joint venture, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.

“Preferred Stock” means any Capital Stock of a Person, however designated, which entitles the holder thereof to a preference with respect to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of that Person, over shares of any other class of Capital Stock issued by that Person.

“Preferred Stock Dividends” means all dividends with respect to Preferred Stock of the Company or any Restricted Subsidiary held by Persons other than the Company or a Wholly Owned Restricted Subsidiary. The amount of any dividend of this kind shall be equal to the quotient of the dividend divided by the difference between one and the maximum statutory consolidated federal, state and local income rate (expressed as a decimal number between 1 and 0) then applicable to the issuer of the Preferred Stock.

“Productive Assets” means assets (other than current assets) that are used or usable by the Company and its Restricted Subsidiaries in Permitted Businesses.

“pro forma basis” means, with respect to any computation hereunder required to be made on a pro forma basis and giving effect to any proposed Investment or other acquisition, any Disposition, any Restricted Payment or any payment of or in respect of any Debt (collectively, “Pro Forma Events”), computation thereof after giving pro forma effect to adjustments in connection with such Pro Forma Event that are either (i) in accordance with Regulation S-X under the Securities Act or (ii) made in good faith by the Company, and may include cost savings (including, without limitation, cost savings, workforce reductions and facility, benefit and insurance savings), operating expense reductions, other operating improvements, initiatives and synergies that are reasonably identifiable and factually supportable and reasonably expected to result within 24 months following the consummation of the relevant Pro Forma Event, provided that the aggregate amount of any increase in Consolidated EBITDA resulting from adjustments pursuant to this clause (ii) for any four fiscal quarter period of the Company, when aggregated with the amount of any addback to Consolidated EBITDA pursuant to clause (a)(viii) of the definition thereof for such period, shall not exceed 25% of Consolidated EBITDA for such period (prior to giving effect to any increase pursuant to such clause (a)(viii) or this clause (ii)), in each case, using for purposes of making any such computation, the consolidated financial statements of the Company and the Restricted Subsidiaries (and, to the extent applicable, the historical financial statements of any entities or assets so acquired or to be acquired, or so disposed or to be disposed), which shall be reformulated as if such Pro Forma Event (and, in the case of any pro forma computations made hereunder to determine whether such Pro Forma Event is permitted to be consummated hereunder, to any other Pro Forma Event consummated since the first day of the period covered by any component of such pro forma computation and on or prior to the date of such computation), and any Debt or other liabilities incurred in connection with any such Pro Forma Event, had been consummated and incurred at the beginning of such period.

“Pro Forma Event” has the meaning set forth in the definition of “pro forma basis.”

“Property” means, with respect to any Person, any interest of that Person in any kind of property, plant, equipment or other asset, whether real, personal or mixed, or tangible or intangible, including Capital Stock in, and other securities of, any other Person. For purposes of any calculation required pursuant to this Indenture, the value of any Property shall be its Fair Market Value.

“Purchase Money Debt” means Debt:

(a)            consisting of the deferred purchase price of property, conditional sale obligations, obligations under any title retention agreement, other purchase money obligations and obligations in respect of industrial revenue bonds, or

(b)            Incurred to finance the acquisition, improvement, refurbishment, reactivation, construction or lease by the Company or a Restricted Subsidiary of the Property, including additions and improvements thereto.

“Qualified Capital Stock” means any Capital Stock that is not Disqualified Stock.

“Qualified Services Contract” means, as of any date of determination, with respect to any Vessel acquired by, or committed to be delivered to, the Company or any of the Restricted Subsidiaries, a bona fide contract or series of contracts, together with any amendments, supplements or modifications thereto, which contract or contracts:

(1)            are between the Company or one of the Restricted Subsidiaries, on the one hand, and a Person that is not an Affiliate of the Company, on the other hand,

(2)            provide for services to be performed by the Company or one or more of the Restricted Subsidiaries involving the use of such Vessel by the Company or one or more of the Restricted Subsidiaries, in either case for a minimum aggregate period of at least one year from (i) the date of determination or (ii) a future date that is no later than the date that is three months from the date of determination (the period during which such services are to be performed, the “Active Service Period”), and

(3)            provide for a fixed or minimum day rate or fixed rate for such Vessel covering the entire Active Service Period contemplated by clause (2) above.

For the avoidance of doubt, neither a letter of intent nor a letter of award with respect to a Vessel is a Qualified Services Contract.

“Qualified Vessel” means a Vessel that is subject to a Qualified Services Contract.

“Rating Agencies” means Moody’s, Fitch and S&P, and if S&P, Fitch or Moody’s or all of them shall not make a rating on the Notes publicly available (for reasons outside the control of the Company), a statistical rating agency or agencies, as the case may be, nationally recognized in the United States and selected by the Company which shall be substituted for S&P, Fitch or Moody’s, or all of them, as the case may be.

“Ratings Decline Period” means, with respect to the Notes, the period that (i) begins on the earlier of (a) the date of the first public announcement of the occurrence of a Change of Control or of the intention by the Company to effect a Change of Control or (b) the occurrence thereof and (ii) ends 60 days following consummation of such Change of Control; provided that such period shall be extended for so long as the rating of the Notes, as noted by the applicable Rating Agency, is under publicly announced consideration for downgrade by the applicable Rating Agency.

“Refinance” means, in respect of any Debt, to refinance, extend, renew, refund, repay, prepay, repurchase, redeem, defease or retire, or to issue other Debt, in exchange or replacement for, that Debt. “Refinanced” and “Refinancing” shall have correlative meanings.

“Repay” means, in respect of any Debt, to repay, prepay, repurchase, redeem, legally defease or otherwise retire that Debt. “Repayment” and “Repaid” shall have correlative meanings.

“Requisition Compensation” means, with respect to a Collateral Vessel, any compensation paid or payable by a governmental authority for the requisition for title, confiscation or compulsory acquisition of such Collateral Vessel.

“Restricted Payment” means:

(a)            any dividend or distribution (whether made in cash, securities or other Property) declared or paid on or with respect to any shares of Capital Stock of the Company or any Restricted Subsidiary (including any payment in connection with any merger, amalgamation or consolidation with or into the Company or any Restricted Subsidiary), except for (i) dividends or distributions payable to the Company or a Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to holders of its Capital Stock other than the Company or another Restricted Subsidiary on no more than a pro rata basis and (ii) any dividend or distribution that is made to the Company or the parent of the Restricted Subsidiary or any dividend or distribution payable solely in shares of Capital Stock (other than Disqualified Stock) of the Company;

(b)            the purchase, repurchase, redemption, acquisition or retirement for value of any Capital Stock of the Company or any Restricted Subsidiary (other than from the Company or a Restricted Subsidiary) or any securities exchangeable for or convertible into Capital Stock of the Company or any Restricted Subsidiary, including the exercise of any option to exchange any Capital Stock (other than, in each case, for or into Capital Stock of the Company that is not Disqualified Stock);

(c)            the purchase, repurchase, redemption, acquisition or retirement for value, prior to the date for any scheduled maturity, sinking fund or amortization or other installment payment, of any Subordinated Obligation (other than (i) any Subordinated Obligation Incurred under clause ‎(3) of the definition of “Permitted Debt” in ‎Section 4.04 and (ii) the purchase, repurchase or other acquisition of any Subordinated Obligation purchased in anticipation of satisfying a scheduled maturity, sinking fund or amortization or other installment obligation, in each case under this subclause (ii) due within one year of the date of acquisition); or

(d)            any Investment (other than Permitted Investments) in any Person.

“Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted Subsidiary. Notwithstanding anything in this Indenture to the contrary, FinanceCo shall be a Restricted Subsidiary of the Company.

“Rig Owners” means each Issue Date Rig Owner and Future Rig Owner.

“S&P” means Standard & Poor’s Financial Services LLC, or any successor to the rating agency business thereof.

“Sale and Leaseback Transaction” means any direct or indirect arrangement relating to Property now owned or hereafter acquired whereby the Company or a Restricted Subsidiary transfers that Property to another Person and the Company or a Restricted Subsidiary leases it from that other Person together with any Refinancings thereof.

“SEC” means the U.S. Securities and Exchange Commission.

“Second Lien Debt” means (1) the Notes issued on the Issue Date, (2) any Additional Notes and (3) any other Funded Debt (including borrowings under any Second Lien Documents) that is secured by a second-priority Lien on the Collateral and that was permitted to be Incurred and permitted to be so secured under the applicable Secured Debt Documents; provided, that, in the case of any Funded Debt referred to in clause (3): (i) on or before such Funded Debt is Incurred by any of the Issuers or Guarantors, such Funded Debt is designated by the Company as “Junior Lien Debt” for the purposes of the Secured Debt Documents in an Additional Secured Debt Designation (as defined in the Collateral Trust Agreement), and (ii) unless such Funded Debt is Incurred under an existing Second Lien Document for any Series of Second Lien Debt whose Second Lien Debt Representative is already party to the Collateral Trust Agreement, the Second Lien Debt Representative for such Funded Debt executes and delivers a Collateral Trust Joinder.

“Second Lien Debt Representative” means, (1) in the case of this Indenture, the Trustee and (2) in the case of any other Series of Second Lien Debt, the Trustee, agent or representative of the holders of such Series of Second Lien Debt who maintains the transfer register for such Series of Second Lien Debt or is appointed as a representative for such Second Lien Debt (for purposes related to the administration of the Security Documents) pursuant to this Indenture, credit agreement or other agreement governing such Series of Second Lien Debt, and who has executed a Collateral Trust Joinder, together with its successors and assigns in such capacity.

“Second Lien Documents” means the Note Documents and any other indenture, notes, credit agreement or other agreement or instrument pursuant to which any Second Lien Debt is Incurred and the Second Lien Security Documents.

“Second Lien Obligations” means, collectively, any Second Lien Debt, including the Notes, and all other Obligations in respect of Second Lien Debt, including any post-petition interest whether or not allowable, and all guarantees of any of the foregoing.

“Second Lien Secured Parties” means the holders of any Second Lien Debt, including the Notes Secured Parties, and each Second Lien Debt Representative.

“Second Lien Security Documents” means, collectively, the Vessel Mortgages, the Assignments of Earnings, the Assignments of Insurances, Share Pledge Agreements and all other security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, collateral agency agreements, control agreements, consent or direct arrangements, or other grants or transfers for security executed and delivered by the Issuers or any Guarantor creating or perfecting (or purporting to create or perfect) or governing rights of enforcement with respect to, a Lien upon Collateral in favor of the Collateral Trustee, for the benefit of the holders of Second Lien Secured Parties (or, in certain jurisdictions, in favor of the Collateral Trustee for itself and as direct representative of the Second Lien Secured Parties), in each case, as amended, modified, renewed, restated or replaced, in whole or in part, from time to time.

“Secured Debt” means First Lien Debt and Second Lien Debt.

“Secured Debt Documents” means the First Lien Documents and the Second Lien Documents.

“Secured Debt Representative” means each First Lien Debt Representative and each Second Lien Debt Representative.

“Secured Obligations” means First Lien Obligations and Second Lien Obligations.

“Securities Act” means the U.S. Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated by the SEC thereunder.

“Securitization Subsidiary” means a Subsidiary of the Company:

(1)            that is designated a “Securitization Subsidiary” by the officers of the Company,

(2)            that does not engage in any activities other than Permitted Receivables Financings and any activity necessary, incidental or related thereto,

(3)          no portion of the Debt or any other obligation, contingent or otherwise, of which:

(4)          with respect to which neither the Company nor any Restricted Subsidiary of the Company (other than an Unrestricted Subsidiary) has any obligation to maintain or preserve such its financial condition or cause it to achieve certain levels of operating results,

other than, in respect of clauses (3) and (4), pursuant to customary representations, warranties, covenants and indemnities entered into in connection with a Permitted Receivables Financing.

“Security Documents” means each of the First Lien Security Documents, each of the Second Lien Security Documents, and each of the other security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, collateral agency agreements, control agreements, consent or direct arrangements, or other grants or transfers for security executed and delivered by the Issuers or any Guarantor creating or perfecting (or purporting to create or perfect) or governing rights of enforcement with respect to, a Lien upon Collateral in favor of the Collateral Trustee, as contemplated by the Collateral Trust Agreement.

“Senior Secured Credit Facility Obligations” means the Obligations under the Credit Agreement.

“Senior Secured Credit Facility Secured Parties” means, collectively, “Secured Parties” (as defined in the Credit Agreement).

“Series” means (a) with respect to First Lien Debt, the Senior Secured Credit Facility Obligations and each other issue or series of First Lien Debt for which a single transfer register is maintained and (b) with respect to Second Lien Debt, the Notes and each other issue or series of Second Lien Debt for which a single transfer register is maintained.

“Share Pledge Agreement” has the meaning set forth in the definition of “Collateral Requirement.”

“Significant Subsidiary” means any Subsidiary that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.

“Stated Maturity” means, with respect to any security, the date specified in the security as the fixed date on which the payment of principal of the security is due and payable, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

“Subordinated Obligation” means any Debt of the Company, FinanceCo or the Guarantors (whether outstanding on the Issue Date or thereafter Incurred) that is subordinate or junior in right of payment to the Notes pursuant to a written agreement to that effect.

“Subsidiary” means, in respect of any Person (the “parent”), any corporation, limited liability company, partnership, association or other entity (a) the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, (b) of which more than fifty percent (50%) of the total voting power of the Voting Stock having ordinary voting power for the election of the board of directors, managers or similar governing body of such entity, is at the time directly or indirectly owned by the parent or by one or more of its other Subsidiaries or (c) that is, as of such date, otherwise controlled, by the parent or one or more of its other Subsidiaries; provided, however, that notwithstanding anything to the contrary above, Ocean Deep Drilling ESV Nigeria Limited shall not constitute a “Subsidiary” under this definition or any Note Document until the earliest of such time that (x) Ocean Deep Drilling ESV Nigeria Limited owns a Vessel and otherwise constitutes a “Subsidiary” pursuant to clause (a), (b) or (c) above, (y) such time as the Company and/or its Restricted Subsidiaries own more than fifty percent (50%) of the total voting power of the Voting Stock having ordinary voting power for the election of the board of directors, managers or similar governing body of such entity or (z) such entity otherwise constitutes a “Subsidiary” pursuant to clause (a) or (c) and the Company elects to treat such entity as a “Subsidiary.”

“Support Obligation” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Debt payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Debt of the payment or performance of such Debt, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Debt, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Debt of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Debt of any other Person, whether or not such Debt or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Debt to obtain any such Lien), provided, however, the granting of any Lien in the Capital Stock of an Unrestricted Subsidiary shall not be a “Support Obligation” hereunder. The amount of any Support Obligation shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Support Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.

“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or any Subsidiary shall be a Swap Agreement.

“Swiss Federal Tax Administration” means the tax authorities referred to in art. 34 of the Swiss Withholding Tax Act.

“Swiss Withholding Tax” means taxes imposed under the Swiss Withholding Tax Act.

“Swiss Withholding Tax Act” means the Swiss Federal Act on the Withholding Tax of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer), together with the related ordinances, regulations and guidelines, all as amended and applicable from time to time.

“Synthetic Lease” means, as to any Person, any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (a) that is accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such Person is the lessor.

“Synthetic Lease Obligations” means, as to any Person, an amount equal to the sum, without duplication, of (a) the obligations of such Person to pay rent or other amounts under any Synthetic Lease which are attributable to principal and (b) the amount of any purchase price payment under any Synthetic Lease assuming the lessee exercises the option to purchase the leased property at the end of the lease term. For purposes of ‎Section 4.06, a Synthetic Lease Obligation shall be deemed secured by a Lien on the Property being leased and such Property will be deemed to be owned by the lessee.

“Temporary Cash Investments” means any of the following:

(a)            securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition,

(b)            U.S.-dollar denominated time deposits and certificates of deposit of (i) any lender under the Credit Agreement, (ii) any domestic commercial bank or commercial bank organized under the laws of any country that is a member of the Organization for Economic Cooperation and Development, in each case having capital and surplus in excess of $500.0 million or (iii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (collectively, an “Approved Bank”), in each case with maturities of not more than 364 days from the date of acquisition,

(c)            commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within twelve months of the date of acquisition,

(d)            repurchase agreements entered into by any Person with a bank or trust company or recognized securities dealer having capital and surplus in excess of $500.0 million for direct obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least one hundred percent (100%) of the amount of the repurchase obligations,

(e)            Investments (classified in accordance with GAAP as current assets) in money market investment programs registered under the Investment Company Act of 1940 that are administered by reputable financial institutions having capital of at least $500.0 million and the portfolios of which are limited to Investments of the character described in the foregoing subclauses hereof, and

(f)            other short-term investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in investments of a type analogous to the foregoing.

“Third Party Vessel” means any Vessel that is now or hereafter managed by the Company or any Subsidiary but is not owned by the Company or any Subsidiary.

“TIA” means the U.S. Trust Indenture Act of 1939 as in effect on the date of this Indenture; provided, however, that, in the event the TIA is amended after such date, “TIA” means, to the extent required by any such amendments, the Trust Indenture Act of 1939 as so amended.

“Total Assets” means the total assets of the Company and the Restricted Subsidiaries on a consolidated basis determined in accordance with GAAP, as shown on the most recent consolidated balance sheet of the Company.

“Transactions” means (a) the issuance of the Original Notes, and the application of the net proceeds thereof as described in the Offering Memorandum, (b) the occurrence of the “Effective Date” under the Credit Agreement and (c) all other transactions related or incidental to, or in connection with, any of the foregoing (including, without limitation, the payment of fees and expenses in connection with each of the foregoing).

“Treasury Rate” means, as of the applicable Redemption Date, as determined by the Company, the yield to maturity as of such Redemption Date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to such Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such Redemption Date to April 30, 2026; provided, however, that if the period from such Redemption Date to April 30, 2026 is not equal to the constant maturity of a United States Treasury security for which such yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the Redemption Date to such applicable date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.

“Trust Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, senior associate, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

“Trustee” means the party named as such in this Indenture until the Trustee resigns pursuant to ‎Section 7.08 or until a successor replaces it and, thereafter, means the successor.

“Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to time.

“United States” means the United States of America (including the states and the District of Columbia) and its territories, possessions and other areas subject to its jurisdiction.

“Unrestricted Subsidiary” means:

(a)            any Subsidiary of the Company (other than FinanceCo or any successor to it) that is designated as an Unrestricted Subsidiary as permitted or required pursuant to ‎Section 4.10 and is not thereafter redesignated as a Restricted Subsidiary as permitted pursuant thereto; and

(b)            any Subsidiary of an Unrestricted Subsidiary.

“U.S. Dollar” or “$” means the lawful currency of the United States.

“U.S. Dollar Equivalent” means, with respect to any monetary amount in a currency other than U.S. Dollars, at any time for the determination thereof, the amount of U.S. Dollars obtained by converting such foreign currency involved in such computation into U.S. Dollars at the spot rate for the purchase of U.S. Dollars with the applicable foreign currency as published or as quoted by Reuters at approximately 10:00 A.M. (New York time) on the date not more than two Business Days prior to such determination.

“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the Company’s option.

“Vessel” means any (i) any mobile offshore drilling unit, the legs of which can be lowered to the seabed from the hull or platform thereof or (ii) any other drilling rig, drillship, semisubmersible drilling unit, mobile offshore drilling unit or vessel, the primary purpose of which is the exploration and production drilling for crude oil or hydrocarbons.

“Vessel Mortgage” means each mortgage and any other instruments, such as statutory mortgages and deeds, over any Collateral Vessel, each duly registered in the relevant registry in favor of the Collateral Trustee, as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Voting Stock” of any Person means all classes of Capital Stock of that Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of the Board of Directors of such Person.

“Wholly Owned” means, with respect to any Person, a Subsidiary all the Voting Stock of which (except directors’ qualifying shares and shares issued to foreign nationals as required under applicable law) is at that time owned, directly or indirectly, by such Person and its other Wholly Owned Restricted Subsidiaries.

Section 1.02.     Other Definitions.

Section 1.03.      Trust Indenture Act. This Indenture is not qualified under the TIA, and the provisions of the TIA (including “mandatory” provisions thereof) shall not apply to or in any way govern the terms of this Indenture or the Notes or any Note Guaranty, except where specifically made applicable in this Indenture. As a result, no provisions of the TIA (including “mandatory” provisions thereof) are incorporated into this Indenture unless expressly incorporated pursuant to this Indenture. Unless specifically provided in this Indenture, no terms that are defined under the TIA have such meanings for purposes of this Indenture.

Section 1.04.     Rules of Construction. Unless the context otherwise requires:

(a)            a term has the meaning assigned to it;

(b)            an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

(c)            “or” is not exclusive;

(d)            “including” means including without limitation;

(e)            words in the singular include the plural and words in the plural include the singular;

(f)            unsecured Debt shall not be deemed to be subordinate or junior to secured Debt merely by virtue of its nature as unsecured Debt;

(g)            the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of the Company dated such date prepared in accordance with GAAP; and

(h)            the principal amount of any Preferred Stock shall be the greater of (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock.

