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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 20, 1997
ENSCO INTERNATIONAL INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 1-8097 76-0232579
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
2700 FOUNTAIN PLACE
1445 ROSS AVENUE
DALLAS, TEXAS 75202-2792
(Address of principal executive offices) (ZIP Code)
Registrant's telephone number, including area code: (214) 922-1500
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ITEM 5. OTHER EVENTS.
On November 20, 1997, ENSCO International Incorporated, a Delaware corporation
(the "Company"), sold $150,000,000 aggregate principal amount of its 6.75% Notes
due November 15, 2007 (the "Notes") and $150,000,000 aggregate principal amount
of its 7.20% Debentures due November 15, 2027 (the "Debentures") under its
registration statement on Form S-3 (No. 333-37897), which became effective on
November 5, 1997 (the "Registration Statement"). This Current Report on Form 8-
K is being filed for the purpose of filing as exhibits the Underwriting
Agreement, the Pricing Agreement, the Indenture, the First Supplemental
Indenture, the form of Note, the form of Debenture, the Opinion of Baker &
McKenzie, the Form T-1 of Bankers Trust Company and the Prospectus Supplement
listed in Item 7(c) hereof in connection with the Registration Statement and the
public offering of the Notes and the Debentures.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
Exhibit No. Description.
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1.1 Underwriting Agreement dated November 20, 1997 executed by the
Company
1.2 Pricing Agreement dated November 20, 1997 between the Company and
Goldman, Sachs & Co. on behalf of itself, Credit Suisse First
Boston Corporation, Salomon Brothers Inc and BT Alex. Brown
Incorporated
4.1 Indenture, dated as of November 20, 1997, between the Company and
Bankers Trust Company, as Trustee
4.2 First Supplemental Indenture dated as of November 20, 1997
between the Company and Bankers Trust Company, as trustee,
supplementing the Indenture dated as of November 20, 1997
4.3 Form of Note
4.4 Form of Debenture
5.1 Opinion of Baker & McKenzie
25.1 Form T-1 of Bankers Trust Company
99.1 Prospectus Supplement of the Company dated November 20, 1997
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
ENSCO INTERNATIONAL INCORPORATED
Date: November 24, 1997 By: /s/ C. Christopher Gaut
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C. Christopher Gaut
Vice President - Finance and
Chief Financial Officer
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EXHIBIT INDEX
Exhibit No. Description.
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1.1 Underwriting Agreement dated November 20, 1997 executed by the
Company
1.2 Pricing Agreement dated November 20, 1997 between the Company and
Goldman, Sachs & Co. on behalf of itself, Credit Suisse First
Boston Corporation, Salomon Brothers Inc and BT Alex. Brown
Incorporated
4.1 Indenture, dated as of November 20, 1997, between the Company and
Bankers Trust Company, as Trustee
4.2 First Supplemental Indenture dated as of November 20, 1997
between the Company and Bankers Trust Company, as trustee,
supplementing the Indenture dated as of November 20, 1997
4.3 Form of Note
4.4 Form of Debenture
5.1 Opinion of Baker & McKenzie
25.1 Form T-1 of Bankers Trust Company
99.1 Prospectus Supplement of the Company dated November 20, 1997
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EXHIBIT 1.1
ENSCO INTERNATIONAL INCORPORATED
DEBT SECURITIES
---------------------------------
UNDERWRITING AGREEMENT
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November 20, 1997.
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time ENSCO International Incorporated, a Delaware corporation
(the "Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be
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evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-37897) (the
"Initial Registration Statement") in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration statement, but
including all documents incorporated by reference in the prospectus
contained therein, [delivered] to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in such form;
other than a registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which
became effective upon filing, no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission (other
than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each in the form heretofore
delivered to the Representatives); and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) under the Act, is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement and
the Rule 462(b) Registration Statement, if any, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of the
Initial Registration Statement became effective but excluding Form T-1,
each as amended at the time such part of the registration statement became
effective or such part of the Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective, are hereinafter collectively called
the "Registration Statement"; the prospectus relating to the Securities, in
the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act after
the effective date of the Initial Registration Statement that is
incorporated by reference in the
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Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the
form in which it is filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Securities;
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, which has had or will have a
material adverse effect on the financial position, stockholders' equity or
results of operations of the Company and its subsidiaries on a consolidated
basis (a "Material Adverse Effect"), otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any change in the capital stock (other than issuance of
common stock pursuant to the
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Company's existing stock option and other employee stock plans) or long-
term debt of the Company or any of its subsidiaries or any event which has
had a Material Adverse Effect or any development involving a prospective
Material Adverse Effect, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification; and each subsidiary of the Company listed on
Exhibit A hereto (each, a "Material Subsidiary") has been duly organized,
is validly existing and in good standing (if applicable) under the laws of
its jurisdiction of organization;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable and, except as set forth in Exhibit B hereto, all issued
shares of Capital Stock of each of its Material Subsidiaries (i) have been
duly and validly authorized and issued and are fully paid and non-
assessable and (ii) are owned by the Company (or one of its wholly-owned
subsidiaries) free of any encumbrance or lien other than such liens and
encumbrances which secure indebtedness or other obligations and which (a)
are reflected in the Company's financial statements incorporated by
reference in the Prospectus or (b) individually, or in the aggregate with
all other liens and encumbrances of the Company and its subsidiaries, would
not have a Material Adverse Effect;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), and assuming due
authorization, execution and delivery by the Trustee, the Indenture will
constitute a valid and legally binding instrument, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Indenture conforms, and the Designated
Securities will conform in all material respects, to the descriptions
thereof contained in the Prospectus as amended or supplemented with respect
to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other
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agreement or instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject except for such violations, breaches or defaults
with respect to such agreements or instruments that would not have a
Material Adverse Effect, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or any Pricing Agreement or the Indenture, except such as have
been, or will have been prior to the Time of Delivery, obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(i) The statements set forth in the Prospectus under the captions
"Description of Debt Securities" and "Description of the Notes and
Debentures", insofar as they purport to constitute a summary of the terms
of the Securities are accurate, complete and fair, and the statements set
forth in the Prospectus under the caption "Underwriting", insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material respects ;
(j) Neither the Company nor any of its Material Subsidiaries is in
violation of its Certificate of Incorporation or Bylaws, and neither the
Company nor any of its Material Subsidiaries is in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound except for such
violations, breaches or defaults with respect to such indentures,
mortgages, deeds of trust, loan agreements or leases that would not have a
Material Adverse Effect;
(k) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(l) The Company is not and, after giving effect to the offering and sale
of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(m) This Agreement has been duly authorized, executed and delivered by
the Company;
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(n) Neither the Company nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within
the meaning of Section 517.075, Florida Statutes; and
(o) Price Waterhouse LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer,
payable to the order of the Company as directed by the Company in writing in the
funds specified in such Pricing Agreement, all in the manner and at the place
and time and date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives in their reasonable judgment
for such Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such
Time of Delivery and furnish the Representatives with copies thereof; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration
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Statement or Prospectus or for additional information; and, in the event of
the issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or
suspending any such qualification, to promptly use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 10:00 am, New York City time, on the New York Business Day
next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City as
amended or supplemented in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required at any
time in connection with the offering or sale of the Securities and if at
such time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the later of
(i) the termination of trading restrictions for such Designated Securities,
as notified to the Company by the Representatives and (ii) the Time of
Delivery for such Designated Securities, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company which
mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives.
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall
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at the time of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Blue Sky and Legal Investment Memoranda, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the reasonable
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment Surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective
by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no
stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
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(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the incorporation of the
Company, the validity of the Designated Securities being delivered at such
Time of Delivery, the Registration Statement, the Prospectus, and such
other related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Counsel for the Company satisfactory to the Representatives shall
have furnished to the Representatives their written opinion, dated the Time
of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company is a corporation and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with the corporate power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus as amended or supplemented;
(ii) The Company has an authorized capital stock as set forth in the
Prospectus as amended or supplemented;
(iii) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its Material Subsidiaries is a
party or of which any property of the Company or any of its Material
Subsidiaries is the subject which, if determined adversely to the
Company or any of its Material Subsidiaries, would individually or in
the aggregate have a Material Adverse Effect; and, to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered
by the Company;
(v) The Designated Securities have been duly authorized, executed,
authenticated, issued and delivered by the Company and constitute valid
and legally binding obligations of the Company enforceable against the
Company in accordance with their terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Designated Securities and the Indenture
conform in all material respects to the descriptions thereof in the
Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and delivered
by the Company and, assuming due authorization, execution and delivery
by the Trustee, constitutes a valid and legally binding instrument,
enforceable against the Company in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act and the Indenture conforms
in all material respects to the descriptions thereof in the Prospectus
as amended or supplemented;
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(vii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture, except such as
have been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(viii) The statements set forth in the Prospectus under the
captions "Description of Debt Securities", and "Description of Notes
and Debentures" insofar as they purport to constitute a summary of the
terms of the Designated Securities, and under the caption
"Underwriting", insofar as it purports to describe the provisions of
the laws and documents referred to therein fairly present such matters;
(ix) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act;
(x) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements, notes,
schedules and other financial data included therein, as to which such
counsel need express no opinion or comment), when they became effective
or were filed with the Commission, as the case may be, complied as to
form in all material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder;
(xi) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the Designated Securities
(other than the financial statements, notes, schedules and other
financial data included therein, as to which such counsel need express
no opinion or comment) comply as to form in all material respects with
the requirements of the Act and the Trust Indenture Act and the rules
and regulations thereunder;
In addition, such counsel shall state that it has
participated in conferences with officers and other representatives of
the Company, independent public accountants for the Company, and the
Representatives in connection with the preparation of the Registration
Statement and the Prospectus and has considered the matters stated
therein and the statements contained therein, although such counsel has
not independently verified the accuracy, completeness or fairness of
such statements (except to the extent stated in paragraph (viii)); and
such counsel shall advise you, on the basis of the foregoing (relying
as to materiality to a certain extent upon facts provided to such
counsel by officers and other representatives of the Company and,
except to the extent indicated above, without independent check or
verification) that no facts have come to such counsel's attention that
have caused it to believe that either the Registration Statement or the
Prospectus, including the documents and information incorporated by
reference therein, and any amendment or supplement thereto, (other than
the financial statements, notes, schedules and
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<PAGE>
other financial data included therein, as to which such counsel need
express no opinion or comment), as of their respective dates contained,
or as of the Time of Delivery contains, any untrue statement of a
material fact or as of their respective dates omitted, or as of the
Time of Delivery omits, to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus as amended or supplemented or required to be described
in the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required;
In giving such opinion, such counsel may state that insofar as
such opinion involves factual matters, it has relied, to the extent it
has deemed proper, upon certificates of officers of the Company and
certificates of public officials.
(d) Robert O. Isaac, Senior Counsel for the Company, shall have
furnished to the Representatives his written opinion, dated the Time of
Delivery for such Designated Securities, in form and substance satisfactory
to the Representatives, to the effect that:
(i) The Company is a corporation and is validly existing and in good
standing under the laws of the jurisdiction of its incorporation, with
corporate power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(iii) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or
of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company and its
subsidiaries on a consolidated basis, would individually or in the
aggregate have a Material Adverse Effect; and, to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(iv) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement
with respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company or any of subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject
except for such conflicts, breaches or defaults that would not result
in a
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<PAGE>
Material Adverse Effect, nor will such actions result in any violation
of the provisions of the Certificate of Incorporation or Bylaws of the
Company or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their properties;
(v) The Company is not in violation of its Bylaws or Certificate of
Incorporation; no Material Subsidiary is in violation of its Bylaws or
Certificate of Incorporation except for such violations which would not
have a Material Adverse Effect; and, to the knowledge of such counsel,
neither the Company nor any of its Material Subsidiaries is in default
in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it is a party
or by which it or any of its properties may be bound, except for such
violations and defaults which would not have a Material Adverse Effect;
(vi) The statements set forth in the Prospectus under the captions
"Certain Provisions of Certificate of Incorporation, Bylaws and
Statute", insofar as they purport to describe the provisions of the
laws and documents referred to therein, fairly present the information
with respect to such legal matters and documents and fairly summarize
relevant provisions of the Company's Restated Certificate of
Incorporation and Bylaws, each as amended to date, and the laws of the
State of Delaware and other matters referred to therein.
