<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 13, 1998
REGISTRATION NO. 333- *
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
TRANSOCEAN OFFSHORE INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 72-0464968
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
OF
INCORPORATION OR ORGANIZATION) ERIC B. BROWN
TRANSOCEAN OFFSHORE INC.
4 GREENWAY PLAZA 4 GREENWAY PLAZA
HOUSTON, TEXAS 77046 HOUSTON, TEXAS 77046
(713) 871-7500 (713) 871-7500
(ADDRESS, INCLUDING ZIP CODE, (NAME, ADDRESS, INCLUDING ZIP CODE, AND
AND TELEPHONE TELEPHONE NUMBER,
NUMBER, INCLUDING AREA CODE, INCLUDING AREA CODE, OF AGENT FOR
OF REGISTRANT'S SERVICE)
PRINCIPAL EXECUTIVE OFFICES)
----------------
WITH COPY TO
J. DAVID KIRKLAND, JR.
BAKER & BOTTS, L.L.P.
3000 ONE SHELL PLAZA
HOUSTON, TEXAS 77002
(713) 229-1234
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
----------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF AMOUNT MAXIMUM MAXIMUM
EACH CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT (1) OFFERING PRICE (2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Debt Securities(3)......
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Preferred Stock, par
value $.10 per
share(4)...............
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Warrants(5).............
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Common Stock, par value
$.01 per share(6)......
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Total.................. $450,000,000(7) 100% $450,000,000(7) $132,750(8)
</TABLE>
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<PAGE>
(1) The proposed maximum initial offering price per unit will be determined
from time to time by the Registrant.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o). In no event will the aggregate initial offering
price of all securities issued from time to time pursuant to this
Registration Statement exceed $450,000,000 or the equivalent thereof in
foreign currencies. Any securities registered hereunder may be sold
separately or as units with other securities registered hereunder.
(3) Subject to Footnote (2), there is being registered hereunder an
indeterminate principal amount of Debt Securities that may be issued from
time to time by the Registrant, including Debt Securities issuable upon
conversion or exchange of Debt Securities or Preferred Stock or upon
exercise of Warrants. If any such Debt Securities are issued at an
original issue discount, then the offering price shall be in such greater
principal amount as shall result in an aggregate initial offering price of
up to $450,000,000.
(4) Subject to Footnote (2), there is being registered hereunder an
indeterminate number of shares of Preferred Stock that may be issued from
time to time by the Registrant, including Preferred Stock issuable upon
conversion or exchange of Debt Securities or Preferred Stock or upon
exercise of Warrants.
(5) Subject to Footnote (2), there is being registered hereunder an
indeterminate principal amount of Warrants to purchase Debt Securities,
Preferred Stock, Common Stock or other securities.
(6) Subject to Footnote (2), there is being registered hereunder an
indeterminate number of shares of Common Stock that may be issued from
time to time by the Registrant, including Common Stock issuable upon
conversion or exchange of Debt Securities or Preferred Stock or upon
exercise of Warrants.
(7) Pursuant to Rule 429(b), this amount is carried forward from Registration
Statement No. 333-24457, with the result that an aggregate total of
$450,000,000 not previously sold is registered under the two Registration
Statements.
(8) Pursuant to Rule 429(b), $132,750 of the filing fee was previously paid
with Registration Statement No. 333-24457.
* Pursuant to Rule 429(b), the Prospectus included in this Registration
Statement is a combined prospectus and relates to Registration Statement
No. 333-24457 previously filed by the Registrant and declared effective
on April 11, 1997.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION DATED JULY 13, 1998
PROSPECTUS
$450,000,000
TRANSOCEAN OFFSHORE INC.
[LOGO OF TRANSOCEAN
OFFSHORE INC.
APPEARS HERE]
DEBT SECURITIES PREFERRED STOCK WARRANTS COMMON STOCK
-----------
Transocean Offshore Inc. (the "Company") may offer from time to time, its (i)
unsecured debt securities consisting of notes, debentures or other evidences of
indebtedness (the "Debt Securities"), in one or more series, which may be
either senior ("Senior Debt Securities") or subordinated ("Subordinated Debt
Securities") and which may be convertible into or exchangeable for shares of
common stock, par value $0.01 per share (the "Common Stock"), shares of
preferred stock, par value $0.10 per share (the "Preferred Stock"), or other
Debt Securities; (ii) Preferred Stock, in one or more series, which may be
convertible into or exchangeable for Common Stock, Preferred Stock or Debt
Securities; (iii) warrants to purchase Debt Securities, Preferred Stock, Common
Stock or other securities (the "Warrants"); and (iv) Common Stock. The Debt
Securities, Preferred Stock, Common Stock and Warrants are collectively
referred to herein as the "Securities."
The aggregate initial offering price of the Securities to be offered by the
Company hereby will not exceed $450,000,000 or, if applicable, the equivalent
thereof in any other currency or currency unit. The Securities may be offered
in amounts, at prices and on terms to be determined by market conditions at the
time of offering thereof. As used herein, the Debt Securities include
securities denominated in United States dollars or, at the option of the
Company if so specified in an accompanying Prospectus Supplement, in any other
currency or currency unit, or in amounts determined by reference to an index.
In addition, all or a portion of the Debt Securities of a series may be
issuable in temporary or permanent global form.
The terms of the Securities in respect of which this Prospectus is being
delivered will be set forth in an accompanying Prospectus Supplement,
including, where applicable, (i) in the case of Debt Securities, the specific
designation, aggregate principal amount, authorized denominations, maturity,
rate or rates (or method of determining the same) and time or times of payment
of any interest, any terms for optional or mandatory redemption, which may
include redemption at the option of holders upon the occurrence of certain
events, or payment of additional amounts or any sinking fund provisions,
whether such Debt Securities are Senior Debt Securities or Subordinated Debt
Securities, other terms of subordination of Subordinated Debt Securities, any
provisions with respect to conversion or exchange, the initial offering price
and other specific terms; (ii) in the case of Preferred Stock, the specific
designation, any dividend, liquidation, redemption, sinking fund, voting or
other rights, time of payment of dividends, any provision for conversion or
exchange, the initial offering price and other specific terms; and (iii) in the
case of Warrants, the duration, initial offering price, exercise price and
detachability thereof. The Prospectus Supplement will also contain information,
where applicable, about certain United States Federal income tax considerations
relating to, and any listing on a securities exchange of, the Securities
covered by the Prospectus Supplement.
The Securities may be sold directly by the Company to investors, through
agents designated from time to time or to or through underwriters or dealers.
See "Plan of Distribution." If any agents of the Company or any underwriters
are involved in the sale of any Securities in respect of which this Prospectus
is being delivered, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in a Prospectus Supplement. The net
proceeds to the Company from such sale also will be set forth in a Prospectus
Supplement.
The Common Stock is listed on the New York Stock Exchange under the symbol
"RIG." Any Common Stock offered will be listed, subject to notice of issuance,
on such exchange. The Common Stock is also listed on the Oslo Stock Exchange.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------
The date of this Prospectus is , 1998.
<PAGE>
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE ACCOMPANYING PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFERING COVERED
BY THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT. IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY. NEITHER THIS PROSPECTUS NOR THE ACCOMPANYING
PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL, OR A SOLICITATION OF ANY
OFFER TO BUY, ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION WHERE,
OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
NEITHER THE DELIVERY OF THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN
THIS PROSPECTUS OR THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 3
Incorporation of Certain Documents by Reference............................ 3
The Company................................................................ 4
Use of Proceeds............................................................ 4
Ratio of Earnings to Fixed Charges......................................... 4
Description of Debt Securities............................................. 5
Description of Capital Stock............................................... 15
Description of Warrants.................................................... 17
Certain Anti-Takeover Provisions........................................... 18
Plan of Distribution....................................................... 20
Legal Matters.............................................................. 21
Experts.................................................................... 21
</TABLE>
----------------
IN CONNECTION WITH AN OFFERING THROUGH UNDERWRITERS, CERTAIN PERSONS
PARTICIPATING IN SUCH OFFERING MAY ENGAGE IN TRANSACTIONS THAT STABILIZE,
MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE SECURITIES OFFERED HEREBY, WHICH
MAY INCLUDE, AMONG OTHERS, OVERALLOTMENT, STABILIZING AND SHORT-COVERING
TRANSACTIONS IN THE SECURITIES, AND THE IMPOSITION OF A PENALTY BID, DURING
AND AFTER SUCH OFFERING. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN OF
DISTRIBUTION."
2
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"), which can be inspected
and copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Judiciary Plaza, Room 1024, Washington, D.C. 20549;
and at the regional offices of the Commission at 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511 and at 7 World Trade Center, New
York, New York 10048. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Judiciary
Plaza, Washington, D.C. 20549 at prescribed rates. The Commission maintains an
Internet web site that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission (http://www.sec.gov). The Common Stock is listed on the New York
Stock Exchange and the Oslo Stock Exchange.
This Prospectus, which constitutes part of a registration statement on Form
S-3 (the "Registration Statement") filed by the Company with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"), omits
certain of the information contained in the Registration Statement. Reference
is hereby made to the Registration Statement and the exhibits thereto, which
may be obtained at the public reference facilities maintained by the
Commission as provided in the preceding paragraph, for further information
with respect to the Company and the securities offered hereby. Statements
contained herein concerning the provisions of such documents are necessarily
summaries of such documents, and each such statement is qualified in its
entirety by reference to the copy of the applicable document filed with the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission pursuant to the Exchange Act (File No. 1-7746), are incorporated in
this Prospectus by reference and shall be deemed to be a part hereof:
(i) Annual Report on Form 10-K for the year ended December 31, 1997;
(ii) Quarterly Report on Form 10-Q for the period ended March 31, 1998;
and
(iii) the description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed on May 12, 1993, as such
Registration Statement may be amended from time to time for the purpose of
updating, changing or modifying such description.
All documents filed by the Company with the Commission pursuant to sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering made hereby (by the
filing of a post-effective amendment to the Registration Statement which
indicates that all securities offered hereby have been sold, or which
deregisters all securities then remaining unsold) shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such document. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other subsequently filed document
that also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus is
delivered, upon the written or oral request of such person, a copy of any or
all documents that have been incorporated herein by reference (not including
exhibits to the documents that have been incorporated herein by reference
unless such exhibits are specifically incorporated by reference in the
documents this Prospectus incorporates). Requests should be directed to Eric
B. Brown, Secretary, Transocean Offshore Inc., 4 Greenway Plaza, Houston,
Texas 77046 (telephone number: (713) 871-7500).
3
<PAGE>
THE COMPANY
Transocean Offshore Inc. (together with its subsidiaries, unless the context
requires otherwise, the "Company" or "Transocean") is a leading international
provider of deepwater and harsh environment contract drilling services for oil
and gas wells. The Company currently owns, has ownership interests in or
operates 30 mobile offshore drilling rigs, including one unit not yet in
service. Transocean's fleet consists of seven fourth-generation
semisubmersibles, fourteen second- and third-generation semisubmersibles, three
drillships and six jackup rigs. In addition, the Company has under construction
three new technologically advanced, ultra-deepwater drillships. The Company
contracts these drilling rigs, related equipment and work crews primarily on a
dayrate basis to drill offshore wells. The Company also provides additional
drilling services, including turnkey drilling, coiled tubing drilling and well
engineering and planning.
Transocean Offshore Inc. is a Delaware corporation with its principal
executive offices located at 4 Greenway Plaza, Houston, Texas 77046. Its
telephone number at that address is (713) 871-7500.
USE OF PROCEEDS
Except as otherwise described in any Prospectus Supplement, the net proceeds
from the sale of Securities will be used for general corporate purposes, which
may include repayment or refinancing of indebtedness, working capital, capital
expenditures, acquisitions and repurchases and redemptions of securities.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
THREE
MONTHS
ENDED
MARCH 31 YEARS ENDED DECEMBER 31
--------- ------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges........... 8.3 5.3 5.1 11.1 24.4 8.3 5.4
</TABLE>
The ratio of earnings to fixed charges has been computed by dividing earnings
available for fixed charges (earnings before income taxes and cumulative effect
of accounting change plus fixed charges less capitalized interest and
undistributed equity in earnings (losses) of joint ventures) by fixed charges
(interest expense plus capitalized interest and the portion of rental expense
that represents the interest factor).
4
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate ("Offered
Debt Securities"). The particular terms of the Offered Debt Securities and the
extent to which such general provisions may apply will be described in a
Prospectus Supplement relating to such Offered Debt Securities.
The Debt Securities will be general unsecured obligations of the Company and
will constitute either Senior Debt Securities or Subordinated Debt Securities.
In the case of Debt Securities that will be Senior Debt Securities, such Debt
Securities will be issued under an Indenture (the "Senior Indenture") dated as
of April 15, 1997 between the Company and Chase Bank of Texas, National
Association (formerly, Texas Commerce Bank National Association), as trustee
under the Senior Indenture (the "Senior Trustee"), as supplemented by the
First Supplemental Indenture dated as of April 15, 1997 between the Company
and the Senior Trustee, and will rank pari passu with all other unsecured and
unsubordinated debt of the Company. In the case of Debt Securities that will
be Subordinated Debt Securities, such Debt Securities will be issued under an
Indenture (the "Subordinated Indenture") to be executed by the Company and
such trustee thereunder as shall be named in the applicable Prospectus
Supplement (the "Subordinated Trustee"), and will rank junior to all Senior
Indebtedness (as defined below) of the Company (including any Senior Debt
Securities) that may be outstanding from time to time. The Senior Indenture
and the Subordinated Indenture are sometimes hereinafter referred to
individually as an "Indenture" and collectively as the "Indentures," and the
Senior Trustee and the Subordinated Trustee are sometimes hereinafter referred
to individually as a "Trustee" and collectively as the "Trustees." The
statements under this caption relating to the Debt Securities and the
Indentures are summaries only and do not purport to be complete. Such
summaries make use of terms defined in the Indentures. Wherever such terms are
used herein or particular provisions of the Indentures are referred to, such
terms or provisions, as the case may be, are incorporated by reference as part
of the statements made herein, and such statements are qualified in their
entirety by such reference. Certain defined terms in the Indentures are
capitalized herein. The italicized parenthetical references below refer to the
section numbers in the applicable Indenture or Indentures, unless otherwise
indicated.
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
General. The Indentures do not limit the aggregate principal amount of Debt
Securities that can be issued thereunder and provide that Debt Securities may
be issued from time to time thereunder in one or more series, each in an
aggregate principal amount authorized by the Company prior to issuance.
(Section 301) The Indentures do not limit the amount of other unsecured
indebtedness or securities that may be issued by the Company.
Unless otherwise indicated in a Prospectus Supplement, the Debt Securities
will not benefit from any covenant or other provision that would afford
Holders of such Debt Securities special protection in the event of a highly
leveraged transaction involving the Company or that would give Holders of the
Debt Securities the right to require the Company to repurchase their
securities in the event of a decline in the credit rating of the Company's
debt securities resulting from a takeover, recapitalization or similar
restructuring or otherwise.
Reference is made to the Prospectus Supplement for the following terms of
the Offered Debt Securities: (i) the title and limit upon the aggregate
principal amount of the Offered Debt Securities; (ii) whether such Offered
Debt Securities will be issued in the form of one or more global securities
and whether such global securities are to be issuable in temporary global form
or permanent global form; (iii) the date or dates on which the principal of
and premium, if any, on the Offered Debt Securities is payable or the method
of determination thereof; (iv) the rate or rates, or the method of
determination thereof, at which the Offered Debt Securities will bear
interest, if any; (v) the date or
5
<PAGE>
dates from which such interest will accrue; (vi) the interest payment dates on
which such interest will be payable and the record date for the interest
payable on any Offered Debt Securities on any interest payment date; (vii)
whether and under what circumstances Additional Amounts with respect to the
Offered Debt Securities will be payable; (viii) the place or places where the
principal of, premium and interest, if any, on and any Additional Amounts with
respect to the Offered Debt Securities will be payable; (ix) the period or
periods within which, the price or prices at which and the terms and
conditions upon which Offered Debt Securities may be redeemed, in whole or in
part, at the option of the Company, if the Company is to have that option; (x)
the obligation, if any, of the Company to redeem or purchase Offered Debt
Securities pursuant to any sinking fund or analogous provisions or at the
option of a holder thereof and the period or periods within which, the price
or prices at which and the terms and conditions upon which Offered Debt
Securities will be redeemed or purchased in whole or in part pursuant to such
obligation; (xi) the denominations in which any Offered Debt Security will be
issuable if other than denominations of $1,000 and any integral multiple
thereof; (xii) if other than U.S. dollars, the currency or currencies
(including composite currencies) in which payment of principal of, premium and
interest, if any, on and any Additional Amounts with respect to the Offered
Debt Securities will be payable; (xiii) if such payments are to be payable, at
the election of the Company or a holder thereof, in a currency or currencies
other than that in which the Offered Debt Securities are stated to be payable,
the currency or currencies (including composite currencies) in which such
payments as to which such election is made will be payable, and the periods
within which and the terms and conditions upon which such election is to be
made; (xiv) if the amount of such payments may be determined with reference to
any commodities, currencies or indices, values, rates or prices, the manner in
which such amounts will be determined; (xv) if other than the entire principal
amount thereof, the portion of the principal amount of Offered Debt Securities
that will be payable upon declaration of acceleration of the maturity thereof;
(xvi) any additional means of satisfaction and discharge of the Indenture and
any additional conditions to discharge with respect to Offered Debt
Securities; (xvii) any deletions or modifications of or additions to the
Events of Default or covenants of the Company pertaining to the Offered Debt
Securities; and (xviii) any other terms of the Offered Debt Securities.
(Section 301)
The Debt Securities will be issued in registered form. No service charge
will be made for any registration of transfer or exchange of the Debt
Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. (Section
305)
To the extent the Company conducts its operations through Subsidiaries, the
Holders of Debt Securities will have a junior position to any creditors of the
Company's Subsidiaries.
Offered Debt Securities may be sold at a discount (which may be substantial)
below their stated principal amount bearing no interest or interest at a rate
that at the time of issuance is below market rates. Any material United States
federal income tax consequences and other special considerations applicable
thereto will be described in the Prospectus Supplement relating to any such
Offered Debt Securities.
If any of the Offered Debt Securities are sold for any foreign currency or
currency unit or if the principal of, or premium or interest, if any, on any
of the Offered Debt Securities is payable in any foreign currency or currency
unit, the restrictions, elections, tax consequences, specific terms and other
information with respect to such Offered Debt Securities and such foreign
currency or currency unit will be set forth in the Prospectus Supplement
relating thereto.
Events of Default. Unless otherwise provided with respect to any series of
Debt Securities, the following are Events of Default under the applicable
Indenture with respect to the Debt Securities of such series issued under such
Indenture: (a) failure to pay principal of (or premium, if any, on) any Debt
Security of such series when due; (b) failure to pay any interest on or any
Additional Amounts
6
<PAGE>
with respect to any Debt Security of such series when due, continued for 30
days; (c) failure to deposit any mandatory sinking fund payment, when due, in
respect of the Debt Securities of such series, continued for 30 days; (d)
failure to perform any other covenant of the Company in the applicable
Indenture (other than a covenant included in such Indenture for the benefit of
a series of Debt Securities other than such series), continued for 90 days
after written notice as provided in such Indenture; (e) certain events of
bankruptcy, insolvency or reorganization in respect of the Company; and (f)
any other Event of Default as may be specified with respect to Debt Securities
of such series. (Section 501) If an Event of Default with respect to any
outstanding series of Debt Securities occurs and is continuing, either the
applicable Trustee or the Holders of at least 25% in principal amount of the
outstanding Debt Securities of such series (in the case of an Event of Default
described in clause (a), (b), (c) or (f) above) or at least 25% in principal
amount of all outstanding Debt Securities under the applicable Indenture (in
the case of an Event of Default described in clause (d) above) may declare the
principal amount of all the Debt Securities of the applicable series (or of
all outstanding Debt Securities under the applicable Indenture, as the case
may be) to be due and payable immediately. If an Event of Default described in
clause (e) above occurs, the principal amount of the outstanding Debt
Securities of all series ipso facto shall become immediately due and payable
without any declaration or other act on the part of either Trustee or any
Holder. At any time after a declaration of acceleration has been made, but
before a judgment has been obtained, the Holders of a majority in principal
amount of the outstanding Debt Securities of such series (or of all
outstanding Debt Securities under the applicable Indenture, as the case may
be) may, under certain circumstances, rescind and annul such acceleration.