Section 1.05.     Luxembourg Terms. In this Indenture and any Note Document, where it relates to a company incorporated under the laws of the Luxembourg, an entity incorporated, formed or established in Luxembourg or a Lien governed by Luxembourg law, a reference to:

(a)            “winding up,” “administration” or “dissolution” includes, without limitation, any procedure or proceeding in relation to an entity becoming bankrupt (faillite), insolvency, voluntary or judicial liquidation, dissolution without liquidation (dissolution administrative sans liquidation) composition with creditors (concordat préventif de la faillite), moratorium or reprieve from payment (sursis de paiement), controlled management (gestion contrôlée), fraudulent conveyance (actio pauliana), general settlement with creditors, reorganisation or any other similar proceedings affecting the rights of creditors generally under Luxembourg law, and shall be construed so as to include any equivalent or analogous liquidation or reorganisation proceedings;

(b)            an “agent” includes, without limitation, a mandataire;

(c)            a “receiver,” “administrative receiver,” “administrator,” “trustee,” “custodian,” “sequestrator,” “conservator” or similar officer like includes, without limitation,

(1)            juge commissaire or insolvency receiver (curateur) appointed under the Luxembourg Commercial Code;

(2)            liquidateur appointed under Articles 1100-1 to 1100-15 (inclusive) of the Luxembourg law dated 10 August 1915 on commercial companies, as amended;

(3)            juge-commissaire or liquidateur appointed under Article 1200-1 of the Luxembourg law dated 10 August 1915 on commercial companies, as amended;

(4)            commissaire appointed under the Grand-Ducal decree of 24 May 1935 on the controlled management regime or under Articles 593 to 614 (inclusive) of the Luxembourg Commercial Code;

(5)            juge délégué appointed under the Luxembourg act of 14 April 1886 on the composition to avoid bankruptcy, as amended; and

(6)            any other person performing the same function of each of the foregoing;

(d)            a “matured obligation” includes, without limitation, an obligation certaine, liquide et exigible;

(e)            a “lien,” “Security,” or a “security interest” includes, without limitation, any hypothèque, nantissement, gage, privilège, transfert de propriété à titre de garantie, droit de rétention, gage sur fonds de commerce and any type of security in rem (sûreté réelle) or agreement or arrangement having a similar effect and any transfer of title by way of security;

(f)            “creditors process” means an executory attachment (saisie exécutoire) or a conservatory attachment (saisie conservatoire);

(g)            a “guarantee” includes any garantie which is independent from the debt to which it relates, any professional payment guarantee (garantie professsionelle de paiement) within the meaning of the Luxembourg law on professional payment guarantees dated 22 July 2020, and any suretyship (cautionnement) within the meaning of Articles 2011 et seq. of the Luxembourg Civil Code;

(h)            a person being unable to pay its debts includes that person being in a state of cessation de paiements (cessation de paiement);

(i)            a person being “insolvent” includes that person being in a state of cessation of payments (cessation de paiements) and having lost its creditworthiness (ébranlement de credit);

(j)            an amalgamation, demerger, merger or corporate reconstruction includes a scission and a fusion, trasferts d’actifs, de branche d’activités et d’universalité, transfert du patrimoine professional as well as assimilated transactions as foreseen by the Luxembourg law of 10 August 1915 on commercial companies, as amended;

(k)            an “attachment” includes a saisie;

(l)            “by-laws” or “constitutional documents” includes its up-to-date (restated) articles of association (statuts coordonnés);

(m)            a “director,” “officer” or “manager” of any company or partnership incorporated or established in Luxembourg or governed by Luxembourg law include its gérant or administrateur and, in case of a partnership, the gérants or administrateur of its associé gérant or general partner;

(n)            “shares” includes actions and/or parts sociales;

(o)            “gross negligence” means “faute lourde”; and

(p)            “willful misconduct” means “dol” or “faute dolosive.”

Article 2
The Notes

Section 2.01.     Amount of Notes. The aggregate principal amount of Notes which may be authenticated and delivered under this Indenture is unlimited, subject to compliance with Sections ‎2.03, ‎4.04 and ‎4.06. All Notes shall be identical in all respects other than issue prices, issuance dates and with respect to interest payable on the first interest payment date after issuance.

Subject to ‎Section 2.03, the Trustee shall authenticate the Original Notes for original issue on the Issue Date. With respect to any Notes issued after the Issue Date (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, Original Notes pursuant to ‎Section 2.07, ‎2.09 or ‎3.06 or Appendix A), the Issuers may issue such Notes but only in compliance with ‎Section 2.03.

Section 2.02.     Form and Dating. Provisions relating to the Notes are set forth in Appendix A, which is hereby incorporated in and expressly made part of this Indenture. The Notes and the certificate of authentication included therein shall be substantially in the form of Exhibit A. In the case of any conflict between this Indenture and the Notes, the provisions of this Indenture shall control and govern to the extent of such conflict. The Notes may have notations, legends or endorsements required by the Depositary, law, stock exchange rule, agreements to which either Issuer or any Guarantor is subject, if any, or usage, provided that any such notation, legend or endorsement is in a form reasonably acceptable to the Issuers. Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibit A are hereby incorporated and expressly made part of this Indenture. The Notes shall be issuable in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

Section 2.03.     Execution and Authentication. At least one Officer of each Issuer shall sign the Notes for such Issuer by manual or facsimile signature.

If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.

At any time and from time to time after the execution and delivery of this Indenture, the Issuers may deliver Notes executed by the Issuers to the Trustee for authentication. The Trustee will authenticate and deliver:

(a)            (i) Original Notes for original issue in the aggregate principal amount not to exceed $700,000,000, and (ii) Additional Notes from time to time for original issue in aggregate principal amounts specified by the Issuers, after the following conditions have been met:

(A)            Receipt by the Trustee of (1) an Officers’ Certificate (which shall include the statement specified in ‎Section 12.04) specifying,

(i)            the amount of Notes to be authenticated and the date on which the Notes are to be authenticated,

(ii)            in the case of Additional Notes, that the issuance of such Notes does not contravene ‎Section 4.04 and ‎Section 4.06,

(iii)            whether the Notes are to be issued as one or more Global Notes or Definitive Notes, and

(iv)            other information the Issuers may determine to include or the Trustee may reasonably request.

(2) A written order executed by an Officer of each of the Issuers requesting the Trustee to authenticate Original Notes or Additional Notes, as the case may be (an “Authentication Order”).

(B)            In the case of Additional Notes that are not fungible with the Original Notes for U.S. federal income tax purposes, such Additional Notes shall bear a different CUSIP number, and the Trustee shall receive an Opinion of Counsel that conforms with the requirements of ‎Section 12.04 hereof and states that such Additional Notes, when authenticated and delivered by the Trustee and issued by the Issuers in the manner and subject to any conditions specified in such Opinion of Counsel, are the legal, valid and binding obligations of the Issuers, enforceable against the Issuers in accordance with their terms, subject to customary enforceability exceptions.

A Note shall not be valid until an authorized signatory of the Trustee (or an Authentication Agent as described below) manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.

The Issuers may appoint an Authentication Agent (if not the Trustee) to authenticate any Notes. Any such appointment shall be evidenced by an instrument signed by an Officer of the Company, a copy of which shall be furnished to the Trustee. Unless limited by the terms of such appointment, an Authentication Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such Authentication Agent. An Authentication Agent has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.

Section 2.04.     Registrar and Paying Agent. The Issuers shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (the “Registrar”) and an office or agency where Notes may be presented for payment (the “Paying Agent”). The Registrar shall keep a register of the Notes and of their transfer and exchange. The Issuers may have one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrars. The term “Paying Agent” includes any additional paying agents.

The Issuers initially appoint The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes. The Issuers have entered into a letter of representations with DTC in the form provided by DTC and the Trustee and each Registrar, co-registrar, Paying Agent, additional paying agent or custodian (“Agent”) is hereby authorized to act in accordance with such letter and applicable procedures of DTC. None of the Issuers, the Trustee or any Agent shall have responsibility for any actions taken or not taken by the Depositary.

In connection with any proposed transfer outside the book-entry only system, the Issuers, the Holder or DTC shall, to the extent required by applicable tax law, provide or cause to be provided to the Trustee all information that is (i) in their possession, (ii) specifically requested by the Trustee in sufficient detail to permit compliance with such request and (iii) necessary to allow the Trustee to comply with any applicable tax reporting obligations, including, if applicable, any cost basis reporting obligations under Section 6045 of the Code. The Trustee may rely on the information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.

The Issuers may enter into an appropriate agency agreement with any Registrar, Paying Agent or co-registrar not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Issuers shall notify the Trustee of the name and address of any such agent. If the Issuers fail to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to ‎Section 7.07. The Company or any of its Subsidiaries may act as a Paying Agent or Registrar.

Initially, the Trustee will act as Registrar and Paying Agent with regard to the Notes.

The Issuers may remove any Registrar or Paying Agent upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (i) if applicable, acceptance of an appointment by a successor Registrar or Paying Agent, as the case may be, as evidenced by an appropriate agreement entered into by the Issuers and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (i) above and the express acceptance by the Trustee of such appointment. The Registrar or Paying Agent may resign at any time upon written notice to the Issuers and the Trustee; provided, however, that the Trustee may resign as Paying Agent or Registrar only if the Trustee also resigns as Trustee in accordance with ‎Section 7.08.

Section 2.05.     Paying Agent to Hold Money in Trust. Prior to 11:00 a.m., New York City time, on any due date of the principal and interest on any Note, the Issuers shall deposit with the Paying Agent a sum sufficient to pay such principal and interest when so becoming due. The Paying Agent shall hold in trust for the benefit of Noteholders or the Trustee all money held by the Paying Agent for the payment of principal of or interest on the Notes and shall notify the Trustee in writing of any default by the Issuers in making any such payment. If the Company or a Subsidiary thereof acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it in trust for the benefit of Persons entitled thereto. The Issuers 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 by the Paying Agent. Upon delivering all money held by it to the Trustee in accordance with this ‎Section 2.05, the Paying Agent shall have no further liability for the money delivered to the Trustee.

Section 2.06.     Noteholder Lists. The Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Noteholders. If the Trustee is not the Registrar, the Issuers shall furnish, or cause the Registrar to furnish, to the Trustee, in writing at least five Business Days before each interest and/or principal 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 Noteholders.

Section 2.07.     Replacement Notes. If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that such Note has been lost, destroyed or wrongfully taken, the Issuers shall issue and the Trustee shall authenticate a replacement Note (in accordance with the procedures and requirements of ‎Section 2.03 hereof), if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a) satisfies the Issuers and the Trustee within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Registrar does not register a transfer prior to receiving such notification, (b) makes such request to the Issuers and the Trustee prior to the Note 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 Issuers, Trustee and/or the Authentication Agent, as applicable. If required by the Trustee or the Issuers, such Holder shall furnish an indemnity bond sufficient in the judgment of the Issuers and the Trustee (and the Paying Agent, Registrar and Authentication Agent, if not the Trustee) to protect the Issuers, the Trustee, the Paying Agent, the Registrar, any co-registrar and the Authentication Agent, as applicable, from any loss or liability which any of them may suffer if a Note is replaced. The Issuers and the Trustee may charge the Holder for their expenses in replacing a Note (including attorneys’ fees and disbursements in replacing such Note). In the event any such mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and payable, the Issuers in their discretion may pay such Note instead of issuing a new Note in replacement thereof.

Every replacement Note is an additional obligation of the Issuers.

The provisions of this ‎Section 2.07 are exclusive and shall preclude (to the extent lawful) all other rights and remedies of the Holders with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes.

Section 2.08.     Outstanding Notes. Notes outstanding at any time are all Notes authenticated by the Trustee, except for those canceled by it, those delivered to it for cancellation, those reductions in interests in a Global Note effected by the Trustee in accordance with the provisions hereof and those described in this ‎Section 2.08 as not outstanding. Subject to ‎Section 12.05, a Note does not cease to be outstanding because an Issuer, a Guarantor or an Affiliate of an Issuer or a Guarantor holds the Note.

If a Note is replaced pursuant to ‎Section 2.07, it ceases to be outstanding unless the Trustee and the Issuers receive proof satisfactory to them that the replaced Note is held by a protected purchaser.

If the Paying Agent holds in trust, in accordance with ‎Section 2.05 of this Indenture, on a Redemption Date or maturity date money sufficient to pay all principal and interest payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, then on and after that date, such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.

Section 2.09.     Temporary Notes. Until Definitive Notes are ready for delivery, the Issuers may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of Definitive Notes but may have variations that the Issuers consider appropriate for temporary Notes. Without unreasonable delay, the Issuers shall prepare and the Trustee shall authenticate (in accordance with the procedures and requirements of ‎Section 2.03) Definitive Notes and deliver them in exchange for temporary Notes.

Section 2.10.     Cancellation. The Issuers at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange, redemption or payment and such Notes shall promptly be cancelled by the Trustee. The Trustee and no one else shall cancel and dispose of all Notes surrendered for registration of transfer, exchange, payment or cancellation in its customary manner. The Trustee, upon request of the Issuers, shall deliver a certificate of cancellation to the Issuers. The Issuers may not issue new Notes to replace Notes they have redeemed, paid or delivered to the Trustee for cancellation, except pursuant to the terms of this Indenture.

Section 2.11.     Defaulted Interest. If the Issuers default in a payment of interest on the Notes, the Issuers shall pay the defaulted interest (plus interest on such defaulted interest to the extent lawful) in any lawful manner. The Issuers may pay the defaulted interest to the Persons who are Noteholders on a subsequent special record date. The Issuers shall fix or cause to be fixed any such special record date and payment date upon notification to the Trustee and shall promptly deliver to each affected Noteholder a notice that states the special record date, the payment date and the amount of defaulted interest to be paid.

Section 2.12.     CUSIP, ISIN or Common Code Numbers. The Issuers in issuing the Notes may use “CUSIP,” “ISIN” or “Common Code” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP,” “ISIN” or “Common Code” numbers in notices of redemption as a convenience to Holders; provided, however, that none of the Issuers or the Trustee shall have any responsibility for any defect in the “CUSIP,” “ISIN” or “Common Code” number that appears on any Note, check, advice of payment or redemption notice, and any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuers shall promptly notify the Trustee in writing of any change in such numbers.

Article 3
Redemption

Section 3.01.     Notices to Trustee. If the Issuers elect to redeem Notes pursuant to paragraph ‎5 of the Notes, they shall notify the Trustee in writing of the Redemption Date, the principal amount of Notes to be redeemed and that such redemption is being made pursuant to paragraph ‎5 of the Notes.

The Issuers shall give each notice to the Trustee provided for in this ‎Section 3.01 at least 35 days before the Redemption Date unless the Trustee consents to a shorter period. Such notice shall be accompanied by an Officers’ Certificate and an Opinion of Counsel from the Issuers to the effect that the conditions precedent to such redemption have been complied with.

Section 3.02.     Selection of Notes to be Redeemed. If fewer than all of the Notes are to be redeemed, the Trustee shall select the Notes to be redeemed by lot; provided that if the Notes are in global form, interests in such Global Notes will be selected for redemption by the applicable Depositary in accordance with its standard procedures therefor. The Trustee shall make the selection from outstanding Notes not previously called for redemption. The Trustee may select for redemption portions of the principal of Notes that have denominations larger than $2,000. Notes and portions of them the Trustee selects shall be in amounts of $2,000 or a whole multiple of $1,000 in excess thereof. Provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. The Trustee shall notify the Issuers in writing promptly of the Notes or portions of Notes to be redeemed.

Section 3.03.     Notice of Redemption. Not less than 10 days nor more than 60 days before a date for redemption of Notes pursuant to paragraph ‎5 of the Notes (such date, a “Redemption Date”), the Issuers shall send, or cause to be sent, a notice of redemption by first-class mail, or in the case of Notes held in book-entry form, by electronic transmission, to each Holder of Notes to be redeemed, at such Holder’s address appearing in the Note register, with a copy to the Trustee.

The notice shall identify the Notes to be redeemed (including any CUSIP, Common Code or ISIN numbers, if any) and shall state:

(a)            the Redemption Date;

(b)            the redemption price or the calculation, or the method of calculation, of the redemption price;

(c)            the name and address of the applicable Paying Agent;

(d)            that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

(e)            if fewer than all the outstanding Notes are to be redeemed, the identification and principal amounts of the particular Notes to be redeemed;

(f)            that, unless the Issuers default in making such redemption payment, interest on Notes (or portion thereof) called for redemption ceases to accrue on and after the Redemption Date;

(g)            if the redemption is conditioned upon one or more conditions precedent, a description of such conditions, and a statement that, in the Company’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied (or waived by the Company in its sole discretion), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived) by the Redemption Date, or by the Redemption Date so delayed and such redemption provisions may be adjusted to comply with the requirements of the applicable Depositary; and

(h)            that no representation is made as to the correctness or accuracy of the CUSIP, ISIN or Common Code number, if any, listed in such notice or printed on the Notes.

Any notice to Holders of Notes of such a redemption pursuant to paragraph 5 of the Notes shall include the appropriate calculation, or method of calculation, of the redemption price, but is not required to include the redemption price itself. The actual redemption price, calculated as described in paragraph 5 of the Notes, must be set forth in an Officers’ Certificate delivered to the Trustee no later than two Business Days prior to the Redemption Date. The Trustee shall give the notice of the redemption price as provided for in the Officers’ Certificate, in the Issuers’ name and at the Issuers’ expense, one Business Day prior to the Redemption Date.

At the Issuers’ written request, the Trustee shall give the notice of redemption in the Issuers’ name and at the Issuers’ expense. In such event, any such request shall be received in writing by the Trustee at least five Business Days prior to the date on which such notice is to be given unless the Trustee consents to a shorter period. Any such notice may be canceled if written notice from the Issuers of such cancellation is actually received by the Trustee on the Business Day immediately prior to notice of such redemption being delivered to any Noteholder or otherwise delivered in accordance with the applicable procedures of the Depositary and shall thereby be void and of no effect.

Section 3.04.     Effect of Notice of Redemption. Subject to satisfaction of any conditions precedent specified in such notice, once notice of redemption is mailed or otherwise delivered, Notes called for redemption become due and payable on the Redemption Date and at the redemption price stated in the notice. Upon surrender to the applicable Paying Agent, such Notes shall be paid at the redemption price stated in the notice, plus accrued and unpaid interest to, but excluding, the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the related interest payment 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 3.05.     Deposit of Redemption Price. On or prior to 11:00 a.m. New York City time on the Redemption Date, the Issuers shall deposit with the applicable Paying Agent (or, if the Company or a Subsidiary thereof is the Paying Agent, shall segregate and hold in trust) money in U.S. Dollars sufficient to pay the redemption price of and accrued and unpaid interest (subject to the right of Holders of record on the relevant record date to receive interest due on the related interest payment date) on all Notes to be redeemed on that date other than Notes or portions of Notes called for redemption that have been delivered by the Issuers to the Trustee for cancellation. On and after the Redemption Date, interest shall cease to accrue on Notes or portions thereof called for redemption so long as the Issuers have deposited with the Paying Agent funds sufficient to pay the principal of, plus accrued and unpaid interest on, the Notes or portions thereof to be redeemed.

Section 3.06.     Notes Redeemed in Part. Upon surrender of a Note that is redeemed in part, the Issuers shall execute and the Trustee shall authenticate (in accordance with the procedures and requirements of ‎Section 2.03) for the Holder (at the Issuers’ expense) a new Note equal in principal amount to the unredeemed portion of the Note surrendered.

Section 3.07.     Optional Redemption.

(a)            The Notes shall be optionally redeemable as set forth in paragraph ‎5 of the Notes. Any such redemption shall be made in accordance with the provisions of this ‎Article 3.

(b)            Any redemption or notice of redemption issued pursuant to paragraph 5 of the Notes may, in the Company’s discretion, be subject to one or more conditions precedent.

(c)            If the Redemption Date is on or after an interest record date and on or before the related interest payment date, the accrued and unpaid interest, if any, will be paid to the Person in whose name the Note is registered at the close of business on such record date.

Article 4
Covenants

Section 4.01.     Covenant Suspension. During any period of time that:

(a)            the Notes have Investment Grade Ratings from at least two Rating Agencies, and

(b)            no Default or Event of Default has occurred and is continuing under this Indenture,

(i) the Note Guaranties will be automatically and unconditionally released and discharged (to the extent that guarantees by the Guarantors of all other Pari Passu Indebtedness are substantially concurrently released), (ii) the amount of Collateral Excess Proceeds and Excess Proceeds shall be reset at zero, and (iii) the Company and the Restricted Subsidiaries will not be subject to the following provisions of this Indenture: ‎Section 4.04, ‎Section 4.05, ‎Section 4.07, ‎Section 4.08, ‎Section 4.09, clauses ‎(d) and ‎(f) of ‎Section 5.01, clause (d) of ‎Section 5.02 and ‎Section 4.14 (collectively, the “Suspended Covenants” and the period of time that the Company and the Restricted Subsidiaries are not subject to the Suspended Covenants, the “Suspension Period”). In the event that the Company and the Restricted Subsidiaries are not subject to the Suspended Covenants for any period of time as a result of the preceding sentence and, subsequently, two or more of the Rating Agencies withdraws its ratings or downgrades the ratings assigned to the Notes below the required Investment Grade Ratings (the date of such ratings withdrawal or downgrade, the “Reversion Date”), then the Company and the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants for all periods after the Reversion Date and, furthermore, for the purpose of compliance with the provisions of ‎Section 4.05 with respect to Restricted Payments made after the Reversion Date, the amount of Restricted Payments made shall be calculated as though ‎Section 4.05 had been in effect prior to, but not during, the Suspension Period, provided that there will not be deemed to have occurred a Default or Event of Default with respect to that covenant during the Suspension Period (or after that time based solely on events that occurred during that time). The Issuers will promptly give the Trustee written notice of any such suspension of covenants. In the absence of such notice, the Trustee shall assume that the Suspended Covenants are in full force and effect.