(e) On the date of the Pricing Agreement for such Designated Securities
at a time prior to the execution of the Pricing Agreement with respect to
such Designated Securities and at the Time of Delivery for such Designated
Securities, the independent accountants of the Company who have certified
the financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated the effective date of the
Registration Statement or the date of the most recent report filed with the
Commission containing financial statements and incorporated by reference in
the Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives (the executed copy of the letter
delivered prior to the execution of this Agreement is attached as Annex
I(a) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex I(b)
hereto);
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated Securities any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the
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<PAGE>
Designated Securities, and (ii) since the respective dates as of which
information is given in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Securities there shall not
have been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities, the effect of which, in any such
case described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's or any Material Subsidiary's debt securities or
preferred stock by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's or any Material
Subsidiary's debt securities or preferred stock;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange (the "NYSE"); (ii) a suspension or material
limitation in trading in the Company's securities on the NYSE;; (iii) a
general moratorium on commercial banking activities declared by either
Federal or New York State authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
specified in this Clause (iv) in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented relating to
the Designated Securities;
(i) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (e) of this Section and as to such other matters as
the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions
13
<PAGE>
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Securities or was made in reliance upon the Trustee's statement of eligibility
and qualification on Form T-1.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
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<PAGE>
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or
15
<PAGE>
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company under this Section 8 shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Designated Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Company shall have the
right to postpone the Time of Delivery for such Designated Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
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(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail or
facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Chief Financial Officer; provided, however,
that any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, which address will be
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
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13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. Except as
otherwise provided herein, as used herein, "business day" shall mean any day
when the Commission's office in Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof.
Very truly yours,
ENSCO International Incorporated
By: /s/ C. Christopher Gaut
-----------------------------------------
Name: C. Christopher Gaut
Title: Vice President - Finance
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ANNEX I
Pricing Agreement
-----------------
Goldman, Sachs & Co.,
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
November [ ], 1997
Ladies and Gentlemen:
ENSCO International Incorporated, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated November [ ], 1997 (the "Underwriting
Agreement"), between the Company on the one hand and the several underwriters
named in the pricing agreements executed pursuant thereto on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in
<PAGE>
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us [one for the Company and each of the Representatives plus one for
each counsel] counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
ENSCO International Incorporated
By:
-----------------------------------------
Name:
Title:
Accepted as of the date hereof:
By:
---------------------------------
On behalf of each of the Underwriters
2
<PAGE>
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ----------
$
Total $
==========
3
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
AGGREGATE PRINCIPAL AMOUNT:
PRICE TO PUBLIC:
PURCHASE PRICE BY UNDERWRITERS:
FORM OF DESIGNATED SECURITIES:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
TIME OF DELIVERY:
INDENTURE:
MATURITY:
INTEREST RATE:
INTEREST PAYMENT DATES:
REDEMPTION PROVISIONS:
SINKING FUND PROVISIONS:
FLOATING RATE PROVISIONS:
DEFEASANCE PROVISIONS:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
ADDITIONAL CLOSING CONDITIONS:
NAMES AND ADDRESSES OF REPRESENTATIVES:
4
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been separately furnished to the representative or
representatives of the Underwriters (the "Representatives") such term to
include an Underwriter or Underwriters who act without any firm being
designated as its or their representatives.
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly report on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon copies
of which have been separately furnished to the Representatives; and on the
basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing came
to their attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
<PAGE>
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the
basis of limited procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference
in the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange
Act and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus or
included in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and items
were not determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the Company's
Annual Report on Form 10-K for the most recent fiscal year;
(C) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
2
<PAGE>
(D) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options
and stock appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders' equity or
other items specified by the Representatives and acceptable to the
independent accountants, or any increases in any items specified by the
Representatives and acceptable to the independent accountants, in each
case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in each
case for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(E) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the
specified date referred to in Clause (D) there were any decreases in
consolidated net revenues or operating profit or the total or per share
amounts of consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives and acceptable to the independent accountants, in each
case as compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives and acceptable to the independent accountants, except
in each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives and
acceptable to the independent accountants which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by reference),
or in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives and acceptable to the
independent accountants or in documents incorporated by reference in the
Prospectus specified by the Representatives and acceptable to the
independent accountants, and have compared certain of such amounts,
percentages and financial information with the accounting records of the
Company and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the
3
<PAGE>
documents incorporated by reference therein) in relation to the applicable
Designated Securities for purposes of the letter delivered at the Time of
Delivery for such Designated Securities.
4
<PAGE>
Exhibit A
ENSCO Drilling Company
ENSCO Drilling (Caribbean), Inc.
ENSCO Drilling Venezuela, Inc.
ENSCO Offshore Company
ENSCO Offshore U.K. Limited
ENSCO Offshore Partnership
ENSCO Offshore Company II
ENSCO Marine Company
ENSCO Qatar Company
Dual Holding Company
<PAGE>
Exhibit B
ENSCO International Incorporated, directly or indirectly, owns 85% of
ENSCO Drilling (Caribbean) Inc. and ENSCO Drilling Venezuela, Inc.
<PAGE>
EXHIBIT 1.2
Pricing Agreement
-----------------
Goldman, Sachs & Co.,
Credit Suisse First Boston Corporation
Salomon Brothers Inc
B.T. Alex Brown Incorporated
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
November 20, 1997
Ladies and Gentlemen:
ENSCO International Incorporated, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated November 20, 1997 (the "Underwriting Agreement"),
between the Company on the one hand and the several Underwriters named in the
pricing agreements executed pursuant thereto, including this Agreement, on the
other hand, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
<PAGE>
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the
principal amount of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto (the 6.75% Notes due November 15, 2007 and the
7.20% Debentures due November 15, 2027 are being purchased separately and not as
a unit).
If the foregoing is in accordance with your understanding, please sign and
return to us seven counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
ENSCO International Incorporated
By: /s/ C. Christopher Gaut
-----------------------------
Name: C. Christopher Gaut
Title: Vice President-Finance
Accepted as of the date hereof:
Goldman, Sachs & Co.
Credit Suisse First Boston Corporation
Salomon Brothers Inc
B.T. Alex Brown Incorporated
By: /s/ Goldman, Sachs & Co.
--------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
2
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I
PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF
NOTES DEBENTURES
TO BE TO BE
UNDERWRITER PURCHASED PURCHASED
----------- ------------ ------------
<S> <C> <C>
Goldman, Sachs & Co. $ 37,500,000 $ 37,500,000
Credit Suisse First Boston Corporation 37,500,000 37,500,000
Salomon Brothers Inc 37,500,000 37,500,000
B.T. Alex Brown Incorporated 37,500,000 37,500,000
Total $150,000,000 $150,000,000
============ ============
</TABLE>
3
<PAGE>
SCHEDULE II
THE 6.75% NOTES DUE NOVEMBER 15, 2007 AND THE 7.20% DEBENTURES DUE NOVEMBER 15,
2027 ARE BEING PURCHASED SEPARATELY AND NOT AS A UNIT.
6.75% NOTES DUE NOVEMBER 15, 2007
- ----------------------------------
TITLE OF DESIGNATED SECURITIES: 6.75% NOTES DUE NOVEMBER 15, 2007
AGGREGATE PRINCIPAL AMOUNT: $150,000,000
PRICE TO PUBLIC: 99.982% OF PAR ($149,973,000), PLUS
ACCRUED INTEREST, IF ANY, FROM
NOVEMBER 25, 1997
PURCHASE PRICE BY UNDERWRITERS: 99.332% OF PAR ($148,998,000)
FORM OF DESIGNATED SECURITIES: GLOBAL REGISTERED
SPECIFIED FUNDS FOR PAYMENT
OF PURCHASE PRICE: SAME-DAY FUNDS (WIRE TRANSFER)
TIME OF DELIVERY: NOVEMBER 25, 1997
INDENTURE: INDENTURE DATED AS OF NOVEMBER 20,
1997, AS SUPPLEMENTED BY THE
SUPPLEMENTAL INDENTURE DATED AS OF
NOVEMBER 20, 1997
MATURITY: NOVEMBER 15, 2007
INTEREST RATE: 6.75%
INTEREST PAYMENT DATES: MAY 15 AND NOVEMBER 15 OF EACH YEAR
COMMENCING MAY 15, 1998 (SHORT
FIRST PERIOD)
REDEMPTION PROVISIONS: TREASURY MAKE WHOLE AS DESCRIBED IN
THE PROSPECTUS SUPPLEMENT (TREASURY
YIELD PLUS 15 BASIS POINTS)
DEFEASANCE PROVISIONS: SECTION 401 OF THE INDENTURE
CLOSING LOCATION FOR DELIVERY OF
DESIGNATED SECURITIES: SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
NAMES AND ADDRESSES OF REPRESENTATIVES: C/O GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004
4
<PAGE>
7.20% DEBENTURES DUE NOVEMBER 15, 2027
- ---------------------------------------
TITLE OF DESIGNATED SECURITIES: 7.20% NOTES DUE NOVEMBER 15, 2027
AGGREGATE PRINCIPAL AMOUNT: $150,000,000
PRICE TO PUBLIC: 99.582% OF PAR ($149,373,000),
PLUS ACCRUED INTEREST, IF ANY,
FROM NOVEMBER 25, 1997
PURCHASE PRICE BY UNDERWRITERS: 98.707% OF PAR ($148,060,500)
FORM OF DESIGNATED SECURITIES: GLOBAL REGISTERED
SPECIFIED FUNDS FOR PAYMENT
OF PURCHASE PRICE: SAME-DAY FUNDS (WIRE TRANSFER)
TIME OF DELIVERY: NOVEMBER 25, 1997
INDENTURE: INDENTURE DATED AS OF NOVEMBER
20, 1997, AS SUPPLEMENTED BY THE
SUPPLEMENTAL INDENTURE DATED AS
OF NOVEMBER 20, 1997
MATURITY: NOVEMBER 15, 2027
INTEREST RATE: 7.20%
INTEREST PAYMENT DATES: MAY 15 AND NOVEMBER 15 OF EACH
YEAR COMMENCING MAY 15, 1998
(SHORT FIRST PERIOD)
REDEMPTION PROVISIONS: TREASURY MAKE WHOLE AS DESCRIBED
IN THE PROSPECTUS SUPPLEMENT
(TREASURY YIELD PLUS 20 BASIS
POINTS)
DEFEASANCE PROVISIONS: SECTION 401 OF THE INDENTURE
CLOSING LOCATION FOR DELIVERY OF
DESIGNATED SECURITIES: SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
NAMES AND ADDRESSES OF REPRESENTATIVES: C/O GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004
5
<PAGE>
EXHIBIT 4.1
ENSCO INTERNATIONAL INCORPORATED
AND
BANKERS TRUST COMPANY,
TRUSTEE
____________________
INDENTURE
DATED AS OF
NOVEMBER 20, 1997
DEBT SECURITIES
<PAGE>
ENSCO INTERNATIONAL INCORPORATED
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF NOVEMBER 20, 1997
____________________
Section of
Trust Indenture Section(s) of
ACT OF 1939 INDENTURE
ss. 310 (a) (1)............................................... 609
(a) (2)............................................... 609
(a) (3)............................................... Not Applicable
(a) (4)............................................... Not Applicable
(b)................................................... 608, 610
ss. 311 (a)................................................... 613
(b)................................................... 613
(c)................................................... Not Applicable
ss. 312 (a)................................................... 701, 702 (a)
(b)................................................... 702 (b)
(c)................................................... 702 (b)
ss. 313 (a)................................................... 703 (a)
(b)................................................... 703 (a)
(c)................................................... 703 (a)
(d)................................................... 703 (b)
ss. 314 (a)................................................... 704, 1005
(b)................................................... Not Applicable
(c) (1)............................................... 103
(c) (2)............................................... 103
(c) (3)............................................... Not Applicable
(d)................................................... Not Applicable
(e)................................................... 103
ss. 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
ss. 316 (a) (1) (A)........................................... 502, 511
(a) (1) (B)........................................... 512
(a) (2)............................................... Not Applicable
(a) (last sentence)................................... 101
(b)................................................... 508
ss. 317 (a) (1)............................................... 503
(a) (2)............................................... 504
(b)................................................... 1003
ss. 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
PARTIES.................................................................... 1
RECITALS OF THE COMPANY.................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.................................................. 1
Act................................................................ 1
Additional Amounts................................................. 1
Affiliate.......................................................... 2
Authenticating Agent............................................... 2
Authorized Newspaper............................................... 2
Board of Directors................................................. 2
Board Resolution................................................... 2
Book-Entry Security................................................ 2
Business Day....................................................... 2
Commission......................................................... 2
Company............................................................ 2
Company Request.................................................... 2
Conversion Event................................................... 2
Corporate Trust Office............................................. 2
Default............................................................ 2
Defaulted Interest................................................. 2
Depositary......................................................... 2
Dollar............................................................. 3
Event of Default................................................... 3
Exchange Rate...................................................... 3
Holder............................................................. 3
Indenture.......................................................... 3
Interest........................................................... 3
Interest Payment Date.............................................. 3
Judgment Currency.................................................. 3
Maturity........................................................... 3
Officers' Certificate.............................................. 3
Opinion of Counsel................................................. 3
Original Issue Discount Security................................... 3
Outstanding........................................................ 3
Paying Agent....................................................... 4
Person............................................................. 4
Place of Payment................................................... 4
Predecessor Security............................................... 4
Redemption Date.................................................... 4
Redemption Price................................................... 4
Registered Security................................................ 4
Regular Record Date................................................ 4
Required Currency.................................................. 4
Responsible Officer................................................ 4
i
<PAGE>
Securities......................................................... 5
Security Register.................................................. 5
Security Registrar................................................. 5
Special Record Date................................................ 5
Stated Maturity.................................................... 5
Subsidiary......................................................... 5
Trustee............................................................ 5
Trust Indenture Act................................................ 5
United States...................................................... 5
United States Alien................................................ 5
U.S. Government Obligations........................................ 5
Vice President..................................................... 5
Wholly-Owned Subsidiary............................................ 5
Yield to Maturity.................................................. 5
SECTION 102. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT............ 5
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS......................... 6
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE....................... 6
SECTION 105. ACTS OF HOLDERS; RECORD DATES................................ 7
SECTION 106. NOTICES, ETC., TO TRUSTEE AND COMPANY........................ 7