(Section 502) Depending on the terms of other indebtedness of the Company
outstanding from time to time, an Event of Default under the Indenture may
give rise to cross defaults on such other indebtedness of the Company.
Each Indenture provides that the applicable Trustee will, within 90 days
after the occurrence of a default in respect of any series of Debt Securities
issued thereunder, give to the Holders of the Debt Securities of such series
notice of all uncured and unwaived defaults known to it, provided, however,
that, except in the case of a default in the payment of the principal of (or
premium, if any) or any interest on, any Additional Amounts or any sinking
fund installment with respect to, any Debt Securities of such series, the
applicable Trustee will be protected in withholding such notice if it in good
faith determines that the withholding of such notice is in the interest of the
Holders of the Debt Securities of such series; and provided, further, that
such notice shall not be given until at least 30 days after the occurrence of
a default in the performance, or breach, of any covenant or warranty of the
Company under such Indenture other than for the payment of the principal of
(or premium, if any) or any interest on, or any Additional Amounts or any
sinking fund installment with respect to, any Debt Securities of such series.
For the purpose of this provision, "default" with respect to Debt Securities
of any series means any event, act or condition that is, or after notice or
lapse of time, or both, would become, an Event of Default with respect to the
Debt Securities of such series. (Section 602)
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt
Securities under the applicable Indenture) have the right subject to certain
limitations, to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Debt Securities of such series
(or of all outstanding Debt Securities under the Indenture). (Section 512)
Each Indenture provides that in case an Event of Default shall occur and be
continuing, the Trustee shall exercise such of its rights and powers under the
applicable Indenture and use the same degree of care and skills in its
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs. (Section 601) Subject to such provisions, neither
Trustee will be under any obligation to exercise any of its rights or powers
under the applicable Indenture at the request of any of the Holders of the
Debt Securities unless they shall have offered to the applicable Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request.
(Section 603)
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The Holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt
Securities under the applicable Indenture) may on behalf of the Holders of all
Debt Securities of such series (or, in certain cases, of all outstanding Debt
Securities under such Indenture) waive any past default under the Indenture,
except a default in the payment of the principal of (or premium, if any) or
interest on or any Additional Amounts with respect to any Debt Security or in
respect of a provision which under the applicable Indenture cannot be modified
or amended without the consent of the Holder of each outstanding Debt Security
affected. (Section 513) The Holders of a majority in principal amount of the
outstanding Debt Securities affected thereby may on behalf of the Holders of
all such Debt Securities waive compliance by the Company with certain
restrictive provisions of the Indenture. (Section 1006)
The Company is required to furnish to each Trustee annually a statement as
to the performance by the Company of certain of its obligations under the
applicable Indenture and as to any default in such performance. (Section 1005)
Modification. Modifications and amendments of each Indenture may be made by
the Company and the applicable Trustee with the consent of the Holders of a
majority in principal amount of the outstanding Debt Securities under such
Indenture; provided, however, that no such modification or amendment may,
without the consent of the Holder of each outstanding Debt Security affected
thereby, (a) change the stated maturity date of the principal of, or any
installment of principal of or interest on or any Additional Amounts with
respect to, any Debt Security, (b) reduce the principal amount of or the rate
of interest on or any Additional Amounts with respect to, or any premium
payable upon the redemption of, any Debt Security, (c) change the place or
currency, currencies, or currency unit or units of payment of principal of, or
premium (if any) or interest on or any Additional Amounts with respect to, any
Debt Security, (d) impair the right to institute suit for the enforcement of
any payment on or with respect to any Debt Security, (e) modify the provisions
of the Subordinated Indenture with respect to the subordination of any
Subordinated Debt Security in a manner adverse to the Holder, or (f) reduce
the percentage in principal amount of outstanding Debt Securities the consent
of the Holders of which is required for modification or amendment of the
Indenture or for waiver of compliance with certain provisions of the Indenture
or for waiver of certain defaults. (Section 902)
Each Indenture provides that the Company and the applicable Trustee may,
without the consent of any Holders of Debt Securities, enter into supplemental
indentures for the purposes, among other things, of adding to the Company's
covenants, adding additional Events of Default, establishing the form or terms
of Debt Securities or curing ambiguities or inconsistencies in the Indenture,
provided that such action to cure ambiguities or inconsistencies shall not
adversely affect the interests of the Holders of the Debt Securities in any
material respect. (Section 901)
Consolidation, Merger and Sale of Assets. The Company, without the consent
of any Holders of outstanding Debt Securities, may consolidate with or merge
into, or convey, transfer or lease its assets substantially as an entirety to,
any Person, provided that (i) the Person formed by such consolidation or into
which the Company is merged or that acquires or leases the assets of the
Company substantially as an entirety is a Person that assumes by supplemental
indenture the Company's obligations on the Debt Securities and under each
Indenture, (ii) after giving effect to the transaction, no Event of Default
and no event, act or condition that, after notice or lapse of time or both,
would become an Event of Default shall have occurred and be continuing, and
(iii) certain other conditions are met. Upon compliance with these provisions
by a successor Person, the Company will (except in the case of a lease) be
relieved of its obligations under the Indentures and the Debt Securities.
(Article Eight)
Discharge and Defeasance. The Company may terminate its obligations under
each Indenture, other than its obligation to pay the principal of (and
premium, if any) and interest on and any
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Additional Amounts with respect to the Debt Securities of any series and
certain other obligations, if it (i) irrevocably deposits or causes to be
irrevocably deposited with the Trustee as trust funds money or U.S. Government
Obligations maturing as to principal and interest sufficient to pay the
principal of, any interest on, and any Additional Amounts and any mandatory
sinking funds in respect of, all outstanding Debt Securities of such series on
the stated maturity of such payments or on any redemption date and (ii)
complies with any additional conditions specified to be applicable with
respect to the covenant defeasance of Debt Securities of such series. (Section
401)
The terms of any series of Debt Securities may also provide for legal
defeasance pursuant to the applicable Indenture. In such case, if the Company
(i) irrevocably deposits or causes to be irrevocably deposited money or U.S.
Government Obligations as described above, (ii) makes a request to the Trustee
to be discharged from its obligations on the Debt Securities of such series
and (iii) complies with any additional conditions specified to be applicable
with respect to legal defeasance of Debt Securities of such series, then the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the outstanding Debt Securities of such series and the obligations of the
Company under the applicable Indenture and the Debt Securities of such series
to pay the principal of (and premium, if any) and interest on the Debt
Securities of such series shall cease, terminate and be completely discharged,
and the Holders thereof shall thereafter be entitled only to payment out of
the money or U.S. Government Obligations deposited with the Trustee as
aforesaid, unless the Company's obligations are revived and reinstated because
the Trustee is unable to apply such trust fund by reason of any legal
proceeding, order or judgment. (Sections 403 and 404)
"U.S. Government Obligations" is defined in the Indentures as direct
noncallable obligations of, or noncallable obligations the payment of
principal of and interest on which is guaranteed by, the United States of
America, or to the payment of which obligations or guarantees the full faith
and credit of the United States of America is pledged, or beneficial interests
in a trust the corpus of which consists exclusively of money or such
obligations or a combination thereof. (Section 401)
Form, Exchange, Registration and Transfer. Definitive Debt Securities are
issuable in registered form. (Section 301) Reference is made to the Prospectus
Supplement for the terms relating to the form, exchange, registration and
transfer of Debt Securities issuable in temporary or permanent global forms.
Debt Securities of any series will be exchangeable for other Debt Securities
of the same series and of a like aggregate principal amount and tenor of
different authorized denomination.
Debt Securities may be presented for registration of transfer (with the form
of transfer endorsed thereon duly executed), at the office of the Security
Registrar or at the office of any transfer agent designated by the Company for
such purpose with respect to any series of Debt Securities and referred to in
an applicable Prospectus Supplement, without service charge and upon payment
of any taxes and other governmental charges as described in the applicable
Indenture. Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being satisfied with the
documents of title and identity of the Person making the request. The Company
has appointed the Senior Trustee as Security Registrar for the Senior Debt
Securities. (Section 305) If a Prospectus Supplement refers to any transfer
agents (in addition to the Security Registrar for the Senior Debt Securities)
initially designated by the Company with respect to any series of Debt
Securities, the Company may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts. The Company will be required to maintain a transfer agent
in each Place of Payment for such series. The Company may at any time
designate additional transfer agents with respect to any series of Debt
Securities. (Section 1002)
In the event of any redemption in part, the Company shall not be required to
(i) issue, register the transfer of or exchange Debt Securities of any series
during a period beginning at the opening of
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business 15 days prior to the selection of Debt Securities of that series for
redemption and ending on the close of business on the day of mailing of the
relevant notice of redemption or (ii) register the transfer of or exchange any
Debt Security, or portion thereof, called for redemption, except the
unredeemed portion of any Debt Security being redeemed in part. (Section 305)
Payment and Paying Agents. Unless otherwise indicated in an applicable
Prospectus Supplement, payment of principal of and any premium and interest on
Debt Securities will be made in the designated currency or currency unit at
the office of such Paying Agent or Paying Agents as the Company may designate
from time to time, except that, at the option of the Company, payment of any
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register. Unless
otherwise indicated in an applicable Prospectus Supplement, payment of any
installment of interest on Debt Securities will be made to the Person in whose
name such Debt Security is registered at the close of business on the Regular
Record Date for such interest. (Section 307)
Unless otherwise indicated in an applicable Prospectus Supplement, the
Corporate Trust Office of each Trustee will be designated as a Paying Agent
for the Company for payments with respect to Debt Securities issuable solely
as Registered Debt Securities. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts, except
that the Company will be required to maintain a Paying Agent in each Place of
Payment for such series. (Section 1002)
All moneys paid by the Company to a Paying Agent for the payment of
principal of or any premium or interest on any Debt Security that remain
unclaimed at the end of three years after such principal, premium or interest
shall have become due and payable will (subject to applicable escheat laws) be
repaid to the Company, and the Holder of such Debt Security will thereafter
look only to the Company for payment thereof. (Section 1003)
Book-Entry Debt Securities. The Debt Securities of a series may be issued,
in whole or in part, in the form of one or more global Debt Securities that
would be deposited with a depositary or its nominee identified in the
applicable Prospectus Supplement. The specific terms of any depositary
arrangement with respect to any portion of a series of Debt Securities and the
rights of, and limitations on, owners of beneficial interests in any such
global Debt Security representing all or a portion of a series of Debt
Securities will be described in the applicable Prospectus Supplement. (Section
204)
Meetings. The Indentures contain provisions for convening meetings of the
Holders of Debt Securities of a series. (Section 1301 of Senior Indenture;
Section 1401 of Subordinated Indenture) A meeting may be called at any time by
the Trustee, and also, upon request, by the Company or the Holders of at least
10% in principal amount of the Outstanding Debt Securities of such series, in
any such case upon notice given as described under "--Notices" below. (Section
1302 of Senior Indenture; Section 1402 of Subordinated Indenture) Except for
any consent that must be given by the Holder of each Outstanding Debt Security
affected thereby, as described under "--Modification" above, any resolution
presented at a meeting or adjourned meeting duly reconvened at which a quorum
is present may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Debt Securities of that series;
provided, however, that, except for any consent that must be given by the
Holder of each Outstanding Debt Security affected thereby, as described under
"--Modification" above, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that may be
made, given or taken by the Holders of a specified percentage, which is less
than a majority in principal amount of the Outstanding Debt Securities of a
series, may be adopted at a meeting or adjourned meeting duly reconvened at
which a quorum is present by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Debt Securities of
that series. Subject to the
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proviso set forth above, any resolution passed or decision taken at any
meeting of Holders of Debt Securities of any series duly held in accordance
with the Indenture will be binding on all Holders of Debt Securities of that
series and any related coupons. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will be Persons holding or
representing a majority in principal amount of the Outstanding Debt Securities
of a series. (Section 1304 of Senior Indenture; Section 1404 of Subordinated
Indenture)
Governing Law. Each Indenture and the Debt Securities will be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to applicable principles of conflicts of laws to the extent the
laws of another jurisdiction would be required thereby. (Section 113)
Notices. Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they appear in the Security Register. (Section
107)
The Trustee. The Indentures contain certain limitations on the right of the
applicable Trustee, as a creditor of the Company, to obtain payment of claims
in certain cases and to realize on certain property received with respect to
any such claims, as security or otherwise. (Section 613) Each Trustee is
permitted to engage in other transactions, except that, if it acquires any
conflicting interest (as defined), it must eliminate such conflict or resign.
(Section 608)
The Senior Trustee may make loans to the Company and its subsidiaries and
affiliates from time to time in the ordinary course of business and at
prevailing interest rates under agreements with commercial bank groups. In
addition, the Senior Trustee may from time to time serve as a depositary of
funds of, and perform other services for, the Company.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
Limitations on Liens. The Senior Indenture provides that, unless the terms
of any series of Senior Debt Securities expressly provide otherwise, the
Company will not create, assume or suffer to exist any Lien (as defined below)
on any Restricted Property (as defined below) to secure any debt of the
Company, any Subsidiary or any other Person, or permit any Subsidiary to do
so, without securing each series of Senior Debt Securities equally and ratably
with such debt for so long as such debt is so secured. The foregoing
restriction does not apply, however, to the following: (i) Liens existing on
the date of issuance of such series of Senior Debt Securities; (ii) Liens on
Restricted Property of Subsidiaries at the time they become Subsidiaries;
(iii) Liens existing on Restricted Property when acquired; (iv) any Lien to
secure any debt incurred prior to, at the time of, or within 12 months after
the acquisition of Restricted Property for the purpose of financing all or any
part of the purchase price thereof and any Lien to the extent that it secures
debt which is in excess of such purchase price and for the payment of which
recourse may be had only against such Restricted Property; (v) any Lien to
secure any debt incurred prior to, at the time of, or within 12 months after
the completion of the construction and commencement of commercial operation,
alteration, repair or improvement of Restricted Property for the purpose of
financing all or any part of the cost thereof and any Lien to the extent that
it secures debt which is in excess of such cost and for the payment of which
recourse may be had only against such Restricted Property; (vi) any Lien
securing debt of a Subsidiary owing to the Company or to another Subsidiary;
(vii) any Lien in favor of the United States of America or any State thereof
or any other country, or any agency, instrumentality of political subdivision
or any of the foregoing, to secure partial, progress, advance or other
payments or performance pursuant to the provisions of any contract or statute,
or any Liens securing industrial development, pollution control or similar
revenue bonds; (viii) Liens imposed by law, such as mechanics', workmen's,
repairmen's, materialmen's, carriers', warehousemen's, vendors' or other
similar Liens arising in the ordinary course of business, or governmental
(federal, state or municipal) Liens arising out of contracts for the sale of
products or services by the Company or any Subsidiary, or deposits or pledges
to obtain the release of any of the foregoing; (ix) certain pledges or
deposits under
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workmen's compensation or similar legislation or in certain other
circumstances; (x) certain Liens in connection with legal proceedings,
including certain Liens arising out of judgments or awards; (xi) Liens for
certain taxes or assessments; (xii) any extension, renewal or replacement (or
successive extensions, renewals or replacements) in whole or in part of any
Lien referred to in clauses (i) through (xi) above, so long as the principal
amount of the debt secured thereby does not exceed the principal amount of
debt so secured at the time of the extension, renewal or replacement (except
that, where an additional principal amount of debt is incurred to provide
funds for the completion of a specific project, the additional principal
amount, and any related financing costs, may be secured by the Lien as well)
and the Lien is limited to the same property subject to the Lien so extended,
renewed or replaced (plus improvements on the property); and (xiii) Liens
otherwise prohibited by this covenant securing debt that, together with the
aggregate amount of outstanding debt secured by Liens otherwise prohibited by
this covenant and the value of certain Sale and Leaseback Transactions (as
defined below), does not exceed 10% of the Company's Consolidated Net Tangible
Assets (as defined below).
Limitation on Sale and Leaseback. The Senior Indenture provides that, unless
the terms of any series of Senior Debt Securities expressly provide otherwise,
the Company will not, and will not permit any Subsidiary to, enter into any
Sale and Leaseback Transaction (as defined below) covering any Restricted
Property unless (i) the Company would be entitled under the provisions
described under "Limitation on Liens" above to incur debt equal to the value
of such Sale and Leaseback Transaction, secured by Liens on the property to be
leased, without equally and ratably securing the Debt Securities, or (ii) the
Company, during the six months following the effective date of such Sale and
Leaseback Transaction, applies an amount equal to the value of such Sale and
Leaseback Transaction to the voluntary retirement of long-term debt or to the
acquisition of Restricted Property.
Definitions. "Consolidated Net Tangible Assets" means the total amount of
assets (less applicable reserves and other properly deductible items) after
deducting (i) all current liabilities (excluding the amount of those which are
by their terms extendable or renewable at the option of the obligor to a date
more than 12 months after the date as of which the amount is being determined)
and (ii) all goodwill, tradenames, trademarks, patents, unamortized debt
discount and expense and other like intangible assets, all as set forth on the
most recent balance sheet of the Company and its consolidated subsidiaries and
determined in accordance with generally accepted accounting principles.
"Lien" means any mortgage, pledge, lien, encumbrance, charge or security
interest.
"Restricted Property" means (i) any drilling rig or drillship, or portion
thereof, owned or leased by the Company or any Subsidiary and used for
drilling offshore oil and gas wells, which, in the opinion of the Board of
Directors, is of material importance to the business of the Company and its
Subsidiaries taken as a whole, but no such drilling rig or drillship, or
portion thereof, shall be deemed of material importance if its gross book
value (before deducting accumulated depreciation) is less than 2% of
Consolidated Net Tangible Assets, or (ii) any shares of capital stock or
indebtedness of any Subsidiary owning any such drilling rig or drillship.
"Sale and Leaseback Transaction" means any arrangement with any Person
pursuant to which the Company or any Subsidiary leases any Restricted Property
that has been or is to be sold or transferred by the Company or the Subsidiary
to such Person, other than (i) temporary leases for a term, including renewals
at the option of the lessee, of not more than three years, (ii) leases between
the Company and a Subsidiary or between Subsidiaries, (iii) leases of
Restricted Property executed by the time of, or within 12 months after the
latest of, the acquisition, the completion of construction or improvement, or
the commencement of commercial operation of the Restricted Property, and (iv)
arrangements pursuant to any provision of law with an effect similar to the
former Section 168(f)(8) of the Internal Revenue Code of 1954.
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PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
The payment of the principal of, premium, if any, and interest on and any
Additional Amounts with respect to the Subordinated Debt Securities is
expressly subordinated, to the extent and in the manner set forth in the
Subordinated Indenture, to the prior payment in full of all Senior
Indebtedness of the Company.