Solely for the purpose of determining the amount of Permitted Liens under ‎Section 4.06 during any Suspension Period and without limiting the Company’s or any Restricted Subsidiary’s ability to Incur Debt during any Suspension Period, to the extent that calculations in ‎Section 4.06 refer to ‎Section 4.04, such calculations shall be made as though ‎Section 4.04 remains in effect during the Suspension Period. On the Reversion Date, all Debt Incurred during the Suspension Period will be classified to have been Incurred pursuant to clause ‎(10) of the definition of “Permitted Debt” in ‎Section 4.04. For purposes of determining compliance with ‎Section 4.07 on the Reversion Date, the Net Available Cash from all Asset Sales not applied in accordance with the covenant will be deemed to be reset to zero. On the Reversion Date, for purposes of determining compliance with ‎Section 4.09, all agreements and arrangements entered into by the Company or any Restricted Subsidiary with an Affiliate of the Company during the Suspension Period shall be deemed to have been entered into pursuant to clause (f) of ‎Section 4.09 and for purposes of determining compliance with ‎Section 4.08, all contracts entered into during the Suspension Period that contain any of the restrictions contemplated by such covenant shall be deemed to have been entered into pursuant to clause ‎(1) of ‎Section 4.08. No Subsidiaries may be designated as Unrestricted Subsidiaries during any Suspension Period. Notwithstanding that the Suspended Covenants may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of any failure to comply with the Suspended Covenants during any Suspension Period and the Company and any Subsidiary of the Company will be permitted, without causing a Default or Event of Default or breach of any of the Suspended Covenants (notwithstanding the reinstatement thereof) under this Indenture, to honor, comply with or otherwise perform any contractual commitments or obligations entered into during a Suspension Period following a Reversion Date and to consummate the transactions contemplated thereby; provided that, to the extent any such commitment or obligation results in the making of a Restricted Payment, such Restricted Payment shall be made under ‎Section 4.05 and, if not permitted under ‎Section 4.05, such Restricted Payment shall be deemed permitted by clause ‎(c) of the first paragraph of ‎Section 4.05 and shall be deducted for purposes of calculating the amount pursuant to such clause ‎(c) (which may not be less than zero). The Issuers will give the Trustee written notice of any occurrence of a Reversion Date. After any such notice of the occurrence of a Reversion Date, the Trustee shall assume that the Suspended Covenants apply and are in full force and effect.

Section 4.02.     Payment of Notes. The Issuers shall pay the principal of and interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture. Principal and interest shall be considered paid on the date due if on such date the Trustee or the applicable Paying Agent holds in accordance with this Indenture money sufficient to pay all principal and interest then due.

The Issuers shall pay interest on overdue principal at the rate specified therefor in the Notes, and it shall pay interest on overdue installments of interest at the rate borne by the Notes to the extent lawful.

Section 4.03.     Reports. Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company will furnish to the Holders of Notes and the Trustee, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:

(a)            all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Company were required to file such reports; and

(b)            all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports;

provided that the electronic filing of the foregoing reports by the Company on the SEC’s EDGAR system (or any successor system) shall be deemed to satisfy the Company’s delivery obligations to the Trustee and any Holder of Notes.

All such reports will be prepared in all material respects in accordance with all of the rules and regulations of the SEC applicable to such reports. Each annual report on Form 10-K will include a report on the Company’s consolidated financial statements by the Company’s certified independent accountants. In addition, the Company will file a copy of each of the reports referred to in clauses ‎(a) and ‎(b) above with the SEC for public availability within the time periods for non-accelerated filers specified in the rules and regulations of the SEC applicable to such reports (unless the SEC will not accept such a filing) and will post the reports on its website within those time periods.

Notwithstanding the foregoing, (i) the Company shall not be required to furnish any information, certificates or reports required by (A) Section 302, Section 404 or Section 906 of the Sarbanes-Oxley Act of 2002 or related Items 307 or 308 of Regulation S-K or (B) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC with respect to financial measures contained therein, (ii) the reports referred to in clauses ‎(a) and ‎(b) above will not be required to contain the separate financial statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, (iii) to the extent pro forma financial information is required to be provided by the Company, the Company may provide only pro forma revenues, net income, EBITDA, senior secured debt, total debt and capital expenditures (or equivalent financial information) in lieu thereof, (iv) the reports referred to in clauses ‎(a) and ‎(b) above shall not be required to present compensation or beneficial ownership information, and (v) the reports referred to in clauses ‎(a) and ‎(b) above shall not be required to include any exhibits required by Item 15 of Form 10-K, Item 6 of Form 10-Q or Item 9.01 of Form 8-K.

If, at any time, the Company is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Company will nevertheless continue filing the reports referred to in clauses ‎(a) and ‎(b) above with the SEC within the time periods specified above unless the SEC will not accept such a filing.

If at any time the Company is not required to file with the SEC the reports required by the preceding paragraphs, the Issuers will furnish to the Holders of Notes and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act for so long as the Notes are subject to resale restrictions under Rule 144 under the Securities Act.

To the extent any information is not provided within the time periods specified in this ‎Section 4.03 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured.

Delivery of such reports, information, and documents to the Trustee shall be for informational purposes only, and the Trustee’s receipt of them shall not constitute constructive notice of any information contained therein or determinable from information contained therein (including the Company’s compliance with any of its covenants under this Indenture as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s compliance with the covenants or with respect to any reports or other documents filed with the SEC or EDGAR or any website under this Indenture, or participate in any conference calls.

Section 4.04.     Limitation on Debt and Issuance of Preferred Stock. The Company shall not, and shall not permit any Restricted Subsidiary to, Incur, directly or in directly, any Debt, and the Company will not and will not permit any Restricted Subsidiary to issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries that are not either FinanceCo or a Guarantor to issue any shares of Preferred Stock, unless, after giving effect to the application of the proceeds thereof, either:

(a)            the Debt, Disqualified Stock or Preferred Stock is Debt, Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary and after giving effect to the Incurrence or issuance thereof and the application of the proceeds thereof on a pro forma basis, the Consolidated Fixed Charges Coverage Ratio would be at least 2.00 to 1.00, provided that the aggregate principal amount of Debt, Disqualified Stock and Preferred Stock permitted to be Incurred or issued pursuant to this clause ‎(a) by Restricted Subsidiaries that are not the Guarantors or FinanceCo may not, together with the aggregate principal amount of Debt Incurred and Disqualified Stock and Preferred Stock issued under clause ‎(20) of the definition of “Permitted Debt” in this ‎Section 4.04 in respect thereof outstanding at any time, exceed an aggregate amount equal to the greater of (x) $150 million and (y) 5.25% of Total Assets (measured at the time of Incurrence) of Non-Guarantor Subsidiaries on a combined basis, plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other costs and expenses (including, without limitation, original issue discount, upfront fees and similar fees) incurred in connection with such refinancing, or

(b)            the Debt is Permitted Debt.

“Permitted Debt” means:

(1)            Debt evidenced by the Notes (but not any Additional Notes) issued on the Issue Date and the Note Guaranties thereof;

(2)            Debt of the Company or a Restricted Subsidiary Incurred under the Credit Facilities up to an aggregate outstanding principal amount not to exceed (1) the greater of (A) $575 million, and (B) the sum of (x) $525 million and (y) 50.0% of the Company’s aggregate amount of Consolidated EBITDA for the most recent four consecutive fiscal quarters for which internal financial statements are available (determined on a pro forma basis), minus (2) the aggregate amount outstanding at such time under Permitted Receivables Financings Incurred pursuant to clause (u);

(3)            Debt of the Company owing to and held by any Restricted Subsidiary and Debt of a Restricted Subsidiary owing to and held by the Company or any Restricted Subsidiary; provided, however, that (1) any subsequent issue or transfer of Capital Stock or other event that results in the Company, any Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of that Debt (except to the Company or a Restricted Subsidiary, whether directly or pursuant to one or more back-to-back transfers) shall be deemed, in each case, to constitute the Incurrence of that Debt by the issuer thereof, and (2) if the Company, FinanceCo or a Guarantor is the obligor on that Debt and the Debt is owed to a Restricted Subsidiary that is not a Guarantor or FinanceCo, the Debt is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes or the applicable Note Guaranty;

(4)            Debt, Disqualified Stock and Preferred Stock of a Restricted Subsidiary outstanding on the date on which that Restricted Subsidiary was acquired by the Company or otherwise became a Restricted Subsidiary or Debt, Disqualified Stock or Preferred Stock Incurred or issued as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, a transaction or series of transactions pursuant to which the Person became a Restricted Subsidiary of the Company or was otherwise acquired by the Company; provided that at the time that Person was acquired by the Company or otherwise became a Restricted Subsidiary and after giving effect to the Incurrence of that Debt or the issuance of that Disqualified Stock or Preferred Stock and on a pro forma basis, (i) the Company would have been able to Incur $1.00 of additional Debt pursuant to clause ‎(a) of this ‎Section 4.04 or (ii) the Consolidated Fixed Charges Coverage Ratio is at least equal to such ratio immediately prior to such transaction;

(5)            Debt under Interest Rate Agreements entered into by the Company or a Restricted Subsidiary for the purpose of limiting interest rate risk in the financial management of the Company or that Restricted Subsidiary and not for speculative purposes, provided that the obligations under those agreements are related to payment obligations on Debt otherwise permitted by the terms of this ‎Section 4.04;

(6)            Debt under Currency Exchange Protection Agreements entered into by the Company or a Restricted Subsidiary for the purpose of limiting currency exchange rate risks in the financial management of the Company or that Restricted Subsidiary and not for speculative purposes;

(7)            Debt under Commodity Price Protection Agreements entered into by the Company or a Restricted Subsidiary in the financial management of the Company or that Restricted Subsidiary and not for speculative purposes;

(8)            Debt in connection with one or more standby letters of credit or performance or surety bonds or completion guarantees issued by the Company or a Restricted Subsidiary in the ordinary course of business or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;

(9)            Debt arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, earn-outs, adjustment of purchase price or similar obligations, or guarantees or letters of credit, surety bonds or performance bonds securing any obligations pursuant to such agreements, in each case, Incurred in connection with the acquisition or disposition of any business, assets or Capital Stock of a Subsidiary, other than Guarantees of Debt Incurred by any Person acquiring all or any portion of such business, assets or Capital Stock; provided, however, that the maximum aggregate liability in respect of all such Debt shall at no time exceed the gross proceeds (including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value)) actually received by the Company or such Restricted Subsidiary in connection with such disposition;

(10)            Debt of the Company and its Restricted Subsidiaries outstanding on the Issue Date, in each case not otherwise described in clauses ‎(1) or ‎(2) above that is existing or Incurred on the Issue Date;

(11)            Debt, Disqualified Stock and Preferred Stock of the Company or a Restricted Subsidiary in an aggregate principal amount outstanding at any one time not to exceed the greater of (x) $225 million or (y) 8.0% of Total Assets (measured at the time of Incurrence or issuance);

(12)            Debt of the Company or a Restricted Subsidiary Incurred, or Disqualified Stock or Preferred Stock issued, in respect of Capital Lease Obligations, Synthetic Lease Obligations and Purchase Money Debt, and Sale and Leaseback Transactions, provided that the principal amount of any Debt, Disqualified Stock or Preferred Stock Incurred or issued pursuant to this clause outstanding at any one time may not exceed the greater of (x) $75 million or (y) 2.5% of Total Assets (measured at the time of Incurrence);

(13)            Debt of the Company or a Restricted Subsidiary consisting of Guarantees of Debt of the Company or any Restricted Subsidiary Incurred under any other clause or paragraph of this ‎Section 4.04;

(14)            Debt, Disqualified Stock and Preferred Stock of Foreign Subsidiaries in an aggregate principal amount outstanding at any one time not to exceed the greater of (x) $75 million or (y) 2.5% of Total Assets (measured at the time of Incurrence or issuance);

(15)            Debt under Hedging Obligations that are Incurred in the ordinary course of business (and, in each case, not for speculative purposes);

(16)            Debt Incurred by the Company or any of its Restricted Subsidiaries in respect of workers’ compensation claims, health, disability or other employee benefits or property or casualty or liability insurance, self-insurance obligations, bids, trade contracts, statutory obligations, customs, importation or performance, bid surety, appeal and similar bonds and completion or performance of guarantees (not for borrowed money) provided in the ordinary course of business, and any letters of credit functioning as or supporting any of the foregoing;

(17)            (a) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided, however, that such Debt is extinguished, refinanced or otherwise covered within 30 Business Days of Incurrence or (b) Debt owed on a short-term basis of no longer than 30 days to banks or financial institutions Incurred in the ordinary course of business that arises in connection with ordinary banking arrangements to manage cash balances of the Company and its Subsidiaries;

(18)            shares of Preferred Stock of a Restricted Subsidiary issued to the Company or another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to the Company or another of its Restricted Subsidiaries) shall be deemed in each case to be an issuance of such shares of Preferred Stock not permitted by this clause ‎(18);

(19)            Debt to the extent that the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the Notes in each case in accordance with the requirements of this Indenture;

(20)            Permitted Refinancing Debt Incurred in respect of Debt Incurred pursuant to clause ‎(a) of this ‎Section 4.04 and clauses ‎(1), ‎(4) and ‎(10) above or this clause ‎(20) of the definition of “Permitted Debt;”

(21)            Debt under any Permitted Receivables Financing outstanding on or Incurred after the Issue Date;

(22)            Incurrence by the Company or any Restricted Subsidiary of Limited Recourse Debt, which may be secured but only pursuant to clause (jj) of the definition of “Permitted Liens;” in each case for the purpose of financing a portion of the purchase price and costs and expenses in connection therewith of one or more Vessels (including for the avoidance of doubt the DS-13 and the DS-14) in a single transaction or series of related transactions, so long as the principal amount of the Debt (including the Limited Recourse Debt) Incurred in such transaction or series of related transactions pursuant to this clause ‎(22) (other than such Debt Incurred to finance a portion of the purchase price of the DS-13 and the DS-14) is not more than 85% of the purchase price for such acquired Vessel, and Permitted Refinancing Debt in respect thereof;

(23)            Debt Incurred in the ordinary course of business to finance take-or-pay obligations contained in supply arrangements or to the extent constituting Debt, prepayments for property or services under any Drilling Contract in the ordinary course of business;

(24)            Debt Incurred or Disqualified Stock or Preferred Stock issued by the Company or any Restricted Subsidiary to the extent that the net proceeds thereof are promptly deposited with the Trustee to satisfy and discharge the Notes in accordance with this Indenture; and

(25)            Cash Management Obligations and obligations in respect of any agreement providing for credit cards or purchase cards.

For purposes of determining compliance with any restriction on the Incurrence of Debt in dollars where Debt is denominated in a different currency, the amount of such Debt will be the U.S. Dollar Equivalent determined on the date of such determination. The principal amount of any Permitted Refinancing Debt Incurred in the same currency as the Debt being refinanced will be the U.S. Dollar Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially Incurred. Notwithstanding any other provision of this ‎Section 4.04, for purposes of determining compliance with this ‎Section 4.04, increases in Debt solely due to fluctuations in the exchange rate of currencies will not be deemed to exceed the maximum amount that the Company or any Restricted Subsidiary may Incur under any of clauses ‎(1) through ‎(25) of the definition of “Permitted Debt” in this ‎Section 4.04.

For purposes of determining compliance with this ‎Section 4.04:

(A)            in the event that an item of Debt meets the criteria of more than one of the types of Debt described above, the Company, in its sole discretion, will classify such item of Debt at the time of Incurrence and only be required to include the amount and type of such Debt in one of the above clauses; and

(B)            the Company will be entitled to divide and classify and reclassify an item of Debt in more than one of the types of Debt described above; provided that Debt outstanding under the Credit Agreement on the Issue Date shall at all times be treated as Incurred under clause ‎(2) of the definition of “Permitted Debt” and may not be reclassified.

Section 4.05.     Limitation on Restricted Payments. The Company shall not make, and shall not permit any Restricted Subsidiary to make, directly or indirectly, any Restricted Payment unless at the time of, and after giving effect to, the proposed Restricted Payment,

(a)            no Default or Event of Default shall have occurred and be continuing,

(b)            the Company could Incur at least $1.00 of additional Debt pursuant to clause ‎(a) of ‎Section 4.04, on a pro forma basis and

(c)            the aggregate amount of that Restricted Payment and all other Restricted Payments declared or made after the Issue Date, other than Restricted Payments made pursuant to clauses ‎(b) through ‎(o) below (the amount of any Restricted Payment, if made other than in cash, to be based upon Fair Market Value), would not exceed an amount equal to the sum of:

(1)            50% of the aggregate amount of Consolidated Net Income accrued during the period (treated as one accounting period) from January 1, 2023 to and including the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment and for which consolidated financial statements are internally available (or if the aggregate amount of Consolidated Net Income for such period shall be a deficit, minus 100% of such deficit),

plus

(2)            Capital Stock Sale Proceeds or any contribution to the Company’s equity capital received after the Issue Date,

plus

(3)            the sum of:

(A)            the aggregate Net Cash Proceeds received by the Company or any Restricted Subsidiary from the issuance or sale after the Issue Date of convertible or exchangeable Debt that has been converted into or exchanged for Capital Stock (other than Disqualified Stock) of the Company, and

(B)            the aggregate amount by which Debt of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet on or after the Issue Date upon the conversion or exchange of any Debt issued or sold on or prior to the Issue Date that is convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company,

excluding, in the case of clause ‎(A) or ‎(B):

(x)            any Debt issued or sold to the Company or a Subsidiary of the Company or an employee stock ownership plan or trust established by the Company or any Subsidiary for the benefit of their employees, and

(y)            the aggregate amount of any cash or other Property distributed by the Company or any Restricted Subsidiary upon any such conversion or exchange,

plus

(4)            an amount equal to the sum of:

(A)            the net reduction in Investments in any Person other than the Company or a Restricted Subsidiary resulting from dividends or distributions, Repayments of loans or advances or other transfers of Property made after the Issue Date, in each case to the Company or any Restricted Subsidiary from that Person, less the cost of the disposition of those Investments, and

(B)            in the case of the designation of an Unrestricted Subsidiary as a Restricted Subsidiary or all of the assets of such Unrestricted Subsidiary are transferred to the Company or a Restricted Subsidiary, or the Unrestricted Subsidiary is merged, amalgamated or consolidated into the Company or a Restricted Subsidiary, 100% of such amount received in cash and the Fair Market Value of any property or marketable securities received by the Company or any Restricted Subsidiary in respect of such redesignation, merger, amalgamation, consolidation or transfer of assets (provided that such designation occurs after the Issue Date);

plus

(5)            any cash dividends or cash distributions received directly or indirectly by the Company or a Guarantor after the Issue Date from an Unrestricted Subsidiary, to the extent such dividends or distributions were not otherwise included in Consolidated Net Income (other than to the extent such distribution represents a return of capital and the Investment in such Unrestricted Subsidiary was made by the Restricted Subsidiary pursuant to clause ‎(j) of this ‎Section 4.05 or to the extent such Investment constituted a Permitted Investment), and

plus

(6)            $50.0 million.

Notwithstanding the foregoing limitation, the Company may:

(a)            declare or pay dividends on its Capital Stock or distributions, or the consummation of any repurchase or redemption, within 60 days after the date of declaration of the dividend or distribution or giving of the redemption or repurchase notice, as the case may be, if, on said date of declaration or redemption or repurchase notice, such dividends, distributions, repurchase or redemption, as the case may be, could have been paid in compliance with this Indenture;

(b)            make Restricted Payments in exchange for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary of the Company or an employee stock ownership plan or trust established by the Company or any Subsidiary for the benefit of their employees) or any contributions to the equity capital of the Company; provided, however, that the Capital Stock Sale Proceeds from the exchange or sale shall be excluded from the calculation pursuant to clause ‎(c)‎(2) above;

(c)            purchase, repurchase, redeem, legally defease, acquire or retire for value any Subordinated Obligations or Disqualified Stock in exchange for, or out of the proceeds of the substantially concurrent sale of, Permitted Refinancing Debt (in the case of Subordinated Obligations only) or Disqualified Stock;

(d)            declare and pay dividends to holders of any class or series of Disqualified Stock, or of any Preferred Stock of a Restricted Subsidiary, issued pursuant to and in compliance with ‎Section 4.04;

(e)            permit a Restricted Subsidiary that is not a Wholly Owned Subsidiary to pay dividends to shareholders of that Restricted Subsidiary that are not the parent of that Restricted Subsidiary, so long as the Company or a Restricted Subsidiary that is the parent of that Restricted Subsidiary receives dividends on a pro rata basis or on a basis that results in the receipt by the Company or a Restricted Subsidiary that is the parent of that Restricted Subsidiary of dividends or distributions of greater value than it would receive on a pro rata basis;

(f)            make cash payments in lieu of the issuance of fractional shares;

(g)            make repurchases of shares of Capital Stock of the Company deemed to occur (i) upon the exercise of options to purchase shares of Capital Stock of the Company, warrants, other rights to acquire Capital Stock if such shares of Capital Stock of the Company represent a portion of the exercise price of such options, warrants or other rights and (ii) in connection with the withholding of a portion of the Capital Stock granted or awarded to a director or an employee to pay for the taxes payable by such director or employee upon such grant or award;

(h)            repurchase shares of, or options to purchase shares of, common stock of the Company from current or former officers, directors or employees of the Company or any of its Subsidiaries (or permitted transferees of such current or former officers, directors or employees), pursuant to the terms of agreements (including employment agreements) or plans approved by the Board of Directors under which such individuals acquire shares of such common stock; provided, however, that the aggregate amount of such repurchases shall not exceed (x) $30 million or (y) 1.0% of Total Assets (measured at the time of such payment) in any calendar year (with unused amounts in any calendar year carried over to succeeding calendar years);

(i)            purchase, defease or otherwise acquire or retire for value any Subordinated Obligations upon a Change of Control Triggering Event of the Company or an Asset Sale by the Company, to the extent required by any agreement pursuant to which such Subordinated Obligations were issued, but only if the Company has previously made the offer to purchase Notes required under ‎Section 4.07 or ‎Section 4.12 and has repurchased all Notes validly tendered and now withdrawn in connection with such offer to purchase Notes pursuant to ‎Section 4.07 or ‎Section 4.12;

(j)            make other Restricted Payments not to exceed the greater of (x) $175 million or (y) 6.0% of Total Assets in the aggregate (measured at the time of Incurrence);

(k)            purchase, repurchase or otherwise retire Capital Stock not to exceed the greater of (x) $50 million or (y) 2.0% of Total Assets (measured at the time of such payment);

(l)            make any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Disqualified Stock of the Company or a Restricted Subsidiary made by exchange for or out of the proceeds of, the substantially concurrent sale of Disqualified Stock of the Company or such Restricted Subsidiary, as the case may be, so long as such refinancing Disqualified Stock is permitted to be Incurred pursuant to ‎Section 4.04 and constitutes Permitted Refinancing Debt;

(m)            so long as no Default or Event of Default has occurred and is continuing or will result therefrom, make other Restricted Payments if, immediately after giving effect to such Restricted Payment (including the Incurrence of any Debt to finance such payment), the Consolidated Leverage Ratio would not be greater than 1.00 to 1.00;

(n)            make payments or distributions to dissenting shareholders (a) pursuant to applicable law or (b) in connection with a consolidation, merger, amalgamation or transfer of assets in connection with a transaction that is not prohibited by this Indenture; and

(o)            Restricted Payments in an aggregate amount not to exceed the amount of Declined Excess Proceeds.