SECTION 107. NOTICE TO HOLDERS; WAIVER.................................... 8
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT............................ 8
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS..................... 8
SECTION 110. SUCCESSORS AND ASSIGNS....................................... 8
SECTION 111. SEPARABILITY CLAUSE.......................................... 8
SECTION 112. BENEFITS OF INDENTURE........................................ 8
SECTION 113. GOVERNING LAW................................................ 9
SECTION 114. LEGAL HOLIDAYS............................................... 9
SECTION 115. CORPORATE OBLIGATION......................................... 9
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.............................................. 9
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.............. 9
SECTION 203. SECURITIES IN GLOBAL FORM.................................... 10
SECTION 204. BOOK-ENTRY SECURITIES........................................ 10
ii
<PAGE>
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES......................... 12
SECTION 302. DENOMINATIONS................................................ 13
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING............... 14
SECTION 304. TEMPORARY SECURITIES......................................... 15
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.......... 15
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES............. 16
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED............... 17
SECTION 308. PERSONS DEEMED OWNERS........................................ 17
SECTION 309. CANCELLATION................................................. 18
SECTION 310. COMPUTATION OF INTEREST...................................... 18
SECTION 311. CUSIP NUMBERS................................................ 18
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE...................... 18
SECTION 402. APPLICATION OF TRUST MONEY................................... 19
SECTION 403. DISCHARGE OF LIABILITY ON SECURITIES OF ANY SERIES........... 19
SECTION 404. REINSTATEMENT................................................ 20
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT............................................ 20
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT........... 22
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE................................................. 22
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM............................. 23
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS...................................... 24
SECTION 506. APPLICATION OF MONEY COLLECTED............................... 24
SECTION 507. LIMITATION ON SUITS.......................................... 24
iii
<PAGE>
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST....................................... 25
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES........................... 25
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE............................... 25
SECTION 511. DELAY OR OMISSION NOT WAIVER................................. 25
SECTION 512. CONTROL BY HOLDERS........................................... 25
SECTION 513. WAIVER OF PAST DEFAULTS...................................... 26
SECTION 514. UNDERTAKING FOR COSTS........................................ 26
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS............................. 26
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.......................... 27
SECTION 602. NOTICE OF DEFAULTS........................................... 27
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.................................... 28
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES....... 29
SECTION 605. MAY HOLD SECURITIES.......................................... 29
SECTION 606. MONEY HELD IN TRUST.......................................... 29
SECTION 607. COMPENSATION AND REIMBURSEMENT............................... 29
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS...................... 30
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY...................... 30
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR............ 30
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR....................... 31
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.. 32
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY............ 32
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.......................... 32
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.... 33
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS....... 34
iv
<PAGE>
SECTION 703. REPORTS BY TRUSTEE........................................... 34
SECTION 704. REPORTS BY COMPANY........................................... 34
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS......... 34
SECTION 802. SUCCESSOR PERSON SUBSTITUTED................................. 35
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS........... 36
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.............. 36
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES......................... 37
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES............................ 37
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.......................... 37
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES........... 38
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.................. 38
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY............................. 38
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST........... 38
SECTION 1004. EXISTENCE................................................... 39
SECTION 1005. STATEMENT BY OFFICERS AS TO DEFAULT......................... 39
SECTION 1006. WAIVER OF CERTAIN COVENANTS................................. 39
SECTION 1007. ADDITIONAL AMOUNTS.......................................... 40
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.................................... 40
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE....................... 40
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED........... 40
SECTION 1104. NOTICE OF REDEMPTION........................................ 41
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SECTION 1105. DEPOSIT OF REDEMPTION PRICE................................. 41
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE....................... 41
SECTION 1107. SECURITIES REDEEMED IN PART................................. 42
SECTION 1108. PURCHASE OF SECURITIES...................................... 42
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.................................... 42
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES....... 42
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND................... 43
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED................... 43
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.......................... 43
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS........................ 43
SECTION 1304. QUORUM; ACTION.............................................. 43
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.................................................. 44
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS............. 44
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INDENTURE
THIS Indenture, dated as of November 20, 1997 between ENSCO International
Incorporated, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
2700 Fountain Place, 1445 Ross Avenue, Dallas, Texas 75202-2792, and Bankers
Trust Company, a New York banking corporation, 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 Four Albany Street, New York,
New York, 10006, Attention: Project Finance Group.
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
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
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.
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"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.
"Authenticating Agent" means any Person 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.
"Book-Entry Security" has the meaning specified in Section 204.
"Business Day," when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in that Place of Payment or the city in which the Corporate
Trust Office is located are authorized or obligated by law or executive order to
close.
"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 New
York, New York 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.
"Default" means any event, act or condition that is, or after notice or
the passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of a global Security, the Person designated as Depositary
by the Company pursuant to Section 301 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,
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"Depositary" as used with respect to the Securities of any series shall mean the
Depositary with respect to the Securities of that series.
"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 302.
"Holder," when used with respect to any Security, means the Person in
whose name the Security is registered in the Security Register.
"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.
"Judgment Currency" has the meaning specified in Section 506.
"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
be in compliance 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
be reasonably acceptable to the Trustee and in compliance with Section 103
hereof.
"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, means, as of the date
of determination, all Securities 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
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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 a
Responsible Officer of the Trustee actually 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.
"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 any
one or more series of Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, incorporated or unincorporated association, joint stock
company, trust, unincorporated organization or government or other agency or
political subdivision thereof or other entity of any kind.
"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 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.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form established pursuant
to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered 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," shall mean when used with respect to the Trustee
any officer within the Corporate Trust Office including any Vice President,
Managing Director, Assistant Vice President, Secretary, Assistant Secretary or
Assistant Treasurer or any other officer of the Trustee customarily performing
functions similar to those performed by
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any of the above designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge 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 Register" and " Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered 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, as to any Person, 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.
"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 nonresident alien individual, a
nonresident 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:
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"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United States
Code.
"indenture securities" means the Securities.
"indenture securityholder" 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.
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 or not, 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 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
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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.
(1) 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 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 1306.
The Company may set in advance a record date for purposes of determining
the identity of Holders of Registered Securities entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture,
which record date shall be the later of 30 days prior to the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation. If a record date is fixed, those persons who
were Holders of Outstanding Registered 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.
(2) 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.
(3) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(4) 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 a Responsible Officer of 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,
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(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: Project
Finance Group, 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
Registered 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 Registered
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 Registered
Security, shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities.
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 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 or not so expressed.
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, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
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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.
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 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 Registered Securities and shall be
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 or determined in the manner provided in an
Officers' Certificate, 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 Depository 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. If the form of Securities is
established by action taken pursuant to a Board Resolution, a copy of the Board
Resolution establishing the form or forms of Securities of any series (or any
such temporary global Security) shall be 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.
--------------------------------------------------
By
------------------------------------------------
AUTHORIZED OFFICER".
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 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 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
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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 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 in writing. 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
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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.
(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 Securities of the series are to be issuable as Registered
Securities, 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, as Book- Entry Securities or
otherwise, and, if so, whether beneficial owners of interests in any such
permanent 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;
(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 payable and, if
other than as set forth in Section 101, the Regular Record Date for the
interest payable on any Registered 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;
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(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 Registered 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) 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 if other than the currency of the United States of
America;
(12) if the principal of (and premium, if any) or interest on 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, or values, rates or prices, 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;
(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 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; and
(17) 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,
in the case of Registered Securities, 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 Registered 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.
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 Registered
Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiple thereof.
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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 ("Exchange Rate"), 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.
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. The
signature of any of these officers on the Securities may be manual or facsimile.
Coupons shall bear the facsimile signature of the Chairman of the Board,
President, Treasurer or any Vice President of the Company.
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 Others' Certificate as
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 (in addition to the
other documents required by Section 103 hereof), and (subject to Section 601)
shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) that such form has been established in conformity with the
provisions of this Indenture;
(b) 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
bankruptcy, insolvency, fraudulent conveyance, reorganization or other laws
relating to or affecting creditors' rights, and 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 not
reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
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.
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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.
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 Registered
Securities and of transfers of Registered 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.
Upon surrender for registration of transfer of any Registered 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 Registered
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, Registered Securities of any series may be
exchanged for other Registered 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
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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 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 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 date 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 Registered 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 Registered 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.
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
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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 Registered 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 Registered 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 Registered 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 Registered 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
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 Registered 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 Registered 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
Registered 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 Registered 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 Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and
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(subject to Sections 305 and 307) interest on such Registered 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 Registered 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 Trustee shall be disposed of in accordance with the
Trustee's customary practices and procedures in effect from time to time;
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 360-day year comprising twelve 30-day months.