The Subordinated Indenture provides that no payment may be made by or on
behalf of the Company on account of the principal of, premium, if any, or
interest on or any Additional Amounts with respect to the Subordinated Debt
Securities, or to acquire any of the Subordinated Debt Securities (including
repurchases of Subordinated Debt Securities at the option of the Holder
thereof) for cash or property (other than certain junior securities of the
Company), or on account of the redemption provisions of the Subordinated Debt
Securities, in the event of (i) default in the payment of any principal of,
premium, if any, or interest on or Additional Amounts with respect to any
Senior Indebtedness of the Company when it becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise (a
"Payment Default"), unless and until such Payment Default has been cured or
waived or otherwise has ceased to exist, or (ii) any other event of default
with respect to any Designated Senior Indebtedness permitting the holders of
such Designated Senior Indebtedness (or a trustee or other representative on
behalf of the holders thereof) to declare such Designated Senior Indebtedness
due and payable prior to the date on which it would otherwise have become due
and payable, upon written notice thereof to the Company and the Subordinated
Trustee by any holders of such Designated Senior Indebtedness (or a trustee or
other representative on behalf of the holders thereof) (the "Default Notice"),
unless and until such event of default shall have been cured or waived or
otherwise has ceased to exist, provided that such payments may not be
prevented under clause (ii) above for more than 179 days after an applicable
Default Notice has been received by the Subordinated Trustee unless the
Designated Senior Indebtedness in respect of which such event of default
exists has been declared due and payable in its entirety, in which case no
such payment may be made until such acceleration has been rescinded or
annulled or such Designated Senior Indebtedness has been paid in full. In the
case of (ii) above, no event of default that existed or was continuing on the
date of any Default Notice (whether or not such event of default is on the
same issue of Designated Senior Indebtedness) may be made the basis for the
giving of a second Default Notice, and only one such Default Notice may be
given in any 365-day period.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company (other than certain junior securities of
the Company) is received by the Subordinated Trustee or the Holders of
Subordinated Debt Securities at a time when such payment or distribution is
prohibited by the foregoing provisions, then, unless such payment or
distribution is no longer prohibited by the foregoing provisions, such payment
or distribution shall be received and held in trust by the Subordinated
Trustee or such Holders or the Paying Agent for the benefit of the holders of
Senior Indebtedness of the Company, and shall be paid or delivered by the
Subordinated Trustee or such Holders or the Paying Agent, as the case may be,
to the holders of the Senior Indebtedness of the Company remaining unpaid or
unprovided for or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments evidencing
such Senior Indebtedness of the Company may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness of the Company held or represented by each, for application to
the payment of all Senior Indebtedness in full after giving effect to any
concurrent payment or distribution to or for the holders of such Senior
Indebtedness.
Upon any distribution of assets of the Company or upon any dissolution,
winding up, total or partial liquidation or reorganization of the Company,
whether voluntary or involuntary, in bankruptcy, insolvency, receivership or a
similar proceeding or upon assignment for the benefit of creditors, (i) the
holders of all Senior Indebtedness of the Company will first be entitled to
receive payment in full
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before the Holders of Subordinated Debt Securities are entitled to receive any
payment on account of the principal of, premium, if any, and interest on or
any Additional Amounts with respect to the Subordinated Debt Securities (other
than certain junior securities of the Company) and (ii) any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities (other than certain junior securities of the
Company) to which the Holders of Subordinated Debt Securities or the
Subordinated Trustee on behalf of such Holders would be entitled, except for
the subordination provisions contained in the Subordinated Indenture, will be
paid by the liquidating trustee or agent or other person making such a payment
or distribution directly to the holders of Senior Indebtedness of the Company
or their representative, ratably according to the respective amounts of Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full of all such Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness.
No provision contained in the Subordinated Indenture or the Subordinated
Debt Securities affects the obligation of the Company, which is absolute and
unconditional to pay, when due, principal of, premium, if any, and interest on
and any Additional Amounts with respect to the Subordinated Debt Securities.
The subordination provisions of the Subordinated Indenture and the
Subordinated Debt Securities do not prevent the occurrence of any default or
Event of Default under the Subordinated Indenture or limit the rights of the
Subordinated Trustee or any Holder of Subordinated Debt Securities, subject to
the two preceding paragraphs, to pursue any other rights or remedies with
respect to the Subordinated Debt Securities.
As a result of these subordination provisions, in the event of the
liquidation, bankruptcy, reorganization, insolvency, receivership or similar
proceeding or an assignment for the benefit of the creditors of the Company or
any of its subsidiaries or a marshaling of assets or liabilities of the
Company and its subsidiaries, Holders of Subordinated Debt Securities may
receive ratably less than other creditors.
The term "Indebtedness" of any Person means, unless otherwise provided with
respect to the Subordinated Debt Securities of a series and described in the
Prospectus Supplement relating thereto, without duplication, (i) all
liabilities and obligations, contingent or otherwise, of any such Person (a)
in respect of borrowed money (whether or not the recourse of the lender is to
the whole of the assets of such Person or only to a portion thereof), (b)
evidenced by bonds, notes, debentures or similar instruments, (c) representing
the balance deferred and unpaid of the purchase price of any property or
services, except such as would constitute trade payables to trade creditors in
the ordinary course of business that are not more than 90 days past their
original due date, (d) evidenced by bankers' acceptances or similar
instruments issued or accepted by banks, (e) for the payment of money relating
to a Capitalized Lease Obligation or (f) evidenced by a letter of credit or a
reimbursement obligation of such Person with respect to any letter of credit;
(ii) all net obligations of such Person under Interest Swap and Hedging
Obligations; (iii) all liabilities of others of the kind described in the
preceding clause (i) or (ii) that such Person has guaranteed or that is
otherwise its legal liability and all obligations to purchase, redeem or
acquire any Capital Stock; and (iv) any and all deferrals, renewals,
extensions, refinancings, refundings (whether direct or indirect) of, or
amendments, modifications or supplements to, any liability of the kind
described above, whether or not between or among the same parties.
The term "Senior Indebtedness" of the Company, unless otherwise provided
with respect to the Subordinated Debt Securities of a series and described in
the Prospectus Supplement relating thereto, is defined in the Subordinated
Indenture as (i) all Indebtedness of the Company, unless, by the terms of the
instrument creating or evidencing such Indebtedness, it is provided that such
Indebtedness is not superior in right of payment to the Subordinated Debt
Securities or to other Indebtedness which is pari passu with or subordinated
to the Subordinated Debt Securities and (ii) any modifications, refunding,
deferrals, renewals or extensions of any such Indebtedness or
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securities, notes or other evidences of Indebtedness issued in exchange for
such Indebtedness; provided that in no event shall "Senior Indebtedness"
include (a) Indebtedness of the Company owed or owing to any subsidiary of the
Company or any officer, director or employee of the Company or any subsidiary
of the Company, (b) Indebtedness to trade creditors or (c) any liability for
taxes owed or owing by the Company.
The term "Designated Senior Indebtedness," unless otherwise provided with
respect to the Subordinated Debt Securities of a series and described in the
Prospectus Supplement relating thereto, is defined in the Subordinated
Indenture to mean any Senior Indebtedness of the Company that (i) in the
instrument evidencing the same or the assumption or guarantee thereof (or
related documents to which the Company is a party) is expressly designated as
"Designated Senior Indebtedness" for purposes of the Subordinated Indenture
and (ii) satisfies such other conditions as may be provided with respect to
the Subordinated Debt Securities of such series (provided that such instrument
or documents may place limitations and conditions on the rights of the holders
of such Senior Indebtedness to exercise the rights of Designated Senior
Indebtedness).
If Subordinated Debt Securities are issued under the Subordinated Indenture,
the aggregate principal amount of Senior Indebtedness outstanding as of a
recent date will be set forth in the Prospectus Supplement. The Subordinated
Indenture does not restrict the amount of Senior Indebtedness that the Company
may incur.
DESCRIPTION OF CAPITAL STOCK
The summary of the terms of the capital stock of the Company set forth below
does not purport to be complete, and for additional information, reference is
made to the Company's Restated Certificate of Incorporation, as amended
("Charter"), and By-laws, which are filed as exhibits to the Company's Annual
Report on Form 10-K. The total number of shares of all classes of capital
stock that the Company has authority to issue is 200,000,000 shares, of which
150,000,000 are shares of Common Stock and 50,000,000 are shares of Preferred
Stock. As of June 30, 1998, 104,333,127 shares of Common Stock had been
issued, of which 100,549,127 were outstanding. As of such date, no series of
Preferred Stock had been designated or issued.
COMMON STOCK
Subject to any preferential rights of the holders of Preferred Stock,
holders of shares of Common Stock are entitled to receive dividends on such
stock out of the assets or funds of the Company legally available for the
payment of dividends when, as and if authorized and declared by the Board of
Directors of the Company and to share ratably in the assets of the Company
legally available for distribution to the stockholders of the Company in the
event of its liquidation, dissolution or winding-up.
Holders of shares of Common Stock are entitled to one vote per share on all
matters voted on generally by the stockholders of the Company, including the
election of directors, and except as otherwise required by law or except as
provided with respect any series of Preferred Stock of the Company, the
holders of such shares possess all voting power. The Charter does not provide
for cumulative voting for the election of directors; therefore, the holders of
a majority of the voting power of the total number of outstanding shares of
Common Stock are able to elect the entire Board of Directors of the Company.
No holder of Common Stock has any preemptive or preferential right to
acquire or subscribe for any unissued shares of any class or series of capital
stock or any authorized securities convertible into or carrying any right,
option or warrant to subscribe for or acquire shares of any class or series of
capital stock.
15
<PAGE>
The transfer agent and registrar for the Common Stock is The Bank of New
York.
PREFERRED STOCK
The Board of Directors is authorized, without action by the holders of
Common Stock, to issue up to 50,000,000 shares of Preferred Stock in one or
more series. Prior to issuance of shares of each series, the Board of
Directors is required by the Delaware General Corporation Law (the "DGCL") and
the Company's Charter to adopt resolutions and file a Certificate of
Designations (the "Certificate of Designations") with the Secretary of State
of the State of Delaware, fixing for each such series the designations,
powers, preferences and rights of the shares of such series and the
qualifications, limitations or restrictions thereon, including, but not
limited to, dividend rights, dividend rate or rates, conversion rights, voting
rights, rights and terms of redemption (including sinking fund provisions),
the redemption price or prices, and the liquidation preferences as are
permitted by the DGCL. The Board of Directors could authorize the issuance of
shares of Preferred Stock with terms and conditions that could have the effect
of discouraging a takeover or other transaction which holders of some, or a
majority, or such shares might believe to be in their best interests or in
which holders of some, or a majority, of such shares might receive a premium
for their shares over the then-market price of such shares.
Subject to limitations prescribed by the DGCL, the Board of Directors is
authorized to fix the number of shares constituting each series of Preferred
Stock and the designations and powers, preferences and relative,
participating, optional or other special rights and qualifications,
limitations or restrictions thereof, including such provisions as may be
desired concerning voting, redemption, dividends, dissolution or the
distribution of assets, conversion or exchange, and such other subjects or
matters as may be fixed by resolution of the Board of Directors or duly
authorized committee thereof. The Preferred Stock offered hereby will, upon
issuance and full payment of the purchase price therefor, be fully paid and
nonassessable and will not have, or be subject to, any preemptive or similar
rights.
Reference is made to the Prospectus Supplement relating to the series of
Preferred Stock being offered for the specific terms thereof, including: (i)
the title and stated value of such Preferred Stock; (ii) the number of shares
of such Preferred Stock offered, the liquidation preference per share and the
purchase price of such Preferred Stock; (iii) the dividend rate(s), period(s)
and/or payment date(s) or method(s) of calculation thereof applicable to such
Preferred Stock; (iv) whether dividends shall be cumulative or non-cumulative
and, if cumulative, the date from which dividends on such Preferred Stock
shall accumulate; (v) the procedures for any auction and remarketing, if any,
for such Preferred Stock; (vi) the provisions for a sinking fund, if any, for
such Preferred Stock; (vii) the provisions for redemption, if applicable, of
such Preferred Stock; (viii) any listing of such Preferred Stock on any
securities exchange; (ix) the terms and conditions, if applicable, upon which
such Preferred Stock will be convertible into Common Stock, including the
conversion price (or manner of calculation thereof) and conversion period; (x)
voting rights, if any, of such Preferred Stock; (xi) a discussion of any
material and/or special Federal income tax considerations applicable to such
Preferred Stock; (xii) the relative ranking and preferences of such Preferred
Stock as to dividend rights and rights upon liquidation, dissolution or
winding up of the affairs of the Company; (xiii) any limitations on issuance
of any series of Preferred Stock ranking senior to or on a parity with such
series of Preferred Stock as to dividend rights and rights upon liquidation,
dissolution of winding up of the affairs of the Company; and (xiv) any other
specific terms, preferences, rights, limitations or restrictions of such
Preferred Stock.
The transfer agent and registrar for each series of Preferred Stock will be
described in the related Prospectus Supplement.
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<PAGE>
DESCRIPTION OF WARRANTS
The Company may issue Warrants to purchase Debt Securities ("Debt
Warrants"), Preferred Stock, Common Stock or other securities. Warrants may be
issued independently or together with any such securities of the Company and
may be attached to or separate from such securities of the Company. The
Warrants are to be issued under warrant agreements (each a "Warrant
Agreement") to be entered into between the Company and a bank or trust
company, as warrant agent (the "Warrant Agent"), all as shall be set forth in
the Prospectus Supplement relating to any Warrants offered pursuant thereto.
The Warrant Agent will act solely as an agent of the Company in connection
with the Warrants and will not assume any obligations or relationship of
agency or trust for or with any holders of Warrants or beneficial owners of
Warrants. The description of the terms of the Warrants that are set forth
below and that will be set forth in the applicable Prospectus Supplement do
not purport to be complete and are qualified in their entirety by reference to
the Warrant Agreement and warrant certificate relating to such Warrants.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants
and the warrant certificates representing such Debt Warrants, including the
following: (i) the specific designation of such Debt Warrants; (ii) the Debt
Security of the Company for which such Debt Warrants are exercisable; (iii)
the aggregate number of such Debt Warrants to be issued; (iv) the principal
amount of Debt Securities purchasable upon exercise of each Debt Warrant, and
the price or prices at which such Debt Warrants will be issued; (v) the
procedures and conditions relating to the exercise of such Debt Warrants; (vi)
the designation and terms of any related Debt Securities of the Company with
which such Debt Warrants are issued, and the number of such Debt Warrants
issued with each such Debt Security; (vii) the date, if any, on and after
which such Debt Warrants and any such related securities of the Company will
be separately transferable; (viii) the date on which the right to exercise
such Debt Warrants shall commence, and the date on which such right shall
expire; (ix) the maximum or minimum number of such Debt Warrants which may be
exercised at any time; (x) if applicable, a discussion of material United
States federal income tax considerations; (xi) any other terms of such Debt
Warrants and terms, procedures and limitations relating to the exercise of
such Debt Warrants; and (xii) the terms of the securities of the Company
purchasable upon exercise of such Debt Warrants. Prior to the exercise of
their Debt Warrants, holders of Debt Warrants exercisable for Debt Securities
will not have any of the rights of holders of the Debt Securities purchasable
upon such exercise and will not be entitled to payments of principal of or
premium, if any or interest on or any Additional Amounts with respect to the
Debt Securities purchasable upon such exercise.
OTHER WARRANTS
The Company may issue other Warrants. The applicable Prospectus Supplement
will describe the following terms of any such other Warrants in respect of
which this Prospectus is being delivered, including the following: (i) the
title of such Warrants; (ii) the securities (which may include Preferred Stock
or Common Stock) for which such Warrants are exercisable; (iii) the price or
prices at which such Warrants will be issued; (iv) if applicable, the
designation and terms of any other Securities with which such Warrants are
issued, and the number of such Warrants issued with each such other Security;
(v) if applicable, the date on and after which such Warrants and any related
Security will be separately transferable; (vi) if applicable, a discussion of
material United States federal income tax considerations; and (vii) any other
terms of such Warrants, including terms, procedures and limitations relating
to the exchange and exercise of such Warrants. The applicable Prospectus
Supplement will also set forth (a) the amount of securities called for by such
Warrants, and, if applicable, the amount of Warrants outstanding, and (b)
information relating to provisions, if any, for a change in the exercise
17
<PAGE>
price or the expiration date of such Warrants and the kind, frequency and
timing of any notice to be given. Prior to the exercise of their Warrants for
shares of Preferred Stock or Common Stock, holders of such Warrants will not
have any rights of holders of the Preferred Stock or Common Stock purchasable
upon such exercise and will not be entitled to dividend payments, if any, or
voting rights of the Preferred Stock or Common Stock purchasable upon such
exercise.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder thereof to purchase for cash or other
consideration such principal amount or such number of securities, as the case
may be, at such exercise price as shall in each case be set forth in, or be
determinable as set forth in, the Prospectus Supplement relating to the
Warrants offered thereby. Warrants may be exercised as set forth in the
Prospectus Supplement relating to the Warrants offered thereby at any time up
to the close of business on the expiration date set forth in such Prospectus
Supplement. After the close of business on the expiration date (or such later
expiration date as may be extended by the Company), unexercised Warrants will
become void.
Upon receipt of payment and the warrant certificate properly completed and
duly executed at the corporate trust office of the Warrant Agent or any other
office indicated in the applicable Prospectus Supplement, the Company will, as
soon as practicable, forward the securities purchasable upon such exercise. If
fewer than all of the Warrants represented by such warrant certificate are
exercised, a new warrant certificate will be issued for the remaining
Warrants.
MODIFICATIONS
Any Warrant Agreement and the terms of the Warrants and the Warrant
certificates may be amended by the Company and the Warrant Agent, without the
consent of the holders, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision therein or
in any other manner which the Company may deem necessary or desirable and
which will not adversely affect the interests of the holders in any material
respect.
CERTAIN ANTI-TAKEOVER PROVISIONS
The Company's Charter and By-Laws have provisions that could have an anti-
takeover effect. These provisions are intended to enhance the likelihood of
continuity and stability in the composition of the Board of Directors of the
Company and in the policies formulated by the Board of Directors and to
discourage certain types of transactions which may involve an actual or
threatened change of control of the Company. The provisions are designed to
reduce the vulnerability of the Company to an unsolicited proposal for a
takeover of the Company that does not contemplate the acquisition of all of
its outstanding shares or an unsolicited proposal for the restructuring or
sale of all or part of the Company. The provisions are also intended to
discourage certain tactics that may be used in proxy fights. The Board of
Directors believes that, as a general rule, such takeover proposals would not
be in the best interest of the Company and its stockholders.
Set forth below is a description of such provisions in the Charter and By-
Laws. The Board of Directors has no current plans to formulate or effect
additional measures that could have an anti-takeover effect.
Pursuant to the Charter, the Board of Directors of the Company is divided
into three classes serving staggered three-year terms. Directors can be
removed from office only for cause (as defined) and only by the affirmative
vote of the holders of a majority of the voting power of the then outstanding
shares of voting stock of the Company, voting together as a single class.
Vacancies on the Board of Directors may only be filled by the remaining
directors and not by the stockholders.
18
<PAGE>
The Charter provides that the number of directors will be fixed by, or in
the manner provided in, the Company's By-Laws. The Company's By-Laws provide
that the whole Board of Directors will consist of not less than two nor more
than twelve members, the exact number to be set from time to time by the Board
of Directors. Accordingly, the Board of Directors, and not the stockholders,
has the authority to determine the number of directors and could delay any
stockholder from obtaining majority representation of the Board of Directors
by enlarging the Board of Directors and filling the new vacancies with its own
nominees until the next stockholder election.
The Company's By-Laws establish an advance notice procedure with regard to
the nomination, other than by or at the direction of the Board of Directors or
a committee thereof, of candidates for election as directors and with regard
to certain matters to be brought before an annual meeting of stockholders of
the Company. In general, notice must be received by the Company with respect
to annual meetings not later than 90 days prior to the anniversary of the
immediately preceding annual meeting and with respect to special meetings not
later than 10 days after the public announcement of the meeting date and must
contain certain specified information concerning the stockholder submitting
the proposal.
Subject to the terms of any Preferred Stock, any action required or
permitted to be taken by the stockholders of the Company must be taken at a
duly called annual or special meeting of stockholders and may not be taken by
written consent. Special meetings may only be called by a majority of the
entire Board of Directors.
The Board of Directors of the Company is authorized to issue shares of
Preferred Stock in one or more series, and to fix for each such series the
designations and relative powers, preferences, conversion or other rights,
voting powers, restrictions, limitations as to dividends, or terms or
conditions of redemption, as are permitted by the DGCL. The Board of Directors
of the Company could authorize the issuance of shares of Preferred Stock with
terms and conditions that could discourage a takeover or other transaction
that holders of some or a majority of shares of Common Stock might believe to
be in their best interests or in which such holders might receive a premium
for their shares over the then market price of such shares. No series of
Preferred Stock has been established as of the date of this Prospectus.