Section 4.06.     Limitation on Liens. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, Incur or suffer to exist, any Lien (each, an “Initial Lien”) that secures obligations under any Debt or any related Guarantee upon any of its Property (including Capital Stock of a Restricted Subsidiary), whether owned at the Issue Date or thereafter acquired, or any interest therein or any income or profits therefrom unless (a) in the case of Liens on the Collateral, such Initial Lien is a Permitted Lien; or (b) in the case of any Initial Lien on any Property that is not Collateral, either (x) the Notes (or a Note Guaranty in the case of Initial Liens on Property of a Guarantor) will be secured by that Initial Lien equally and ratably with (or prior to, in the case of an Initial Lien that secures any Subordinated Indebtedness) all other Debt of the Company or any Restricted Subsidiary secured by such Initial Lien or (y) such Initial Lien is a Permitted Lien; except that the foregoing shall not apply to Liens securing the Notes (other than any Additional Notes) and the related Note Guaranties.

Any Lien created for the benefit of the Holders of the Notes pursuant to this ‎Section 4.06 shall be automatically and unconditionally released and discharged upon the release and discharge of each of the Liens described in clauses ‎(a) and ‎(b) above.

Section 4.07.     Limitation on Asset Sales.

(a)            The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Sale unless:

(1)            the Company or the Restricted Subsidiary receives consideration (measured either, at the option of the Company, at the time of the Asset Sale or as of the date of the definitive agreement with respect to such Asset Sale) at least equal to the Fair Market Value of the Property subject to that Asset Sale; and

(2)            at least 75% of the aggregate consideration paid to (or for the account of) the Company or the Restricted Subsidiary in connection with the Asset Sale is in the form of cash or Cash Equivalents or the assumption by the purchaser of liabilities of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) as a result of which the Company and the Restricted Subsidiaries are no longer obligated with respect to those liabilities.

For the purposes of this ‎Section 4.07:

(1)            (x) securities, instruments, notes or other assets received by the Company or any Restricted Subsidiary from the purchaser that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days after the receipt thereof shall be considered to be cash to the extent of the cash received in that conversion and (y) any cash payments received with respect to instruments, notes, securities or other assets referred to in the foregoing clause (x) within 180 days of receipt of such instruments, notes, securities or other assets;

(2)            any cash consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Sale that is held in escrow or on deposit to support indemnification, adjustment of purchase price or similar obligations in respect of such Asset Sale shall be considered to be cash;

(3)            Productive Assets received by the Company or any Restricted Subsidiary in connection with the Asset Sale shall be considered to be cash;

(4)            the requirement that at least 75% of the consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Sale be in the form of cash or Cash Equivalents or assumed liabilities shall also be considered satisfied if the cash or Cash Equivalents received constitutes at least 75% of the consideration received by the Company or the Restricted Subsidiary in connection with such Asset Sale, determined on an after-tax basis; and

(5)            any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in connection with the Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received in respect of Asset Sales, that at that time outstanding does not exceed the greater of (x) $150 million or (y) 5.25% of Total Assets shall be considered to be cash.

(b)            The Net Available Cash (or any portion thereof) from Asset Sales may be applied by the Company or a Restricted Subsidiary, to the extent the Company or the Restricted Subsidiary elects (or is required by the terms of any Debt):

(1)            to the extent such Net Available Cash are from an Asset Sale of Collateral, (w) to reduce, prepay, repay or purchase any First Lien Obligations, including Debt under the Credit Agreement, (x) to reduce, prepay, repay or purchase any Second Lien Obligations other than Note Obligations; provided that, if the Issuers shall so reduce, repay or repurchase such Second Lien Obligations, the Issuers shall ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Sale Offer), redeem Notes as described in ‎Section 3.07, or purchase Notes through open-market purchases or in privately negotiated transactions (but only to the extent such privately negotiated purchases are at or above 100% of the principal amount of the Notes so purchased), or (y) to make an offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Sale Offer), redeem Notes as described in ‎Section 3.07, or purchase Notes through open-market purchases or in privately negotiated transactions (but only to the extent such privately negotiated purchases are at or above 100% of the principal amount of the Notes so purchased) (in each case, other than Debt owed to the Company or any Affiliate of the Company); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Debt pursuant to this clause ‎(1), the Company or such Restricted Subsidiary will retire such Debt and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Sale constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased;

(2)            to the extent such Net Available Cash is from an Asset Sale that does not constitute Collateral, (w) to reduce, prepay, repay or purchase any Debt secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase other senior Debt; provided, that the Issuers shall ratably offer to repurchase Notes (in accordance with the procedures set forth below for an Asset Sale Offer), redeem Notes as described in ‎Section 3.07, or purchase Notes through open-market purchases or in privately negotiated transactions (but only to the extent such privately negotiated purchases are at or above 100% of the principal amount of the Notes so purchased), (y) to make an offer to repurchase Notes (in accordance with the procedures set forth below for an Asset Sale Offer), redeem Notes as described in ‎Section 3.07, or purchase Notes through open-market purchases or in privately negotiated transactions (but only to the extent such privately negotiated purchases are at or above 100% of the principal amount of the Notes so purchased), or (z) to reduce, prepay, repay or purchase any Debt of a Non-Guarantor (in each case, other than Debt owed to the Company or an Affiliate of the Company); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Debt pursuant to this clause (2), the Company or such Restricted Subsidiary will retire such Debt and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Sale constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased;

(3)            to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary); provided, however, that Additional Assets acquired with the Net Available Cash of a disposition of Collateral shall be pledged as Collateral; or

(4)            to make an investment (including capital expenditures) in any one or more businesses, properties (other than working capital assets) or assets (other than working capital assets) that replace the businesses, properties and/or assets that are the subject of such Asset Sale;

provided that the Company and its Restricted Subsidiaries will be deemed to have complied with the provisions described in clause (3) or (4) above if and to the extent that, within 365 days after the Asset Sale that generated the Net Available Cash, the Company or such Restricted Subsidiary, as applicable, has entered into and not abandoned or rejected a binding agreement to make an investment in compliance with the provision described in clause (3) or (4) above, and that investment is thereafter completed within 180 days after the end of such 365-day period (such 365-day period, as extended pursuant to this paragraph, the “Proceeds Application Period”). Pending the final application of any such amount of Net Available Cash, the Company or such Restricted Subsidiary may temporarily reduce Debt under a revolving credit facility, if any, or otherwise invest or utilize such Net Available Cash in any manner not prohibited by this Indenture and the Note Documents.

When the aggregate amount of Net Available Cash from all Asset Sales of Collateral not applied in accordance with the preceding paragraph within the Proceeds Application Period and not previously subject to a Collateral Prepayment Offer (as defined below) exceeds $50 million (such excess amount, the “Collateral Excess Proceeds”), the Issuers will be required to make an offer to purchase (the “Collateral Prepayment Offer”) the Notes and, if required by the terms of any Pari Passu Indebtedness secured by a Lien permitted under this Indenture on the Collateral (which Lien is not subordinate to the Lien of the Notes with respect to the Collateral), to all holders of such Pari Passu Indebtedness, to purchase the maximum principal amount of such Notes and Pari Passu Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of such Collateral Excess Proceeds, if any, at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Debt was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or such lesser price with respect to Pari Passu Indebtedness, if any, as may be provided by the terms of such other Debt), to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the agreement governing the Pari Passu Indebtedness, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof.

To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Pari Passu Indebtedness secured by a Lien permitted under this Indenture on the Collateral disposed of, as the case may be, validly tendered or otherwise surrendered in connection with a Collateral Prepayment Offer made with Collateral Excess Proceeds is less than the amount offered in a Collateral Prepayment Offer (or, in the case of a Collateral Advance Offer, the Collateral Advance Portion), the Company and the Restricted Subsidiaries may use any remaining Collateral Excess Proceeds (“Declined Collateral Excess Proceeds”) for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes or, if applicable, Pari Passu Indebtedness, validly tendered pursuant to any Collateral Prepayment Offer exceeds the amount of Collateral Excess Proceeds, the Issuers shall allocate the Collateral Excess Proceeds among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes and Pari Passu Indebtedness; provided that no Notes or Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of any Collateral Prepayment Offer, the amount of Collateral Excess Proceeds shall be reset at zero.

With respect to any Asset Sale that does not constitute Collateral, at the expiration of the Proceeds Application Period with respect to such Asset Sale, when the aggregate amount of Net Available Cash from all such Asset Sales not applied in accordance with this ‎Section 4.07 within the Proceeds Application Period and not previously subject to a Prepayment Offer (as defined below) exceeds $50 million (such excess amount, “Excess Proceeds”), the Issuers shall make an offer to purchase (the “Prepayment Offer”) the Notes and, if required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, to purchase the maximum principal amount of such Notes and Pari Passu Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of such Excess Proceeds, if any, at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Debt was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or such lesser price with respect to Pari Passu Indebtedness, if any, as may be provided by the terms of such other Debt), to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the agreement governing the Pari Passu Indebtedness, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof.

To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Pari Passu Indebtedness validly tendered or otherwise surrendered in connection with a Prepayment Offer made with Excess Proceeds is less than the amount offered in a Prepayment Offer, the Company and the Restricted Subsidiaries may use any remaining Excess Proceeds (such remaining Excess Proceeds, together with any Declined Collateral Excess Proceeds, are collectively referred to herein as “Declined Excess Proceeds”) for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes or, if applicable, Pari Passu Indebtedness, as the case may be, validly tendered pursuant to any Prepayment Offer exceeds the amount of Excess Proceeds, the Issuers shall allocate the Excess Proceeds among the Notes, Pari Passu Indebtedness and other Obligations to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes and Pari Passu Indebtedness; provided that no Notes or Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of any Prepayment Offer, the amount of Excess Proceeds shall be reset at zero.

Not later than 10 Business Days after the Issuers are obligated to make a Collateral Prepayment Offer or a Prepayment Offer as described in the preceding paragraphs, the Issuers shall send, or cause to be sent, a written notice by first-class mail (or electronic transmission in the case of notes held in book-entry form) to the Holders of Notes with a copy to the Trustee, accompanied by information regarding the Company and its Subsidiaries as the Company in good faith believes will enable the Holders to make an informed decision with respect to that Collateral Prepayment Offer or Prepayment Offer, as applicable. The notice shall state, among other things, the purchase price and the purchase date which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than 20 days and no later than 60 days from the date the notice is delivered.

On or prior to the applicable purchase date, the Issuers shall irrevocably deposit with either the Trustee or with the Paying Agent (or, if the Company or any of its Subsidiaries is acting as the Paying Agent, segregate and hold in trust) cash in an amount equal to the applicable purchase price payable to the Holders entitled thereto, to be held for payment in accordance with the provisions of this ‎Section 4.07. On such purchase date, the Issuers shall deliver to the Trustee the Notes or portions thereof that have been properly tendered to and are to be accepted by the Issuers for payment. The Trustee or the Paying Agent shall, on such purchase date, mail or, in the case of Global Notes, deliver payment to each tendering Holder of such purchase price. In the event that the aggregate purchase price is less than the amount delivered by the Issuers to the Trustee or the Paying Agent, the Trustee or the Paying Agent, as the case may be, shall deliver the excess to the Issuers immediately after such payment date.

The Issuers will 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 Notes pursuant to this ‎Section 4.07. To the extent that the provisions of any securities laws or regulations conflict with provisions of this ‎Section 4.07, the Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this ‎Section 4.07 by virtue thereof.

Notwithstanding anything to the contrary set forth herein, to the extent that repatriation to the United States of any or all of the Net Available Cash of any Asset Sales by a Foreign Subsidiary (a “Foreign Disposition”) (x) is prohibited or delayed by applicable local law or (y) would result in material adverse tax consequences (taking into account any foreign tax credit or other net benefit actually realized in connection with such repatriation that would not otherwise be realized), as determined by the Company in its sole discretion, the portion of such Net Available Cash so affected will not be required to be applied in compliance with this ‎Section 4.07, and such amounts may be retained by the applicable Foreign Subsidiary; provided that clause (x) of this paragraph shall apply to such amounts for so long, but only for so long, as the applicable local law will not permit repatriation to the United States (the Issuers hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if such repatriation of any of such affected Net Available Cash is permitted under the applicable local law and is not subject to clause (y) of this paragraph, then such repatriation will be promptly effected and such repatriated Net Available Cash will be applied (net of additional taxes payable or reserved against as a result thereof) in compliance with this ‎Section 4.07. The time periods set forth in this ‎Section 4.07 shall not start until such time as the Net Available Cash may be repatriated (whether or not such repatriation actually occurs).

Section 4.08.     Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:

(a)            pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),

(b)            make any loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or

(c)            sell, lease or transfer any of its Property to the Company or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause ‎(a) or ‎(b) above).

The foregoing limitations will not apply to:

(1)            restrictions in effect on the Issue Date, including, but not limited to the Credit Agreement;

(2)            restrictions relating to any agreements or instruments of a Person existing at the time it became a Restricted Subsidiary or to any agreements or instruments relating to any Property at the time acquired by the Company or any Restricted Subsidiary, in each case if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which that Restricted Subsidiary became a Restricted Subsidiary or such Property was acquired by the Company or a Restricted Subsidiary;

(3)            restrictions that result from any amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing of Debt or other agreement or instrument referred to in this ‎Section 4.08, provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Company), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in this ‎Section 4.08, as applicable;

(4)            restrictions resulting from the Incurrence of any Permitted Debt defined in ‎Section 4.04, provided that the restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Company’s Board of Directors) than the restrictions of the same type contained in this Indenture;

(5)            restrictions existing by reason of applicable law, rule, regulation or order;

(6)            with respect to clause ‎(c) above only, restrictions relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to ‎Section 4.04 and ‎Section 4.06 that limit the right of the debtor to dispose of the Property securing that Debt;

(7)            restrictions encumbering Property at the time the Property was acquired by the Company or any Restricted Subsidiary, so long as the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of the acquisition;

(8)            restrictions resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of the agreements or rights thereunder;

(9)            restrictions which are customary restrictions contained in asset sale agreements limiting the transfer of Property pending the closing of the sale;

(10)            restrictions existing pursuant to any Debt Incurred by a Foreign Subsidiary, which restrictions are customary for a financing of such type, and which are otherwise permitted under this Indenture, provided, however, that the Company’s Board of Directors determines in good faith that such restrictions are not reasonably likely to impair the Company’s ability to make principal and interest payments on the Notes;

(11)            restrictions existing by reason of the Note Documents;

(12)            restrictions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements entered into in the ordinary course of business;

(13)            restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;

(14)            in the case of the provision described in clause ‎(c) of this ‎Section 4.08, restrictions arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;

(15)            restrictions contained in Hedging Obligations;

(16)            restrictions constituting customary restrictions with respect to a Securitization Subsidiary, pursuant to the terms of a Permitted Receivables Financing;

(17)            with respect to clause ‎(c) above only, restrictions on property under a charter, lease, sub-lease or other agreement (including any Drilling Contracts, charterparty agreements, rig operating, service or management agreements or pool agreements) that has been entered into in the ordinary course for the employment, charter or other hire of such property;

(18)            with respect to clause ‎(c) above only, restrictions resulting from (i) any Drilling Contracts with respect to any Vessels; provided that such encumbrance or restriction only extends to the Vessel or other such asset (other than cash or Cash Equivalents) subject to such Drilling Contract or (ii) any joint venture agreement or similar arrangement with respect to any joint venture that imposes restrictions on the transfer or assignment of the Capital Stock in such joint venture or Property of such joint venture;

(19)            restrictions on cash or other deposits or net worth imposed by customers, suppliers or vendors pursuant to contracts entered into in the ordinary course of business;

(20)            encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary; and

(21)            customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments.”

Section 4.09.     Limitation on Transactions with Affiliates. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”) involving payments in excess of $35 million, unless:

(a)            the terms of such Affiliate Transaction are not materially less favorable to the Company or that Restricted Subsidiary, as the case may be, taken as a whole, than those that could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Company or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view (in each case, as determined in good faith by the Company), and

(b)            if the Affiliate Transaction involves aggregate payments or value in excess of $100 million, the Board of Directors (including a majority of the disinterested members of the Board of Directors) approves the Affiliate Transaction and in its good faith judgment determines that the Affiliate Transaction complies with clause (a) of this paragraph as evidenced by a resolution of the Board of Directors promptly delivered to the Trustee.

Notwithstanding the foregoing limitation, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:

(a)            any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries;

(b)            any Restricted Payment permitted to be made pursuant to ‎Section 4.05 or any Permitted Investment;

(c)            any employment, consulting, service, severance, termination agreement, employee benefit plan, compensation arrangement, indemnification arrangement, or any similar arrangement entered into by the Company or a Restricted Subsidiary with a current or former director, officer or employee of the Company or a Restricted Subsidiary and payments related thereto, in each case in the ordinary course of business or that is otherwise customary; or any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company, restricted stock plans, restricted stock unit plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of directors, officers and employees of the Company or a Restricted Subsidiary approved by the Board of Directors of the Company;

(d)            (i) reimbursement of employee travel and lodging costs and other business expenses incurred in the ordinary course of business and (ii) loans and advances to employees made in the ordinary course of business in compliance with applicable laws;

(e)            any issuance, transfer or sale of shares of Capital Stock (other than Disqualified Stock) of the Company;

(f)            any agreement as in effect on the Issue Date, including the Collateral Trust Agreement, or any amendment, modification, supplement, extension or renewal thereto (so long as such amendment, modification, supplement, extension or renewal is not materially adverse to the interests of the Holders of the Notes when taken as a whole as compared to the original Affiliate Transaction, as determined in good faith by the Company) or any transaction or payments contemplated thereby;

(g)            any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged, amalgamated or consolidated with or into the Company or a Restricted Subsidiary, as such agreement may be amended, modified, supplemented, extended or renewed from time to time; provided that such agreement was not entered into in contemplation of such acquisition, merger, amalgamation or consolidation, and so long as any such amendment, modification, supplement, extension or renewal, when taken as a whole, is not materially more disadvantageous to the Holders, in the good faith determination of the Company, than the applicable agreement as in effect on the date of such acquisition, merger, amalgamation or consolidation;

(h)            transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Company and its Restricted Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the good faith determination of the Company, such transactions are on terms that are not materially less favorable, when taken as a whole, to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view (in each case, as determined in good faith by the Company);

(i)            transactions in which the Company or any Restricted Subsidiary delivers to the Trustee a letter or opinion from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable, when taken as a whole, than those that might reasonably have been obtained by the Company or such Restricted Subsidiary in a comparable transaction at such time on an arms-length basis from a Person that is not an Affiliate;

(j)            the Transactions and the payment of all fees and expenses related to the Transactions;

(k)            any service, purchase, lease, supply or similar agreement entered into in the ordinary course of business or for legitimate business purposes (including, without limitation, pursuant to any joint venture agreement) between the Company or any Restricted Subsidiary and any Affiliate (other than an Unrestricted Subsidiary) that is a customer, client, supplier, purchaser or seller of goods or services and any transactions with joint ventures for the purchase or sale of goods, equipment or services in the ordinary course of business so long as the Company determines in good faith that any such agreement or transaction is on terms not materially less favorable to the Company or such Restricted Subsidiary than those that could be obtained in a comparable arms’-length transaction;

(l)            pledges of equity interests of Unrestricted Subsidiaries;

(m)          transactions entered into as part of a Permitted Receivables Financing on customary terms (as determined by the Company’s Board of Directors); and

(n)            intercompany transactions undertaken in good faith for the purpose of improving the tax efficiency of the Company and its Restricted Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture.

Section 4.10.     Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of the Company may designate any Subsidiary of the Company, other than FinanceCo, to be an Unrestricted Subsidiary if:

(a)            the Subsidiary to be so designated does not own any Capital Stock or Debt of, or own or hold any Lien on any Property of, the Company or any other Restricted Subsidiary,

(b)            immediately before and immediately after such designation, no Event of Default shall have occurred and be continuing, and

(c)            any of the following:

(1)            the Subsidiary to be so designated has total assets of $1,000 or less, or

(2)            if the Subsidiary has consolidated assets greater than $1,000, then the designation would be permitted under ‎Section 4.05.

Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the Company will be classified as a Restricted Subsidiary; provided, however, that the Subsidiary shall not be designated a Restricted Subsidiary and shall be automatically classified as an Unrestricted Subsidiary if the Person is a Subsidiary of an Unrestricted Subsidiary.

Except as provided in the first sentence of the preceding paragraph, no Restricted Subsidiary may be redesignated as an Unrestricted Subsidiary. In addition, neither the Company nor any Restricted Subsidiary shall at any time be directly or indirectly liable for any Debt that provides that the holder thereof may (with the passage of time or notice or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its Stated Maturity upon the occurrence of a default with respect to any Debt, Lien or other obligation of any Unrestricted Subsidiary in existence and classified as an Unrestricted Subsidiary at the time the Company or the Restricted Subsidiary is liable for that Debt (including any right to take enforcement action against that Unrestricted Subsidiary).