SECTION 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP," "ISIN" and Common
Code numbers (if then generally in use), and, if so, the Trustee shall use such
"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;
(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, for the purpose 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
thereon, without consideration of any reinvestment thereof, be
sufficient to pay and discharge 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
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(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, in so far as clause (5) or (6) of Section 501 is 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 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.
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 401 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 of the Trustee to any Authenticating Agent under Section 614 and,
except for a discharge pursuant to subclause (A) of clause (1) of this Section
401, 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
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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 of
this Indenture (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
(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 and 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 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 or any Additional Amounts
upon 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;
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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;
(3) default in the deposit of any 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;
(4) default in the performance or breach of any covenant of the
Company in this Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere in this Section 501 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.
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 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, 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. Promptly after the making of any payment in Dollars as a result
of a Conversion Event, the Company shall give notice in the manner provided in
Section 107 to the Holders, setting forth the applicable Exchange Rate and
describing the calculation of such payments.
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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
(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, the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee
under Section 607 hereof;
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 nonpayment 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
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(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 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 (premium, if any), interest or 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 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,
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.
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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; any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust; and, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, any recovery of judgment shall 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.
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 and any Additional Amounts
on 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 Company.
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
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 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
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(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 on or after such respective dates, and such rights shall not be
impaired or affected without the consent of such Holder.
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:
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(1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal
liability or be unjustly prejudicial to the Holders not taking part in such
direction, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Sections 508 and 902, 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. The provisions
of this Section shall not apply to any suit instituted by the Company, by the
Trustee, 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 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 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 it
takes or omits to take 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 512, 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
(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 or Event of Default with
respect to the Securities of any series, the Trustee shall give notice of such
Default or Event of Default actually known to a Responsible Officer of the
Trustee to all Holders of Securities of such series in the manner provided in
Section 107, unless such Default or Event
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of Default shall have been cured or waived; PROVIDED, HOWEVER, that, except in
the case of a Default or Event of 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 or Event of 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.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be fully 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) shall be entitled to and may,
in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(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;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
attorneys, custodians or nominees 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, attorney, custodian or nominee
appointed with due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any Default or
Event of Default with respect to the Securities of any series for which it
is acting as Trustee unless either (1) a Responsible Officer shall have
actual knowledge of such Default or Event of Default or (2) written notice
of such Default or Event of Default shall have been given to the Trustee by
the Company or any other obligor on such Securities or by any Holder of
such Securities;
(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture; and
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(j) in the event that the Trustee is also acting as Paying Agent or
Transfer Agent and Registrar hereunder, the rights and protections afforded
to the Trustee pursuant to this Article VI shall also be afforded to such
Paying Agent or Transfer Agent and Registrar.
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 the 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.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee such compensation for all services
rendered by it hereunder as shall be agreed upon in writing from time
to time (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 and other persons not regularly in its employ),
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 and all loss, liability, damage or expense
including taxes (other than taxes based upon the income of Trustee)
incurred without negligence or bad faith on each of their part,
arising out of or in connection with the acceptance or administration
of this Indenture and the Securities or the issuance of the Securities
or a Series thereof or 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 607, the Trustee shall have a lien prior to the Securities on 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.
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The provisions of this Section 607 and any lien arising hereunder shall
survive the resignation or removal of the Trustee or the discharge of the
Company's obligations under this Indenture and 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 608, 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 608 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.
(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 million and subject to supervision or examination by Federal or
State (or the 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 609, 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
514, 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, 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 all monies due and owing to it, 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
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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, upon the
payment of all monies due and owing to it, 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.
(e) The fees and other expenses of any Successor Trustee or Co-
trustees shall be paid by the Company.
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; PROVIDED, HOWEVER, that in the case of a corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, such successor corporation shall expressly assume all of the Trustee's
liabilities hereunder. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated 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 million or equivalent amount expressed in a foreign currency and
subject to supervision or examination by Federal or State (or the 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 614, the combined capital
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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 614, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section 614.
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 614, 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 614, 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 614.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 614, 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 614, 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 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:
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(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. 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)
of the Trust Indenture Act with other Holders with respect to their rights
under this Indenture or under the Securities. 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 commencing with the year
199_, 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. The Trustee shall comply with Section 313(b) of the Trust Indenture
Act. The Trustee shall transmit by mail all reports as required by Sections
313(c) and 313(d) of the Trust Indenture Act.
(b) A copy of each report pursuant to Subsection (a) 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 in
writing 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.
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 and the Company shall not permit any person to consolidate with or
merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
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(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 (including all Additional Amounts, if
any) on 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
Default or Event of Default shall have happened and be continuing; and
(3) the Company has 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.
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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:
(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;
(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;
(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);
(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;
(5) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301;
(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;
(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 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,
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(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);
(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.
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.
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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
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.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If Securities of a series are issuable only as Registered Securities, 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 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 in writing 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 in writing 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
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of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(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 any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has 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 herein, 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)(4) of the Trust Indenture Act and 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 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
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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 1007 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 1007 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 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 its officers, directors, employees and agents and any Paying Agent
for, and to hold them harmless against any loss, liability, damage 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.
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 in writing 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
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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.
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," "ISIN" or Common Code number, if applicable.
A notice of redemption as contemplated by Section 107 need not identify
particular Registered 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., New York City 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 to be redeemed on that date.
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
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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 Registered 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 Registered 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.
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.
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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.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. 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.
SECTION 1302. 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 1301, to be
held at such time and at such place in Dallas, Texas, in The Borough of
Manhattan, The City of 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 1301, 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 Dallas, Texas or in The Borough of Manhattan, The City of New York
for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in Subsection (a) of this Section.
SECTION 1303. 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 1304. 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
43
<PAGE>
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 1305(d),
notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1302(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.
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 1305. 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
1302(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 1302 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.
SECTION 1306. 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
44
<PAGE>
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 1302 and, if
applicable, Section 1304. 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.
ENSCO INTERNATIONAL INCORPORATED
By /s/ C. Christopher Gaut
------------------------------------------------
Name: C. Christopher Gaut
Title: Vice President - Finance and
Chief Financial Officer
BANKERS TRUST COMPANY
TRUSTEE
By /s/ Vince Chorney
------------------------------------------------
Name: Vince Chorney
---------------------------------------
Title: Assistant Vice President
--------------------------------------
45
<PAGE>
EXHIBIT 4.2
ENSCO INTERNATIONAL INCORPORATED
AND
BANKERS TRUST COMPANY,
TRUSTEE
------------------------------------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF
NOVEMBER 20, 1997
TO
INDENTURE
DATED AS OF
NOVEMBER 20, 1997
<PAGE>
This First Supplemental Indenture, dated as of November 20, 1997, is entered
into between ENSCO International Incorporated, a Delaware corporation (the
"Company"), having its principal office at 2700 Fountain Place, 1445 Ross Ave.,
Dallas, Texas 75202-2792, and Bankers Trust Company, as Trustee (the "Trustee"),
having its principal office at Four Albany Street, New York, New York, 10006,
Attention: Project Finance Group.
RECITALS OF THE COMPANY
The Company has executed and delivered to the Trustee an Indenture, dated
as of November 20, 1997 (the "Original Indenture" and as supplemented by this
First Supplemental Indenture, the "Indenture"), providing for the issuance from
time to time of the Company's unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), issuable in one or more series as
provided in the Indenture. All capitalized terms used herein that are defined in
the Original Indenture shall have the meanings assigned thereto in the Original
Indenture unless otherwise defined herein.
Section 901(2) of the Original Indenture permits the execution of
supplemental indentures without the consent of any Holders to add to the
covenants of the Company for the benefit of the Holders of all or any series of
Securities.
Pursuant to the foregoing authority, the Company proposes in and by this
First Supplemental Indenture to supplement and amend the Original Indenture.
All things necessary to make this First Supplemental Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
Now, therefore, 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
The following definitions are hereby added to Section 101 of the Indenture:
"Consolidated Net Tangible Assets" means the total amount of assets (less
applicable reserves and other properly deductible items) after deducting (1) 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 of current liabilities is being
determined) and (2) 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.
"Funded Debt" means indebtedness of the Company or of a Subsidiary owning
Restricted Property (i) that by its terms matures more than one year after its
creation or (ii) that is classified as long-term debt under generally accepted
accounting principles, and that, in each case, ranks at least pari passu with
the Securities.
"Joint Venture" means any partnership, corporation or other entity, in
which up to and including 50% of the partnership interests, outstanding voting
stock or other equity interests is owned, directly or indirectly, by the Company
and/or one or more subsidiaries. A Joint Venture shall not be a Subsidiary.
"Lien" means any mortgage, pledge, lien, encumbrance, charge or security
interest.
"Restricted Property" means (1) any drilling rig or vessel, or portion
thereof, owned or leased by the Company or any Subsidiary and used for drilling
offshore (including lakes) 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
1
<PAGE>
drilling rig or vessel, or portion thereof, shall be deemed of material
importance if its gross book value (before deducting accumulated depreciation)
is less than 1 1/2% of Consolidated Net Tangible Assets, or (2) any shares of
capital stock or indebtedness of any Subsidiary owning any such drilling rig or
vessel.
"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 (1) temporary leases for a term, including renewals
at the option of the lessee, of not more than three years, (2) leases between
the Company and a Subsidiary or between Subsidiaries, (3) leases of a Restricted
Property executed by the time of, or within 12 months after the latest of, the
acquisition, the completion of construction or improvement and the commencement
of commercial operation of the Restricted Property, and (4) arrangements
pursuant to any provision of law with an effect similar to that of the former
Section 168(f)(8) of the Internal Revenue Code of 1954.
"Value" means, with respect to a Sale and Leaseback Transaction, an amount
equal to the present value of the lease payments with respect to the term of the
lease remaining on the date as of which the amount is being determined, without
regard to any renewal or extension options contained in the lease, (including
the effective interest rate on any original issue discount Securities) that are
outstanding on the effective date of such Sale and Leaseback Transaction.
ARTICLE TWO
COVENANTS
New Sections 1008 and 1009 are hereby added to Article Ten of the
Indenture, to apply with respect to each series of Securities unless the
Securities of any series expressly provide that such series shall not be
entitled to the benefit of such Sections 1008 and 1009.
SECTION 1008. LIMITATION ON LIENS.