Stockholders may adopt, alter, amend or repeal provisions of the Company's
By-Laws only by vote of 66 2/3% or more of the combined voting power of the
then outstanding voting stock of the Company. In addition, the affirmative
vote of 66 2/3% of the combined voting power of the then outstanding shares of
voting stock of the Company is required to amend certain provisions of the
Charter, including the provisions referred to above relating to the
classification of the Board of Directors, filling vacancies on the Board of
Directors, removal of directors only for cause, prohibiting stockholder action
by written consent, prohibiting the calling of special meetings by
stockholders and approval of amendments to the Company's By-Laws.
The Company is subject to Section 203 of the DGCL, which prohibits certain
transactions between a Delaware corporation and an "interested stockholder,"
which is defined as a person who, together with any affiliates and/or
associates of such person, beneficially owns, directly or indirectly, 15
percent or more of the outstanding voting shares of a Delaware corporation.
This provision prohibits certain business combinations (defined broadly to
include mergers, consolidations, sales or other dispositions of assets having
an aggregate value in excess of 10 percent of the consolidated assets of the
corporation, and certain transactions that would increase the interested
stockholder's proportionate share ownership in the corporation) between an
interested stockholder and a corporation for a period of three years after the
date the interested stockholder acquired its stock, unless (i) the business
combination or the transaction resulting in the person becoming an interested
stockholder is approved by the corporation's board of directors prior to the
date the interested stockholder acquired shares; (ii) the interested
stockholder acquired at least 85 percent of the voting
19
<PAGE>
stock of the corporation in the transaction in which it became an interested
stockholder; or (iii) the business combination is approved by a majority of
the board of directors and by the affirmative vote of two-thirds of the votes
entitled to be cast by disinterested stockholders at an annual or special
meeting.
PLAN OF DISTRIBUTION
The Company may sell the Securities in and/or outside the United States: (i)
through underwriters or dealers, (ii) directly to purchasers or to a single
purchaser or (iii) through agents. The Prospectus Supplement with respect to
the Securities offered thereby (the "Offered Securities") will set forth the
terms of the offering of the Offered Securities, including the name or names
of any underwriters or agents, the purchase price of the Offered Securities
and the proceeds to the Company from such sale, any delayed delivery
arrangements, any underwriting discounts and other items constituting
underwriters' compensation, any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale. The Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. The underwriter or underwriters with
respect to a particular underwritten offering of Securities will be named in
the Prospectus Supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth
on the cover of such Prospectus Supplement. Unless otherwise set forth in the
Prospectus Supplement relating thereto, the obligations of the underwriters to
purchase the Offered Securities will be subject to conditions precedent, and
the underwriters will be obligated to purchase all the Offered Securities if
any are purchased.
If dealers are used in the sale of Offered Securities for which this
Prospectus is delivered, the Company will sell such Offered Securities to
dealers as principals. The dealers may then resell such Offered Securities to
the public at varying prices to be determined by such dealers at the time of
resale. The names of the dealers and the terms of the transaction will be set
forth in the Prospectus Supplement relating thereto.
The Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer
or sale of the Offered Securities for which this Prospectus is delivered will
be named, and any commissions payable by the Company to such agent will be set
forth, in the Prospectus Supplement arising thereto. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a
best efforts basis for the period of its appointment.
The Securities may be sold directly by the Company to institutional
investors or others who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any sale thereof. The terms of any such
sales will be described in the Prospectus Supplement relating thereto.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers from certain types of
institutions to purchase Offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. Such contracts will be subject only to those conditions set forth
in the Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
20
<PAGE>
Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments that such agents, dealers or
underwriters may be required to make in respect thereof. Agents, dealers and
underwriters may be customers of, engage in transactions with, or perform
services for the Company in the ordinary course of business.
The Securities may or may not be listed on a national securities exchange.
No assurances can be given that there will be a market for the Securities
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for the
Company by Eric B. Brown, Esq., Vice President and General Counsel of the
Company. As of June 30, 1998, Mr. Brown owned directly or indirectly
approximately 8,600 shares of Common Stock and owned directly options to
purchase approximately 25,500 shares of such stock.
EXPERTS
The consolidated financial statements of Transocean Offshore Inc. appearing
in the Company's Annual Report (Form 10-K) for the year ended December 31,
1997, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm
as experts in accounting and auditing.
21
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses payable by the Company
in connection with the offering described in this Registration Statement.
<TABLE>
<S> <C>
Registration fee................................................ $132,750
Printing expenses............................................... 100,000
Accounting fees and expenses.................................... 100,000
Legal fees and expenses......................................... 133,000
Blue Sky fees and expenses...................................... 20,000
Trustee fees and expenses....................................... 20,000
Rating agency fees.............................................. 200,000
Miscellaneous................................................... 94,250
--------
Total......................................................... $800,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Tenth of the Company's Charter provides that to the fullest extent
that the DGCL permits the limitation or elimination of the liability of
directors, no director of the Company shall be personally liable to the
Company or its stockholders for damages for breach of fiduciary duty as a
director. Notwithstanding the foregoing, a director shall be liable to the
extent provided by applicable law (1) for any breach of the director's duty of
loyalty to the Company or its stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (3) for any willful or negligent declaration of an unlawful dividend,
stock purchase or redemption or (4) for any transaction from which the
director derived any improper personal benefit.
Article Tenth of the Company's Charter provides that the Company shall
indemnify each person who was or is made a party or is threatened to be made a
party to or otherwise require representation by counsel in connection with any
threatened, pending or completed action, suit or proceeding, by reason of the
fact that he is or was a director or officer of the Company, or, while serving
as such, is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action alleged to have been
taken or omitted in such capacity, to the fullest extent permitted by the laws
of the State of Delaware.
Section 145 of the DGCL authorizes the indemnification of directors and
officers against liability incurred by reason of being a director or officer
and against expenses (including attorney's fees) in connection with defending
any action seeking to establish such liability, in the case of third-party
claims, if the officer or director acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and in the case of actions by or in the right of the corporation,
if the officer or director acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation and
if such officer or director shall not have been adjudged liable to the
corporation, unless a court otherwise determines. Indemnification is also
authorized with respect to any criminal action or proceeding where the officer
or director had no reasonable cause to believe his conduct was unlawful.
The Company has purchased directors and officers liability insurance that
would indemnify the directors and officers of the Company against damages
arising out of certain kinds of claims that might be made against them based
on their negligent acts or omissions while acting in their capacity as such.
II-1
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <C> <S>
*1 -- Form of Underwriting Agreement
+3.1 -- Restated Certificate of Incorporation of the Company, including
amendments dated September 3, 1996 (incorporated by reference to
Exhibit 4(a) to the Company's Registration Statement on Form S-8
Registration No. 333-12475 dated September 20, 1996)
+3.2 -- Bylaws of the Company (incorporated by reference to Exhibit 3-(2)
to the Company's Form 10-K for the year ending December 31, 1993)
+4.1 -- Senior Indenture dated as of April 15, 1997 between the Company
and Chase Bank of Texas, National Association, as trustee
(incorporated by reference to Exhibit 4.1 to the Company's Current
Report on Form 8-K dated April 29, 1997)
+4.2 -- First Supplemental Indenture dated as of April 15, 1997 between
the Company and Chase Bank of Texas National Association, as
trustee (incorporated by reference to Exhibit 4.2 to the Company's
Current Report on Form 8-K dated April 29, 1997)
4.3 -- Form of Subordinated Indenture
5 -- Opinion of Eric B. Brown, Esq.
12 -- Statement of computation of ratio of earnings to fixed charges
23.1 -- Consent of Ernst & Young LLP
23.2 -- Consent of Eric B. Brown, Esq. (included in Exhibit 5)
24 -- Powers of Attorney
25.1 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Chase Bank of Texas, National
Association, as trustee
</TABLE>
- --------
+ Incorporated by reference as indicated.
* The Company will file any underwriting agreement relating to the Securities
offered hereby as an exhibit to a current report on Form 8-K.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) of the Securities Act if,
in the aggregate, the changes
II-2
<PAGE>
in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
(d) With respect to the Subordinated Indenture referred to in Exhibit 4.3 to
this Registration Statement, the undersigned registrant hereby undertakes to
file an application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of section 310 of the Trust Indenture Act
(the "TIA") in accordance with the rules and regulations prescribed by the
Commission under section 305(b)(2) of the TIA.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, the State of Texas, on July 10, 1998.
TRANSOCEAN OFFSHORE INC.
/s/ Robert L. Long
By:__________________________________
Robert L. Long
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on July 10, 1998.
SIGNATURE TITLE
/s/ J. Michael Talbert Chairman of the Board and
- ----------------------------------- Chief Executive Officer
J. Michael Talbert
/s/ Robert L. Long Senior Vice President,
- ----------------------------------- Treasurer and Chief
Robert L. Long Financial Officer
/s/ Barbara S. Koucouthakis Vice President and
- ----------------------------------- Controller
Barbara S. Koucouthakis
*
Director, President and
- ----------------------------------- Chief Operating Officer
W. Dennis Heagney
*
Director
- -----------------------------------
Richard D. Kinder
*
Director
- -----------------------------------
Ronald L. Kuehn, Jr.
*
Director
- -----------------------------------
Robert J. Lanigan
*
Director
- -----------------------------------
Fridtjof Lorentzen
*
Director
- -----------------------------------
Max L. Lukens
*
Director
- -----------------------------------
Martin B. McNamara
*
Director
- -----------------------------------
Kristian Siem
/s/ Barbara S. Koucouthakis
*By________________________________
Barbara S. Koucouthakis
Attorney in Fact
II-4
<PAGE>
EXHIBIT 4.3
TRANSOCEAN OFFSHORE INC.
AND
--------------------
TRUSTEE
--------------------
INDENTURE
DATED AS OF
_______________________, 1998
DEBT SECURITIES
(SUBORDINATED DEBT)
<PAGE>
Transocean Offshore Inc.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _________________, 1998
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
- ------------------ -------------
(S) 310 (a)(1).............................................. 609
(a)(2).............................................. 609
(a)(3).............................................. Not Applicable
(a)(4).............................................. Not Applicable
(b)................................................. 608, 610
(S) 311 (a)................................................. 613
(b)................................................. 613
(c)................................................. Not Applicable
(S) 312 (a)................................................. 701, 702(a)
(b)................................................. 702(b)
(c)................................................. 702(c)
(S) 313 (a)................................................. 703(a)
(b)................................................. 703(b)
(c)................................................. 703(c)
(d)................................................. 703(d)
(S) 314 (a)................................................. 704, 1005
(b)................................................. Not Applicable
(c)(1).............................................. 103
(c)(2).............................................. 103
(c)(3).............................................. Not Applicable
(d)................................................. Not Applicable
(e)................................................. 103
(S) 315 (a)................................................. 601(a)
(b)................................................. 602
(c)................................................. 601(b)
(d)................................................. 601(c)
(d)(1).............................................. 601(a)(1)
(d)(2).............................................. 601(c)(2)
(d)(3).............................................. 601(c)(3)
(e)................................................. 513
(S) 316 (a)(1)(A)........................................... 502, 511
(a)(1)(B)........................................... 512
(a)(2).............................................. Not Applicable
(a)(last sentence).................................. 101
(b)................................................. 508
(S) 317 (a)(1).............................................. 503
(a)(2).............................................. 504
(b)................................................. 1003
(S) 318 (a)................................................. 108
_____________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
----
RECITALS OF THE COMPANY................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.................................................. 1
Act..................................................................... 2
Additional Amounts...................................................... 2
Affiliate............................................................... 2
Agent Members........................................................... 2
Authenticating Agent.................................................... 2
Authorized Newspaper.................................................... 2
Board of Directors...................................................... 2
Board Resolution........................................................ 2
Business Day............................................................ 3
Capital Stock........................................................... 3
Capitalized Lease Obligation............................................ 3
Commission.............................................................. 3
Company................................................................. 3
Company Request and Company Order....................................... 3
Conversion Event........................................................ 3
Corporate Trust Office.................................................. 3
Defaulted Interest...................................................... 3
Depositary.............................................................. 3
Designated Senior Indebtedness.......................................... 4
Disqualified Capital Stock.............................................. 4
Dollar.................................................................. 4
Event of Default........................................................ 4
Exchange Rate........................................................... 4
Holder.................................................................. 4
Indebtedness............................................................ 4
Indenture............................................................... 5
interest................................................................ 5
Interest Payment Date................................................... 5
Interest Swap and Hedging Obligation.................................... 5
Judgment Currency....................................................... 5
Junior security......................................................... 5
Maturity................................................................ 5
Officers' Certificate................................................... 5
Opinion of Counsel...................................................... 5
ii
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PAGE
----
Original Issue Discount Security......................................... 6
Outstanding.............................................................. 6
Paying Agent............................................................. 7
Payment Default.......................................................... 7
Payment Notice........................................................... 7
Person................................................................... 7
Place of Payment......................................................... 7
Predecessor Security..................................................... 7
Qualified Capital Stock.................................................. 7
Redemption Date.......................................................... 7
Redemption Price......................................................... 7
Regular Record Date...................................................... 7
Required Currency........................................................ 7
Responsible Officer...................................................... 7
Securities............................................................... 8
Security Custodian....................................................... 8
Security Register........................................................ 8
Senior Indebtedness...................................................... 8
Special Record Date...................................................... 8
Stated Maturity.......................................................... 8
Subsidiary............................................................... 8
Trustee.................................................................. 8
Trust Indenture Act...................................................... 9
United States............................................................ 9
United States Alien...................................................... 9
U.S. Government Obligations.............................................. 9
Vice President........................................................... 9
Wholly Owned Subsidiary.................................................. 9
Yield to Maturity........................................................ 9
SECTION 102. Incorporation by Reference of Trust Indenture Act............ 9
SECTION 103. Compliance Certificates and Opinions......................... 10
SECTION 104. Form of Documents Delivered to Trustee....................... 10
SECTION 105. Acts of Holders; Record Dates................................ 11
SECTION 106. Notices, Etc., to Trustee and Company........................ 12
SECTION 107. Notice to Holders; Waiver.................................... 12
SECTION 108. Conflict With Trust Indenture Act............................ 13
SECTION 109. Effect of Headings and Table of Contents..................... 13
SECTION 110. Successors and Assigns....................................... 13
SECTION 111. Separability Clause.......................................... 13
SECTION 112. Benefits of Indenture........................................ 13
SECTION 113. Governing Law................................................ 14
SECTION 114. Legal Holidays............................................... 14
SECTION 115. Corporate Obligation......................................... 14
iii
<PAGE>
PAGE
----
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.............................................. 14
SECTION 202. Form of Trustee's Certificate of Authentication.............. 15
SECTION 203. Securities in Global Form.................................... 15
SECTION 204. Book-Entry Securities........................................ 15
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series......................... 18
SECTION 302. Denominations................................................ 21
SECTION 303. Execution, Authentication Delivery and Dating................ 21
SECTION 304. Temporary Securities......................................... 22
SECTION 305. Registration, Registration of Transfer and Exchange.......... 23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............. 25
SECTION 307. Payment of Interest; Interest Rights Preserved............... 25
SECTION 308. Persons Deemed Owners........................................ 27
SECTION 309. Cancellation................................................. 27
SECTION 310. Computation of Interest...................................... 27
SECTION 311. CUSIP Numbers................................................ 27
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture...................... 28
SECTION 402. Application of Trust Money................................... 30
SECTION 403. Discharge of Liability on Securities of Any Series........... 30
SECTION 404. Reinstatement................................................ 31
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default............................................ 31
SECTION 502. Acceleration of Maturity; Rescission and Annulment........... 33
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee...................................................... 34
SECTION 504. Trustee May File Proofs of Claim............................. 35
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
or Coupons................................................... 36
SECTION 506. Application of Money Collected............................... 36
SECTION 507. Limitation on Suits.......................................... 37
SECTION 508. Unconditional Right of Holders to Receive Principal Premium
and Interest................................................. 37
iv
<PAGE>
PAGE
----
SECTION 509. Restoration of Rights and Remedies........................... 38
SECTION 510. Rights and Remedies Cumulative............................... 38
SECTION 511. Delay or Omission Not Waiver................................. 38
SECTION 512. Control by Holders........................................... 38
SECTION 513. Waiver of Past Defaults...................................... 39
SECTION 514. Undertaking for Costs........................................ 39
SECTION 515. Waiver of Stay or Extension Laws............................. 39
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.......................... 40
SECTION 602. Notice of Defaults........................................... 41
SECTION 603. Certain Rights of Trustee.................................... 41
SECTION 604. Not Responsible for Recitals or Issuance of Securities....... 42
SECTION 605. May Hold Securities.......................................... 42
SECTION 606. Money Held in Trust.......................................... 42
SECTION 607. Compensation and Reimbursement............................... 43
SECTION 608. Disqualification; Conflicting Interests...................... 43
SECTION 609. Corporate Trustee Required; Eligibility...................... 44
SECTION 610. Resignation and Removal; Appointment of Successor............ 44
SECTION 611. Acceptance of Appointment by Successor....................... 46
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.. 47
SECTION 613. Preferential Collection of Claims Against Company............ 47
SECTION 614. Appointment of Authenticating Agent.......................... 47
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.... 49
SECTION 702. Preservation of Information; Communications to Holders....... 49
SECTION 703. Reports by Trustee........................................... 50
SECTION 704. Reports by Company........................................... 50
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms......... 51
SECTION 802. Successor Person Substituted................................. 51
v
<PAGE>
PAGE
----
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders........... 52
SECTION 902. Supplemental Indentures With Consent of Holders.............. 53
SECTION 903. Execution of Supplemental Indentures......................... 54
SECTION 904. Effect of Supplemental Indentures............................ 54
SECTION 905. Conformity With Trust Indenture Act.......................... 54
SECTION 906. Reference in Securities to Supplemental Indentures........... 54
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.................. 55
SECTION 1002. Maintenance of Office or Agency............................. 55
SECTION 1003. Money for Securities Payments to be Held in Trust........... 55
SECTION 1004. Existence................................................... 57
SECTION 1005. Statement by Officers as to Default......................... 57
SECTION 1006. Waiver of Certain Covenants................................. 57
SECTION 1007. Additional Amounts.......................................... 57
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.................................... 58
SECTION 1102. Election to Redeem; Notice to Trustee....................... 58
SECTION 1103. Selection by Trustee of Securities to be Redeemed........... 59
SECTION 1104. Notice of Redemption........................................ 59
SECTION 1105. Deposit of Redemption Price................................. 60
SECTION 1106. Securities Payable on Redemption Date....................... 60
SECTION 1107. Securities Redeemed in Part................................. 60
SECTION 1108. Purchase of Securities...................................... 61
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.................................... 61
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities....... 61
SECTION 1203. Redemption of Securities for Sinking Fund................... 61
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. Securities Subordinated to Senior Indebtedness.............. 62
SECTION 1302. No Payment on Securities in Certain Circumstances........... 62
SECTION 1303. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or
Reorganization.............................................. 63
vi
<PAGE>
PAGE
----
SECTION 1304. Subrogation to Rights of Holders of Senior Indebtedness..... 64
SECTION 1305. Obligations of the Company Unconditional.................... 65
SECTION 1306. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice........................................... 66
SECTION 1307. Application by Trustee of Amounts Deposited with It......... 66
SECTION 1308. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness............... 66
SECTION 1309. Trustee to Effectuate Subordination of Securities........... 67
SECTION 1310. Right of Trustee to Hold Senior Indebtedness................ 67
SECTION 1311. Article Thirteen Not to Prevent Events of Default........... 67
SECTION 1312. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.............................................................. 67
SECTION 1313. Article Applicable to Paying Agent.......................... 68
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called................... 68
SECTION 1402. Call, Notice and Place of Meetings.......................... 68
SECTION 1403. Persons Entitled to Vote at Meetings........................ 69
SECTION 1404. Quorum; Action.............................................. 69
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.................................................... 70
SECTION 1406. Counting Votes and Recording Action of Meetings............. 70
vii
<PAGE>
INDENTURE, dated as of _______________, 1998 between TRANSOCEAN OFFSHORE
INC., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 4
Greenway Plaza, Houston, Texas 77046, and ___________________________, a
[national banking association], as Trustee (herein called the "Trustee"), the
office of the Trustee at which at the date hereof its corporate trust business
is principally administered being __________________________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
This Indenture is subject to the provisions of the Trust Indenture Act and
the rules and regulations of the Commission promulgated thereunder that are
required to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such
<PAGE>
accounting principles as are generally accepted in the United States at the
date of such computation; and
(3) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in Section 102.