The Board of Directors of the Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary if, immediately after giving effect on a pro forma basis to the designation,

(x)        the Company could Incur at least $1.00 of additional Debt pursuant to clause ‎(a) of ‎Section 4.04, and

(y)       no Default or Event of Default shall have occurred and be continuing or would result therefrom.

Any designation or redesignation of this kind by the Board of Directors of the Company will be evidenced to the Trustee by filing with the Trustee a resolution of the Board of Directors of the Company giving effect to the designation or redesignation and an Officers’ Certificate that certifies that the designation or redesignation complies with the foregoing provisions, and gives the effective date of the designation or redesignation, and the filing with the Trustee to occur no later than the time period for which reports are required to be provided under ‎Section 4.03 for the fiscal quarter of the Company in which the designation or redesignation is made.

Section 4.11.      Limitation on Sale and Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction with respect to any Property unless:

(a)        the Company or that Restricted Subsidiary would be entitled to:

(1)        Incur Debt in an amount equal to the Attributable Debt with respect to that Sale and Leaseback Transaction pursuant to ‎Section 4.04, and

(2)        create a Lien on the Property securing that Attributable Debt without also securing the Notes pursuant to ‎Section 4.06, and

(b)        the Sale and Leaseback Transaction is effected in compliance with ‎Section 4.07 after treating all the cash or Cash Equivalents received in such Sale and Leaseback Transaction as Net Available Cash under such covenant.

Section 4.12.      Repurchase of Notes Upon a Change of Control Triggering Event.

(a)        Upon the occurrence of a Change of Control Triggering Event, each Holder of Notes will have the right to require the Issuers to repurchase all or any part of that Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”) at a purchase price (the “Change of Control Purchase Price”) equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the purchase date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

(b)        Within 30 days following any Change of Control Triggering Event or, at the Issuers’ option, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, the Issuers shall send or cause to be sent by first-class mail (or electronic transmission in the case of Notes held in book-entry form), with a copy to the Trustee, to each Holder of Notes, at such Holder’s address appearing in the Note register, a notice stating: (1) that a Change of Control Triggering Event has occurred or, if the notice is sent prior to the occurrence of a Change of Control Triggering Event, may occur and a Change of Control Offer is being made pursuant to this ‎Section 4.12 and that all Notes validly tendered and not withdrawn will be accepted for repurchase; (2) the Change of Control Purchase Price and the purchase date, which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than 20 days nor later than 60 days from the date such notice is delivered (the “Change of Control Payment Date”); (3) the procedures that Holders of Notes must follow in order to tender their Notes (or portions thereof) for payment, and the procedures that Holders of Notes must follow in order to withdraw an election to tender Notes (or portions thereof) for payment; and (4) if such notice is sent prior to the occurrence of a Change of Control Triggering Event, that the Change of Control Offer is conditional on the occurrence of such Change of Control Triggering Event and describing each such condition, and, if applicable, that, in the Issuers’ discretion, the Change of Control Payment Date may be delayed until such time (but not more than 60 days after the notice is sent) as any or all such conditions shall be satisfied, or that such purchase may not occur and such notice may be rescinded in the event that the Issuers shall determine that any or all such conditions shall not have been satisfied by the relevant payment date.

(c)        On or prior to the Change of Control Payment Date, the Issuers shall irrevocably deposit with either the Trustee or with the Paying Agent (or, if the Company or any of its Subsidiaries is acting as the Paying Agent, segregate and hold in trust) cash in an amount equal to the Change of Control Purchase Price payable to the Holders entitled thereto, to be held for payment in accordance with the provisions of this ‎Section 4.12. On the Change of Control Payment Date, the Issuers shall deliver to the Trustee the Notes or portions thereof that have been properly tendered to and are to be accepted by the Issuers for payment. The Trustee or the Paying Agent shall, on the Change of Control Payment Date, mail or, in the case of Global Notes, deliver payment to each tendering Holder of the Change of Control Purchase Price. In the event that the aggregate Change of Control Purchase Price is less than the amount delivered by the Issuers to the Trustee or the Paying Agent, the Trustee or the Paying Agent, as the case may be, shall deliver the excess to the Issuers immediately after the Change of Control Payment Date.

(d)        The Issuers will not be required to make a Change of Control Offer following a Change of Control Triggering Event if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuers and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (2) notice of redemption has been given pursuant to this Indenture to redeem all of the Notes pursuant to ‎Section 3.07, unless and until there is a default in payment of the applicable redemption price.

(e)        The Issuers will 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 Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this ‎Section 4.12, the Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this ‎Section 4.12 by virtue of such compliance.

Section 4.13.      Further Instruments and Acts. Upon the written request of the Trustee, the Issuers shall execute or cause to be executed and deliver or cause to be delivered such further instruments (including but not limited to Officers’ Certificates and Opinions of Counsel) and do such further acts as (i) may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture, or (ii) as shall be expressly required under the terms of this Indenture.

Section 4.14.      Additional Note Guaranties. After the Issue Date, if any Restricted Subsidiary of the Company (other than FinanceCo) guarantees any Debt of the Company, FinanceCo or any Guarantor under the Credit Agreement or any other syndicated credit facility or capital markets debt in an aggregate principal amount in excess of $35 million, (i) such Restricted Subsidiary shall within 30 days execute and deliver a supplemental indenture to this Indenture providing for a Note Guaranty by such Restricted Subsidiary in the form of Exhibit B hereto (as may be modified pursuant to the Agreed Guarantee Principles) and (ii) such Restricted Subsidiary shall deliver to the Trustee an Opinion of Counsel stating that (a) such Note Guaranty has been duly authorized and executed; and (b) such Note Guaranty constitutes a valid, binding and enforceable obligation of such Restricted Subsidiary, subject to customary enforceability exceptions; provided that this ‎Section 4.14 shall not be applicable to any Guarantee of any Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary. Each Note Guaranty shall be released in accordance with the provisions of ‎Section 10.09. Notwithstanding anything to the contrary in this Indenture, any Note Guaranty issued by any Foreign Subsidiary may be modified as necessary or appropriate to (1) comply with applicable law, (2) avoid any general legal limitations such as general statutory limitations, financial assistance, corporate benefit, “thin capitalization” rules, retention of title claims or similar matters or (3) avoid a conflict with the fiduciary duties of such company’s directors, contravention of any legal prohibition or regulatory condition, or the material risk of personal or criminal liability for any officers or directors (collectively referred to as “Agreed Guarantee Principles”), in each case as determined by the Company in its good faith discretion.

Section 4.15.      Collateral.

(a)        Each Person that becomes a Guarantor after the Issue Date shall, subject to any applicable limitation in this Indenture and any Security Document, also become a party to the applicable Security Documents and, within the time periods set forth in ‎Section 4.15(b) and the applicable Security Documents, shall as promptly as practicable execute and deliver such security instruments, financing statements, mortgages, deeds of trust (in substantially the same form as those executed and delivered with respect to the Collateral on the Issue Date or on the date first delivered in the case of Collateral that the Indenture provides may be delivered after the Issue Date (to the extent, and substantially in the form (as determined by the Company in good faith) delivered on the Issue Date or the date first delivered, as applicable (but no greater scope))), with such adjustments as the Company may determine in good faith are appropriate to reflect applicable law and the terms or requirements of the Credit Agreement or the First Lien Security Documents, as may be necessary to vest in the Collateral Trustee a perfected second-priority security interest (subject to Liens permitted by ‎Section 4.06 and Permitted Liens) in properties and assets that constitute Collateral, as security for such Guarantor’s Note Guaranty and as may be necessary in order to have such property or asset added to the Collateral as required under, and subject to the limitations set forth in, the Security Documents in order to satisfy the Collateral Vessel Requirements, and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such properties and assets to the same extent and with the same force and effect; provided that for as long as the Senior Secured Credit Facility Obligations are outstanding, the Grantors will not be required to take any actions to create or perfect any liens unless such actions are required to create or perfect liens securing such Senior Secured Credit Facility Obligations.

(b)        On or following the Issue Date, if property is acquired by the Company or a Restricted Subsidiary (including property of a Person that becomes a new Restricted Subsidiary) and secures any First Lien Obligations that is not automatically subject to a perfected security interest under the Security Documents, then the Company or such Restricted Subsidiary will as promptly as reasonably practicable, but in any event no later than 60 days after the date on which a perfected security interest on such property secures any First Lien Obligations, provide a second Lien security interest over such property in favor of the Collateral Trustee and execute and deliver such security instruments, financing statements, mortgages, deeds of trust (in substantially the same form as those executed and delivered with respect to the Collateral on the Issue Date or on the date first delivered in the case of Collateral that the Indenture provides may be delivered after the Issue Date or on the date first delivered in the case of Collateral that the Indenture provides may be delivered after the Issue Date (to the extent, and substantially in the form (as determined by the Company in good faith) delivered on the Issue Date or the date first delivered, as applicable (but no greater scope))), with such adjustments as the Company may determine in good faith are appropriate to reflect applicable law and the terms or requirements of the Credit Agreement or the First Lien Security Documents, as may be necessary to vest in the Collateral Trustee a perfected second-priority security interest (subject to Liens permitted by ‎Section 4.06 and Permitted Liens) in such property, including delivering all such documents and taking all such actions in order to satisfy the Collateral Vessel Requirement; provided that for as long as the Senior Secured Credit Facility Obligations are outstanding, the Grantors will not be required to take any actions to create or perfect liens or otherwise satisfy the Collateral Vessel Requirements unless such actions are required with respect to the Credit Agreement.

(c)        To the extent that any instrument or deliverable under the Security Documents relating to the Notes is not delivered on or prior to the Issue Date with respect to the Collateral in existence on the Issue Date, the Issuers will, and will cause the Guarantors to, deliver such instruments and deliverables within 60 days following the Issue Date or such longer period of time as agreed to by the Collateral Trustee or such longer period of time granted to perfect the corresponding liens securing the Senior Secured Credit Facility Obligations.

Section 4.16.      Existence. The Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence and the existence of each of its Restricted Subsidiaries in accordance with their respective organizational documents (as the same may be amended from time to time), provided that the Company is not required to maintain or preserve the existence of any Restricted Subsidiary, if the maintenance or preservation thereof, in the judgment of the Company, is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries taken as a whole; and provided further that this ‎Section 4.16 does not prohibit or restrict any transaction otherwise permitted by ‎Section 4.07 or ‎Article 5.

Section 4.17.      Payment of Taxes and other Claims. The Company will pay or discharge, and cause each of its Restricted Subsidiaries to pay or discharge, before the same become delinquent (i) all material taxes, assessments and governmental charges levied or imposed upon the Company or any Restricted Subsidiary or its income or profits or property, and (ii) all material lawful claims for labor, materials and supplies that, if unpaid, might by law become a Lien upon the property of the Company or any Restricted Subsidiary, other than any such tax, assessment, charge or claim the amount, applicability or validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established or where the failure to effect such payment or discharge is not adverse in any material respect to the Holders.

Section 4.18.      Maintenance of Properties. The Company will, and will cause each Restricted Subsidiary to, cause all material properties used or useful in the conduct of its business or the business of any of its Restricted Subsidiaries to be maintained and kept in the condition, repair and working order as in the judgment of the Company may be necessary so that the business of the Company and its Restricted Subsidiaries may be properly conducted at all times; provided that the Company or any Restricted Subsidiary need not comply with this Section 4.18 with respect to any of its properties if the Company in good faith determines that such non-compliance is desirable in the conduct of the business of the Company and its Restricted Subsidiaries taken as a whole.

Section 4.19.      Annual Officer’s Certificate as to Compliance. Within 120 days after the end of its fiscal year, the Issuers shall deliver to the Trustee a certificate (which need not comply with ‎Section 12.04 of this Indenture) executed by the principal executive officer, principal financial officer or principal accounting officer of the Company as to such officer’s knowledge of the Issuers’ compliance with all conditions and covenants under this Indenture, such compliance to be determined without regard to any period of grace or requirement of notice provided under this Indenture.

Section 4.20.      Limitation on Accounts Receivables Facilities. The Company and its Restricted Subsidiaries may sell, transfer or otherwise dispose of accounts receivable to a Securitization Subsidiary; provided that (i) the sale, transfer or other disposition is in connection with a Permitted Receivables Financing; and (ii) the aggregate consideration received in each such sale, transfer or other disposition is at least equal to the Fair Market Value of the receivables sold.

Section 4.21.      Additional Amounts. (a) All payments made by or on behalf of the Issuers or any Guarantor under or with respect to the Notes or the Note Guaranties will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other governmental charge of whatever nature (including penalties, additions to tax, interest and other liabilities related thereto) (hereinafter “Taxes”) unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of any jurisdiction in which the Company, FinanceCo or any Guarantor (including any successor entity) is incorporated, organized, carrying on a business through a branch, agency or permanent establishment or is treated as resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made by or on behalf of the Company, FinanceCo or any Guarantor (including any successor entity) under or with respect to the Notes or Note Guaranties or any political subdivision thereof or therein (each a “Specified Tax Jurisdiction” and such Taxes, “Indemnified Taxes”), will at any time be required to be made from any payments made under or with respect to the Notes or the Note Guaranties, the Company, FinanceCo, the relevant Guarantor or other payor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary so that the net amount received in respect of such payments by each Holder after such withholding or deduction (including any withholding or deduction from Additional Amounts) will not be less than the amount such Holder would have received if such Indemnified Taxes had not been withheld or deducted.

Indemnified Taxes do not include:

(1)        any Taxes to the extent such Taxes would not have been so imposed but for the Holder (or a fiduciary, settlor, beneficiary, member or shareholder of such Holder, if such Holder is an estate, a trust, a partnership, or a corporation) having any present or former connection with the Specified Tax Jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein (other than mere acquisition, ownership, holding, enforcement, exercise of rights or receipt of payment in respect of the Notes or the Note Guaranties);

(2)        any estate, inheritance, gift, sales, excise, transfer, capital gains, personal property Tax or similar Taxes;

(3)        any Taxes to the extent such Taxes are imposed as a result of the failure of the Holder or beneficial owner of the Notes to complete, execute and deliver to the Company, FinanceCo or the relevant Guarantor, as applicable, any form or document that such Holder or beneficial owner legally can complete, execute, and deliver, that may be required by law (or by reason of administration of such law) or tax treaty and that is reasonably requested to be delivered to the Company, FinanceCo or the relevant Guarantor in order to enable the Company, FinanceCo or the relevant Guarantor to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount, which form or document will be delivered within 30 days of a written request therefor by the Company, FinanceCo or the relevant Guarantor;

(4)        any Taxes to the extent such Taxes would not have been so imposed but for the beneficiary of the payment having presented a Note for payment (in cases in which presentation is required) more than 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);

(5)        any Taxes to the extent such Taxes are imposed on a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to another Paying Agent in a member state of the European Union;

(6)        any Taxes to the extent such Taxes are payable other than by deduction or withholding at source;

(7)        Taxes imposed pursuant to sections 1471 through 1474 of the Code, any regulations thereunder or official interpretations thereof, any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement), or any agreement entered into pursuant to section 1471(b)(1) of the Code; and

(8)        any combination of items (1) through (7) above.

(b)        Neither the Issuers nor the relevant Guarantor will pay any Additional Amounts to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of the Note to the extent that the obligation to pay Additional Amounts would be reduced or eliminated by transferring the Notes in question to the sole beneficial owner, but only if there is no material commercial or legal impediment to, or material cost associated with, transferring the Notes to the sole beneficial owner.

(c)        For avoidance of doubt, any reference in this Indenture to the payment of amounts based upon the principal amount of the Notes or of principal, interest or any other amount payable under, or with respect to, the Notes or the Note Guaranties, will be deemed to include payment of Additional Amounts as described above to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. For the further avoidance of doubt, with respect to Notes represented by a global note, a Holder with respect to Additional Amounts shall be deemed to include a Holder representing the interests of a beneficial owner of the Notes or acting on behalf of a beneficial owner of the Notes.

(d)        The Issuers or the relevant Guarantor, as applicable, will also pay any present or future stamp, issue, registration, value added, court or documentary taxes or any other excise or property taxes, charges or similar levies (including penalties, additional amounts, interest and any other liabilities and reasonable expenses related thereto) that arise in any Specified Tax Jurisdiction from the execution, delivery, enforcement or registration of the Notes, the Note Guaranties, this Indenture or any other document or instrument in relation thereof.

(e)        If the Company, FinanceCo or any Guarantor becomes obligated to pay Additional Amounts, the Company will deliver to the Trustee and Paying Agent an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable, along with other information reasonably necessary to enable the Trustee and Paying Agent to pay Additional Amounts to Holders on the relevant payment date.

(f)        The obligations of the Issuers and the Guarantors to pay Additional Amounts and other amounts described above will survive any termination, defeasance or discharge of this Indenture and any transfer by a Holder of its Notes, and will apply mutatis mutandis to any jurisdiction in which any successor person to the Company, FinanceCo or any Guarantor is organized, incorporated, engaged in business or is otherwise resident or treated as resident for tax purposes or any jurisdiction from or through which payment is made or any political subdivision or authority or agency thereof or therein.

Section 4.22.      Insurance. The Company shall maintain, with financially sound and reputable insurance companies, insurance (subject to customary deductibles and retentions) in such amounts and against such risks as are customarily maintained by similarly situated companies engaged in the same or similar businesses operating in the same or similar locations or as is appropriate, as such customary industry practices change from time to time, with the foregoing to be determined by the Company and cause the Company and the Guarantors to be listed as insured. Notwithstanding the foregoing, self-insurance by the Company or any Subsidiary, through deductibles, self-insured retentions or coinsurance, coverage placed through captive insurance or otherwise, shall not be deemed a violation of this Section so long as such self-insurance is reasonable and prudent (as determined in good faith by the Company) considering the Company’s and the Guarantors’ business, properties and loss history, applicable governmental requirements, and applicable customary industry practices (including without limitation those in connection with deepwater operations), in each case as they change from time to time; provided that any proceeds of any insurance coverage placed through a captive insurer shall be treated in the same manner as the proceeds of insurance maintained with an insurance company.

Section 4.23.      Flag and Registry. The Company shall not, nor shall it permit the owner or bareboat charterer (if any) of a Collateral Vessel to, change the flag or the vessel and/or ship registry of any Collateral Vessel; provided that any change of flag or vessel and/or ship registry to an Acceptable Flag Jurisdiction shall be permitted, subject to the Collateral Vessel Requirements.

Article 5
Successors

Section 5.01.      Merger, Consolidation and Sale of Property of the Issuers. Neither of the Issuers shall merge, consolidate or amalgamate with or into any other Person or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all Property of the Company and its Subsidiaries, taken as a whole, to any Person in any one transaction or series of related transactions unless:

(a)        either (i) such Issuer shall be the surviving Person (the “Surviving Person”) or (ii) the Surviving Person (if other than such Issuer) formed by that merger, consolidation or amalgamation or to which that sale, transfer, assignment, lease, conveyance or disposition is made shall be an entity organized and existing under the laws of the United States of America (including any State thereof or the District of Columbia), England and Wales, Scotland, Jersey, Bermuda, Cayman Islands, Ireland, Singapore, Netherlands, Luxembourg or Denmark (each, a “Permitted Jurisdiction”); provided, however, that FinanceCo may not consolidate or merge with or into any Person other than a Person existing under the laws of the United States, any state of the United States or the District of Columbia so long as the Company is not a Person existing under the laws of the United States, any state of the United States or the District of Columbia;

(b)        the Surviving Person (if other than such Issuer) expressly assumes all of the obligations of such Issuer under the Notes, this Indenture, the applicable Security Documents and the Collateral Trust Agreement by supplemental indentures or other documents and instruments;

(c)        immediately before and immediately after giving effect to that transaction or series of related transactions on a pro forma basis (and treating, for purposes of this clause ‎(c) and clause ‎(d) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person or any Restricted Subsidiary as a result of that transaction or series of related transactions as having been Incurred by the Surviving Person or the Restricted Subsidiary at the time of that transaction or series of related transactions), no Default or Event of Default shall have occurred and be continuing;

(d)        in the case of a transaction involving the Company and not FinanceCo, immediately after giving effect to that transaction or series of related transactions on a pro forma basis, the Company or the Surviving Person (if the Surviving Person was previously the Company), as the case may be, (i) would be able to Incur at least $1.00 of additional Debt under clause ‎(a) of ‎Section 4.04 or (ii) the Consolidated Fixed Charges Coverage Ratio of the Company or the Surviving Person (if the Surviving Person was previously the Company), as applicable, would be greater than or equal to such ratio immediately prior to such transaction, provided, however, that this clause ‎(d) shall not be applicable to the Company merging, consolidating or amalgamating with or into an Affiliate incorporated or formed solely for the purpose of redomiciling the Company in a Permitted Jurisdiction or changing the name or entity type of the Company so long as the amount of Debt of the Company and the Restricted Subsidiaries is not increased thereby;

(e)        unless such Issuer is the Surviving Person, such Issuer shall deliver, or cause to be delivered, to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the transaction and the supplemental indenture, if any, in respect thereto comply with this ‎Section 5.01 and that all conditions precedent herein provided for relating to the transaction and the execution of a supplemental indenture, as applicable, have been satisfied; and

(f)        to the extent any assets of the Person which is merged, amalgamated or consolidated with or into such Issuer are assets of the type which are required to constitute Collateral under the Security Documents, such Issuer or the Surviving Person, as applicable, takes such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien in favor of the Collateral Trustee for the benefit of the Trustee and the Holders of the Notes and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the applicable Security Documents (it being understood that no such actions will be required unless also required under the First Lien Documents).

The Surviving Person shall succeed to, and be substituted for (so that from and after the date of such merger, consolidation, amalgamation, sale, transfer, assignment, lease, conveyance or disposition, the provisions of this Indenture referring to the “Company” or “FinanceCo,” as applicable, shall refer instead to the applicable Surviving Person and not to the Company or FinanceCo, respectively), and may exercise every right and power of such Issuer, under this Indenture, but the predecessor company in the case of a lease shall not be released from any obligation to pay the principal of, premium, if any, and interest on, the Notes.