The Company shall not create, assume or suffer to exist any Lien on any
Restricted Property to secure any debt of the Company, any Subsidiary or any
other Person, or permit any Subsidiary so to do, without making effective
provision whereby the Securities then outstanding and having the benefit of this
Section shall be secured by a Lien equally and ratably with such debt for so
long as such debt shall be so secured, except that the foregoing shall not
prevent the Company or any Subsidiary from creating, assuming or suffering to
exist Liens of the following character:
(1) with respect to any series of Securities, Liens existing on the date of
issuance of the series;
(2) Liens existing on Restricted Property owned or leased by a Subsidiary
at the time it becomes a Subsidiary;
(3) Liens existing on Restricted Property at the time of the acquisition
thereof by the Company or a Subsidiary;
(4) Liens to secure any debt incurred prior to, at the time of, or within
24 months after the acquisition of Restricted Property for the purpose of
financing all or any part of the purchase price thereof and Liens to the extent
that secure debt which is in excess of such purchase price and for the payment
of which recourse may be had only against such Restricted Property;
(5) Liens to secure any debt incurred prior to, at the time of, or within
24 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 Liens to
the extent that they secure debt which is in excess of such cost and for the
payment of which recourse may be had only against such Restricted Property;
(6) Liens securing debt of a Subsidiary owing to the Company or to another
Subsidiary;
2
<PAGE>
(7) Liens on the stock, partnership or other equity interest of the Company
or any Subsidiary in any Joint Venture to secure debt, provided the amount of
such debt is contributed and/or advanced solely to such Joint Venture;
(8) Liens in favor of the United States of America or any State thereof or
any other country, or any agency, instrumentality of political subdivision of
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;
(9) Liens imposed by law without the consent of the Company or any of its
subsidiaries, such as mechanics', workers', 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;
(10) pledges or deposits under workers' compensation laws or similar
legislation and Liens or judgments thereunder which are not currently
dischargeable, or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of money) or leases to which the Company
or any Subsidiary is a party, or deposits to obtain the benefits of any law,
regulation or arrangement pertaining to unemployment insurance, old age
pensions, social security or similar matters, or deposits of cash or obligations
to the United States of America to secure surety, appeal or customs bonds to
which the Company or any Subsidiary is a party;
(11) Liens created by or resulting from any litigation or other proceeding
which is being contested in good faith by appropriate proceedings, including
Liens arising out of judgments or awards against the Company or any Subsidiary
with respect to which the Company or such Subsidiary is in good faith
prosecuting an appeal or proceedings for review; or Liens incurred by the
Company or any Subsidiary for the purpose of obtaining a stay or discharge in
the course of any litigation or other proceeding to which the Company or such
Subsidiary is a party;
(12) Liens for taxes or assessments or governmental charges or levies not
yet due or delinquent, or which can thereafter be paid without penalty, or which
are being contested in good faith by appropriate proceedings;
(13) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in clauses
(1) through (12) 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 relating to such property, 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
(14) any Lien not permitted by clauses (1) through (13) above securing debt
that, together with the aggregate outstanding principal amount of all other debt
of the Company and its Subsidiaries secured by Liens which would otherwise be
prohibited by the foregoing restrictions and the aggregate Value of existing
Sale and Leaseback Transactions which would be subject to the restrictions of
Section 1009 but for this clause (14), does not at any time exceed 15% of
Consolidated Net Tangible Assets.
SECTION 1009. LIMITATION ON SALE AND LEASEBACKS.
The Company shall not enter into any Sale and Leaseback Transaction
covering any Restricted Property, nor permit any Subsidiary so to do, unless
either:
(1) the Company or such Subsidiary would be entitled to incur debt, in a
principal amount at least equal to the Value of such Sale and Leaseback
Transaction, which is secured by Liens on the property to be leased (without
equally
3
<PAGE>
and ratably securing the outstanding Securities) because such Liens would be of
such character that no violation of the provisions of Section 1008 would result,
(2) after the date on which the Securities are originally issued and within
a period commencing nine months prior to the effective date of such Sale and
Leaseback Transaction and ending nine months after such effective date, the
Company or such Subsidiary shall have expended for Restricted Property (at fair
market value as determined by the Board of Directors of the Company) used or to
be used in the ordinary course of business of the Company and its Subsidiaries
an amount equal to all or a portion of the Value of such Sale and Leaseback
Transaction and the Company shall have elected to designate such amount as a
credit against such Sale and Leaseback Transaction (with any such amount not
being so designated to be applied as set forth in clause (3) below or as
otherwise permitted), or
(3) the Company during the nine months immediately following the effective
date of such Sale and Leaseback Transaction shall have applied to the
acquisition of Restricted Property or the voluntary retirement of Funded Debt
(whether by redemption, defeasance, repurchase, or otherwise) an amount equal to
the Value of such Sale and Leaseback Transaction (in either case adjusted to
reflect the remaining term of the lease and any amount expended by the Company
for Restricted Property as set forth in clause (2) above).
* * *
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 First Supplemental
Indenture to be duly executed as of the day and year first above written.
ENSCO INTERNATIONAL INCORPORATED
By: /s/ C. Christopher Gaut
---------------------------------------
Name: C. Christopher Gaut
Title: Vice President - Finance and
Chief Financial Officer
BANKERS TRUST COMPANY, Trustee
By: /s/ Vince Chorney
---------------------------------------
Name: Vince Chorney
---------------------------------------
Title: Assistant Vice President
---------------------------------------
4
<PAGE>
EXHIBIT 4.3
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of The Depository Trust
Company, a New York corporation (the "Depositary"), or a nominee thereof. This
Security may not be exchanged in whole or in part for a Security registered, and
no transfer of this Security in whole or in part may be registered, in the name
of any person other than the Depositary or a nominee thereof, except in the
limited circumstances described in the Indenture.
Unless this Security is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the Company or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co., or such other name as requested
by an authorized representative of The Depository Trust Company (and any payment
is made to Cede & Co. or to such other entity as is requested by an authorized
representative of The Depository Trust Company), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
ENSCO INTERNATIONAL INCORPORATED
6.75% NOTES DUE NOVEMBER 15, 2007
Registered $150,000,000
Number
R-1 CUSIP No. 26874QAA8
ENSCO INTERNATIONAL INCORPORATED, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of One Hundred Fifty Million Dollars ($150,000,000) on November
15, 2007, and to pay interest thereon from November 25, 1997, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on May 15 and November 15 in each year, commencing May 15,
1998 at the rate of 6.75% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the April 30 or October 31 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such Interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the Corporate Trust Office of the Trustee in New York,
New York in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts, provided,
<PAGE>
however, 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.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereby by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: November 25, 1997
ENSCO INTERNATIONAL INCORPORATED
By:
------------------------------------------
Name: C. Christopher Gaut
Its: Vice President - Finance and
Chief Financial Officer
Attest:
- ----------------------------
TRUSTEE'S AUTHENTICATION CERTIFICATE
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By
-----------------------------------------
Authorized Signature
<PAGE>
ENSCO INTERNATIONAL INCORPORATED
6.75% NOTES DUE NOVEMBER 15, 2007
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of November 20, 1997 (herein called the
"Indenture"), between the Company and Bankers Trust Company, as Trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which the Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
$150,000,000.
The Securities of this series may be redeemed at any time at the option of
the Company, in whole or from time to time in part, at a price equal to 100% of
the principal amount thereof plus accrued and unpaid interest, if any, to the
Redemption Date plus the Make-Whole Premium, if any (the "Redemption Price").
The amount of the Make-Whole Premium with respect to any Security of this series
(or portion thereof) to be redeemed will be equal to the excess, if any, of: (i)
the sum of the present values, calculated as of the Redemption Date, of: (A)
each interest payment that, but for such redemption, would have been payable on
the Security (or portion thereof) being redeemed on each Interest Payment Date
occurring after the Redemption Date (excluding any accrued interest for the
period prior to the Redemption Date); and (B) the principal amount that, but for
such redemption, would have been payable at the final maturity of the Security
(or portion thereof) being redeemed; over (ii) the principal amount of the
Security (or portion thereof) being redeemed. The present values of interest and
principal payments referred to in clause (i) above will be determined in
accordance with generally accepted principles of financial analysis. Such
present values will be calculated by discounting the amount of each payment of
interest or principal from the date that each such payment would have been
payable, but for the redemption, to the Redemption Date at a discount rate equal
to the Treasury Yield (as defined below) plus 15 basis points.
The Make-Whole Premium shall be calculated by an independent investment
banking institution of national standing appointed by the Company; provided,
that if the Company fails to make such appointment at least 45 Business Days
prior to the Redemption Date, or if the institution so appointed is unwilling or
unable to make such calculation, such calculation shall be made by Goldman,
Sachs & Co. or, if such firm is unwilling or unable to make such calculation, by
an independent investment banking institution of national standing appointed by
the Trustee (in any such case, an "Independent Investment Banker").
For purposes of determining the Make-Whole Premium, "Treasury Yield" means
a rate of interest per annum equal to the weekly average yield to maturity of
United States Treasury Notes that have a constant maturity that corresponds to
the remaining term to maturity of the Securities of this series, calculated to
the nearest 1/12th of a year (the "Remaining Term"). The Treasury Yield shall
be determined as of the third Business Day immediately preceding the applicable
Redemption Date. The weekly average yields of United States Treasury Notes
shall be determined by reference to the most recent statistical release
published by the Federal Reserve Bank of New York and designated "H.15 (519)
Selected Interest Rates" or any successor release (the "H.15 Statistical
Release"). If the H.15 Statistical Release sets forth a weekly average yield
for United States Treasury Notes having a constant maturity that is the same as
the Remaining Term, then the Treasury Yield shall be equal to such weekly
average yield. In all other cases, the Treasury Yield shall be calculated by
interpolation, on a straight-line basis, between the weekly average yields on
the United States Treasury Notes that have a constant maturity closest to and
greater than the Remaining Term and the United States Treasury Notes that have a
constant maturity closest to and less than the Remaining Term (in each case
<PAGE>
as set forth in the H.15 Statistical Release). Any weekly average yields so
calculated by interpolation shall be rounded to the nearest 1/100th of 1%, with
any figure of 1/200% or above being rounded upward. If weekly average yields for
United States Treasury Notes are not available in the H.15 Statistical Release
or otherwise, then the Treasury Yield shall be calculated by interpolation of
comparable rates selected by the Independent Investment Banker.
Periodic interest installments with respect to which the Interest Payment
Date is on or prior to any Redemption Date will be payable to the Holders of
record at the close of business on the relevant record dates referred to herein,
all as provided in the Indenture.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Securities of this series to
be redeemed at his address appearing in the Securities Register. Securities of
this series in denominations larger than $1,000 may be redeemed in part but only
in whole multiples of $1,000. On and after the Redemption Date interest will
cease to accrue on Securities of this series or on the portions thereof called
for redemption, as the case may be.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of all Securities at
the time Outstanding to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities of this series at the time Outstanding, on behalf of the Holders of
all Securities of this series, and specified percentages in principal amount of
all Securities at the time Outstanding, on behalf of the holders of all
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
The Indenture contains provisions for the legal defeasance at any time of
the entire indebtedness of the Company on this Security upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Security. Upon compliance with such provisions, the Company shall be
deemed to have paid and discharged the entire indebtedness on this Security and
the Company's obligation to pay the principal of (and premium, if any) and
interest on this Security shall cease, terminate and be completely discharged.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of his Security
for the
<PAGE>
enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall, without the consent of the Holder, alter or impair the
right of the Holder, which is absolute and unconditional, to receive payment of
principal of (and premium, if any) and interest on this Security at the times,
place and rate, and in the coin or currency herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any)
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue; and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE>
EXHIBIT 4.4
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of The Depository Trust
Company, a New York corporation (the "Depositary"), or a nominee thereof. This
Security may not be exchanged in whole or in part for a Security registered, and
no transfer of this Security in whole or in part may be registered, in the name
of any person other than the Depositary or a nominee thereof, except in the
limited circumstances described in the Indenture.
Unless this Security is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the Company or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co., or such other name as requested
by an authorized representative of The Depository Trust Company (and any payment
is made to Cede & Co. or to such other entity as is requested by an authorized
representative of The Depository Trust Company), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
ENSCO INTERNATIONAL INCORPORATED
7.20% DEBENTURES DUE NOVEMBER 15, 2027
Registered $150,000,000
Number
R-1 CUSIP No. 26874QAB6
ENSCO INTERNATIONAL INCORPORATED, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of One Hundred Fifty Million Dollars ($150,000,000) on November
15, 2027, and to pay interest thereon from November 25, 1997, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on May 15 and November 15 in each year, commencing May 15,
1998 at the rate of 7.20% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the April 30 or October 31 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such Interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof be given to Holders of Securities of this series not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the Corporate Trust Office of the Trustee in New York,
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts,
provided,
<PAGE>
however, 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.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereby by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: November 25, 1997
ENSCO INTERNATIONAL INCORPORATED
By:
----------------------------------------
Name: C. Christopher Gaut
Its: Vice President - Finance and
Chief Financial Officer
Attest:
- -------------------------
TRUSTEE'S AUTHENTICATION CERTIFICATE
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
BANKERS TRUST COMPANY
By
------------------------------------------
Authorized Signature
<PAGE>
ENSCO INTERNATIONAL INCORPORATED
7.20% DEBENTURES DUE NOVEMBER 15, 2027
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of November 20, 1997 (herein called the
"Indenture"), between the Company and Bankers Trust Company, as Trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which the Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
$150,000,000.