"Act", when used with respect to any Holder, has the meaning specified in
Section 105.
"Additional Amounts" means any additional amounts that are required by the
express terms of a Security or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the Company
with respect to certain taxes, assessments or other governmental charges imposed
on certain Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Members" has the meaning specified in Section 203.
"Authenticating Agent" means any Person, which may include the Company,
authorized by the Trustee to act on behalf of the Trustee pursuant to Section
614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
2
<PAGE>
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that Person.
"Capitalized Lease Obligation" means rental obligations under a lease that
are required to be capitalized for financial reporting purposes in accordance
with generally accepted accounting principles, and the amount of Indebtedness
represented by such obligations shall be the capitalized amount of such
obligations, as determined in accordance with generally accepted accounting
principles.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Controller, an Assistant Controller, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Conversion Event" has the meaning specified in Section 501.
"Corporate Trust Office" means the principal office of the Trustee in [ ]
at which at any particular time its corporate trust business shall be
principally administered, which office at the date hereof is that indicated in
the introductory paragraph of this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in global form, the Person designated as
Depositary by the Company pursuant to Section 301 with respect to the Securities
of such series until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at any
time there is more than one such Person, "Depositary" as used with respect to
the Securities of any series shall mean the Depositary with respect to the
Securities of that series.
3
<PAGE>
"Designated Senior Indebtedness," unless otherwise provided with respect
to the Securities of a series as contemplated by Section 301, means any Senior
Indebtedness that (i) in the instrument evidencing the same or the assumption or
guarantee thereof (or related documents to which the Company is a party) is
expressly designated as "Designated Senior Indebtedness" for purposes of this
Indenture and (ii) satisfies such other conditions as may be provided with
respect to the Securities of such series; provided that such instruments or
documents may place limitations and conditions on the right of such Senior
Indebtedness to exercise the rights of Designated Senior Indebtedness.
"Disqualified Capital Stock" means, when used with respect to the
Securities of any series, (a) except as set forth in (b), with respect to any
Person, Capital Stock of such Person that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or upon
the happening of an event or the passage of time would be, required to be
redeemed or repurchased (including at the option of the holder thereof) by such
Person or any Subsidiary of such Person, in whole or in part, on or prior to the
Stated Maturity of the Securities of such series, and (b) with respect to any
Subsidiary of such Person (including with respect to any Subsidiary of the
Company), any Capital Stock other than any common stock with no preference,
privileges, or redemption or repayment provisions.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" has the meaning specified in Section 501.
"Holder", when used with respect to any Security, means the Person in
whose name the Security is registered in the Security Register.
"Indebtedness" of any Person, unless otherwise provided with respect to
the Securities of a series as contemplated by Section 301, means, without
duplication, the following (whether currently outstanding or hereafter incurred
or created): (i) all liabilities and obligations, contingent or otherwise, of
any such Person (a) in respect of borrowed money (whether or not the recourse of
the lender is to the whole of the assets of such Person or only to a portion
thereof), (b) evidenced by bonds, notes, debentures or similar instruments, (c)
representing the balance deferred and unpaid of the purchase price of any
property or services, except such as would constitute trade payables to trade
creditors in the ordinary course of business that are not more than 90 days past
their original due date, (d) evidenced by bankers' acceptances or similar
instruments issued or accepted by banks, (e) for the payment of money relating
to a Capitalized Lease Obligation or (f) evidenced by a letter of credit or a
reimbursement obligation of such Person with respect to any letter of credit;
(ii) all net obligations of such Person under Interest Swap and Hedging
Obligations; (iii) all liabilities of others of the kind described in the
preceding clause (i) or (ii) that such Person has guaranteed or that is
otherwise its legal liability and all obligations to purchase, redeem or acquire
any Capital Stock; and (iv) any and all deferrals, renewals, extensions,
refinancings, refundings (whether direct or indirect) of, or amendments,
modifications or supplements to, any liability of the kind described
4
<PAGE>
in any of the preceding clauses (i), (ii) or (iii), or this clause (iv), whether
or not between or among the same parties.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 301 and the provisions of the Trust Indenture Act that are deemed to
be a part of and govern this instrument.
"interest", when used with respect to an Original Issue Discount Security
that by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Interest Swap and Hedging Obligation" means any obligation of any Person
pursuant to any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate exchange agreement, currency
exchange agreement or any other agreement or arrangement designed to protect
against fluctuations in interest rates or currency values, including, without
limitation, any arrangement whereby, directly or indirectly, such Person is
entitled to receive from time to time periodic payments calculated by applying
either a fixed or floating rate of interest on a stated notional amount in
exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Judgment Currency" has the meaning specified in Section 506.
"Junior security" of a Person means, when used with respect to the
Securities of any series, any Qualified Capital Stock of such Person or any
Indebtedness of such Person that is subordinated in right of payment to the
Securities of such series and has no scheduled installment of principal due, by
redemption, sinking fund payment or otherwise, on or prior to the Stated
Maturity of the Securities of such series.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, the Controller,
the Secretary or an Assistant Treasurer, Assistant Controller or Assistant
Secretary, of the Company, and delivered to the Trustee, which certificate shall
comply with Section 103 hereof.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company, rendered, if applicable, in
accordance with Section 314(c) of the Trust Indenture Act, which opinion shall
comply with Section 103 hereof.
5
<PAGE>
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities of a series, means, as
of the date of determination, all Securities of such series theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore irrevocably deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities that have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (b) the principal amount of a Security
denominated in a foreign currency shall be the U.S. dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security
and (c) Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
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"Paying Agent" means any Person, which may include the Company, authorized
by the Company to pay the principal of (and premium, if any) or interest on or
Additional Amounts with respect to any one or more series of Securities on
behalf of the Company.
"Payment Default" has the meaning specified in Section 1302(a).
"Payment Notice" has the meaning specified in Section 1302(b).
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof or any
other entity of any kind.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on and any Additional Amounts with respect to the Securities of
that series are payable as specified in accordance with Section 301 subject to
the provisions of Section 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Qualified Capital Stock" means any Capital Stock of the Company that is
not Disqualified Capital Stock.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to the terms of such
Security and this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to the terms of such
Security and this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301, or, if not so specified, the last day of the
calendar month preceding such Interest Payment Date if such Interest Payment
Date is the fifteenth day of the calendar month or the fifteenth day of the
calendar month preceding such Interest Payment Date if such Interest Payment
Date is the first day of a calendar month, whether or not such day shall be a
Business Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer", when used with respect to the Trustee, means the
Chairman or any Vice Chairman of the Board of Directors, the Chairman or any
Vice Chairman of the Executive Committee of the Board of Directors, the Chairman
of the Trust Committee, the President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer,
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the Cashier, any Assistant Cashier, any Trust Officer or Assistant Trust
Officer, the Controller or any Assistant Controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Custodian" means, with respect to Securities of a series issued
in global form, the Trustee for Securities of such series, acting in its
capacity as custodian with respect to the Securities of such series, or any
successor entity thereto.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" of the Company, unless otherwise provided with
respect to the Securities of a series as contemplated by Section 301, means (i)
all Indebtedness of the Company, whether currently outstanding or hereafter
issued, unless, by the terms of the instrument creating or evidencing such
Indebtedness, it is provided that such Indebtedness is not superior in right of
payment to the Securities or to other Indebtedness which is pari passu with or
subordinated to the Securities, and (ii) any modifications, refunding,
deferrals, renewals or extensions of any such Indebtedness or securities, notes
or other evidences of Indebtedness issued in exchange for such Indebtedness;
provided that in no event shall "Senior Indebtedness" include (a) Indebtedness
of the Company owed or owing to any Subsidiary of the Company or any officer,
director or employee of the Company or any Subsidiary of the Company, (b)
Indebtedness to trade creditors or (c) any liability for taxes owed or owing by
the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock that ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
905.
"United States" means the United States of America (including the States
and the District of Columbia) and its "possessions", which include Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien or foreign fiduciary of an estate or trust, or a foreign
partnership.
"U.S. Government Obligations" has the meaning specified in Section 401.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Wholly Owned Subsidiary" means a corporation all the outstanding voting
stock (other than any directors' qualifying shares) of which is owned, directly
or indirectly, by the Company or by one or more other Wholly Owned Subsidiaries,
or by the Company and one or more other Wholly Owned Subsidiaries. For the
purposes of this definition, "voting stock" means stock that ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"Yield to Maturity", when used with respect to any Original Issue Discount
Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act,
the provision is incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act terms used in this Indenture have the
following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United States
Code.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
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All terms used in this Indenture that are defined by the Trust Indenture
Act, defined by Trust Indenture Act reference to another statute or defined by
Commission rule under the Trust Indenture Act and not otherwise defined herein
have the meanings assigned to them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any (including
any covenants the compliance with which constitutes a condition precedent,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any (including any covenants the
compliance with which constitutes a condition precedent) have been complied
with, except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such
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officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record thereof or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or the holding of any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1406.
The Company may set in advance a record date for purposes of determining
the identity of Holders of Securities entitled to vote or consent to any action
by vote or consent authorized or permitted under this Indenture. If a record
date is fixed, those Persons who were Holders of Outstanding Securities at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled with respect to such Securities to take such action by vote or consent
or to revoke any vote or consent previously given, whether or not such Persons
continue to be Holders after such record date. Promptly after any record date
is set pursuant to this paragraph, the Company, at its own expense, shall cause
notice thereof to be given to the Trustee in writing in the manner provided in
Section 106 and to the relevant Holders as set forth in Section 107.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
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(c) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security. Any Holder or subsequent Holder may revoke the request, demand,
authorization, direction, notice, consent or other Act as to his Security or
portion of his Security; provided, however, that such revocation shall be
effective only if the Trustee receives the notice of revocation before the date
the Act becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Corporate
Secretary.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of Securities of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder as it appears
in the Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service, or by reason
of any other cause it shall be impracticable to give such notice to Holders of
Securities by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case in which notice to Holders of Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Security, shall affect the sufficiency of
such notice with respect to other Holders of Securities.
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Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any provision
of the Trust Indenture Act or another provision hereof which is required to be
included in this Indenture by any of the provisions of the Trust Indenture Act,
such provision of the Trust Indenture Act shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the former provision shall be deemed to
apply to this Indenture as so modified or to be excluded.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, any Authenticating Agent, Paying Agent and Security Registrar, and
the Holders and holders of any Senior Indebtedness, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities 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 the application of the
laws of another jurisdiction would be required thereby.
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SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal and interest (and premium and Additional
Amounts, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no interest shall accrue with
respect to such payment for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any incorporator,
subscriber to the capital stock, stockholder, officer, director or employee of
the Company or the Trustee or of any predecessor or successor of the Company or
the Trustee with respect to the Company's obligations on the Securities or the
obligations of the Company or the Trustee under this Indenture or any
certificate or other writing delivered in connection herewith.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in fully registered form and in
substantially such form or forms (including temporary or permanent global form)
as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If temporary Securities of
any series are issued in global form as permitted by Section 304, the form
thereof shall be established as provided in the preceding sentence. A copy of
the Board Resolution establishing the form or forms of Securities of any series
(or any such temporary global Security) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities (or any such temporary global
Security).
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution
thereof.
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SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
"This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[ ],
--------------------------------------
as Trustee
By
----------------------------------
Authorized Signatory".
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as contemplated by
Section 301, then, notwithstanding clause (10) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner and upon instructions given by such Person
or Persons as shall be specified in such Security or in a Company Order to be
delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified in such Security or
in the applicable Company Order. If a Company Order pursuant to Section 303 or
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 103 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest on and any Additional Amounts with respect to any Security
in permanent global form shall be made to the Person or Persons specified
therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company or of
the Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a
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global Security as shall be specified in a written statement, if any, of the
Holder of such global Security, which is produced to the Security Registrar by
such Holder.
Global Securities may be issued in either temporary or permanent form.
Permanent global Securities will be issued in definitive form.
SECTION 204. Book-Entry Securities.
Notwithstanding any provision of this Indenture to the contrary:
(a) At the discretion of the Company, any Registered Security may be issued
from time to time, in whole or in part, in permanent global form registered in
the name of a Depositary, or its nominee. Each such Registered Security in
permanent global form is hereafter referred to as a "Book-Entry Security."
Subject to Section 303, upon such election, the Company shall execute, and the
Trustee or an Authenticating Agent shall authenticate and deliver, one or more
Book-Entry Securities that (i) are denominated in an amount equal to the
aggregate principal amount of the Outstanding Securities of such series if
elected in whole or such lesser amount if elected in part, (ii) are registered
in the name of the Depositary or its nominee, (iii) are delivered by the Trustee
or an Authenticating Agent to the Depositary or pursuant to the Depositary's
instructions and (iv) bear a legend in substantially the following form (or such
other form as the Depositary and the Company may agree upon):
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
[THE DEPOSITARY], TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF [NOMINEE OF THE DEPOSITARY] OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [THE
DEPOSITARY] (AND ANY PAYMENT IS MADE TO [NOMINEE OF THE DEPOSITARY]
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF [THE DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, [NOMINEE OF THE
DEPOSITARY], HAS AN INTEREST HEREIN.
(b) Any Book-Entry Security shall be initially executed and delivered as
provided in Section 303. Notwithstanding any other provision of this Indenture,
unless and until it is exchanged in whole or in part for Registered Securities
not issued in global form, a Book-Entry Security may not be transferred except
as a whole by the Depositary to a nominee of such Depositary, by a nominee of
such Depositary to such Depositary or another nominee of such Depositary, or by
such
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Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
(c) If at any time the Depositary notifies the Company or the Trustee that it
is unwilling or unable to continue as Depositary for any Book-Entry Securities,
the Company shall appoint a successor Depositary, whereupon the retiring
Depositary shall surrender or cause the surrender of its Book-Entry Security or
Securities to the Trustee. The Trustee shall promptly notify the Company upon
receipt of such notice. If a successor Depositary has not been so appointed by
the effective date of the resignation of the Depositary, the Book-Entry
Securities will be issued as Registered Securities not issued in global form, in
an aggregate principal amount equal to the principal amount of the Book-Entry
Security or Securities theretofore held by the Depositary.
The Company may at any time and in its sole discretion determine that the
Securities shall no longer be Book-Entry Securities represented by a global
certificate or certificates, and will so notify the Depositary. Upon receipt of
such notice, the Depositary shall promptly surrender or cause the surrender of
its Book-Entry Security or Securities to the Trustee. Concurrently therewith,
Registered Securities not issued in global form will be issued in an aggregate
principal amount equal to the principal amount of the Book-Entry Security or
Securities theretofore held by the Depositary.
Upon any exchange of Book-Entry Securities for Registered Securities not
issued in global form as set forth in this Section 204(c), such Book-Entry
Securities shall be cancelled by the Trustee, and Securities issued in exchange
for such Book-Entry Securities pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such Book-
Entry Securities, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee or any
Authenticating Agent shall deliver such Securities to the persons in whose names
such Securities are so registered.
(d) The Company and the Trustee shall be entitled to treat the Person in whose
name any Book-Entry Security is registered as the Holder thereof for all
purposes of the Indenture and any applicable laws, notwithstanding any notice to
the contrary received by the Trustee or the Company; and the Trustee and the
Company shall have no responsibility for transmitting payments to, communication
with, notifying, or otherwise dealing with any beneficial owners of any Book-
Entry Security. Neither the Company nor the Trustee shall have any
responsibility or obligations, legal or otherwise, to the beneficial owners or
to any other party including the Depositary, except for the Holder of any Book-
Entry Security; provided however, notwithstanding anything herein to the
contrary, (i) for the purposes of determining whether the requisite principal
amount of Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver, instruction or other action
hereunder as of any date, the Trustee shall treat any Person specified in a
written statement of the Depositary with respect to any Book-Entry Securities as
the Holder of the principal amount of such Securities set forth therein and (ii)
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or Trustee, from giving effect to any written certification, proxy or
other authorization furnished by a Depositary with respect to any Book-Entry
Securities, or impair, as between a Depositary and holders of beneficial
interests in such Securities, the operation of customary practices governing the
exercise of the rights of the Depositary as Holder of such Securities.
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(e) So long as any Book-Entry Security is registered in the name of a
Depositary or its nominee, all payments of the principal of (and premium, if
any) and interest on such Book-Entry Security and redemption thereof and all
notices with respect to such Book Entry Security shall be made and given,
respectively, in the manner provided in the arrangements of the Company with
such Depositary.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107);
(3) whether any Securities of the series are to be issuable initially
in temporary global form and whether any Securities of the series are to be
issuable in permanent global form, and, if so, whether beneficial owners of
interests in any such global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, and the
Depositary for any global Security or Securities of such series;
(4) the manner in which any interest payable on a temporary global
Security on any Interest Payment Date will be paid if other than in the
manner provided in Section 304;
(5) the date or dates on which the principal of (and premium, if any,
on) the Securities of the series is payable or the method of determination
thereof,
(6) the rate or rates, or the method of determination thereof, at
which the Securities of the series shall bear interest, if any, whether and
under what circumstances Additional Amounts with respect to such Securities
shall be payable, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be
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payable and, if other than as set forth in Section 101, the Regular Record
Date for the interest payable on any Securities on any Interest Payment
Date;
(7) the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any), any interest on and any
Additional Amounts with respect to the Securities of the series shall be
payable;
(8) the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or
in part, at the option of the Company, if the Company is to have that
option, and the manner in which the Company must exercise any such option,
if different from those set forth herein;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices (whether denominated in cash, securities
or otherwise) at which and the terms and conditions upon which Securities
of the series shall be redeemed or purchased in whole or in part pursuant
to such obligation;
(10) the denomination in which any Securities of that series shall be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(11) the currency or currencies (including composite currencies) if
other than Dollars, or the form, including equity securities, other debt
securities (including Securities), warrants or any other securities or
property of the Company or any other Person, in which payment of the
principal of (and premium, if any), any interest on and any Additional
Amounts with respect to the Securities of the series shall be payable;
(12) if the principal of (and premium, if any) or interest on or any
Additional Amounts with respect to the Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in a currency
or currencies (including composite currencies) other than that in which the
Securities are stated to be payable, the currency or currencies (including
composite currencies) in which payment of the principal of (and premium, if
any) and interest on, and any Additional Amounts with respect to,
Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions upon
which such election is to be made;
(13) if the amount of payments of principal of (and premium, if any),
any interest on and any Additional Amounts with respect to the Securities
of the series may be determined with reference to any commodities,
currencies or indices, values, rates or prices or any other index or
formula, the manner in which such amounts shall be determined;
(14) if other than the entire principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
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(15) any additional means of satisfaction and discharge of this
Indenture with respect to Securities of the series pursuant to Section 401,
any additional conditions to discharge pursuant to Section 401 or 403 and
the application, if any, of Section 403;
(16) any deletions or modifications of or additions to the definitions
set forth in Section 101, the Events of Default set forth in Section 501 or
covenants of the Company set forth in Article Ten pertaining to the
Securities of the series;
(17) if the Securities of the series are to be convertible into or
exchangeable for equity securities, other debt securities (including
Securities), warrants or any other securities or property of the Company or
any other Person, at the option of the Company or the Holder or upon the
occurrence of any condition or event, the terms and conditions for such
conversion or exchange; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series that
bears interest may be paid by mailing a check to the address of any Holder as
such address shall appear in the Security Register.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action together
with such Board Resolution shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Thirteen.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such
series denominated in Dollars shall be issuable in denominations of $1,000 and
any integral multiple thereof. Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, any Securities of a series
denominated in a currency other than Dollars shall be issuable in denominations
that are the equivalent, as determined by the Company by reference to the noon
buying rate in The City of New York for cable transfers for such currency, as
such rate is reported or otherwise made available by the Federal Reserve Bank of
New York, on the applicable issue date for such Securities, of $1,000 and any
integral multiple thereof.