Notwithstanding the immediately preceding clauses, the Company may transfer all or substantially all of its assets to a Guarantor, any Guarantor may transfer all or substantially all of its assets to the Company or a Guarantor, and any Restricted Subsidiary may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to the Company or a Restricted Subsidiary.

Section 5.02.      When Guarantors May Merge or Transfer Assets. No Guarantor may merge, consolidate or amalgamate with or into any other Person or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of related transactions, unless:

(a)        the other Person is the Company or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction; or

(b)        either (x) the Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person (such Guarantor or such Person, as the case may be, the “Successor Guarantor”) expressly assumes all of the obligations of the Guarantor under its Note Guaranty, this Indenture, the applicable Security Documents and the Collateral Trust Agreement by supplemental indentures or other documents and instruments; and immediately after giving effect to the transaction, no Default has occurred and is continuing; or

(c)        the transaction constitutes a sale or other disposition (including by way of consolidation, amalgamation, winding-up, liquidating or merger) of the Guarantor or the sale or disposition of all or substantially all the Property of the Guarantor (in each case other than to the Company or a Restricted Subsidiary) otherwise permitted by this Indenture; and

(d)        to the extent any assets of the Person which is merged, consolidated or amalgamated with or into such Guarantor are assets of the type which would constitute Collateral under the Security Documents, the Successor Guarantor will take such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien in favor of the Collateral Trustee for the benefit of the Trustee and the Holders of the Notes and shall take all reasonably necessary action so that such Lien in perfected to the extent required by the applicable Security Documents.

The Successor Guarantor shall succeed to, and be substituted for (so that from and after the date of such merger, consolidation, amalgamation, sale, transfer, assignment, lease, conveyance or disposition, the provisions of this Indenture referring to such Guarantor shall refer instead to the applicable Successor Guarantor and not to such Guarantor), and may exercise every right and power of the applicable Guarantor under this Indenture.

Article 6
Defaults and Remedies

Section 6.01.      Events of Default. The following events shall be Events of Default (each, an “Event of Default”):

(a)        failure to make the payment of any interest on the Notes when the same becomes due and payable, and that failure continues for a period of 30 days;

(b)        failure to make the payment of any principal of, or premium, if any, on, any of the Notes when the same becomes due and payable at its Stated Maturity, upon acceleration, redemption, optional redemption, required repurchase or otherwise;

(c)        failure by the Issuers or any Guarantor to comply with any other covenant or agreement in the Notes or in this Indenture (other than a failure that is the subject of the foregoing clause ‎(a) or ‎(b)) and such failure continues for 60 days after written notice is received by the Company as provided below, provided, that in the case of a failure to comply with ‎Section 4.03, such period shall be 120 days after written notice has been so received;

(d)        a default under any Debt by the Company or any Restricted Subsidiary that results in acceleration of the maturity of that Debt, or failure to pay any Debt at maturity, in an aggregate amount greater than $100 million or its foreign currency equivalent at the time;

(e)        any judgment or judgments for the payment of money in an aggregate amount in excess of $100 million (or its foreign currency equivalent at the time) (net of amounts covered by insurance or bonded) that shall be rendered against the Company or any Significant Subsidiary and that shall not be waived, satisfied, annulled, discharged or rescinded for any period of 60 consecutive days during which a stay of enforcement shall not be in effect;

(f)        any Issuer or Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:

(1)        commences a voluntary case;

(2)        consents in writing to the entry of an order for relief against it in an involuntary case;

(3)        consents in writing to the appointment of a custodian of it or for all or substantially all of its property; or

(4)        makes a general assignment for the benefit of its creditors; or takes any comparable action under any foreign laws relating to insolvency;

(g)        a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(1)        is for relief against any Issuer or Significant Subsidiary in an involuntary case;

(2)        appoints a custodian of any Issuer or Significant Subsidiary or for all or substantially all of its property;

(3)        orders the winding up or liquidation of any Issuer or Significant Subsidiary; or

(4)        grants any similar relief under any foreign laws relating to insolvency;

and in each such case the order or decree remains unstayed and in effect for 90 days; or

(h)        except as permitted under this Indenture, any Note Guaranty of any Significant Subsidiary ceases to be in full force and effect, other than in accordance with the terms of this Indenture, or a Guarantor that is a Significant Subsidiary denies in writing its obligations under its Note Guaranty (other than by reason of the termination or discharge of this Indenture or the release of any such Note Guaranty in accordance with this Indenture) if, and only if, in each such case, such default continues for 10 days after written notice is received by the Company as provided below;

(i)        (i) the Liens created by the Security Documents shall at any time not constitute a valid and perfected Lien on any material portion of the Collateral intended to be covered thereby (unless perfection is not required by this Indenture or the Security Documents) other than (A) in accordance with the terms of the relevant Security Document, this Indenture and the Collateral Trust Agreement, (B) the satisfaction in full of all Obligations under this Indenture or (C) any loss of perfection that results from the failure of the Collateral Trustee to maintain possession of certificates delivered to it representing securities pledged under the Security Documents and (ii) such default continues for 60 days after receipt of written notice given by the Trustee or the Holders of not less than 25% in aggregate principal amount of the then outstanding Notes; and

(j)        the Company, FinanceCo or any Guarantor that is a Significant Subsidiary shall assert, in any pleading in any court of competent jurisdiction, that any security interest in any Security Document is invalid or unenforceable.

A Default under clause ‎(c) is not an Event of Default until the Trustee or the Holders of not less than 25% in aggregate principal amount of the Notes then outstanding notify the Issuers of the Default and the Issuers do not cure that Default within the time specified in clause ‎(c) above after receipt of the notice (the “Notice of Default”). The Notice of Default must specify the Default, demand that it be remedied and state that the notice is a Notice of Default.

The Issuers shall deliver to the Trustee, within 30 days after an Officer becomes aware of the occurrence thereof, written notice in the form of an Officers’ Certificate of any event that with the giving of notice and the lapse of time would become an Event of Default, its status and what action the Issuers are taking or propose to take with respect thereto.

Section 6.02.      Acceleration. If an Event of Default with respect to the Notes (other than an Event of Default specified in Sections ‎6.01(f) or ‎6.01(g) with respect to the Company) shall have occurred and be continuing, the Trustee or the Holders of not less than 25% in aggregate principal amount of Notes then outstanding may, by notice to the Issuers and the Trustee, declare to be immediately due and payable the principal amount of all the Notes then outstanding, plus accrued but unpaid interest to the date of acceleration. Upon such a declaration, such principal and interest shall be due and payable immediately. If an Event of Default specified in Sections ‎6.01(f) or ‎‎6.01(g) with respect to the Company occurs, the principal of, premium, if any, and accrued and unpaid interest on all the Notes shall be due and payable immediately without any declaration or other act on the part of the Trustee or the Holders of the Notes. After any such acceleration, but before a judgment or decree based on acceleration is obtained by the Trustee, the Holders of a majority in aggregate principal amount of the outstanding Notes may, by notice to the Trustee and the Issuers, rescind and annul any declaration of acceleration (i) if the rescission would not conflict with any judgment or decree, (ii) if all existing Events of Default have been cured or waived (other than nonpayment of principal, premium, or interest that has become due solely because of the acceleration), and (iii) there has been deposited with the Trustee a sum sufficient to pay all sums paid or advanced by the Trustee and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel incurred in connection with the rescinded Event of Default. No such rescission shall affect any subsequent Default or impair any right consequent thereto.

Section 6.03.      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, or premium, if any, or interest on, the Notes or to enforce the performance of any provision of the Notes or this Indenture.

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding.

Section 6.04.      Waiver of Past Defaults. The Holders of a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes) by notice to the Trustee may waive an existing Default and its consequences except (i) a Default in the payment of the principal of or premium, if any, or interest on a Note or (ii) a Default in respect of a provision that under ‎Section 9.02 cannot be amended without the consent of each Noteholder adversely affected. When a Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or impair any consequent right. If a Default is deemed to occur solely as a consequence of the existence of another Default (the “Initial Default”), then, at the time such Initial Default is cured (including the payment of default interest, if any), the Default that resulted solely because that Initial Default will also be cured without any further action.

Section 6.05.      Control by Majority. The Holders of a majority in aggregate principal amount of the Notes then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee with respect to the Notes. However, the Trustee may refuse to follow any request or direction that conflicts with law, this Indenture or the Notes, that the Trustee determines is unduly prejudicial to the rights of other Noteholders, or that would 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. In case an Event of Default shall occur and be continuing, the Trustee shall be under no obligation to exercise any of its rights or powers hereunder at the request or direction of any of the Holders, unless the Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it.

Section 6.06.      Limitation on Suits. A Noteholder may not institute any proceeding with respect to this Indenture or the Notes, or for the appointment of a receiver or trustee or pursue any remedy with respect to this Indenture or the Notes, unless:

(a)        such Holder shall have previously given to the Trustee written notice of a continuing Event of Default;

(b)        the Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall have made a written request, and such Holder or Holders shall have offered reasonable security or indemnity, to the Trustee to institute such proceeding as trustee; and

(c)        the Trustee has not received from the Holders of a majority in aggregate principal amount of the Notes then outstanding a direction inconsistent with such request and has failed to institute such proceeding within 60 days after the Trustee received such direction and adequate security and indemnity.

Section 6.07.      Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of, and premium, if any, and interest on, the Notes held by such Holder, on or after the respective due dates expressed in the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. A Noteholder may not use this Indenture to prejudice the rights of another Noteholder or to obtain a preference or priority over another Noteholder (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).

Section 6.08.      Collection Suit by Trustee. If an Event of Default specified in ‎Section 6.01(a) or ‎6.01(b) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuers for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided for in this Indenture.

Section 6.09.      Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Noteholders allowed in any judicial proceedings relative to the Issuers, their creditors or their property and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any custodian in any such judicial proceeding is hereby authorized by each Holder to make 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 it for such compensation as agreed upon in writing by the parties hereto, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under this Indenture, or in connection with the transactions contemplated hereunder.

Section 6.10.      Priorities. Subject to the Collateral Trust Agreement, if the Trustee collects any money or property pursuant to this ‎Article 6 (including upon exercise of any remedies in respect of the Collateral), it shall pay out the money or property in the following order:

FIRST: to the Trustee and the Collateral Trustee, in each case for all amounts due under ‎Section 7.07 of this Indenture;

SECOND: to Noteholders for amounts due and unpaid on the Notes for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and interest, respectively; and

THIRD: to the Issuers.

The Trustee may fix a record date and payment date for any payment to Noteholders pursuant to this ‎Section 6.10. At least 15 days before such record date, the Issuers shall mail to each Noteholder and the Trustee a notice that states the record date, the payment date and amount to be paid.

Section 6.11.      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 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 and expenses, against any party litigant in the suit (other than the Trustee), having due regard to the merits and good faith of the claims or defenses made by the party litigant. This ‎Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to ‎Section 6.07 or a suit by Holders of more than 10% in aggregate principal amount of the Notes.

Section 6.12.      Waiver of Stay or Extension Laws. The Issuers (to the extent they may lawfully do so) shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuers (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.

Section 6.13.      Restoration of Rights and Remedies. If the Trustee or any Holder has instituted a proceeding to enforce any right or remedy under this Indenture and the proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to the Holder, then, subject to any determination in the proceeding, the Issuers, the Guarantors, the Trustee and the Holders will be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Issuers, the Guarantors, the Trustee and the Holders will continue as though no such proceeding had been instituted.

Section 6.14.      Rights and Remedies Cumulative. No right or remedy conferred or reserved to the Trustee or to the Holders under this Indenture is intended to be exclusive of any other right or remedy, and all such rights and remedies are, to the extent permitted by law, cumulative and in addition to every other right and remedy hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or exercise of any right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or exercise of any other right or remedy.

Section 6.15.      Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default will impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this ‎Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

Article 7
Trustee

Section 7.01.      Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent Person would exercise under the circumstances in the conduct of such Person’s own affairs.

(b)        Except during the continuance of an Event of Default:

(1)        the Trustee shall perform only the duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee, where duties and obligations shall be determined solely by the express provisions of this Indenture; and

(2)        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 examine the certificates and opinions to determine whether or not they conform to the express requirements of this Indenture where applicable but need not confirm or investigate the accuracy of any mathematical calculations or other facts or opinions or statements stated therein.

(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:

(1)        this paragraph does not limit the effect of paragraph ‎(b) of this ‎Section 7.01;

(2)        the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and

(3)        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 from Holders or Issuers pursuant to the terms of this Indenture.

(d)        Every provision of this Indenture that in any way relates to the Trustee is subject to clauses ‎(a), ‎(b) and ‎(c) of this ‎Section 7.01.

(e)        The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuers.

(f)        Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

(g)        No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers.

(h)        Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this ‎Section 7.01, and the provisions of this ‎Article 7 shall apply to the Trustee in its role as Registrar, Paying Agent, Authentication Agent and Notes Custodian.

(i)        The Trustee shall not be deemed to have notice of a Default or an Event of Default unless a Trust Officer of the Trustee has received written notice thereof (in accordance with the notice provisions of this Indenture) from the Issuers or any Holder and such notice references the Notes and this Indenture and describes with appropriate reference the Default or Event of Default.

Section 7.02.      Rights of Trustee. (a) The Trustee may conclusively rely on any document (whether in its original, electronic, or facsimile form) 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 the document.

(b)        Before the Trustee acts or refrains from acting, it shall be entitled to receive an Officers’ Certificate and an Opinion of Counsel. 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.

(c)        The Trustee may act through agents and/or attorneys and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.

(d)        The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers; provided, however, that the Trustee’s conduct does not constitute willful misconduct or gross negligence.

(e)        The Trustee may consult with counsel of its selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.

(f)        No Depositary shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any clearinghouse or Depositary.

(g)        The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty unless so specified herein.

(h)        The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security and/or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by the Trustee in compliance with such request or direction.

(i)         The Trustee may employ or retain accountants, appraisers or other experts or advisers as it may reasonably require for the purpose of determining and discharging its rights and duties hereunder and shall not be responsible for any misconduct on the part of any of them selected with due care.

(j)         In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

(k)         The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and by the Collateral Trustee, and each agent, custodian and other Person employed to act hereunder.

(l)         The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.

(m)       The Trustee may request that the Issuers deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.

(n)        Delivery of any reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive or actual notice or knowledge of any information contained therein or determinable from information contained therein, including the Issuers’ compliance with any of their covenants hereunder (as to which the Trustee may conclusively rely on a certificate of an authorized Officer of the Issuer).

(o)        The Trustee shall have no duty or responsibility to monitor the Issuers’ compliance with the covenants included in ‎Article 4 or the transfer restrictions on the Notes.

The provisions of this ‎Section 7.02 shall survive satisfaction and discharge or the termination, for any reason, of this Indenture and the resignation and/or removal of the Trustee.

Section 7.03.      Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuers or their Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar or co-registrar may do the same with like rights. However, the Trustee must comply with ‎Section 7.10.

Section 7.04.      Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity, priority or adequacy of this Indenture, the Notes, the Notes Security Documents or the Collateral Trust Agreement, it shall not be accountable for the Issuers’ use of the proceeds from the Notes, and it shall not be responsible for any statement of the Issuers in this Indenture or in any other document other than the certificate of authentication executed by the Trustee.

Section 7.05.      Notice of Defaults. If a Default or Event of Default occurs and is continuing of which the Trustee has received written notice, the Trustee shall deliver to each Noteholder notice of the Default or Event of Default within 90 days after written notice of it is received by a Trust Officer of the Trustee. Except in the case of a Default or Event of Default in payment of principal of or interest on any Note, the Trustee may withhold the notice if and so long as the Trustee in good faith determines that withholding the notice is in the interests of Noteholders.

Section 7.06.      [Reserved].

Section 7.07.      Compensation and Indemnity. The Issuers shall pay to the Trustee from time to time such reasonable compensation for its services as agreed upon in writing by the parties hereto. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuers shall reimburse the Trustee upon request for all reasonable, documented out-of-pocket expenses incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and reasonable, documented out-of-pocket expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts. The Issuers shall indemnify the Trustee against any and all loss, liability, claim, damage, penalty, action, suit, cost and expense (including reasonable attorneys’ fees and out-of-pocket expenses and taxes (other than taxes based upon, measured by or determined by the income of the Trustee)) incurred by it in connection with the acceptance or administration of the trust hereunder and/or the transactions contemplated under this Indenture and the Trustee shall have no liability or responsibility for any action or inaction on the part of any other Paying Agent, Registrar, Authentication Agent or any successor Trustee. The Trustee shall notify the Issuers promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuers shall not relieve the Issuers of their obligations hereunder except to the extent that the Issuers shall have been actually prejudiced as a result of such failure. The Issuers shall defend the claim and the Trustee shall provide reasonable cooperation at the Issuers’ expense in the defense. The Trustee may have separate counsel and the Issuers shall pay the fees and expenses of such counsel. The Issuers need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee as finally determined by a court of competent jurisdiction to have occurred directly as a result of the Trustee’s own willful misconduct or negligence. The Issuers need not pay for any settlement made by the Trustee without the Issuers’ consent, such consent not to be unreasonably withheld. All indemnifications and releases from liability granted hereunder to the Trustee shall extend to its officers, directors, employees, agents, successors and assigns.

To secure the Issuers’ payment obligations in this ‎Section 7.07, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee or the Collateral Trustee other than money or property held in trust to pay principal of and interest on particular Notes.

When the Trustee incurs expenses after the occurrence of a Default specified in Sections ‎6.01(f) or ‎ 6.01(g) with respect to an Issuer, the expenses are intended to constitute expenses of administration under the Bankruptcy Law.

The provisions of this ‎Section 7.07 shall survive the satisfaction and discharge or termination, for any reason, of this Indenture and the resignation or removal of the Trustee.

Section 7.08.      Replacement of Trustee. The Trustee may resign at any time by providing 30 days’ prior written notice to the Issuers. The Holders of a majority in aggregate principal amount of the Notes then outstanding may remove the Trustee by providing 30 days’ prior written notice to the Trustee and the Issuers and may appoint a successor Trustee. The Issuers may remove the Trustee by providing 30 days’ prior written notice to the Trustee if:

(a)        the Trustee fails to comply with ‎Section 7.10;

(b)        the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

(c)        a receiver or other public officer takes charge of the Trustee or its property;

(d)        the Trustee otherwise becomes incapable of acting; or

(e)        there is no Event of Default continuing and no event that upon notice or lapse of time or both, would become an Event of Default.

If the Trustee resigns, is removed by the Holders of a majority in aggregate principal amount of the Notes then outstanding and such Holders do not reasonably promptly appoint a successor Trustee reasonably acceptable to the Issuers or is removed by the Issuers, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Issuers shall promptly appoint a successor Trustee.

A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuers. Upon, but not prior to, the delivery of such written acceptance, 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 deliver a notice of its succession to Noteholders. 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 7.07.

If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, at the expense of the Issuers, the Issuers or the Holders of 10% in aggregate principal amount of the Notes then outstanding may petition any court of competent jurisdiction for the appointment of a successor Trustee.

If the Trustee fails to comply with ‎Section 7.10, any Noteholder who has been a bona fide Holder of a Note for at least six months may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

Notwithstanding the replacement or resignation of the Trustee pursuant to this ‎Section 7.08, the Issuers’ obligations under ‎Section 7.07 shall continue for the benefit of the Trustee and survive the termination of this Indenture.

Section 7.09.      Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation or banking association without any further act shall be the successor Trustee.

Section 7.10.      Eligibility; Disqualification. The Trustee shall at all times satisfy the requirements of TIA § 310(a) (as if, for the limited purpose of the Trustee’s obligations under this sentence, this Indenture had been qualified under the TIA). The Trustee shall have (or, in the case of a corporation included in a bank holding company system, the related bank holding company shall have) a combined capital and surplus of at least $50.0 million as set forth in its (or its related bank holding company’s) most recent published annual report of condition. The Trustee shall comply with TIA §310(b) (as if, for the limited purpose of the Trustee’s obligations under this sentence, this Indenture had been qualified under the TIA), subject to the penultimate paragraph thereof; provided, however, that there shall be excluded from the operation of TIA § 310(b)(i) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Issuers are outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met.

Article 8
Discharge of Indenture; Defeasance

Section 8.01.      Discharge of Liability on Notes; Defeasance. (a) When (i) all outstanding Notes (other than Notes replaced pursuant to ‎Section 2.07) have been delivered to the Trustee for cancellation and the Issuers have paid all sums payable by them hereunder, or (ii) (A) all outstanding Notes mature within one year or all outstanding Notes are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (B) the Issuers irrevocably deposit in trust with the Trustee money in U.S. Dollars, U.S. Government Obligations or a combination thereof sufficient to pay at maturity or upon redemption all principal of and premium, if any, and interest on the Notes (other than Notes replaced pursuant to ‎Section 2.07) to maturity or redemption within one year, as evidenced by an Officers’ Certificate of the Issuers; provided, that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this ‎Section 8.01(a) to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as if the Redemption Date is the date of the notice of redemption, with any deficit as of the Redemption Date (any such amount, the “Applicable Premium Deficit”) only required to be deposited with the Trustee on or prior to Redemption Date, (C) no Default has occurred and is continuing on the date of the deposit, (D) the deposit will not result in a breach or violation of, or constitute default under, this Indenture or any other material agreement or instrument to which an Issuer is a party or by which it is bound, and (E) the Issuers pay all other sums payable hereunder by the Issuers, then this Indenture and the Issuers’ obligations under the Note Documents in respect of the Notes (including, for the avoidance of doubt, the Second Lien Security Documents) shall, subject to ‎Section 8.01(c), be discharged and cease to be of further effect. The Trustee shall acknowledge satisfaction and discharge of this Indenture and the Issuers’ obligations under the Note Documents in respect of the Notes on written demand of the Issuers accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Issuers. Any Applicable Premium Deficit shall be set forth in an Officers’ Certificate delivered to the Trustee at least two Business Days prior to the Redemption Date that confirms that such Applicable Premium Deficit shall be applied toward such redemption.