The Securities of this series may be redeemed at any time, at the option of
the Company, in whole or from time to time in part, at a price equal to 100% of
the principal amount thereof plus accrued and unpaid interest, if any, to the
Redemption Date plus the Make-Whole Premium, if any (the "Redemption Price").
The amount of the Make-Whole Premium with respect to any Security of this series
(or portion thereof) to be redeemed will be equal to the excess, if any, of: (i)
the sum of the present values, calculated as of the Redemption Date, of: (A)
each interest payment that, but for such redemption, would have been payable on
the Security (or portion thereof) being redeemed on each Interest Payment Date
occurring after the Redemption Date (excluding any accrued interest for the
period prior to the Redemption Date); and (B) the principal amount that, but for
such redemption, would have been payable at the final maturity of the Security
(or portion thereof) being redeemed; over (ii) the principal amount of the
Security (or portion thereof) being redeemed. The present values of interest and
principal payments referred to in clause (i) above will be determined in
accordance with generally accepted principles of financial analysis. Such
present values will be calculated by discounting the amount of each payment of
interest or principal from the date that each such payment would have been
payable, but for the redemption, to the Redemption Date at a discount rate equal
to the Treasury Yield (as defined below) plus 20 basis points.
The Make-Whole Premium shall be calculated by an independent investment
banking institution of national standing appointed by the Company; provided,
that if the Company fails to make such appointment at least 45 Business Days
prior to the Redemption Date, or if the institution so appointed is unwilling or
unable to make such calculation, such calculation shall be made by Goldman,
Sachs & Co. or, if such firm is unwilling or unable to make such calculation, by
an independent investment banking institution of national standing appointed by
the Trustee (in any such case, an "Independent Investment Banker").
For purposes of determining the Make-Whole Premium, "Treasury Yield" means
a rate of interest per annum equal to the weekly average yield to maturity of
United States Treasury Notes that have a constant maturity that corresponds to
the remaining term to maturity of the Securities of this series, calculated to
the nearest 1/12th of a year (the "Remaining Term"). The Treasury Yield shall
be determined as of the third Business Day immediately preceding the applicable
Redemption Date. The weekly average yields of United States Treasury Notes
shall be determined by reference to the most recent statistical release
published by the Federal Reserve Bank of New York and designated "H.15 (519)
Selected Interest Rates" or any successor release (the "H.15 Statistical
Release"). If the H.15 Statistical Release sets forth a weekly average yield
for United States Treasury Notes having a constant maturity that is the same as
the Remaining Term, then the Treasury Yield shall be equal to such weekly
average yield. In all other cases, the Treasury Yield shall be calculated by
interpolation, on a straight-line basis, between the weekly average yields on
the United States Treasury Notes that have a constant maturity closest to and
greater than the Remaining Term and the United States Treasury Notes that have a
constant maturity closest to and less than the Remaining Term (in each case as
set forth in the H.15 Statistical Release). Any weekly average yields so
calculated by interpolation shall be
<PAGE>
rounded to the nearest 1/100th of 1%, with any figure of 1/200% or above being
rounded upward. If weekly average yields for United States Treasury Notes are
not available in the H.15 Statistical Release or otherwise, then the Treasury
Yield shall be calculated by interpolation of comparable rates selected by the
Independent Investment Banker.
Periodic interest installments with respect to which the Interest Payment
Date is on or prior to any Redemption Date will be payable to the Holders of
record at the close of business on the relevant record dates referred to herein,
all as provided in the Indenture.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Securities of this series to
be redeemed at his address appearing in the Securities Register. Securities of
this series in denominations larger than $1,000 may be redeemed in part but only
in whole multiples of $1,000. On and after the Redemption Date interest will
cease to accrue on Securities or on the portions thereof called for redemption,
as the case may be.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of all Securities at
the time Outstanding to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities of this series at the time Outstanding, on behalf of the Holders of
all Securities of this series, and specified percentages in principal amounts of
all Securities at the time Outstanding, on behalf of the holders of all
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
The Indenture contains provisions for the legal defeasance at any time of
the entire indebtedness of the Company on this Security upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Security. Upon compliance with such provisions, the Company shall be
deemed to have paid and discharged the entire indebtedness on this Security and
the Company's obligation to pay the principal of (and premium, if any) and
interest on this Security shall cease, terminate and be completely discharged.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of his Security
for the
<PAGE>
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall, without the consent of the Holder, alter or impair the
right of the Holder, which is absolute and unconditional, to receive payment of
principal of (and premium, if any) and interest on this Security at the times,
place and rate, and in the coin or currency herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any)
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue; and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE>
Exhibit 5.1
November 24, 1997
ENSCO International Incorporated
2700 Fountain Place
1445 Ross Avenue
Dallas, Texas 75202-2792
Ladies and Gentlemen:
We have acted as counsel to ENSCO International Incorporated, a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-3 (Registration No. 333-37897) filed with the Securities and Exchange
Commission on October 15, 1997, as supplemented by the Prospectus Supplement
dated November 20, 1997 (the registration statement as so supplemented is
hereafter referred to as the "Registration Statement") relating to the public
offering of an aggregate principal amount of $150,000,000 of its 6.75% Notes,
due November 15, 2007 (the "Notes"), and $150,000,000 of its 7.20% Debentures,
due November 15, 2027 (the "Debentures," and, together with the Notes, the
"Securities").
In reaching the conclusions expressed herein, we have examined and relied
upon the original or copies, certified to our satisfaction, of (i) the Amended
and Restated Certificate of Incorporation and the Bylaws of the Company; (ii)
copies of resolutions of the Board of Directors of the Company, or committees
thereof, authorizing the issuance of the Securities and related matters; (iii)
the Registration Statement and all exhibits thereto; and (iv) such other
documents and instruments as we have deemed necessary for the expression of
opinion herein contained. In making the foregoing examinations, we have assumed
the genuineness of all signatures and the authenticity of all documents
submitted to us as originals, and the conformity to original documents of all
documents submitted to us as certified or photostatic copies. As to various
questions of fact material to this opinion, we have relied, to the extent we
deem reasonably appropriate, upon representations or certificates of officers or
directors of the Company and upon documents, records and instruments furnished
to us by the Company, without independent check or verification of their
accuracy.
Based on the foregoing, we are of the opinion that the Securities have been
duly authorized and legally issued by, and are binding obligations of, the
Company.
<PAGE>
ENSCO International Incorporated
November 24, 1997
Page 2
This opinion letter may be filed as an exhibit to the Registration
Statement. Consent is also given to the reference to this firm under the
caption "Validity of the Notes and Debentures" in the Registration Statement.
In giving this consent, this firm does not thereby admit that it comes within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Baker & McKenzie
BAKER & McKENZIE
<PAGE>
Exhibit 25.1
- --------------------------------------------------------------------------------
UNITED STATES
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) ___________
______________________________
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
______________________________
ENSCO International Incorporated
(Exact name of obligor as specified in its charter)
TEXAS 76-0232579
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
2700 FOUNTAIN PLACE
DALLAS, TEXAS 75202-2792
(Address of principal executive offices) (Zip Code)
ENSCO INTERNATIONAL INCORPORATED
$150,000,000 OF NOTES DUE 2007
$150,000,000 OF DEBENTURES DUE 2027
(Title of the 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.
NAME ADDRESS
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
ITEM 3.-15. NOT APPLICABLE
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of Amendment of
the Organization Certificate of Bankers Trust Company
dated June 21, 1995 -Incorporated herein by reference to
Exhibit 1 filed with Form T-1 Statement, Registration No.
33-65171, Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated March 20,
1996, incorporate by referenced to Exhibit 1 filed with
Form T-1 Statement, Registration No. 333-25843 and
Certificate of Amendment of the Organization Certificate
of Bankers Trust Company dated June 19, 1997, copy
attached.
EXHIBIT 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed with
Form T-1 Statement, Registration No. 33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise corporate trust
powers -Incorporated herein by reference to Exhibit 2
filed with Form T-1 Statement, Registration No. 33-21047.
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, as amended on
February 18, 1997, Incorporated herein by reference to
Exhibit 4 filed with Form T-1 Statement, Registration No.
333-24509-01.
-2-
<PAGE>
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference to
Exhibit 4 filed with Form T-1 Statement, Registration No.
22-18864.
EXHIBIT 7 - The latest report of condition of Bankers Trust Company
dated as of June 30, 1997. Copy attached.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 14th day
of November, 1997.
BANKERS TRUST COMPANY
By: /s/ Vincent Chorney
-------------------------------------------
Vincent Chorney
Assistant Vice President
-4-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 6/30/97 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: 0 0 6 2 3
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED
SAVINGS BANKS JUNE 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
<S> <C> <C> <C>
-------------------
C400
---------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
ASSETS ///////////////////
1. Cash and balances due from depository ////////////////////
institutions (from Schedule RC-A):...............................
a. Noninterest-bearing balances and currency and coin (1)........ 0081 1,724,000 1.a.
b. Interest-bearing balances(2).................................. 0071 2,648,000 1.b.
2. Securities:...................................................... ///////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A )... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D ). 1773 3,990,000 2.b
3. Federal funds sold and securities purchased under agreements
to resell in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds sold............................................ 1350 26,430,000
b. Securities purchased under agreements to resell............... ///////////////////
4. Loans and lease financing receivablles:
a. Loans and leases, net of unearned income ///////////////////
(from Schedule RC-C)............RCFD 2122 17,815,000... /////////////////// 4.a.
b. LESS: Allowance for loan and
lease losses....................RCFD 3123 723,000... /////////////////// 4.b.
c. LESS: Allocated transfer
risk reserve....................RCFD 3128 0... /////////////////// 4.c
d. Loans and leases, net of unearned income, ///////////////////
allowance, and reserve (item 4.a minus 4.b
and 4.c)...................................................... 2125 17,092,000 4.d.
5. Assets held in trading accounts................................. 3545 40,350,000 5.
6. Premises and fixed assets (including
capitalized leases)............................................. 2145 937,000 6.
7. Other real estate owned (from Schedule RC-M)................... 2150 195,000 7.
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M)....................... 2130 96,000 8.
9. Customers' liability to this bank on
acceptances outstanding......................................... 2155 691,000 9.
10. Intangible assets (from Schedule RC-M).......................... 2143 85,000 10.
11. Other assets (from Schedule RC-F)............................... 2160 4,633,000 11.
12. Total assets (sum of items 1 through 11)........................ 2170 98,871,000 12.
---------------------------------
</TABLE>
__________________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 6/30/97 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State ZIP: New York, NY 10006 12
FDIC Certificate No.: 0 0 6 2 3
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Dollar Amounts in Thousands Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------
LIABILITIES ///////////////////
13. Deposits: ///////////////////
a. In domestic offices (sum of totals of columns A
and C from Schedule RC-E, part 1)............................RCON 2200 18,026,000 13.a.
(1) noninterest-bearing (1)...RCON 6631 3,184,000..../////////////////// 13.a(1)
(2) Interest-bearing ........RCON 6636 14,842,000..../////////////////// 13.a(2)
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs (from Schedule RC-E part II) RCFN 2200 22,173,000 13.b.