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SECTION 303. Execution, Authentication Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, its Treasurer or one of its Vice Presidents, under
its corporate seal reproduced thereon or affixed thereto attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities as in this
Indenture provided and not otherwise.
If the form or terms of the Securities of the series have been established
in or pursuant to one or more Board Resolutions or any other method permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as such enforcement is subject to the effect of
(i) bankruptcy, insolvency, fraudulent conveyance, reorganization or other
laws relating to or affecting creditors' rights and (ii) general principles
of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
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No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security, a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 103 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities that are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form and with such appropriate insertions, omissions, substitutions
and other variations as the officers of the Company executing such Securities
may determine, as evidenced by their execution of such Securities.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
All Outstanding temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
the same series and of like tenor authenticated and delivered hereunder.
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SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of Securities at one of
the offices or agencies maintained pursuant to Section 1002 a register (the
register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities of such series. The Trustee is hereby initially
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Except as set forth in Section 203 or as may be provided pursuant to
Section 301, upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series and of like tenor, of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series and of like tenor, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities that the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in an aggregate principal amount equal to
the principal amount of such permanent global Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered from time to time in accordance
with instructions given to the Trustee and the Depositary (which instructions
shall be in writing but need not comply with Section 103 or be accompanied by an
Opinion of Counsel) or such other depositary as shall be specified in the
Company Order with respect thereto to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or in part, for definitive Securities of
the same series without charge and the Trustee shall authenticate and deliver,
in exchange for each portion of such permanent global Security, a like aggregate
principal amount of other definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent global Security
to be exchanged; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
Securities of that series is to be redeemed and ending on the relevant
Redemption Date. Promptly following any such exchange in part, such permanent
global Security marked to evidence the partial exchange shall be returned by the
Trustee to the Depositary or such other depositary referred to above in
accordance with the instructions of
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the Company referred to above. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than exchange
pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of such series selected for redemption and ending at the close of
business on the day of the mailing of the relevant notice of redemption or (ii)
to register the transfer of or exchange any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fee and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest. Unless
otherwise provided with respect to the Securities of any series, payment of
interest may be made at the option of the Company by check mailed or delivered
to the address of any Person entitled thereto as such address shall appear in
the Security Register.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days
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and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and at the expense of
the Company, cause a similar notice to be published at least once in an
Authorized Newspaper, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture, upon registration of transfer of, in exchange
for or in lieu of, any other Security, shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered shall be promptly cancelled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the
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Trustee shall be disposed of as directed by a Company Order; provided that the
Trustee shall not be required to destroy such Securities.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to Securities of a series, and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to Securities of such series, when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities that have been destroyed, lost or
stolen and that have been replaced or paid as provided in Section 306,
and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) with respect to all Outstanding Securities of such series not
theretofore delivered to the Trustee for cancellation, the Company has
deposited or caused to be deposited with the Trustee as trust funds,
under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, money or U.S. Government
Obligations maturing as to principal and interest in such amounts and
at such times as will (together with the income to accrue
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thereon and without consideration of any reinvestment thereof) be
sufficient to pay and discharge (with such delivery in trust to be for
the stated purpose of paying and discharging) the entire indebtedness
on all Outstanding Securities of such series not theretofore delivered
to the Trustee for cancellation for principal (and premium and
Additional Amounts, if any) and interest to the Stated Maturity or any
Redemption Date contemplated by the penultimate paragraph of this
Section, as the case may be; or
(C) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
301, to be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of
such series pursuant to this Section 401;
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to the Outstanding Securities of such series have
been complied with;
(5) if the conditions set forth in Section 401(1)(A) have not been
satisfied, and unless otherwise specified pursuant to Section 301 for the
Securities of such series, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of Securities of such
series will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit, satisfaction and discharge
and will be subject to United States federal income tax on the same amount
and in the same manner and at the same time as would have been the case if
such deposit, satisfaction and discharge had not occurred; and
(6) no Default or Event of Default with respect to the Securities of
such issue shall have occurred and be continuing on the date of such
deposit or, insofar as clauses (5) or (6) of Section 501 are concerned, at
any time in the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
For the purposes of this Indenture, "U.S. Government Obligations" means
direct non-callable obligations of, or non-callable obligations the payment of
principal of and interest on which is guaranteed by, the United States of
America, or to the payment of which obligations or guarantees the full faith and
credit of the United States of America is pledged, or beneficial interests in a
trust the corpus of which consists exclusively of money or such obligations or a
combination thereof.
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If any Outstanding Securities of such series are to be redeemed prior to
their Stated Maturity, whether pursuant to any optional redemption provisions or
in accordance with any mandatory sinking fund requirement, the trust agreement
referred to in subclause (B) of clause (1) of this Section shall provide
therefor and the Company shall make such arrangements as are satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series pursuant to this Section
401, the obligations of the Company to the Trustee under Section 607, the
obligations to any Authenticating Agent under Section 614 and, except for a
discharge pursuant to subclause (A) of clause (1) of this Section, the
obligations of the Company under Sections 305, 306, 404, 610(e), 701, 1001 and
1002 and the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest and Additional Amounts for the payment of which such money has
been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company shall be deemed to have paid
and discharged the entire indebtedness on all the Outstanding Securities of such
series, the obligation of the Company under this Indenture and the Securities of
such series to pay the principal of (and premium, if any) and interest on
Securities of such series, shall cease, terminate and be completely discharged
and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging such satisfaction and discharge, when
(1) the Company has complied with the provisions of Section 401 (other
than any additional conditions specified pursuant to Sections 301 and
401(3) and except that the Opinion of Counsel referred to in Section 401(5)
shall state that it is based on a ruling by the Internal Revenue Service or
other change since the date hereof under applicable Federal income tax law)
with respect to all Outstanding Securities of such series,
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of
such series pursuant to this Section 403, and
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(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the discharge of the indebtedness on the
Outstanding Securities of such series have been complied with.
Upon the satisfaction of the conditions set forth in this Section with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series that are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
SECTION 404. Reinstatement
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to Securities of any series in
accordance with Section 401 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 Company's obligations
under this Indenture with respect to the Securities of such series and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to Section 401 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 401; provided, however, that if the Company has made any
payment of principal of (or premium, if any), or interest on or any Additional
Amounts with respect to any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
Thirteen or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless it is either
inapplicable to a particular series or it is specifically deleted or modified in
or pursuant to the supplemental indenture or Board Resolution establishing such
series of Securities or in the form of Security for such series:
(1) default in the payment of any interest on or any Additional
Amounts with respect to any Security of that series when such interest or
Additional Amounts become due and payable, and continuance of such default
for a period of 30 days; or
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(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any mandatory sinking fund payment, when
and as due by the terms of a Security of that series and continuance of
such default for a period of 30 days; or
(4) default in the performance or breach of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of Securities other
than that series), and continuance of such default or breach for a period
of 90 days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of all Outstanding Securities a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it, of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of
that series.
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Notwithstanding the foregoing provisions of this Section 501, if the
principal of (and premium, if any) or any interest on, or Additional Amounts
with respect to, any Security is payable in a currency or currencies (including
a composite currency) other than Dollars and such currency (or currencies) is
(or are) not available to the Company for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the control of the
Company (a "Conversion Event"), the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in an
amount equal to the Dollar equivalent of the amount payable in such other
currency, as determined by the Company by reference to the noon buying rate in
The City of New York for cable transfers for such currency ("Exchange Rate"), as
such Exchange Rate is certified for customs purposes by the Federal Reserve Bank
of New York on the date of such payment, or, if such rate is not then available,
on the basis of the most recently available Exchange Rate. Notwithstanding the
foregoing provisions of this Section 501, any payment made under such
circumstances in Dollars where the required payment is in a currency other than
Dollars will not constitute an Event of Default under this Indenture.
Promptly after the occurrence of a Conversion Event with respect to
Securities of any series, the Company shall give written notice thereof to the
Trustee; and the Trustee, promptly after receipt of such notice, shall give
notice thereof in the manner provided in Section 107 to the Holders of such
series. Promptly after the making of any payment in Dollars as a result of a
Conversion Event with respect to Securities of any series, the Company shall
give notice in the manner provided in Section 107 to the Holders of such series,
setting forth the applicable Exchange Rate and describing the calculation of
such payments.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of (i) the series affected by such default (in the case
of an Event of Default described in clause (1), (2), (3) or (7) of Section 501)
or (ii) all series of Securities (subject to the immediately following sentence,
in the case of an Event of Default described in clause (4) of Section 501) may
declare the principal amount (or, if any such Securities are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all of the Securities of the series affected by
such default or all series, as the case may be, to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
described in clause (5) or (6) of Section 501 shall occur, the principal amount
of the Outstanding Securities of all series ipso facto shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
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(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on, and any Additional Amounts with
respect to, all Securities of that series (or of all series, as the
case may be),
(B) the principal of (and premium, if any, on) any Securities of
that series (or of all series, as the case may be) which have become
due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Securities
(in the case of Original Issue Discount Securities, the Securities'
Yield to Maturity),
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and any Additional Amounts at the rate
or rates prescribed therefor in such Securities (in the case of
Original Issue Discount Securities, the Securities' Yield to
Maturity), and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series
(or of all series, as the case may be), other than the non-payment of the
principal of Securities of that series (or of all series, as the case may
be) which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 512.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on,
or any Additional Amounts with respect to, any Security of any series when
such interest or Additional Amounts shall have become due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and Additional
Amounts and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest and Additional Amounts, at the rate or rates prescribed
therefor in such Securities (or in the
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case of Original Issue Discount Securities, the Securities' Yield to Maturity),
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal (or lesser amount
in the case of Original Issue Discount Securities) of the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal (and premium, if any), interest or any
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (or
lesser amount in the case of Original Issue Discount Securities) (and
premium, if any) and interest and any Additional Amounts owing and unpaid
in respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, 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 the reasonable compensation, expenses,
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disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceedings; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claim under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Subject to Article Thirteen, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any), interest or any Additional Amounts,
upon presentation of the Securities, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on and any Additional
Amounts with respect to the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any), interest and Additional
Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of (or premium, if any) or
interest on or any Additional Amounts with respect to the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Business Day next preceding
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that on which final judgment is given. Neither the Company nor the Trustee shall
be liable for any shortfall nor shall it benefit from any windfall in payments
to Holders of Securities under this Section caused by a change in exchange rates
between the time the amount of a judgment against it is calculated as above and
the time the Trustee converts the Judgment Currency into the Required Currency
to make payments under this Section to Holders of Securities, but payment of
such judgment shall discharge all amounts owed by the Company on the claim or
claims underlying such judgment.
SECTION 507. Limitation on Suits.
Subject to Section 508, no Holder of any Security of any series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) an Event of Default with respect to Securities of such series
shall have occurred and be continuing and such Holder has previously given
written notice to the Trustee of such continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on and any Additional Amounts with respect to such
Security on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired or
affected without the consent of such Holder.
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SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, then and in every
such case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, relating to or arising under an Event of Default described in
clause (1), (2), (3) or (7) of Section 501, and with respect to all Securities
the Holders of a majority in principal amount of all Outstanding Securities
shall have the right to direct the time, method and place of conducting any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, not relating to or arising under such an Event of Default, provided
that in each such case
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
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SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such series and its
consequences, and the Holders of a majority in principal amount of all
Outstanding Securities may on behalf of the Holders of all Securities waive any
other past default hereunder and its consequences, except in each case a default
(1) in the payment of the principal of (or premium, if any) or
interest on, or any Additional Amounts with respect to, any Security, or
(2) in respect of a covenant or provision hereof that under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on, or any Additional Amounts with respect to, any Security
on or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect
to the Securities of any series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default has occurred and is continuing with
respect to the Securities of any series, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series or of all series, determined as
provided in Section 511, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
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(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or indemnity
satisfactory to it against such risk or liability is not assured to
it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall give notice of such
default hereunder known to the Trustee to all Holders of Securities of such
series in the manner provided in Section 107, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of (or premium, if any) or interest on, or any
Additional Amounts with respect to, any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event, act or condition which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
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(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and, except for any Affiliates of the Trustee, the Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time compensation for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the compensation and the reasonable expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee and each of its directors, officers,
employees, agents and/or representatives for, and to hold each of them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on each of their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against
any claim or liability in connection with the exercise or performance of
any of the Trustee's powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, premium, if any, or interest, if
any, on, or any Additional Amounts with respect to, particular Securities.
Any expenses and compensation for any services rendered by the Trustee
after the occurrence of an Event of Default specified in clause (5) or (6) of
Section 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign with respect
to the Securities of that series in the manner and with the effect
hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities
of any series, the Trustee shall, within 10 days after the expiration of
such 90-day period, transmit by mail to all Holders of Securities of that
series, as their names and addresses appear in the Security Register,
notice of such failure.
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(c) For the purposes of this Section, the term "conflicting interest"
shall have the meaning specified in Section 310(b) of the Trust Indenture
Act and the Trustee shall comply with Section 310(b) of the Trust Indenture
Act; provided that there shall be excluded from the operation of Section
310(b)(1) of the Trust Indenture Act with respect to the Securities of any
series any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the
Company are outstanding, if the requirements for such exclusion set forth
in Section 310(b)(1) of the Trust Indenture Act are met. For purposes of
the preceding sentence, the optional provision permitted by the second
sentence of Section 310(b)(9) of the Trust Indenture Act shall be
applicable.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State (or District of Columbia) authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
The Indenture shall always have a Trustee who satisfies the
requirements of Sections 310(a)(1), 310(a)(2) and 310(a)(5) of the Trust
Indenture Act.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section 611
shall not have been delivered to the resigning Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
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(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder of Securities, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any
such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section
513, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and such successor Trustee or Trustees shall comply with the
applicable requirements of Section 611. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee
an instrument accepting such appointment,
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and thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee and (3)
shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture, the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents that shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia having a combined capital and surplus of not less
than $50,000,000 or equivalent amount expressed in a foreign currency and
subject to supervision or examination by Federal or State (or District of
Columbia) authority or authority of such country. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section,
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without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
________________________________,
as Trustee
By _____________________________,
as Authenticating Agent
By _____________________________,
Authorized Signatory".
Notwithstanding any provision of this Section 614 to the contrary, if
at any time any Authenticating Agent appointed hereunder with respect to any
series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to all
other duties of an Authenticating Agent hereunder, such Authenticating Agent
shall also be obligated: (i) to furnish to the Security Registrar promptly all
information necessary to enable the
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Security Registrar to maintain at all times an accurate and current Security
Register; and (ii) prior to authenticating any Security denominated in a foreign
currency, to ascertain from the Company the units of such foreign currency that
are required to be determined by the Company pursuant to Section 302.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record
Date relating to that series (or, if there is no Regular Record Date
relating to that series, on January 1 and July 1), a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of that series as of such dates, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content, such list to be dated as of a date not more than
15 days prior to the time such list is furnished; provided, that so long as
the Trustee is the Security Registrar, the Company shall not be required to
furnish or cause to be furnished such a list to the Trustee. The Company
shall otherwise comply with Section 310(a) of the Trust Indenture Act.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series contained in
the most recent list furnished to the Trustee as provided in Section 701
and the names and addresses of Holders of each series received by the
Trustee in its capacity as Security Registrar, if applicable. The Trustee
may destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished. The Trustee shall otherwise comply
with Section 310(a) of the Trust Indenture Act.
(b) Holders of Securities may communicate pursuant to Section 312(b)
the Trust Indenture Act with other Holders with respect to their rights
under this Indenture or under the Securities.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of
the Holders in accordance with Section 702(b), regardless of the source
from which such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a request
made under
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Section 702(b). The Company, the Trustee, the Security Registrar and any
other Person shall have the protection of Section 312(c) of the Trust
Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year after the execution of
this Indenture, the Trustee shall transmit by mail to Holders a brief
report dated as of such May 15 that complies with Section 313(a) of the
Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of the Trust
Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by mail as
required by Sections 313(c) and 313(d) of the Trust Indenture Act:
(1) to all Holders of Securities, as the names and addresses of
such Holders appear in the Security Register;
(2) to such Holders of Securities as have, within the two years
preceding such transmissions, filed their names and addresses with the
Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b) of
this Section, to each Holder of a Security whose name and address is
preserved at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of this
Section 703 shall, at the time of its transmission to Holders, be filed by
the Trustee with each stock exchange upon which any Securities are listed,
with the Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, and shall otherwise comply with Section 314(a)
of the Trust Indenture Act.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest on and any
Additional Amounts with respect to all the Securities and the performance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event, act or condition which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of such
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series), to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or otherwise secure any series of the Securities or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all or any
series of the Securities (and, if such Event of Default is applicable to
less than all series of Securities, specifying the series to which such
Event of Default is applicable); or
(4) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision; or
(5) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(6) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Section 401; provided,
however, that any such action shall not adversely affect the interest of
the Holders of Securities of such series or any other series of Securities
in any material respect; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such other provisions as
may be made shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of all series affected by such supplemental indenture
(acting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board
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Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon, any Additional Amounts with
respect thereto or any premium payable upon the redemption thereof, or
change any obligation of the Company to pay Additional Amounts (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of Payment where, or
the coin or currency or currencies (including composite currencies) in
which, any Security or any premium or any interest thereon or Additional
Amounts with respect thereto is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date) or modify the provisions of this Indenture with respect to the
subordination of any Security in a manner adverse to the Holder thereof, or
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, Section 512 or
Section 1007, except to increase any such percentage or to provide with
respect to any particular series the right to condition the effectiveness
of any supplemental indenture as to that series on the consent of the
Holders of a specified percentage of the aggregate principal amount of
Outstanding Securities of such series (which provision may be made pursuant
to Section 301 without the consent of any Holder) or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1007, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(7).
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any), interest on and any Additional Amounts with respect to the Securities
of that series in accordance with the terms of the Securities and this
Indenture.
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SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on or any Additional Amounts with
respect to any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest or any Additional Amounts so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, the Company will, on or before each due date of the
principal of (and premium, if any) or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any), interest on or any Additional Amounts with respect to
Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
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(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any), interest on or any Additional
Amounts with respect to the Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on or any Additional Amounts with respect to any Security of
any series and remaining unclaimed for three years after such principal (and
premium, if any) or interest or Additional Amounts have become due and payable
shall, unless otherwise required by mandatory provisions of applicable escheat,
or abandoned or unclaimed property law, be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in The Borough of Manhattan, The City of New York and in
such other Authorized Newspapers as the Trustee shall deem appropriate, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will, unless otherwise required
by mandatory provisions of applicable escheat, or abandoned or unclaimed
property law, be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1005. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof so long as any
Security is outstanding hereunder, an Officers' Certificate, complying with
Section 314(a) of the Trust Indenture Act, stating that a review of the
activities of the Company during such year and of performance under this
Indenture has been made under the supervision of the signers thereof and whether
or not to the best of their
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knowledge, based upon such review, the Company is in default in the performance,
observance or fulfillment of any of its covenants and other obligations under
this Indenture, and if the Company shall be in default, specifying each such
default known to them and the nature and status thereof. One of the officers
signing the Officers' Certificate delivered pursuant to this Section 1005 shall
be the principal executive, financial or accounting officer of the Company.
For purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 1005, or any covenant added for the
benefit of any series of Securities as contemplated by Section 301 (unless
otherwise specified pursuant to Section 301) if before or after the time for
such compliance the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by such omission (acting as one class) shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 1007. Additional Amounts.