(b)        Subject to Sections ‎8.01(c) and ‎8.02, the Issuers at any time may terminate (i) all of their obligations under the Notes, this Indenture and the other Note Documents in respect of the Notes (“legal defeasance option”), or (ii) their obligations under Sections ‎4.01, ‎4.03, ‎4.04, ‎4.05, ‎4.06, ‎4.07, ‎4.08, ‎4.09, ‎4.10, ‎4.11, ‎4.12, ‎4.13, ‎4.14, 4.15, ‎4.17, ‎4.18, ‎4.19, ‎4.20, ‎4.22 and ‎4.23, ‎Article 5 and the operation of Sections ‎6.01(c) (with respect to the covenants of ‎Article 4 and ‎Article 5 identified in this clause (ii)), ‎6.01(d), ‎6.01(e), ‎6.01(f) or ‎ 6.01(g) (but, in the case of Sections ‎6.01(f) and ‎6.01(g), with respect only to Significant Subsidiaries) or ‎6.01(h) (“covenant defeasance option”). The Issuers may exercise their legal defeasance option notwithstanding their prior exercise of their covenant defeasance option.

If the Issuers exercise their legal defeasance option, payment of the Notes may not be accelerated because of an Event of Default. If the Issuers exercise their covenant defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified in ‎Section 6.01(c) (with respect to the covenants of ‎Article 4 and ‎Article 5 identified in ‎Section 8.01‎(b)‎(ii)), ‎6.01(d), ‎6.01(e), ‎6.01(f) or ‎6.01(g) (but, in the case of Sections ‎6.01(f) and ‎6.01(g), with respect only to Significant Subsidiaries) or ‎‎6.01(h).

Upon satisfaction of the conditions set forth herein and upon request of the Issuers, accompanied by an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated have been complied with, the Trustee shall acknowledge in writing the discharge of those obligations that the Issuers terminate.

(c)        Notwithstanding clauses ‎(a) and ‎(b) above, the Issuers’ obligations in Sections ‎2.04, ‎2.05, ‎2.06, ‎2.07, ‎7.07, ‎7.08, ‎8.05 and ‎8.06 shall survive until the Notes have been paid in full. Thereafter, the Issuers’ obligations in Sections ‎7.07 and ‎8.05 shall survive such satisfaction or discharge.

Section 8.02.      Conditions to Defeasance. The Issuers may exercise their legal defeasance option or their covenant defeasance option only if:

(a)        the Issuers irrevocably deposit in trust with the Trustee money in U.S. Dollars, U.S. Government Obligations or a combination thereof for the payment of principal of and interest (including premium, if any) on the Notes to maturity or a Redemption Date permitted under this Indenture; provided, that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as if the Redemption Date is the date of the notice of redemption, with any Applicable Premium Deficit only required to be deposited with the Trustee on or prior to the Redemption Date. Any Applicable Premium Deficit shall be set forth in an Officers’ Certificate delivered to the Trustee at least two Business Days prior to the Redemption Date that confirms that such Applicable Premium Deficit shall be applied toward such redemption;

(b)        the Issuers deliver to the Trustee a certificate of a nationally recognized accounting firm expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at the times and in amounts as will be sufficient to pay principal and interest (including premium, if any) when due on all the Notes to maturity or redemption, as the case may be;

(c)        no Default or Event of Default has occurred and is continuing on the date of the deposit and after giving effect thereto;

(d)        the deposit does not constitute a default under any other material agreement or instrument binding on the Issuers;

(e)        in the case of the legal defeasance option, the Issuers deliver to the Trustee an Opinion of Counsel stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (2) since the date of this Indenture there has been a change in the applicable U.S. federal income tax law, to the effect, in either case, that, and based thereon the Opinion of Counsel shall confirm that, the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the defeasance had not occurred;

(f)        in the case of the covenant defeasance option, the Issuers deliver to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of that covenant defeasance 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 that covenant defeasance had not occurred; and

(g)        the Issuers deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of this Indenture and the Notes as contemplated by this ‎Article 8 have been complied with.

Simultaneous with a deposit, the Issuers may make arrangements satisfactory to the Trustee for the redemption of Notes at a future date in accordance with ‎Article 3.

Section 8.03.      Application of Trust Money. The Trustee shall hold in trust money in U.S. Dollars, U.S. Government Obligations or a combination thereof deposited with it pursuant to this ‎Article 8, but such money need not be segregated from other funds except to the extent required by law. It shall apply the deposited money in U.S. Dollars, U.S. Government Obligations or a combination thereof through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Notes.

Section 8.04.      Repayment to Issuer. The Trustee and the Paying Agent shall promptly turn over to the Issuers upon written request any excess money or securities held by them upon satisfaction of the conditions and occurrence of the events set forth in this ‎Article 8.

Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Issuers upon request any money held by them for the payment of principal or interest that remains unclaimed for two years, and, thereafter, Noteholders entitled to the money must look to the Issuers for payment as general creditors.

Section 8.05.      Indemnity for U.S. Government Obligations. The Issuers shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations other than any such tax, fee or other charge which by law is for the account of the Holders.

Section 8.06.      Reinstatement. If the Trustee or Paying Agent is unable to apply any money in U.S. Dollars, U.S. Government Obligations or a combination thereof in accordance with this ‎Article 8 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 Issuers’ obligations under this Indenture, the Notes and the other Note Documents in respect of the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this ‎Article 8 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with this ‎Article 8; provided, however, that, if the Issuers have made any payment of interest on or principal of any Notes because of the reinstatement of their obligations, the Issuers shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.

Article 9
Amendments

Section 9.01.      Without Consent of Holders. The Issuers, the Trustee and the Collateral Trustee may amend any Note Document without notice to or consent of any Noteholder:

(a)        to cure any ambiguity, omission, defect, mistake or inconsistency;

(b)        to provide for the assumption by a successor of the obligations of the Issuers or any Guarantor under any Note Document;

(c)        to provide for uncertificated Notes in addition to or in place of certificated Notes; provided, however, that the uncertificated Notes are issued in definitive, fully registered form for purposes of Section 163(f) of the Code or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Code;

(d)        to add Guarantees with respect to the Notes or release Guarantors from their Note Guaranties as provided by the terms of this Indenture or the Note Guaranties;

(e)        to secure the Notes (and, thereafter, provide releases of collateral in accordance with the security documents entered into in connection therewith), to add to the covenants of the Issuers or any Guarantor for the benefit of the Holders or to surrender any right or power in any Note Document conferred upon the Issuers or any Guarantor;

(f)        to make any change that would provide any additional rights or benefits to the Holders of Notes or make any change that does not materially adversely affect the rights of any Noteholder;

(g)        to comply with any requirements of the SEC in connection with qualifying, or maintaining the qualification of, this Indenture under the TIA (it being agreed that this Indenture need not be qualified under the TIA), and to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of this Indenture under the TIA in the event the Issuers determine that this Indenture should be so qualified;

(h)        to provide for the issuance of Additional Notes in accordance with this Indenture;

(i)         to provide for the issuance of exchange notes that shall have terms substantially identical in all respects to the Notes (except that the transfer restrictions contained in the Notes shall be modified or eliminated as appropriate) and which shall be treated, together with any outstanding Notes, as a single class of securities;

(j)         to provide for the appointment of a successor Trustee or Collateral Trustee; provided that the successor Trustee or Collateral Trustee is otherwise qualified and eligible to act as such under the terms of this Indenture;

(k)        to conform any provisions of any Note Document to the “Description of Notes” contained in the Offering Memorandum;

(l)         to comply with the procedures of DTC or the Trustee with respect to the provisions in this Indenture and the Notes relating to transfers and exchanges of Notes or beneficial interests in Notes;

(m)       to grant any Lien for the benefit of the Holders of the Notes, as additional security for the payment and performance of all or any portion of the Notes, in any property or assets, including any in which a Lien is required to be granted to or for the benefit of the Trustee or the Collateral Trustee pursuant to this Indenture, any of the Security Documents, the Collateral Trust Agreement or otherwise;

(n)        to add additional Second Lien Secured Parties to any Security Documents and the Collateral Trust Agreement;

(o)        to enter into any intercreditor agreement having substantially similar terms with respect to the Holders as those set forth in the Security Documents, taken as a whole, or any joinder thereto;

(p)        to provide for the succession of any parties to the Security Documents (and other amendments that are administrative or ministerial in nature) and the Collateral Trust Agreement in connection with an amendment, renewal, extension, substitution, refinancing, restructuring, replacement, supplementing or other modification from time to time of the Credit Agreement or any other agreement that is not prohibited by this Indenture; and

(q)        to amend the Collateral Trust Agreement in accordance with its terms or the terms of the Security Documents.

Section 9.02.      With Consent of Holders. The Issuers, Trustee and the Collateral Trustee may amend the Note Documents without notice to any Noteholder but with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes). However, without the consent of each Noteholder adversely affected thereby, an amendment may not:

(a)        reduce the amount of Notes whose Holders must consent to an amendment or waiver;

(b)        reduce the rate of or extend the time for payment of interest on any Note;

(c)        reduce the principal of or extend the Stated Maturity of any Note;

(d)        make any Note payable in money other than U.S. Dollars;

(e)        make any change to the contractual right of any Holder of the Notes expressly set forth in this Indenture or the Notes to receive payment of principal of and interest on that Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to that Holder’s Notes;

(f)        expressly subordinate the Notes to any other obligation of the Issuers or any Guarantor, except as otherwise permitted under this Indenture or the Notes;

(g)        reduce the premium payable upon the redemption of any Note or change the time at which any Note may be redeemed, as set forth in ‎Section 3.07 or as set forth in the Notes; or

(h)        release any Guarantor from any of its obligations under its Note Guaranty or this Indenture, except in accordance with the terms of this Indenture.

Notwithstanding the foregoing, without the consent of the Holders of at least 66-2/3% in aggregate principal amount of the Notes then outstanding, no amendment or waiver may (A) make any change in any Security Document, the Collateral Trust Agreement or the provisions in this Indenture dealing with Collateral or application of trust proceeds of the Collateral with the effect of releasing the Liens on all or substantially all of the Collateral which secure the Obligations in respect of the Notes or (B) change or alter the priority of the Liens securing the Obligations in respect of the Notes in any material portion of the Collateral in any way materially adverse, taken as a whole, to the Holders (as determined in good faith by the Company), other than, in each case, as provided under the terms of this Indenture, the Security Documents or the Collateral Trust Agreement.

The consent of the Holders of the Notes is not necessary to approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment.

Section 9.03.      [Reserved].

Section 9.04.      Revocation and Effect of Consents and Waivers. A consent to an amendment or a waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on the Note. However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Note or portion of the Note if the Trustee receives the notice of revocation before a date and time therefor identified by the Issuers in a notice furnished to such Holder in accordance with the terms of this Indenture or, if no such date and time shall be identified, the date the amendment or waiver becomes effective. After an amendment or waiver becomes effective, it shall bind every Noteholder. An amendment or waiver becomes effective upon the execution of such amendment or waiver by the Trustee.

The Issuers may, but shall not be obligated to, fix a record date for the purpose of determining the Noteholders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Noteholders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date.

After an amendment becomes effective, the Issuers are required to deliver to each Holder of the Notes at the Holder’s address appearing in the Note register a notice briefly describing the amendment. However, the failure to give this notice to all Holders of the Notes, or any defect therein, will not impair or affect the validity of the amendment.

Section 9.05.      Notation on or Exchange of Notes. If an amendment changes the terms of a Note, the Trustee may require the Holder of the Note to deliver such Note to the Trustee. The Issuers may direct the Trustee to place an appropriate notation on the Note regarding the changed terms and return such Note to the Holder. Alternatively, if the Issuers so determine, the Issuers in exchange for the Note shall issue and the Trustee shall authenticate (in accordance with the requirements and procedures of ‎Section 2.03) a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment.

Section 9.06.      Trustee and Collateral Trustee to Sign Amendments. The Trustee and Collateral Trustee (if applicable) shall sign any amendment authorized pursuant to this ‎Article 9 if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee and the Collateral Trustee, as applicable. If it does, the Trustee or the Collateral Trustee, as applicable, may but need not sign it. In signing such amendment the Trustee and the Collateral Trustee (if applicable) shall receive indemnity reasonably satisfactory to it and shall receive, and (subject to ‎Section 7.01) shall be fully protected in conclusively relying upon, in addition to the documents required by ‎Section 12.03, an Officers’ Certificate and an Opinion of Counsel each stating that such amendment complies with the applicable provision of this Indenture.

Article 10
Note Guaranties

Section 10.01.    The Note Guaranties. Subject to the provisions of this ‎Article 10, each Guarantor party hereto or that executes a supplemental indenture in the form of Exhibit B hereby irrevocably and unconditionally Guarantees, jointly and severally, the full and punctual payment (whether at Stated Maturity, upon redemption, purchase pursuant to an offer to purchase required under ‎Section 4.07 or ‎Section 4.12 or acceleration, or otherwise) of the principal of, premium, if any, and interest on, and all other amounts payable under, each Note, and the full and punctual payment of all other amounts payable by the Issuers under this Indenture (including the Issuers’ obligations under ‎Section 7.07 hereof). Upon failure by the Issuers to pay punctually any such amount, each Guarantor shall forthwith on demand pay the amount not so paid at the place and in the manner specified in this Indenture. Any Note Guaranty constitutes a guarantee of payment and not of collection.

Section 10.02.    Guarantee Unconditional. The obligations of each Guarantor hereunder are unconditional and absolute and, without limiting the generality of the foregoing and except as expressly set forth herein, will not be released, discharged or otherwise affected by:

(a)        any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of the Issuers under this Indenture or any Note, by operation of law or otherwise;

(b)        any modification or amendment of or supplement to this Indenture or any Note;

(c)        any change in the corporate existence, structure or ownership of an Issuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting an Issuer or its assets or any resulting release or discharge of any obligation of an Issuer contained in this Indenture or any Note;

(d)        the existence of any claim, set-off or other rights which the Guarantor may have at any time against the Issuers, the Trustee or any other Person, whether in connection with this Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;

(e)        any invalidity or unenforceability relating to or against an Issuer for any reason of this Indenture or any Note, or any provision of applicable law or regulation purporting to prohibit the payment by an Issuer of the principal of or interest on any Note or any other amount payable by the Issuers under this Indenture; or

(f)        any other act or omission to act or delay of any kind by the Issuers, the Trustee or any other Person or any other circumstance whatsoever which might, but for the provisions of this Section, constitute a legal or equitable discharge of or defense to such Guarantor’s obligations hereunder.

Section 10.03.    Discharge; Reinstatement. Each Guarantor’s obligations under its Note Guaranty will remain in full force and effect until the principal of, premium, if any, and interest on the Notes and all other amounts payable by the Issuers under this Indenture have been paid in full. If at any time any payment of the principal of, premium, if any, or interest on any Note or any other amount payable by the Issuers under this Indenture is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of an Issuer or otherwise, each Guarantor’s obligations under its Note Guaranty with respect to such payment will be reinstated as though such payment had been due but not made at such time.

Section 10.04.    Waiver by the Guarantors. Each Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against the Issuers or any other Person.

Section 10.05.    Subrogation and Contribution. Upon making any payment with respect to any obligation of the Issuers under this ‎Article 10, the Guarantor making such payment will be subrogated to the rights of the payee against the Issuers with respect to such obligation, provided that the Guarantor may not enforce either any right of subrogation, or any right to receive payment in the nature of contribution, or otherwise, from any other Guarantor, with respect to such payment so long as any amount payable by the Issuers hereunder or under the Notes remains unpaid.

Section 10.06.    Stay of Acceleration. If acceleration of the time for payment of any amount payable by the Issuers under this Indenture or the Notes is stayed upon the insolvency, bankruptcy or reorganization of an Issuer, all such amounts otherwise subject to acceleration under the terms of this Indenture are nonetheless payable by the Guarantors hereunder forthwith on demand by the Trustee or the Holders.

Section 10.07.    Limitation on Amount of Note Guaranty. Notwithstanding anything to the contrary in this ‎Article 10, each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guaranty of such Guarantor not constitute a fraudulent conveyance under applicable fraudulent conveyance provisions of the Bankruptcy Law or any comparable provision of state law. To effectuate that intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor under its Note Guaranty are limited to the maximum amount that would not render the Guarantor’s obligations subject to avoidance under applicable fraudulent conveyance provisions of any Bankruptcy Law or any comparable provision of state law. Any Foreign Subsidiaries guarantee may also be subject to other limitations specified in this ‎Article 10 or otherwise in the applicable supplemental indenture as contemplated by the Agreed Guarantee Principles.

Section 10.08.    Execution and Delivery of Note Guaranty. The execution by each Guarantor of this Indenture (or a supplemental indenture in the form of Exhibit B as modified by the Agreed Guarantee Principles) evidences the Note Guaranty of such Guarantor, whether or not the person signing as an officer of the Guarantor still holds that office at the time of authentication of any Note. The delivery of any Note by the Trustee after authentication constitutes due delivery of the Note Guaranty set forth in this Indenture on behalf of each Guarantor.

Section 10.09.    Release of Note Guaranty. The Note Guaranty of a Guarantor will terminate, and the Note Guaranty will be automatically and unconditionally released and discharged, upon:

(a)        a sale or other disposition (including by way of consolidation, amalgamation, liquidation or merger) of Capital Stock of the Guarantor following which such Guarantor ceases to be a Subsidiary of the Company or the sale or disposition of all or substantially all the Property of the Guarantor (other than to the Company or a Restricted Subsidiary) otherwise permitted by this Indenture;

(b)        the release or discharge of such Guarantor’s obligations under the Credit Agreement other than a release or discharge through payment thereon;

(c)        the designation in accordance with this Indenture of the Guarantor as an Unrestricted Subsidiary;

(d)        such Guarantor ceasing to be a Restricted Subsidiary and such Guarantor not otherwise being required to provide a Note Guaranty pursuant to the provisions of ‎Section 4.14;

(e)        such Guarantor ceasing to guarantee any debt of the Issuers or any Guarantor under the Credit Agreement or any other syndicated credit facility or capital markets debt in an aggregate principal amount in excess of $35 million after the date of its Note Guaranty other than a release or discharge through payment thereon;

(f)        any discharge pursuant to ‎Section 8.01‎(a) or defeasance pursuant to ‎‎Section 8.01(b); or

(g)        as required by the Collateral Trust Agreement.

Upon delivery by the Issuers to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the foregoing effect, the Trustee will execute any documents reasonably required in order to evidence the release of such Guarantor from its obligations under its Note Guaranty.

Section 10.10.    Limitations for Luxembourg Guarantors. Notwithstanding any provisions to the contrary in this Indenture or any First Lien Document or Second Lien Document, the aggregate obligations and liabilities under this Indenture and any other First Lien Document or Second Lien Document of any Guarantor incorporated under the laws of the Grand Duchy of Luxembourg (a “Luxembourg Guarantor”) for the obligations of any entity or company in which the Luxembourg Guarantor has no direct or indirect equity interest, shall be limited at any time to a maximum amount not exceeding ninety-five per cent (95%) of the higher:

(a)        of the sum of the LuxCo’s “capitaux propres” (as referred to in Annex I to the Grand-Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the Law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended) (“Own Funds”) and the Luxembourg Guarantor’s debt which is subordinated in right of payment (whether generally or specifically) to any obligations and liabilities under this Indenture and any other any First Lien Document or Second Lien Document (the “Lux Subordinated Debt”), as determined on the basis of the then latest available annual accounts of the Luxembourg Guarantor duly established in accordance with applicable accounting rules, as at the date on which the Luxembourg Guarantor is required to make any payment pursuant to this Indenture; and

(b)        of the sum of the Luxembourg Guarantor’s Own Funds and its Lux Subordinated Debt as at the date of this Indenture.

Where for the purpose of the above determination, no duly established annual accounts are available for the relevant reference period (which, for the avoidance of doubt, includes a situation where, (i) in respect of the determination to be made under (a) and (b) above, no final annual accounts have been established in due time in respect of the then most recently ended financial year or (ii) the relevant annual accounts do not adequately reflect the status of the Own Funds and/or the Subordinated Debts as envisaged above) the Luxembourg Guarantor shall, promptly, establish unaudited interim accounts (as of the date of the end of the then most recent financial quarter) or annual accounts (as applicable) duly established in accordance with applicable accounting rules, pursuant to which the Luxembourg Guarantor’s Own Funds and Lux Subordinated Debt will be determined. If the Luxembourg Guarantor fails to provide such unaudited interim accounts or annual accounts (as applicable) within 30 Business Days as from the request of the Trustee (or such longer period as the Trustee may agree, in its sole discretion), the Trustee may appoint an independent auditor (réviseur d’entreprises agréé) or an independent reputable investment bank which shall undertake the determination of the Luxembourg Guarantor’s Own Funds and Lux Subordinated Debt. In order to prepare such determination, the independent auditor (réviseur d’entreprises agréé) or the independent reputable investment bank shall take into consideration such available elements and facts at such time, including without limitation, the latest annual accounts of the Luxembourg Guarantor and any entities in which it has a direct or indirect equity interest, any recent valuation of the assets of the Luxembourg Guarantor and any entities in which it has a direct or indirect equity interest (if available), in particular, the market value of the assets of the Luxembourg Guarantor and any entities in which it has a direct or indirect equity interest as if sold between a willing buyer and a willing seller as a going concern using a standard market multi criteria approach combining market multiples, book value, discounted cash flow or comparable public transaction of which price is known (taking into account circumstances at the time of the valuation and making all necessary adjustments to the assumption being used) and acting in a reasonable manner.