(1) noninterest-bearing ......RCFN 6631 1,454,000.... ///////////////////
(2) Interest-bearing ........RCFN 6636 20,719,000....////////////////// 13.b(2)
14. Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the
bank and of its domestic offices of the bank and of //// 2800 14,623,000 14.
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased................................... RCFD 0278 14.b
b. Securities sold under agreements to repurchase RCFD 0279
15. a. Demand notes issued to the U.S. Treasury.................. RCON 2840 0 15.a
b. Trading liabilities....................................... RCFD 3548 19,819,000 15.b
16. Other borrowed money: ////////////////
a. With original maturity of one year or less................. RCFD 2332 6,877,000 16.a
b. With original maturity of more than one year............... A547 217,000 16.b
c. With a remaining maturity of more than three years......... A548 4,848,000 16.c
17. Mortgage indebtedness and obligations under capitalized leases
18. Bank's liability on acceptances executed and outstanding...... RCFD 2920 691,000 18.
19. Subordinated notes and debentures............................. RCFD 3200 1,251,000 19.
20. Other liabilities (from Schedule RC-G)........................ RCFD 2930 4,872,000 20.
21. Total liabilities (sum of items 13 through 20)................ RCFD 2948 93,397,000
//////////////////
22. Limited-life preferred stock and related surplus.............. RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................. RCFD 3838 1,000,000 23.
24. Common stock.................................................. RCFD 3230 1,001,000 24.
25. Surplus (exclude all surplus related to preferred stock)...... RCFD 3839 540,000 25.
26. a. Undivided profits and capital reserves..................... RCFD 3632 3,314,000 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities.............................. RCFD 8434 ( 3,000)26.b
27. Cumulative foreign currency translation adjustments........... RCFD 8284 ( 378,000)27.
28. Total equity capital (sum of items 23 through 27)............. RCFD 3210 5,474,000 28.
29. Total liabilities limited-life preferred stock, and equity ////////////////////
capital (sum of items 21, 22, and 28)......................... RCFD 3300 98,871,000 29.
-----------------------------------
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing Number
work performed for the bank by independent external ----------
auditors as of any date during 1996 ......................... RCFD 6724 N/A M
1 = Independent audit of the bank conducted in accordance with
generally accepted auditing standards by a certified public
accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately).
3 = Directors' examination of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm (may be required by state
chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- -----------------------------------
(1) Including total demand deposits and noninterest-bearing time
and savings deposits.
(2) Includes limited-life preferred stock and related surplus.
</TABLE>
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION 8005 OF THE
BANKING LAW," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
WITNESS, my hand and official seal of the Banking Department at the City of New
York,
this 27TH day of June in the Year of our Lord one thousand nine
--------- --------
hundred and NINETY-SEVEN.
/s/ Manuel Kursky
--------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into One
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 600 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred Million,
One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667)
shares with a par value of $10 each designated as Common Stock and 1000
shares with a par value of One Million Dollars ($1,000,000) each designated
as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
/s/ James T. Byrne, Jr.
-------------------------------
James T. Byrne, Jr.
Managing Director
/s/ Lea Lahtinen
-------------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
/s/ Lea Lahtinen
-------------------------------
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
- ---------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
Exhibit 99.1
Filed pursuant to Rule 424(b)(5)
SEC File No. 333-37897
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED NOVEMBER 5, 1997
$300,000,000
[Logo of ENSCO International Incorporated appears here]
ENSCO INTERNATIONAL INCORPORATED
$150,000,000 6.75% NOTES DUE NOVEMBER 15, 2007
$150,000,000 7.20% DEBENTURES DUE NOVEMBER 15, 2027
----------
Interest on the 6.75% Notes due November 15, 2007 (the "Notes") and the 7.20%
Debentures due November 15, 2027 (the "Debentures") is payable on May 15 and
November 15 of each year, commencing May 15, 1998. The Notes and the Debentures
may be redeemed at any time at the option of the Company, in whole or in part,
at a price equal to 100% of the principal amount thereof plus accrued and
unpaid interest, if any, to the date of redemption plus a Make-Whole Premium
(as defined below), if any, relating to the then prevailing Treasury Yield (as
defined below) and the remaining life of the Notes or Debentures. The Notes and
Debentures will be represented by one or more global securities ("Global
Securities") registered in the name of the nominee of The Depository Trust
Company ("DTC"). Beneficial interests in the Global Securities will be shown
on, and transfers thereof will be effected only through records maintained by
DTC and its participants. Except as described herein, neither the Notes nor the
Debentures will be offered in definitive form. The Notes and Debentures will be
issued only in denominations of $1,000 and integral multiples thereof. The
Notes and Debentures are being offered separately and not as a unit. See
"Description of the Notes and Debentures".
----------
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 SUPPLEMENT OR THE PROSPECTUS TO WHICH IT
RELATES.ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO
OFFERING PRICE(1) DISCOUNT(2) COMPANY(1)(3)
----------------- ------------ -------------
<S> <C> <C> <C>
Per Note........................... 99.982% 0.650% 99.332%
Total............................. $149,973,000 $975,000 $148,998,000
Per Debenture...................... 99.582% 0.875% 98.707%
Total............................. $149,373,000 $1,312,500 $148,060,500
</TABLE>
- -----
(1) Plus accrued interest, if any, from November 25, 1997.
(2) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933.
(3) Before deducting estimated expenses of $300,000 payable by the Company.
----------
The Notes and Debentures offered hereby are offered severally by the
Underwriters, as specified herein, subject to receipt and acceptance by them
and subject to their right to reject any order in whole or in part. It is
expected that the Notes and Debentures will be ready for delivery in book-entry
form only through the facilities of DTC in New York, New York, on or about
November 25, 1997, against payment therefor in immediately available funds.
GOLDMAN, SACHS & CO.
BT ALEX. BROWN
CREDIT SUISSE FIRST BOSTON
SALOMON BROTHERS INC
----------
The date of this Prospectus Supplement is November 20, 1997.
<PAGE>
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE NOTES OR
DEBENTURES, INCLUDING OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING
TRANSACTIONS IN SUCH SECURITIES, AND THE IMPOSITION OF A PENALTY BID, IN
CONNECTION WITH THE OFFERING. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"UNDERWRITING".
FORWARD-LOOKING INFORMATION
The statements included in this Prospectus Supplement and the accompanying
Prospectus regarding future financial performance, expected market trends and
results of future operations and other statements that are not historical
facts are forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended ("the Securities Act") and Section 21E of
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
Statements to the effect that the Company or management "anticipates,"
"believes," "estimates," "expects," "predicts," or "projects" a particular
result or course of events, or that such result or course of events "should"
occur, and similar expressions, are also intended to identify forward-looking
statements. Such statements are subject to numerous risks, uncertainties and
assumptions and other factors discussed in this Prospectus Supplement, the
accompanying Prospectus and in the Company's filings with the Securities and
Exchange Commission. Should one or more of these risks or uncertainties
materialize, or should the assumptions underlying such statements prove
incorrect, actual results may vary materially from those expressed or implied
by such forward-looking statements.
S-2
<PAGE>
PROSPECTUS SUPPLEMENT SUMMARY
The following summary is qualified in its entirety by the more detailed
information and consolidated financial statements, including the notes thereto,
appearing elsewhere in or incorporated by reference in this Prospectus
Supplement and the accompanying Prospectus. As used herein and unless the
context requires otherwise, the "Company" means ENSCO International
Incorporated and its subsidiaries and its predecessors.
THE COMPANY
ENSCO International Incorporated is one of the leading international
providers of offshore drilling and marine transportation services to the oil
and gas industry, with a fleet of 52 offshore drilling rigs and 37 oilfield
support vessels. The Company owns and operates the world's largest fleet of
premium jackup rigs, with 35 jackup rigs located throughout the world. Premium
jackups are generally defined as jackup rigs that have an independent leg
design and are capable of working in water depths of up to approximately 250 to
350 feet. These rigs are preferred because of their ability to work in many
offshore producing areas around the world in water depths commonly encountered
on continental shelves. The Company also owns and operates the fourth largest
fleet of oilfield supply vessels in the Gulf of Mexico, as well as seven
platform and ten barge drilling rigs.
The Company's operations are concentrated in four principal geographic
regions--North America, South America, Europe and Asia Pacific. In North
America, the Company's offshore fleet consists of 22 jackup rigs, seven
platform rigs, and 37 oilfield support vessels, all located in the Gulf of
Mexico. The Company's European operations consist of six jackup rigs currently
deployed in the United Kingdom and Dutch sectors of the North Sea. In South
America, the Company's fleet consists of ten lake barge drilling rigs located
in Venezuela. In Asia Pacific, the fleet consists of seven jackup rigs deployed
in various locations. All of the Company's domestic and foreign operations are
conducted through wholly owned subsidiaries, with the exception of the
Company's Venezuelan operations in which the Company holds an 85% interest.
BUSINESS STRATEGY
The Company is focused on the offshore drilling and marine transportation
segments of the oilfield services market, which it believes offer the best
long-term growth potential. The Company expects to grow and to enhance its
financial performance through the following strategic initiatives:
Fleet Additions
Over the last several years, the Company has added both offshore drilling
rigs and oilfield support vessels to expand its presence in these two
businesses, and has disposed of operations that did not fit with the Company's
strategic emphasis. Since 1992, the Company has acquired 33 of its 35 jackup
rigs, each of its seven platform rigs and eight of its 37 oilfield support
vessels, including two large anchor handling tug supply vessels. In June 1996,
the Company acquired DUAL DRILLING COMPANY ("Dual"). The Dual acquisition added
ten premium jackup rigs to the Company's fleet and expanded the Company's
international operations into the Asia Pacific region. In 1993 and 1994, the
Company built eight new lake drilling barges to service the drilling needs of a
subsidiary of the Venezuelan national oil company. These barge rigs were built
against five year, full payout contracts. The Company expects to continue to
pursue acquisitions of offshore rigs and vessels that meet the Company's strict
criteria for high quality and capability, and improved financial performance.
If the drilling market continues to improve, the Company will evaluate
opportunities to construct new drilling rigs.
S-3
<PAGE>
Equipment Enhancements
The Company has invested approximately $315 million since 1993 in upgrading
and extending the service life of its assets. By enhancing its asset base, the
Company has positioned many of its rigs in higher margin segments of the
market, thus contributing to the Company's increased profitability. The Company
has increased the capability of all six of its rigs in the North Sea to better
support extended reach drilling and to address the environmental requirements
of this market. The Company has increased the water-depth and/or drilling
capability of seven of its eleven large jackup rigs located in the Gulf of
Mexico and similarly plans to enhance the remaining four large jackup rigs by
the end of 1998. The Company has also enhanced five of its seven jackup rigs in
the Asia Pacific region and plans to enhance the remaining two in 1998.
Geographic Cores
The Company has concentrated its assets in the Gulf of Mexico, the North Sea,
Venezuela and the Asia Pacific region. By concentrating its assets in selected
geographic markets, the Company is able to focus its marketing efforts, better
serve its customers and limit the number of expensive shorebase facilities
required to support its field operations. The Company believes this allows it
to better control costs to maximize financial performance.
INDUSTRY CONDITIONS
The market for offshore drilling and marine transportation services is
largely determined by the supply of and demand for equipment. From the mid-
1980s to the early 1990s, demand for offshore drilling and marine equipment was
generally flat, while the over supply of offshore drilling and marine equipment
gradually decreased, primarily due to attrition. Since 1994, demand has
steadily improved and, as a result, day rates and utilization for offshore
drilling and marine equipment have increased. Technological advancements, such
as three dimensional seismic, extended reach drilling, and multilateral
drilling techniques, have improved the economics of finding and developing oil
and gas reserves. As a result, oil companies have increased their exploration
and production budgets, which has lead to increased demand for drilling and
marine transportation services. Nearly all actively marketed offshore rigs in
the world are currently under contract, and the demand for high quality rigs
exceeds supply in many markets.