If the Securities of a series expressly provide for the payment of
Additional Amounts, the Company will pay to the Holder of any Security of such
series Additional Amounts as expressly provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or the
net proceeds received from the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company shall furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any
such
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withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities and the Company will pay to such Paying Agent the
Additional Amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section 1007.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
Unless otherwise provided with respect to the Securities of a series
as contemplated by Section 301, the election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities of any series,
the Company shall, a reasonable period prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and that may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series or of the principal amount
of global Securities of such series.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
107 to each Holder of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
and
(7) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107 need not identify
particular Securities to be redeemed. Notice of redemption of Securities to be
redeemed at the election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or before 10:00 a.m., Houston, Texas time, on any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, and any Additional Amounts with respect to, all the
Securities which are to be redeemed on that date.
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SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
(and any Additional Amounts) to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security or, in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and Stated Maturity, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
SECTION 1108. Purchase of Securities.
Unless otherwise specified as contemplated by Section 301, the Company
and any Affiliate of the Company may at any time purchase or otherwise acquire
Securities in the open market or by private agreement. Such acquisition shall
not operate as or be deemed for any purpose to be a redemption of the
indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company may be delivered to the Trustee and, upon such delivery,
the indebtedness represented thereby shall be deemed to be satisfied. Section
309 shall apply to all Securities so delivered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". Unless otherwise provided by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking payment shall be
reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivery of or by crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. Securities Subordinated to Senior Indebtedness.
The Company and each Holder of a Security, by his acceptance thereof,
agree that (a) the payment of the principal of, premium (if any) and interest on
and any Additional Amounts with respect to each and all the Securities and (b)
any other payment in respect of the Securities, including on account of the
acquisition or redemption of Securities by the Company, is subordinated, to the
extent and in the manner provided in this Article Thirteen, to the prior payment
in full of all Senior Indebtedness of the Company, whether outstanding at the
date of this Indenture or thereafter created, incurred, assumed or guaranteed,
and that these subordination provisions are for the benefit of the holders of
Senior Indebtedness.
This Article Thirteen shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Indebtedness, and such provisions are made for the benefit of the
holders of Senior Indebtedness, and such holders are made obligees hereunder and
any one or more of them may enforce such provisions.
SECTION 1302. No Payment on Securities in Certain Circumstances.
(a) No payment shall be made by or on behalf of the Company on
account of the principal of, premium (if any) or interest on or any Additional
Amounts with respect to the Securities of any series or to acquire any of such
Securities (including any repurchases of such Securities pursuant to the
provisions hereof or thereof at the option of the Holder of such Securities) for
cash or property (other than Junior securities of the Company), or on account of
any redemption provisions of such Securities, in the event of default in payment
of any principal of, premium (if any) or interest on any Senior Indebtedness of
the Company when the same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration or otherwise (a "Payment Default"),
unless and until such Payment Default has been cured or waived or otherwise has
ceased to exist.
(b) No payment shall be made by or on behalf of the Company on
account of the principal of, premium (if any) or interest on or any Additional
Amounts with respect to the Securities of any series or to acquire any of such
Securities (including any repurchases of such Securities pursuant to the
provisions hereof or thereof at the option of the Holder of such Securities) for
cash or property (other than Junior securities of the Company), or on account of
any redemption provisions of such Securities, in the event of any event of
default (other than a Payment Default) with respect to any Designated Senior
Indebtedness permitting the holders of such Designated Senior Indebtedness (or a
trustee or other representative on behalf of the holders thereof) to declare
such Designated Senior Indebtedness due and payable prior to the date on which
it would otherwise have become due and payable, upon written notice thereof to
the Company and the Trustee by any holders of Designated Senior Indebtedness (or
a trustee or other representative on behalf of the holders thereof) (the
"Payment Notice"), unless and until such event of default shall have been cured
or waived or otherwise has ceased to exist; provided, that such payments may not
be prevented pursuant to this Section 1302(b) for more than 179 days after an
applicable Payment Notice has been received by the Trustee unless the Designated
Senior Indebtedness in respect of which such event of default exists has been
declared due and payable in its entirety, in which case no such payment may be
made until such acceleration has been rescinded or annulled or such Designated
Senior Indebtedness has been paid in full. No event of default that existed or
was continuing on the date of any Payment Notice (whether or not such event of
default is on the same issue of Designated Senior Indebtedness)
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may be made the basis for the giving of a second Payment Notice, and only one
such Payment Notice may be given in any 365-day period.
(c) In furtherance of the provisions of Section 1301, in the event
that, notwithstanding the foregoing provisions of this Section 1302, any payment
or distribution of assets of the Company (other than Junior securities of the
Company) shall be received by the Trustee or the Holders of Securities of any
series at a time when such payment or distribution was prohibited by the
provisions of this Section 1302, then, unless such payment or distribution is no
longer prohibited by this Section 1302, such payment or distribution (subject to
the provisions of Section 1307) shall be received and held in trust by the
Trustee or such Holder or Paying Agent for the benefit of the holders of Senior
Indebtedness of the Company, and shall be paid or delivered by the Trustee or
such Holders or such Paying Agent, as the case may be, to the holders of Senior
Indebtedness of the Company remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
of the Company may have been issued, ratably, according to the aggregate amounts
remaining unpaid on account of such Senior Indebtedness of the Company held or
represented by each, for application to the payment of all Senior Indebtedness
in full after giving effect to all concurrent payments and distributions to or
for the holders of such Senior Indebtedness.
SECTION 1303. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization.
Upon any distribution of assets of the Company or upon any
dissolution, winding up, total or partial liquidation or reorganization of the
Company, whether voluntary or involuntary, in bankruptcy, insolvency,
receivership or similar proceeding or upon assignment for the benefit of
creditors:
(a) the holders of all Senior Indebtedness of the Company shall first
be entitled to receive payments in full before the Holders of Securities of
any series are entitled to receive any payment on account of the principal
of, premium (if any) or interest on or any Additional Amounts with respect
to such Securities (other than Junior securities of the Company);
(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (other than Junior
securities of the Company), to which the Holders of Securities of any
series or the Trustee on behalf of such Holders would be entitled, except
for the provisions of this Article Thirteen, shall be paid by the
liquidating trustee or agent or other Person making such a payment or
distribution directly to the holders of such Senior Indebtedness or their
representative, ratably according to the respective amounts of Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full of all such Senior Indebtedness remaining unpaid after
giving effect to all concurrent payments and distributions to the holders
of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities (other than Junior securities of the Company),
shall be received by the Trustee or the Holders of Securities of any series
or any Paying Agent (or, if the Company or any Affiliate of the
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Company is acting as its own Paying Agent, money for any such payment or
distribution shall be segregated or held in trust) on account of the
principal of, premium (if any) or interest on or any Additional Amounts
with respect to the Securities of such series before all Senior
Indebtedness of the Company is paid in full, such payment or distribution
(subject to the provisions of Section 1307) shall be received and held in
trust by the Trustee or such Holder or Paying Agent for the benefit of the
holders of such Senior Indebtedness, or their respective representatives,
ratably according to the respective amounts of such Senior Indebtedness
held or represented by each, to the extent necessary to make payment as
provided herein of all such Senior Indebtedness remaining unpaid after
giving effect to all concurrent payments and distributions and all
provisions therefor to or for the holders of such Senior Indebtedness, but
only to the extent that as to any holder of such Senior Indebtedness, as
promptly as practical following notice from the Trustee to the holders of
such Senior Indebtedness that such prohibited payment has been received by
the Trustee, Holder(s) or Paying Agent (or has been segregated as provided
above), such holder (or a representative therefor) notifies the Trustee of
the amounts then due and owing on such Senior Indebtedness, if any, held by
such holder and only the amounts specified in such notices to the Trustee
shall be paid to the holders of such Senior Indebtedness.
SECTION 1304. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness of the
Company as provided herein, the Holders of the Securities shall be subrogated
(to the extent of the payments or distributions made to the holders of such
Senior Indebtedness pursuant to the provisions of this Article) to the rights of
the holders of such Senior Indebtedness to receive payments or distributions of
assets of the Company applicable to the Senior Indebtedness until all amounts
owing on the Securities shall be paid in full. For the purpose of such
subrogation, no such payments or distributions to the holders of such Senior
Indebtedness by the Company, or by or on behalf of the Holders of the Securities
by virtue of this Article Thirteen, which otherwise would have been made to such
Holders shall, as between the Company and such Holders, be deemed to be payment
by the Company or on account of such Senior Indebtedness, it being understood
that the provisions of this Article Thirteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities, on the
one hand, and the holders of such Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders of the Securities
would otherwise have been entitled but for the provisions of this Article
Thirteen shall have been applied, pursuant to the provisions of this Article
Thirteen, to the payment of amounts payable under Senior Indebtedness of the
Company, then such Holders shall be entitled to receive from the holders of such
Senior Indebtedness any payments or distributions received by such holders of
Senior Indebtedness in excess of the amount sufficient to pay all amounts
payable under or in respect of such Senior Indebtedness in full.
SECTION 1305. Obligations of the Company Unconditional.
Nothing contained in this Article Thirteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company and the Holders of the Securities
63
<PAGE>
of any series, the obligation of the Company, which is absolute and
unconditional, to pay to such Holders the principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of such
series as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of such
Holders and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
Thirteen, of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article Thirteen or elsewhere
in this Indenture or in the Securities, upon any distribution of assets of the
Company referred to in this Article Thirteen, the Trustee, subject to the
provisions of Sections 601 and 603, and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other Person making any distribution to the Trustee or to
such Holders for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Thirteen so long as such court has been apprised of the
provisions of, or the order, decree or certificate makes reference to, the
provisions of this Article Thirteen.
SECTION 1306. Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts that would prohibit the making of any payment to or by
the Trustee unless and until a Responsible Officer of the Trustee or any Paying
Agent shall have received, no later than two Business Days prior to such
payment, written notice thereof from the Company or from one or more holders of
Senior Indebtedness or from any representative therefor and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Sections 601 and 603, shall be entitled in all respects conclusively to assume
that no such fact exists.
SECTION 1307. Application by Trustee of Amounts Deposited with It.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article Four shall be for the sole benefit of Holders of the
Securities of series for the benefit of which such amounts were deposited, and,
to the extent allocated for the payment of Securities of such series, shall not
be subject to the subordination provisions of this Article Thirteen. Otherwise,
any deposit of assets with the Trustee or the Paying Agent (whether or not in
trust) for the payment of principal of, premium (if any) or interest on or any
Additional Amounts with respect to any Securities shall be subject to the
provisions of Sections 1301, 1302, 1303 and 1304; provided that if prior to two
Business Days preceding the date on which by the terms of this Indenture any
such assets may become distributable for any purpose (including without
limitation, the payment of either principal of, premium (if any) or interest on
or any Additional Amounts with respect to any Security), the Trustee or such
Paying Agent shall not have received with respect to such assets the written
notice provided for in Section 1306, then the Trustee or such Paying Agent shall
have full power and authority to receive such assets and to apply the same to
the purpose for which they were
64
<PAGE>
received, and shall not be affected by any notice to the contrary that may be
received by it on or after such date; and provided further that nothing
contained in this Article Thirteen shall prevent the Company from making, or the
Trustee from receiving or applying, any payment in connection with the
redemption of Securities if the first publication of notice of such redemption
(whether by mail or otherwise in accordance with this Indenture) has been made,
and the Trustee has received such payment from the Company, prior to the
occurrence of any of the contingencies specified in Section 1302 or 1303.
SECTION 1308. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness
to enforce subordination provisions contained in this Article Thirteen shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with. The holders of Senior Indebtedness may extend,
renew, modify or amend the terms of the Senior Indebtedness or any security
therefor and release, sell or exchange such security and otherwise deal freely
with the Company, all without affecting the liabilities and obligations of the
parties to this Indenture or the Holders of the Securities.
SECTION 1309. Trustee to Effectuate Subordination of Securities.
Each Holder of a Security by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained in
this Article Thirteen and to protect the rights of the Holders of the Securities
pursuant to this Indenture, and appoints the Trustee his attorney-in-fact for
such purpose, including, in the event of any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of creditors
of the Company), the filing of a claim for the unpaid balance of his Securities
in the form required in said proceedings and cause said claim to be approved.
If the Trustee does not file a proper claim or proof of debt in the form
required in such proceeding prior to 30 days before the expiration of the time
to file such claim or claims, then the holders of the Senior Indebtedness or
their representative is hereby authorized to have the right to file and is
hereby authorized to file an appropriate claim for and on behalf of the Holders
of said Securities. Nothing herein contained shall be deemed to authorize the
Trustee or the holders of Senior Indebtedness or their representative to
authorize or consent to or accept or adopt on behalf of any Holder of Securities
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee or
the holders of Senior Indebtedness or their representative to vote in respect of
the claim of any Holder of the Securities in any such proceeding.
SECTION 1310. Right of Trustee to Hold Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all of the
rights set forth in this Article Thirteen in respect of any Senior Indebtedness
at any time held by it to the same extent
65
<PAGE>
as any other holder of Senior Indebtedness, and nothing in this Indenture shall
be construed to deprive the Trustee of any of its rights as such holder.
SECTION 1311. Article Thirteen Not to Prevent Events of Default.
The failure to make a payment on account of principal of or premium
(if any) or interest on the Securities by reason of any provision of this
Article Thirteen shall not be construed as preventing the occurrence of a
Default or an Event of Default under Section 501 or in any way prevent the
Holders of the Securities from exercising any right hereunder other than the
right to receive payment on the Securities.
SECTION 1312. No Fiduciary Duty of Trustee to Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of the Securities or the
Company or any other Person, cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article Thirteen or
otherwise. Nothing in this Section 1312 shall affect the obligation of any other
such Person to hold such payment for the benefit of, and to pay such payment
over to, the holders of Senior Indebtedness or their representative.
SECTION 1313. Article Applicable to Paying Agent.
In case at any time any Payment Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article Thirteen shall in such case (unless the
context shall otherwise require) be construed as extending to and including such
Payment Agent within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that this Section 1313 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be called
at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
66
<PAGE>
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to be held
at such time and at such place in Houston, Texas, in New York, New York or in
any other location, as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 107, not less than 20
nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of any series, shall have requested the Trustee for any such series
to call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1401, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 30 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine the
time and the place in Houston, Texas, in New York, New York, in London, England,
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in Subsection (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1405(d), notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1402(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly that Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series shall constitute a quorum.
67
<PAGE>
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent or waiver which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage that is less
than a majority in aggregate principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in aggregate principal amount of the Outstanding
Securities of that series.
Except as limited by the proviso to Section 902, any resolution passed
or decision taken at any meeting of Holders of Securities of any series duly
held in accordance with this Section shall be binding on all the Holders of
Securities of such series, whether or not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the manner specified
in Section 105 and the appointment of any proxy shall be proved in the
manner specified in Section 105. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 105 or other
proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1402(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Security of such series and each
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or as a
proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without further
notice.
68
<PAGE>
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
TRANSOCEAN OFFSHORE INC.
By
-------------------------------------
Name:
Title:
______________________________, Trustee
By
-------------------------------------
Name:
Title:
69
<PAGE>
EXHIBIT 5
July 13, 1998
Transocean Offshore Inc.
4 Greenway Plaza
Houston, Texas 77046
Gentlemen:
As set forth in a Registration Statement on Form S-3 to be filed with the
Securities and Exchange Commission (the "Commission") on July 13, 1998 (the
"Registration Statement") by Transocean Offshore Inc., a Delaware corporation
(the "Company"), under the Securities Act of 1993, as amended (the "Act"),
relating to (i) unsecured debt securities consisting of notes, debentures or
other evidences of indebtedness (the "Debt Securities"), in one or more series,
which may be convertible into or exchangeable for shares of common stock, par
value $0.01 per share (the "Common Stock"), shares of preferred stock, par value
$0.10 per share (the "Preferred Stock") or other Debt Securities; (ii) Preferred
Stock, in one or more series, which may be convertible into or exchangeable for
Common Stock, Preferred Stock or Debt Securities; (iii) warrants to purchase
Debt Securities, Preferred Stock, Common Stock or other securities (the
"Warrants"); and (iv) Common Stock (collectively, the "Securities"), to be
issued and sold by the Company from time to time pursuant to Rule 415 under the
Act for an aggregate initial offering price not to exceed $450,000,000, certain
legal matters in connection with the Securities are being passed upon by me.
I am Vice President and General Counsel of the Company. In such capacity, I
have examined (i) the Restated Certificate of Incorporation and By-Laws of the
Company, each as amended to date (the "Charter Documents"); (ii) the Indenture
dated as of April 15, 1997 (the "Senior Indenture") between the Company and
Chase Bank of Texas, National Association, as trustee, pursuant to which Debt
Securities may be issued; (iii) the Indenture (the "Subordinated Indenture" and,
together with the Senior Indenture, the "Indentures") in the form of Exhibit 4.3
to the Registration Statement to be executed by the Company and the Subordinated
Trustee (as defined in the Registration Statement), pursuant to which
subordinated Debt Securities may be issued; and (iv) the originals, or copies
certified or otherwise identified, of corporate records of the Company,
certificates of public officials and of representatives of the Company, statutes
and other instruments and documents as a basis for the opinions hereafter
expressed.
In connection with this opinion, I have assumed that (i) the Registration
Statement, and any amendments thereto (including post-effective amendments),
will have become effective; (ii) a
<PAGE>
prospectus supplement will have been prepared and filed with the Commission
describing the Securities offered thereby; (iii) all Securities will be issued
and sold in compliance with applicable federal and state securities laws and in
the manner stated in the Registration Statement and the appropriate prospectus
supplement; (iv) a definitive purchase, underwriting or similar agreement with
respect to any Securities offered, and a warrant agreement with respect to any
Warrants offered, will have been duly authorized and validly executed and
delivered by the Company and the other parties thereto; and (v) with respect to
shares of Common Stock or Preferred Stock offered, there will be sufficient
shares of Common Stock or Preferred Stock authorized for issuance by the Board
of Directors of the Company under the Company's Charter Documents.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized and validly existing in good
standing under the laws of the State of Delaware.
2. With respect to shares of Common Stock, when (i) the Board of Directors of
the Company or, to the extent permitted by Section 141(c) of the General
Corporation Law of the State of Delaware, a duly constituted and acting
committee thereof (such Board of Directors or committee being hereinafter
referred to as the "Board"), has taken all necessary corporate action to
approve the issuance of and the terms of the offering of the shares of
Common Stock and related matters; and (ii) certificates representing the
shares of Common Stock have been duly executed, countersigned, registered
and delivered in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board (a) upon payment of
the consideration therefor (not less than the par value of the Common
Stock) provided for therein, or (b) in the case of shares of Common Stock
issuable upon conversion or exchange of Debt Securities or Preferred Stock
which, by their respective terms, are convertible into or exchangeable for
Common Stock, as contemplated by the applicable definitive purchase,
underwriting or similar agreement, upon payment of any additional
consideration that is payable upon such conversion or exchange, the shares
of Common Stock will be duly authorized, validly issued, fully paid and
non-assessable.
3. With respect to Debt Securities to be issued under the Indentures, when (i)
the applicable Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended; (ii) the Board has taken all necessary corporate
action to approve the issuance and terms of such Debt Securities, the terms
of the offering thereof and related matters; and (iii) such Debt Securities
have been duly executed, authenticated, issued and delivered in accordance
with the provisions of the applicable Indenture and the applicable
definitive purchase, underwriting or similar agreement approved by the
Board (a) upon payment of the consideration therefor provided for therein,
or (b) in the case of Debt Securities issuable upon conversion or exchange
of Debt Securities or Preferred Stock which, by their respective terms, are
convertible into or exchangeable for Debt Securities or upon exercise of
Warrants to purchase Debt Securities, in each case as contemplated by the
applicable Indenture and the applicable definitive warrant, purchase,
underwriting or similar agreement approved by the
2
<PAGE>
Board upon payment of any additional consideration that is payable upon
such conversion, exchange or exercise, such Debt Securities will be legally
issued and will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
such enforcement is subject to (i) any applicable bankruptcy, insolvency,
reorganization or other law relating to or affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
4. With respect to shares of Preferred Stock, when (i) the Board has taken all
necessary corporate action to approve the issuance of and the terms of the
offering of the shares of Preferred Stock and related matters; (ii) a
series of Preferred Stock has been duly authorized and established in
accordance with the Company's Charter Documents and applicable law; and
(iii) certificates representing the shares of Preferred Stock have been
duly executed, countersigned, registered and delivered in accordance with
the applicable definitive purchase, underwriting or similar agreement
approved by the Board (a) upon payment of the consideration therefor (not
less than the par value of the Preferred Stock) provided for therein, or
(b) in the case of Preferred Stock issuable upon conversion or exchange of
Debt Securities or Preferred Stock which, by their respective terms, are
convertible into or exchangeable for Common Stock or upon exercise of
Warrants to purchase Preferred Stock, in each case as contemplated by the
applicable definitive warrant, purchase, underwriting or similar agreement,
upon payment of any additional consideration that is payable upon such
conversion, exchange or exercise, the shares of Preferred Stock will be
duly authorized, validly issued, fully paid and non-assessable.