(c)        The above limitation shall not apply to:

(1)        any amounts borrowed under any First Lien Document or Second Lien Document and in each case made available, in any form whatsoever, to the Luxembourg Guarantor or any entity in which it has a direct or indirect equity interest; and

(2)        for the avoidance of doubt, any Luxembourg law security documentation.

Section 10.11.    Limitations for Gibraltar Guarantors. Any Note Guaranty granted under this Indenture by a Guarantor registered under the laws of Gibraltar does not apply to any liability to the extent that it would (i) constitute unlawful financial assistance within the meaning of section 100 of the Companies Act 2014 of Gibraltar; (ii) comprise a “voidable transaction” or “insolvency transaction” within the meaning given to those terms under Part 9 of the Insolvency Act 2011 of Gibraltar; or (iii) cause any breach whatsoever under the Insolvency Act 2011 of Gibraltar.

Section 10.12.    Limitations for Swiss Guarantors. Notwithstanding anything to the contrary in this Indenture and any other Note Document, the obligations of any Guarantor that is incorporated in Switzerland or, if different, that is considered to be tax resident in Switzerland for Swiss Withholding Tax purposes (a “Swiss Guarantor”) and the rights of the Notes Secured Parties are subject to the following limitations:

(a)        If and to the extent that:

(1)        a Swiss Guarantor guarantees or becomes directly or indirectly liable for obligations other than obligations of one of its wholly owned direct or indirect subsidiaries (the “Restricted Obligations”); and

(2)        a payment in fulfilling such Restricted Obligations would in accordance with applicable Swiss law constitute a repayment of capital (Einlagerückgewähr), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Guarantor or would otherwise be restricted under then applicable mandatory Swiss law, such Restricted Obligations (and the amount of any payment in relation thereto) shall from time to time be limited to the amount as determined in accordance with applicable Swiss law as then in effect (the “Swiss Available Amount”). This limitation shall not release the Swiss Guarantor from its obligations in excess of the Swiss Available Amount, but merely postpone the performance date thereof until such times as performance is again permitted under applicable Swiss law. Any and all indemnities and guarantees of such Swiss Guarantor contained in any Note Documents shall be construed in a manner consistent with this Section 10.12.

(b)        In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under this Indenture or any other Note Document is obliged to withhold Swiss Withholding Tax in respect of such payment, such Swiss Guarantor shall:

(1)        use its best efforts that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability for such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax;

(2)        if the notification procedure pursuant to the preceding sub-paragraph does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to the preceding sub-paragraph applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and promptly pay any such taxes to the Swiss Federal Tax Administration;

(3)        notify the Trustee that such notification, or as the case may be, deduction has been made and provide the Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration;

(4)        in the case of a deduction of Swiss Withholding Tax, use its best efforts to ensure that any person other than the Trustee or a Notes Secured Party, which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment in respect of Restricted Obligations, will, as soon as possible after such deduction (A) be in a position to apply for a refund of the Swiss Withholding Tax under applicable law (including tax treaties) and pay to the Trustee upon receipt any amounts so refunded or (B) if the Trustee or any other Notes Secured Party is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment and if requested by the Trustee, provide the Trustee or the Notes Secured Party those documents that are required by law and applicable tax treaties to be provided by the payer of such tax in order to enable the Trustee or the Notes Secured Party to prepare a claim for refund of Swiss Withholding Tax. The Trustee and the Secured Parties shall co-operate with each other to secure such refund.

(c)        If a Swiss Guarantor is obliged to withhold Swiss Withholding Tax in accordance with paragraph (b) above, the Trustee and the relevant Notes Secured Parties shall be entitled to further request payment under the guarantees granted or other liabilities assumed to it under this Indenture or any other Note Document and apply proceeds therefrom against the Restricted Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax were required, whereby such further payments shall always be limited to the Swiss Available Amount. In case the proceeds irrevocably received by the Trustee or a Notes Secured Party pursuant to paragraph (b)(iv) above and this paragraph (c) have the effect that the proceeds received by the Trustee and the Notes Secured Parties exceed the Swiss Available Amount, then the Trustee and the Notes Secured Parties shall promptly return such overcompensation to the Swiss Guarantor.

(d)        If and to the extent requested by the Trustee and if and to the extent this is from time to time permitted under applicable Swiss mandatory law notwithstanding the restrictions referred to in this Section 10.12, in order to allow the Trustee and the Notes Secured Parties to obtain a maximum benefit under this Indenture and any other Note Document, the Swiss Guarantor and each Issuer and other Grantor shall take all such measures and/or promptly procure the fulfilment of all such prerequisites, in each case to the extent within its respective power, as are necessary and appropriate to achieve, without delay, payment towards the discharge of the Restricted Obligations and to enable it to promptly perform its obligations under this Indenture or any other Note Document and make the (required) payment(s) thereunder from time to time, including the following:

(1)        the preparation of an up-to-date (interim) audited balance sheet of the Swiss Guarantor;

(2)        the confirmation of the auditors of the Swiss Guarantor that the relevant amount represents the Swiss Available Amount;

(3)        the passing of unanimous written resolutions of the quotaholders of the Swiss Guarantor approving the (resulting) distribution;

(4)        the conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);

(5)        to the extent permitted by applicable Swiss law, (A) write up or realize any of its assets shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of a realization, however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig) and/or (B) reduce its quota capital; and

(6)        all such other measures necessary or useful and/or to promptly procure the fulfilment of all prerequisites reasonably necessary to allow the Swiss Guarantor to promptly make the payments and perform the obligations agreed hereunder from time to time with a minimum of limitations.

Article 11
Collateral and Security

Section 11.01.    Security Documents.

(a)        The due and punctual payment of the Note Obligations, including payment of the principal of, premium, if any, and interest on the Notes when the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest on the Notes and performance of all other Obligations of the Issuers and the Guarantors to the Holders, the Trustee or the Collateral Trustee under this Indenture, the Notes, the Note Guaranties, the Collateral Trust Agreement and the Security Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Security Documents, which define the terms of the Liens that secure Note Obligations, subject to the terms of the Collateral Trust Agreement. The Trustee and the Issuers hereby acknowledge and agree that the Collateral Trustee holds the Collateral in trust for the benefit of the Holders, the Trustee and the Collateral Trustee (or, in connection with certain non-US law governed Security Documents, in favor of the Collateral Trustee acting for itself (including as creditor of a parallel debt) and as direct or indirect representative of the Second Lien Secured Parties) and pursuant to the terms of the Security Documents and the Collateral Trust Agreement. By their acceptance of the Notes, the Holders hereby agree to be bound by, and authorize and direct the Trustee and the Collateral Trustee, as the case may be, to execute and deliver the Collateral Trust Agreement, and any Security Documents in which the Trustee or the Collateral Trustee, as applicable, is named as a party, including each Security Document executed on or after the Issue Date.

(b)        Subject to the Collateral Trust Agreement, the Issuers and the Guarantors shall deliver to the Collateral Trustee copies of all documents required to be filed pursuant to the Security Documents, and will do or cause to be done all such acts and things as may be reasonably required, to provide to the Collateral Trustee a second Lien security interest in the Collateral in favor of the Collateral Trustee and execute and deliver such security instruments, financing statements, mortgages and deeds of trust as may be necessary to vest in the Collateral Trustee a perfected second-priority security interest (subject to Liens permitted by ‎Section 4.06 and Permitted Liens) in the Collateral, including delivering all such documents and taking all such actions in order to satisfy the Collateral Vessel Requirements; provided that for as long as the Senior Secured Credit Facility Obligations are outstanding, the Grantors will not be required to take any actions to create or perfect liens or otherwise satisfy the Collateral Vessel Requirements, unless such actions are required with respect to the Credit Agreement.

Section 11.02.    Collateral Trustee. The Noteholders have, and by accepting a Note, each Noteholder will be deemed to have, appointed the Collateral Trustee to act as its agent under the Collateral Trust Agreement and the Second Lien Security Documents. The Noteholders have, and by accepting a Note, each Noteholder will be deemed to have, authorized the Collateral Trustee as its agent to (a) perform the duties and exercise the rights and powers that are specifically given to it under the Collateral Trust Agreement and the Second Lien Security Documents, together with any other incidental rights, power and discretions; and (b) execute each Security Document, waiver, modification, amendment, renewal or replacement expressed to be executed by the Collateral Trustee on its behalf (be it as trustee or direct or indirect representative, as applicable under the law governing the relevant Security Document).

Section 11.03.    Release of Liens in Respect of Notes. The Collateral Trustee’s Liens on the Collateral will no longer secure the Notes, any other Note Documents or any other Obligations under this Indenture or the Collateral Trust Agreement, and the right of the Holders of the Notes, the other Note Documents and such Obligations to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will terminate and be discharged:

(1)        upon satisfaction and discharge of this Indenture as set forth under ‎Section 8.01(a);

(2)        upon a legal defeasance or covenant defeasance as set forth under ‎Section 8.01(b);

(3)        upon payment in full and discharge of all Notes outstanding under this Indenture and all Obligations that are outstanding, due and payable under this Indenture at the time the Notes are paid in full and discharged;

(4)        in whole or in part, with the consent of the Holders of the requisite percentage of Notes in accordance with the provisions of ‎Section 9.02; or

(5)        as to any asset constituting Collateral if and only to the extent that the Liens on such Collateral in favor of the Senior Secured Credit Facility Secured Parties have been released in accordance with their terms, except a release as a result of the Discharge of First Lien Obligations in respect of the Senior Secured Credit Facility Obligations.

Section 11.04.    Further Assurances. (a) The Issuers and each of the other Grantors will do or cause to be done all acts and things that may be required, or that the Collateral Trustee from time to time may reasonably request, to assure and confirm that the Collateral Trustee holds, for the benefit of the Secured Parties, duly created and enforceable and perfected Liens upon the Collateral (including any property or assets that are acquired or otherwise become, or are required by any Secured Debt Document to become, Collateral after the Notes are issued), in each case, as contemplated by, and with the Lien priority required under, the Secured Debt Documents.

(b)        Upon the reasonable request of the Collateral Trustee, First Lien Debt Representative or any Second Lien Debt Representative at any time and from time to time, the Issuers and each of the other Grantors will promptly execute, acknowledge and deliver such Security Documents, instruments, certificates, notices and other documents, and take such other actions as shall be reasonably required, or that the Collateral Trustee may reasonably request, to create, perfect, protect, assure or enforce the Liens and benefits intended to be conferred, in each case as contemplated by the Secured Debt Documents for the benefit of the Secured Parties.

Section 11.05.    Protections of the Collateral Trustee. The Collateral Trustee in its capacity as such hereunder and under the Security Documents shall at all times be entitled to same protections, rights and limitations of liability as the Trustee in accordance with Article 7 hereof. Notwithstanding anything to the contrary herein or in any Security Document, any action or inaction requiring the discretion or opinion or exercise of reasonableness of or by the Collateral Trustee, in its capacity as Collateral Trustee for the Holders under the terms of any of the Note Documents shall, at the request of the Collateral Trustee, be taken at the written direction of the Holders of more than 25% in aggregate principal amount of Notes then outstanding.

Article 12
Miscellaneous

Section 12.01.    [Reserved].

Section 12.02.    Notices. Any notice or communication shall be in writing and delivered in person or mailed by first-class mail or sent by facsimile (with a hard copy delivered in person or by mail promptly thereafter) and addressed as follows:

if to the Issuers and Guarantors:

Valaris Limited
Clarendon House, 2 Church Street
Hamilton HM11, Bermuda
Facsimile: (441) 292-4720
Attention: General Counsel

with a copy (which shall not constitute notice) to:

Gibson, Dunn & Crutcher LLP
811 Main Street, Suite 3000
Houston, Texas 77002-6117
Facsimile: (346) 718-6901
Attention: Tull Florey

if to the Trustee or the Collateral Trustee:

Wilmington Savings Fund Society, FSB
500 Delaware Avenue

Wilmington, DE 1980

Attn: Geoffrey J. Lewis

Phone: (302) 421-9137

Email: glewis@wsfsbank.com

The Issuers, the Guarantors, the Trustee or the Collateral Trustee by notice to the others may designate additional or different addresses for subsequent notices or communications.

Any notice or communication delivered to a Noteholder shall be mailed or delivered to the Noteholder at the Noteholder’s address as it appears on the registration books of the Registrar and shall be sufficiently given if so delivered within the time prescribed.

All notices and communications (other than those sent to Holders) will be deemed to have been duly given: (A) at the time delivered by hand, if personally delivered; (B) five (5) Business Days after being deposited in the mail, postage prepaid, if mailed; (C) when receipt acknowledged, if transmitted by electronic transmission or other similar means of unsecured electronic communication; and (D) the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.

All notices or communications required to be made to a Holder pursuant to this Indenture must be made in writing and will be deemed to be duly sent or given in writing if mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery, to its address shown on the Register; provided, however, that a notice or communication to a Holder of a Global Note may, but need not, instead be sent pursuant to the Depositary Procedures.

Failure to mail or deliver a notice or communication to a Noteholder or any defect in it shall not affect its sufficiency with respect to other Noteholders.

Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary pursuant to the applicable procedures of the Depositary. The Trustee will not have any liability relating to the contents of any notice that it sends to any Holder pursuant to any instruction from the Issuers.

If a notice or communication is mailed or sent in the manner provided above within the time prescribed, it will be deemed to have been duly given, whether or not the addressee receives it.

The Trustee shall have the right to accept and act upon any notice, instruction, or other communication, including any funds transfer instruction (each, a “Notice”), received pursuant to this Indenture by electronic transmission (including by e-mail, web portal or other electronic methods) and reasonably believed by the Trustee to be valid and the Trustee shall not have any duty to confirm that the person sending such Notice is, in fact, a person authorized to do so, and furthermore (i) the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained directly or indirectly by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information and (ii) the Issuers and any other sending party agree to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communications or information to the Trustee, including the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties. If the Issuers or other sending party elects to send the Trustee email and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling.

Electronic signatures reasonably believed by the Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Adobe Sign or any other digital signature provider identified by any other party hereto and acceptable to the Trustee) shall be deemed original signatures for all purposes. Notwithstanding the foregoing, the Trustee may require that a Notice in the form of an original document bearing a manual signature be delivered to the Trustee in lieu of, or in addition to, any such electronic Notice.

Notwithstanding anything herein to the contrary, any notice to the Trustee shall be deemed given when actually received.

Section 12.03.    Certificate and Opinion as to Conditions Precedent. (a) Upon any request or application by the Issuers to the Trustee or Collateral Trustee to take or refrain from taking any action under this Indenture, the Issuers shall, if requested by the Trustee or Collateral Trustee, furnish to the Trustee or Collateral Trustee as applicable:

(b)        an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and

(c)        an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with.

Section 12.04.    Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture shall include:

(a)        a statement that the Person making such certificate or opinion has read such covenant or condition;

(b)        a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(c)        a statement that, in the opinion of 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

(d)        a statement as to whether or not, in the opinion of such Person, such covenant or condition has been complied with.

Every such certificate or opinion provided under this Indenture shall be without personal recourse to the Person executing the same and may include an express statement to that effect.

Section 12.05.    When Notes Disregarded. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuers or by any Affiliate of the Issuers shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that the Trustee knows are so owned shall be so disregarded. Subject to the foregoing, only Notes outstanding at the time shall be considered in any such determination.

Section 12.06.    Rules by Trustee, Paying Agents, Authentication Agent and Registrar. The Trustee may make reasonable rules for action by or a meeting of Noteholders. The Registrar, Authentication Agent and the Paying Agents or co-registrar may make reasonable rules for their functions.

Section 12.07.    Business Days. If a payment date (including, for the avoidance of doubt, the maturity date or any Redemption Date) is not a Business Day, payment shall be made on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period. If a regular record date is not a Business Day, the record date shall not be affected.

Section 12.08.    Judgment Currency. (a) U.S. Dollars are the sole currency of account and payment for all sums payable by the Issuers or any Guarantor under this Indenture, the Notes and the Note Guaranties, including damages relating thereto. Any amount received or recovered in a currency other than U.S. Dollars (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, or otherwise) by any Holder of a Note in respect of any sum expressed to be due to it from the Issuers or any Guarantor will only constitute a discharge of the Issuers or such Guarantor, as the case may be, to the extent of the U.S. Dollar amount which the Trustee could purchase in the City of New York in accordance with normal banking procedures with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). If that U.S. Dollar amount is less than the U.S. Dollar amount expressed to be due to the recipient under any Note or Note Guaranties, the Issuers and the Guarantors will, jointly and severally, indemnify such Holder against any loss sustained by it as a result (including the cost of making any such purchase).

(b)        The indemnities of the Issuers and any Guarantor contained in this ‎Section 12.08, to the extent permitted by law: (i) constitute a separate and independent obligation from the other obligations of the Issuers and the Guarantors under this Indenture and the Notes; (ii) shall give rise to a separate and independent cause of action against the Issuers; (iii) shall apply irrespective of any indulgence granted by any Holder of the Notes or the Trustee from time to time; (iv) shall continue in full force and effect notwithstanding any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under this Indenture, the Notes or any Note Guaranty; and (v) shall survive the termination of this Indenture. For the purposes of this ‎Section 12.08, it shall be sufficient for a payee to certify in a satisfactory manner that it would have suffered a loss had an actual purchase of U.S. Dollars been made with the amount received in that other currency on the date of receipt or recovery (or, if a purchase of U.S. Dollars on such date had not been practicable, on the first date on which it would have been practicable) and that the change of the purchase date was needed.

Section 12.09.    Submission to Jurisdiction; Appointment of Agents for Service. (a) Each of the Issuers and the Guarantors irrevocably submit to the non-exclusive jurisdiction of any New York State or United States Federal court sitting in The City of New York, Borough of Manhattan over any suit, action or proceeding arising out of or relating to this Indenture, the Notes, the Note Guaranties or the transactions contemplated hereby and thereby (each, a “Related Proceeding”). Each of the Issuers and the Guarantors irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any Related Proceeding brought in such a court and any claim that any such Related Proceeding brought in such a court has been brought in an inconvenient forum. To the extent that any Issuer or Guarantor has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect to itself or its property, each of the Issuers and the Guarantors irrevocably waives, to the fullest extent permitted by law, such immunity in respect of any such suit, action or proceeding.

(b)        The Company and the Guarantors hereby appoint FinanceCo, with offices at 5847 San Felipe St. Suite 3300, Houston, TX 77057, as their respective agent for service of process in any Related Proceeding and agree that service of process in any such Related Proceeding may be made upon it or them at the office of such agent. The agent for service of process named herein may resign upon giving written notice to the Issuers at the address listed in ‎Section 12.02. Each of the Issuers and the Guarantors waives, to the fullest extent permitted by law, any other requirements of or objections to personal jurisdiction with respect thereto. Each of the Issuers and the Guarantors represents and warrants that such agent has agreed to act, and FinanceCo hereby agrees to act, as the Issuers’ and the Guarantors’ agent for service of process, and each of the Issuers and the Guarantors agree to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect.

Section 12.10.    Governing Law/Waiver of Trial by Jury; Submission to Jurisdiction. THIS INDENTURE, THE NOTES AND THE NOTE GUARANTIES AND ANY CLAIM, CONTROVERSY OR DISPUTE RELATING TO OR ARISING OUT OF THIS INDENTURE, THE NOTES AND THE NOTE GUARANTIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH OF THE PARTIES HERETO AND EACH HOLDER OF NOTES BY ITS ACCEPTANCE THEREOF IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 12.11.    No Recourse Against Others. No past, present or future director, officer, employee, incorporator or shareholder of the Issuers or any Guarantor, as such, shall have any liability for any obligations of the Issuers or the Guarantors under the Note Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Noteholder by accepting a Note waives and releases all such liability. The waiver and release shall be part of the consideration for issuance of the Notes.

Section 12.12.    Successors. All agreements of the Issuers and the Guarantors in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee or the Collateral Trustee in this Indenture shall bind its successors.

Section 12.13.    Multiple Originals; Electronic Signatures. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture. The words “execution,” “signed,” “signature,” and words of like import in this Indenture shall include images of manually executed signatures transmitted by facsimile, email or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code. Without limitation to the foregoing, and anything in this Indenture to the contrary notwithstanding, (a) any Officers’ Certificate, Opinion of Counsel, Definitive Note, Global Note, Note Guaranty, certificate of authentication appearing on or attached to any Note, supplemental indenture or other certificate, instrument, agreement, notice or other document or instrument delivered pursuant to this Indenture may be executed, attested and transmitted by any of the foregoing electronic means and formats, and (b) all references in ‎Section 2.03 (Execution and Authentication) or elsewhere in this Indenture or in any Definitive Note or Global Note to the execution, attestation or authentication of any Note or any certificate of authentication appearing on or attached to any Note by means of a manual or facsimile signature shall be deemed to include signatures that are made or transmitted by any of the foregoing electronic means or formats.

Section 12.14.    Table of Contents; Headings. The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture and the Notes have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.

Section 12.15.    Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, epidemics, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

Section 12.16.    U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information within the Issuers’ custody or control or as the Issuers may reasonably obtain that the Trustee may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.

Section 12.17.    FATCA. In order to assist the Trustee with its compliance with Sections 1471 through 1474 of the Code and the rules and regulations thereunder (as in effect from time to time, collectively, the “Applicable Tax Law”), the Issuers agree (i) to provide to the Trustee reasonably available information in their possession regarding the Issuers or the Holders of Notes (solely in their capacity as such) and which is necessary for the Trustee’s determination of whether it has tax related obligations under Applicable Tax Law and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under this Indenture to the extent necessary to comply with Applicable Tax Law and shall have no liability in connection therewith other than as a result of its gross negligence or willful misconduct. Nothing in the immediately preceding sentence shall be construed as obligating the Issuers to make any “gross up” payment or similar reimbursement in connection with a payment in respect of which amounts are so withheld or deducted.

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In witness whereof, the parties have caused this Indenture to be duly executed as of the date first written above.

As Issuers:

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As Guarantors:

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[Signature Page to the Indenture]

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