5. With respect to Warrants, when (i) the Board has taken all necessary
corporate action to approve the issuance of and the terms of the offering
of the Warrants and related matters; (ii) a warrant agreement shall have
been duly authorized, executed and delivered by the Company and the
financial institution designated as warrant agent thereunder; and (iii) the
certificates representing the Warrants have been duly executed,
countersigned, registered and delivered in accordance with the applicable
definitive warrant, purchase, underwriting or similar agreement approved by
the Board upon payment of the consideration therefor, the Warrants will be
duly authorized and validly issued.
This opinion is limited to the applicable laws of the State of New York, the
corporate law of the State of Delaware and the applicable federal laws of the
United States.
3
<PAGE>
I hereby consent to the filing of this opinion of counsel as Exhibit 5 to the
Registration Statement. I also consent to the reference to me under the heading
"Legal Matters" in the prospectus forming a part of the Registration Statement.
In giving this consent, I do not thereby admit that I am in the category of
persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Eric B. Brown
--------------------------
Eric B. Brown
4
<PAGE>
EXHIBIT 12
TRANSOCEAN OFFSHORE INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS, EXCEPT RATIO AMOUNTS)
<TABLE>
<CAPTION>
QUARTER ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
---------------- ------------------------------------------
1998 1997 1997 1996 1995 1994 1993
-------- ------- -------- -------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income before income
taxes and cumulative
effect of accounting
change............... $110,014 $40,749 $207,245 $121,652 $75,149 $20,239 $41,074
Less:
Undistributed equity
in earnings (losses)
of joint ventures.... 2,366 2,442 10,431 5,659 1,839 (339) (868)
Interest capitalized
during the period.... 6,643 2,829 18,165 3,482 -- -- --
Add:
Distributed earnings
of less-than-fifty-
percent owned joint
venture.............. 3,338 -- -- 3,563 -- -- --
Interest expense...... 13,750 7,631 41,018 10,702 2,519 2,027 8,514
Interest component of
rental expense....... 638 600 2,552 764 612 789 986
-------- ------- -------- -------- ------- ------- -------
Earnings as
adjusted........... $118,731 $43,709 $222,219 $127,540 $76,441 $23,394 $51,442
======== ======= ======== ======== ======= ======= =======
Fixed Charges:
Interest costs,
including capitalized
interest............. $ 13,750 $ 7,631 $ 41,018 $ 10,702 $ 2,519 $ 2,027 $ 8,514
Interest component of
rental expense....... 638 600 2,552 764 612 789 986
-------- ------- -------- -------- ------- ------- -------
Fixed charges....... $ 14,388 $ 8,231 $ 43,570 $ 11,466 $ 3,131 $ 2,816 $ 9,500
======== ======= ======== ======== ======= ======= =======
Ratio of earnings to
fixed charges.......... 8.3 5.3 5.1 11.1 24.4 8.3 5.4
======== ======= ======== ======== ======= ======= =======
</TABLE>
<PAGE>
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333- ) of Transocean Offshore Inc. for
the registration of $450 million in debt securities, preferred stock, common
stock and warrants and to the incorporation by reference therein of our report
dated February 6, 1998, except for Note 18 as to which the date is March 18,
1998, with respect to the consolidated financial statements of Transocean
Offshore Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Houston, Texas
July 9, 1998
<PAGE>
EXHIBIT 24
TRANSOCEAN OFFSHORE INC.
Power of Attorney
WHEREAS, TRANSOCEAN OFFSHORE INC., a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), a
Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including post-
effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, together with any and all exhibits and other documents relating to
the Registration Statement, in each case as may be necessary or appropriate in
connection with the registration of securities of the Company, including debt
securities, shares of preferred stock, par value $.10 per share, warrants to
purchase debt securities or preferred stock and shares of common stock, par
value $.01 per share, of the Company;
NOW THEREFORE, the undersigned in his capacity as a director or officer or
both, as the case may be, of the Company, does hereby appoint J. Michael
Talbert, Robert L. Long, Eric B. Brown and Barbara S. Koucouthakis, and each of
them severally, his true and lawful attorney or attorneys with power to act with
or without the other, and with full power of substitution and resubstitution, to
execute in his name, place and stead, in his capacity as director, officer or
both, as the case may be, of the Company, the Registration Statement, including
the exhibits thereto and the prospectus or prospectuses referred to above, and
any and all amendments thereto (including post-effective amendments) and any
supplement or supplements thereto and any and all instruments necessary or
incidental in connection therewith, as said attorney or attorneys shall deem
necessary or incidental in connection therewith, and to file the same with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Each of said attorneys shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts that
said attorneys and each of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as
of the 26th day of June, 1998.
/s/ W. Dennis Heagney
<PAGE>
TRANSOCEAN OFFSHORE INC.
Power of Attorney
WHEREAS, TRANSOCEAN OFFSHORE INC., a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), a
Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including post-
effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, together with any and all exhibits and other documents relating to
the Registration Statement, in each case as may be necessary or appropriate in
connection with the registration of securities of the Company, including debt
securities, shares of preferred stock, par value $.10 per share, warrants to
purchase debt securities or preferred stock and shares of common stock, par
value $.01 per share, of the Company;
NOW THEREFORE, the undersigned in his capacity as a director or officer or
both, as the case may be, of the Company, does hereby appoint J. Michael
Talbert, Robert L. Long, Eric B. Brown and Barbara S. Koucouthakis, and each of
them severally, his true and lawful attorney or attorneys with power to act with
or without the other, and with full power of substitution and resubstitution, to
execute in his name, place and stead, in his capacity as director, officer or
both, as the case may be, of the Company, the Registration Statement, including
the exhibits thereto and the prospectus or prospectuses referred to above, and
any and all amendments thereto (including post-effective amendments) and any
supplement or supplements thereto and any and all instruments necessary or
incidental in connection therewith, as said attorney or attorneys shall deem
necessary or incidental in connection therewith, and to file the same with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Each of said attorneys shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts that
said attorneys and each of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as
of the 13th day of March, 1997.
/s/ Richard D. Kinder
<PAGE>
TRANSOCEAN OFFSHORE INC.
Power of Attorney
WHEREAS, TRANSOCEAN OFFSHORE INC., a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), a
Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including post-
effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, together with any and all exhibits and other documents relating to
the Registration Statement, in each case as may be necessary or appropriate in
connection with the registration of securities of the Company, including debt
securities, shares of preferred stock, par value $.10 per share, warrants to
purchase debt securities or preferred stock and shares of common stock, par
value $.01 per share, of the Company;
NOW THEREFORE, the undersigned in his capacity as a director or officer or
both, as the case may be, of the Company, does hereby appoint J. Michael
Talbert, Robert L. Long, Eric B. Brown and Barbara S. Koucouthakis, and each of
them severally, his true and lawful attorney or attorneys with power to act with
or without the other, and with full power of substitution and resubstitution, to
execute in his name, place and stead, in his capacity as director, officer or
both, as the case may be, of the Company, the Registration Statement, including
the exhibits thereto and the prospectus or prospectuses referred to above, and
any and all amendments thereto (including post-effective amendments) and any
supplement or supplements thereto and any and all instruments necessary or
incidental in connection therewith, as said attorney or attorneys shall deem
necessary or incidental in connection therewith, and to file the same with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Each of said attorneys shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts that
said attorneys and each of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as
of the 13th day of March, 1997.
/s/ Ronald L. Kuehn, Jr.
<PAGE>
TRANSOCEAN OFFSHORE INC.
Power of Attorney
WHEREAS, TRANSOCEAN OFFSHORE INC., a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), a
Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including post-
effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, together with any and all exhibits and other documents relating to
the Registration Statement, in each case as may be necessary or appropriate in
connection with the registration of securities of the Company, including debt
securities, shares of preferred stock, par value $.10 per share, warrants to
purchase debt securities or preferred stock and shares of common stock, par
value $.01 per share, of the Company;
NOW THEREFORE, the undersigned in his capacity as a director or officer or
both, as the case may be, of the Company, does hereby appoint J. Michael
Talbert, Robert L. Long, Eric B. Brown and Barbara S. Koucouthakis, and each of
them severally, his true and lawful attorney or attorneys with power to act with
or without the other, and with full power of substitution and resubstitution, to
execute in his name, place and stead, in his capacity as director, officer or
both, as the case may be, of the Company, the Registration Statement, including
the exhibits thereto and the prospectus or prospectuses referred to above, and
any and all amendments thereto (including post-effective amendments) and any
supplement or supplements thereto and any and all instruments necessary or
incidental in connection therewith, as said attorney or attorneys shall deem
necessary or incidental in connection therewith, and to file the same with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Each of said attorneys shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts that
said attorneys and each of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as
of the 20th day of March, 1997.
/s/ Robert J. Lanigan
<PAGE>
TRANSOCEAN OFFSHORE INC.
Power of Attorney
WHEREAS, TRANSOCEAN OFFSHORE INC., a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), a
Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including post-
effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, together with any and all exhibits and other documents relating to
the Registration Statement, in each case as may be necessary or appropriate in
connection with the registration of securities of the Company, including debt
securities, shares of preferred stock, par value $.10 per share, warrants to
purchase debt securities or preferred stock and shares of common stock, par
value $.01 per share, of the Company;
NOW THEREFORE, the undersigned in his capacity as a director or officer or
both, as the case may be, of the Company, does hereby appoint J. Michael
Talbert, Robert L. Long, Eric B. Brown and Barbara S. Koucouthakis, and each of
them severally, his true and lawful attorney or attorneys with power to act with
or without the other, and with full power of substitution and resubstitution, to
execute in his name, place and stead, in his capacity as director, officer or
both, as the case may be, of the Company, the Registration Statement, including
the exhibits thereto and the prospectus or prospectuses referred to above, and
any and all amendments thereto (including post-effective amendments) and any
supplement or supplements thereto and any and all instruments necessary or
incidental in connection therewith, as said attorney or attorneys shall deem
necessary or incidental in connection therewith, and to file the same with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Each of said attorneys shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts that
said attorneys and each of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as
of the 13th day of March, 1997.
/s/ Fridtjof Lorentzen
<PAGE>
TRANSOCEAN OFFSHORE INC.
Power of Attorney
WHEREAS, TRANSOCEAN OFFSHORE INC., a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), a
Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including post-
effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, together with any and all exhibits and other documents relating to
the Registration Statement, in each case as may be necessary or appropriate in
connection with the registration of securities of the Company, including debt
securities, shares of preferred stock, par value $.10 per share, warrants to
purchase debt securities or preferred stock and shares of common stock, par
value $.01 per share, of the Company;
NOW THEREFORE, the undersigned in his capacity as a director or officer or
both, as the case may be, of the Company, does hereby appoint J. Michael
Talbert, Robert L. Long, Eric B. Brown and Barbara S. Koucouthakis, and each of
them severally, his true and lawful attorney or attorneys with power to act with
or without the other, and with full power of substitution and resubstitution, to
execute in his name, place and stead, in his capacity as director, officer or
both, as the case may be, of the Company, the Registration Statement, including
the exhibits thereto and the prospectus or prospectuses referred to above, and
any and all amendments thereto (including post-effective amendments) and any
supplement or supplements thereto and any and all instruments necessary or
incidental in connection therewith, as said attorney or attorneys shall deem
necessary or incidental in connection therewith, and to file the same with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Each of said attorneys shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts that
said attorneys and each of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as
of the 13th day of March, 1997.
/s/ Max L. Lukens
<PAGE>
TRANSOCEAN OFFSHORE INC.
Power of Attorney
WHEREAS, TRANSOCEAN OFFSHORE INC., a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), a
Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including post-
effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, together with any and all exhibits and other documents relating to
the Registration Statement, in each case as may be necessary or appropriate in
connection with the registration of securities of the Company, including debt
securities, shares of preferred stock, par value $.10 per share, warrants to
purchase debt securities or preferred stock and shares of common stock, par
value $.01 per share, of the Company;
NOW THEREFORE, the undersigned in his capacity as a director or officer or
both, as the case may be, of the Company, does hereby appoint J. Michael
Talbert, Robert L. Long, Eric B. Brown and Barbara S. Koucouthakis, and each of
them severally, his true and lawful attorney or attorneys with power to act with
or without the other, and with full power of substitution and resubstitution, to
execute in his name, place and stead, in his capacity as director, officer or
both, as the case may be, of the Company, the Registration Statement, including
the exhibits thereto and the prospectus or prospectuses referred to above, and
any and all amendments thereto (including post-effective amendments) and any
supplement or supplements thereto and any and all instruments necessary or
incidental in connection therewith, as said attorney or attorneys shall deem
necessary or incidental in connection therewith, and to file the same with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Each of said attorneys shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts that
said attorneys and each of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as
of the 13th day of March, 1997.
/s/ Martin B. McNamara
<PAGE>
TRANSOCEAN OFFSHORE INC.
Power of Attorney
WHEREAS, TRANSOCEAN OFFSHORE INC., a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), a
Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including post-
effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, together with any and all exhibits and other documents relating to
the Registration Statement, in each case as may be necessary or appropriate in
connection with the registration of securities of the Company, including debt
securities, shares of preferred stock, par value $.10 per share, warrants to
purchase debt securities or preferred stock and shares of common stock, par
value $.01 per share, of the Company;
NOW THEREFORE, the undersigned in his capacity as a director or officer or
both, as the case may be, of the Company, does hereby appoint J. Michael
Talbert, Robert L. Long, Eric B. Brown and Barbara S. Koucouthakis, and each of
them severally, his true and lawful attorney or attorneys with power to act with
or without the other, and with full power of substitution and resubstitution, to
execute in his name, place and stead, in his capacity as director, officer or
both, as the case may be, of the Company, the Registration Statement, including
the exhibits thereto and the prospectus or prospectuses referred to above, and
any and all amendments thereto (including post-effective amendments) and any
supplement or supplements thereto and any and all instruments necessary or
incidental in connection therewith, as said attorney or attorneys shall deem
necessary or incidental in connection therewith, and to file the same with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Each of said attorneys shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts that
said attorneys and each of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as
of the 13th day of March, 1997.
/s/ Kristian Siem
<PAGE>
EXHIBIT 25.1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ____
----------------------
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
74-0800980
(I.R.S. Employer Identification Number)
712 MAIN STREET, HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip code)
LEE BOOCKER, 712 MAIN STREET, 26TH FLOOR
HOUSTON, TEXAS 77002 (713) 216-2448
(Name, address and telephone number of agent for service)
TRANSOCEAN OFFSHORE INC.
(Exact name of obligor as specified in its charter)
DELAWARE 72-0464868
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
4 GREENWAY PLAZA
HOUSTON, TEXAS 77046
(Address of principal executive offices) (Zip code)
DEBT SECURITIES
(Title of indenture securities)
================================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee. (See Note on Page 7.)
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEE.
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(a) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER
INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
1
<PAGE>
ITEM 4. (CONTINUED)
(b) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE
CLAIM THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION
310(b)(1) OF THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY
SUCH OTHER INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE
SECURITIES WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH
OTHER INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICER OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR REPRESENTATIVE
OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON
HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN IN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY COL. C
- ------------- -------------- ------------ ------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
2
<PAGE>
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN IN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY COL. C
- ------------- -------------- ------------ ------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO THE SECURITIES OF THE OBLIGOR
OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY
THE TRUSTEE.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
WHETHER THE BENEFICIALLY OR
SECURITIES HELD AS COLLATERAL PERCENT OF
ARE VOTING SECURITY FOR REPRESENTED BY
OR NONVOTING OBLIGATIONS IN AMOUNT GIVEN IN
TITLE OF CLASS SECURITIES DEFAULT COL. C
- -------------- ---------- ------------ ------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
3
<PAGE>
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR, FURNISH
THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH UNDERWRITER ANY
OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR PERCENT OF
HELD AS COLLATERAL CLASS
NAME OF ISSUER SECURITY FOR REPRESENTED BY
AND AMOUNT OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
- -------------- ----------- ------------------ ---------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE (1) OWNS 10% OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR OR (2)
IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH THE FOLLOWING
INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR PERCENT OF
HELD AS COLLATERAL CLASS
NAME OF ISSUER SECURITY FOR REPRESENTED BY
AND AMOUNT OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
- -------------- ----------- ------------------ ---------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
4
<PAGE>
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50% OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE
TRUSTEE, OWNS 50% OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR, FURNISH THE
FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OR SUCH PERSON ANY OF WHICH
ARE SO OWNED OR HELD BY THE TRUSTEE.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR PERCENT OF
HELD AS COLLATERAL CLASS
NAME OF ISSUER SECURITY FOR REPRESENTED BY
AND AMOUNT OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
- -------------- ----------- ------------------ ---------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
------------ ----------- --------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(a) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not, nor has there been, a default with respect to the securities
under this indenture. (See Note on Page 7.)
5
<PAGE>
ITEM 13. (CONTINUED)
(b) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There has not been a default under any such indenture or series. (See Note
on Page 7.)
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED
UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF
ELIGIBILITY.
. 1. A copy of the articles of association of the trustee now in
effect.
# 2. A copy of the certificate of authority of the trustee to commence
business.
* 3. A copy of the certificate of authorization of the trustee to
exercise corporate trust powers issued by the Board of Governors of
the Federal Reserve System under date of January 21, 1948.
+ 4. A copy of the existing bylaws of the trustee.
5. Not applicable.
6
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6. The consent of the United States institutional trustees required
by Section 321(b) of the Act.
[_] 7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
NOTE REGARDING INCORPORATED EXHIBITS
Effective January 20, 1998, the name of the Trustee was changed from Texas
Commerce Bank National Association to Chase Bank of Texas, National Association.
The exhibits incorporated herein by reference, except for Exhibit 7, were filed
under the former name of the Trustee.
. Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to the
Form S-3 File No. 33-56195.
# Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to the
Form S-3 File No. 33-42814.
* Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to the
Form S-11 File No. 33-25132.
+ Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to the
Form S-3 File No. 33-65055.
[_] Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to the
Form S-3 File No. 333-52197.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Items 2 and 13, the
answers to said Items are based on incomplete information. Such Items may,
however, be considered as correct unless amended by an amendment to this
Form T-1.
7
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SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939 THE
TRUSTEE, CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, FORMERLY KNOWN AS TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, A NATIONAL BANKING ASSOCIATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, HAS DULY CAUSED THIS
STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO AUTHORIZED, ALL IN THE CITY OF HOUSTON, AND STATE OF TEXAS, ON
THE 13TH DAY OF JULY, 1998.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, AS TRUSTEE
By: /s/ Rebecca A. Newman
------------------------------------
Rebecca A. Newman
Vice President and Trust Officer
8
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EXHIBIT 6
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
The undersigned is trustee under an Indenture between Transocean Offshore,
Inc., a Delaware corporation (the "Company"), and Chase Bank of Texas, National
Association, as Trustee, entered into in connection with the issuance of the
Company's Debt Securities.
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned hereby consents that reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Rebecca A. Newman
--------------------------------
Rebecca A. Newman
Vice President and Trust Officer