In response to higher demand for offshore rigs, a number of offshore drilling
contractors, including the Company, are upgrading equipment to meet customer
needs for more capable drilling equipment. Some new offshore rigs are being
built, but most new equipment currently planned or under construction is
targeted for deep water drilling, such as semi-submersible rigs and drillships.
Currently, there are relatively few new jackup rigs on order. The Company
believes that increased demand for offshore rigs and marine transportation
services will be sustained over the next several years.
S-4
<PAGE>
THE OFFERING
Securities Offered.......... $150,000,000 aggregate principal amount of 6.75%
Notes due November 15, 2007 (the "Notes").
$150,000,000 aggregate principal amount of 7.20%
Debentures due November 15, 2027 (the
"Debentures").
Interest Payment Dates...... May and November 15, commencing May 15, 1998.
Ranking..................... The Notes and Debentures will rank pari passu
with all existing unsecured, unsubordinated
indebtedness of the Company. See "Description of
the Notes and Debentures--Ranking".
Optional Redemption......... The Notes and the Debentures may be redeemed at
any time at the option of the Company, in whole
or in part, at a price equal to 100% of the
principal amount thereof plus accrued and unpaid
interest, if any, to the date of redemption plus
a Make-Whole Premium (as defined below), if any,
relating to the then prevailing Treasury Yield
(as defined below) and the remaining life of the
Notes or Debentures. See "Description of the
Notes and Debentures--Optional Redemption".
Certain Covenants........... The indenture and supplemental indenture relating
to the Notes and Debentures will contain
limitations on the Company's ability to (i) incur
indebtedness secured by certain liens, (ii)
engage in certain sale/leaseback transactions and
(iii) engage in certain merger, consolidation or
reorganization transactions. See "Description of
the Notes and Debentures--Certain Covenants".
Use of Proceeds............. Approximately $75 million of the net proceeds
from the offering of the Notes and Debentures
(the "Offering") will be used to retire the
Company's existing revolving credit facility, and
the balance of the proceeds will be used to
acquire an additional jackup rig and for general
corporate purposes. Following the completion of
the Offering, the Company intends to replace its
existing secured credit facility with an
unsecured credit facility. See "Use of Proceeds".
S-5
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL DATA
This summary consolidated financial data should be read in conjunction with
"Selected Consolidated Financial Data," "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and the Company's
consolidated financial statements and the notes thereto included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1996 and
the Company's Quarterly Report on Form 10-Q for the nine months ended September
30, 1997.
<TABLE>
<CAPTION>
NINE MONTHS ENDED YEAR ENDED
SEPTEMBER 30, DECEMBER 31,
------------------ ------------------------
1997 1996(1) 1996(1) 1995 1994
-------- -------- -------- ------ ------
(IN MILLIONS, EXCEPT RATIOS)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA(2)
Operating revenues............. $ 580.3 $ 316.4 $ 468.8 $279.1 $245.5
Operating expenses............. 238.1 165.5 238.3 165.5 144.6
Depreciation and amortization . 76.9 57.9 81.8 58.4 51.8
-------- -------- -------- ------ ------
Operating income............... 265.3 93.0 148.7 55.2 49.1
Other expense.................. 11.5 .9 6.0 7.9 8.8
-------- -------- -------- ------ ------
Income from continuing
operations before income taxes
and minority interest......... 253.8 92.1 142.7 47.3 40.3
Provision for income taxes..... 95.2 26.6 44.0 3.4 3.7
Minority interest.............. 2.3 2.0 3.3 2.1 3.0
-------- -------- -------- ------ ------
Income from continuing
operations.................... 156.3 63.5 95.4 41.8 33.6
Income from discontinued
operations(2)................. -- -- -- 6.3 3.6
-------- -------- -------- ------ ------
Net income..................... $ 156.3 $ 63.5 $ 95.4 $ 48.1 $ 37.2
-------- -------- -------- ------ ------
OTHER FINANCIAL DATA
Capital expenditures(3)........ $ 140.6 $ 106.3 $ 176.0 $143.2 $150.4
EBITDA......................... 342.2 150.9 230.5 113.6 100.9
Ratio of EBITDA to interest
expense....................... 20.72x 10.23x 11.03x 6.86x 7.15x
Ratio of earnings to fixed
charges
Historical................... 15.76x 6.96x 7.62x 3.69x 3.61x
Pro forma(4)................. 10.07x
BALANCE SHEET DATA (END OF
PERIOD)
Working capital................ $ 181.1 $ 95.1 $ 107.5 $ 78.9 $129.2
Total assets................... 1,486.9 1,250.4 1,315.4 821.5 773.1
Long-term debt, net of current
portion....................... 209.3 253.5 258.6 159.2 162.5
Stockholders' equity........... 1,000.4 814.7 846.0 531.2 488.0
</TABLE>
- --------
(1) The Company acquired Dual on June 12, 1996. Statement of Operations Data
includes the results of Dual from the acquisition date.
(2) The Company sold its technical services segment in 1995. Results of the
technical services segment have been reclassified for comparative purposes.
The 1995 results include a gain of $5.2 million in connection with the sale
of the technical services segment.
(3) Excludes the value of stock issued in the acquisition of Dual.
(4) Assumes the Company's repayment of all of its borrowings under its
revolving credit facility (which totaled $125.1 million as of January 1,
1997 and $100.0 million as of September 30, 1997) and that the Notes and
the Debentures bear interest at annual rates of 6.75% and 7.20%,
respectively. See "Use of Proceeds".
S-6
<PAGE>
USE OF PROCEEDS
The estimated net proceeds of approximately $297 million from the Offering
(after deducting the underwriting discount and estimated expenses of the
Offering to be paid by the Company) will be used (i) to retire the Company's
existing secured revolving credit facility, (ii) for the expected acquisition
of an additional jackup rig and (iii) for general corporate purposes. See
"Business--Expected Acquisition". The Company's existing revolving credit
facility carries a floating interest rate tied to the London InterBank Offered
Rate; as of October 31, 1997, the interest rate on the revolving credit
facility was 6.125%. Following the completion of the Offering, the Company
intends to replace its existing secured credit facility with an unsecured
credit facility. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations".
CAPITALIZATION
The following table sets forth the capitalization of the Company as of
September 30, 1997, and as adjusted to give effect to (i) the sale of the
Notes and Debentures and the application of a portion of the estimated net
proceeds therefrom to retire the Company's revolving credit facility as
described under "Use of Proceeds" and (ii) the Company's repayment of
borrowings under its revolving credit facility of $25.0 million on October 20,
1997:
<TABLE>
<CAPTION>
SEPTEMBER 30, 1997
-----------------------
ACTUAL AS ADJUSTED
---------- -----------
(IN THOUSANDS)
<S> <C> <C>
DEBT
Notes offered hereby................................. $ -- $ 150,000
Debentures offered hereby............................ -- 150,000
Revolving credit facility............................ 100,000 --
9 7/8% Senior Subordinated Notes..................... 74,805 74,805
Secured term loans (non-recourse to the Company)..... 52,362 52,362
Secured term loans................................... 14,870 14,870
---------- ----------
Total debt......................................... 242,037 442,037
Less current maturities.............................. 32,778 32,778
---------- ----------
Total long-term debt............................... 209,259 409,259
---------- ----------
STOCKHOLDERS' EQUITY
Common stock, par value $.10 per share, 250,000,000
shares authorized, 142,259,114 shares issued
and outstanding..................................... 15,509 15,509
Additional paid-in capital........................... 835,314 835,314
Retained earnings.................................... 224,560 224,560
Restricted stock (unearned compensation)............. (7,085) (7,085)
Cumulative translation adjustment.................... (1,086) (1,086)
Treasury stock....................................... (66,805) (66,805)
---------- ----------
Total stockholders' equity......................... 1,000,407 1,000,407
---------- ----------
Total capitalization............................. $1,209,666 $1,409,666
========== ==========
</TABLE>
S-7
<PAGE>
BUSINESS
The Company is one of the leading international providers of offshore
drilling and marine transportation services to the oil and gas industry, with
a fleet of 52 offshore drilling rigs and 37 oilfield support vessels. The
Company owns and operates the world's largest fleet of premium jackup rigs,
with 35 jackup rigs. Premium jackups are generally defined as jackup rigs that
have an independent leg design and are capable of working in water depths of
up to approximately 250 to 350 feet. These rigs are preferred because of their
ability to work in many offshore producing areas around the world in water
depths commonly encountered on continental shelves. The Company also owns and
operates the fourth largest fleet of oilfield supply vessels in the Gulf of
Mexico, as well as seven platform and ten barge drilling rigs.
The Company's operations are concentrated in four principal geographic
regions--North America, South America, Europe and Asia Pacific. In North
America, the Company's offshore fleet consists of 22 jackup rigs, seven
platform rigs and 37 oilfield support vessels, all located in the Gulf of
Mexico. The Company's European operations consist of six jackup rigs currently
deployed in the United Kingdom and Dutch sectors of the North Sea. In South
America, the Company's fleet consists of ten lake barge drilling rigs located
in Venezuela. In Asia Pacific, the fleet consists of seven jackup rigs
deployed in various locations. All of the Company's domestic and foreign
operations are conducted through wholly owned subsidiaries, with the exception
of the Company's Venezuelan operations in which the Company holds an 85%
interest; a locally owned private company owns the remaining 15%.
The Company was formed as a Texas corporation in 1975 and was reincorporated
in Delaware in 1987. The Company's principal office is located at 2700
Fountain Place, 1445 Ross Avenue, Dallas, Texas 75202-2792, and its telephone
number is (214) 922-1500.
BUSINESS STRATEGY
The Company is focused on the offshore drilling and marine transportation
segments of the oilfield services market, which it believes offer the best
long-term growth potential. The Company expects to grow and to enhance its
financial performance through the following strategic initiatives:
Fleet Additions
Over the last several years, the Company has added both offshore drilling
rigs and oilfield support vessels to expand its presence in these two
businesses, and has disposed of operations that did not fit with the Company's
strategic emphasis. Since 1992, the Company has acquired 33 of its 35 jackup
rigs, each of its seven platform rigs and eight of its 37 oilfield support
vessels, including two large anchor handling tug supply vessels. In June 1996,
the Company acquired Dual. The Dual acquisition added ten premium jackup rigs
to the Company's fleet and expanded the Company's international operations
into the Asia Pacific region. In 1993 and 1994, the Company built eight new
lake drilling barges to service the drilling needs of a subsidiary of the
Venezuelan national oil company. These barge rigs were built against five
year, full payout contracts. The Company expects to continue to pursue
acquisitions of offshore rigs and vessels that meet the Company's strict
criteria for high quality and capability, and improved financial performance.
See "--Expected Acquisition". If the drilling market continues to improve, the
Company will evaluate opportunities to construct new drilling rigs.
Equipment Enhancements
The Company has invested approximately $315 million since 1993 in upgrading
and extending the service life of its assets. By enhancing its asset base, the
Company has positioned many of its rigs in higher margin segments of the
market, thus contributing to the Company's increased profitability. The
Company has increased the capability of all six of its rigs in the North Sea
to better support extended
S-8
<PAGE>
reach drilling and to address the environmental requirements of this market.
The Company has increased the water-depth and/or drilling capability of seven
of its eleven large jackup rigs located in the Gulf of Mexico and similarly
plans to enhance the remaining four large jackup rigs by the end of 1998. The
Company has also enhanced five of its seven jackup rigs in the Asia Pacific
region and plans to enhance the remaining two in 1998.
Geographic Cores
The Company has concentrated its assets in the Gulf of Mexico, the North
Sea, Venezuela and the Asia Pacific region. By concentrating its assets in
selected geographic markets, the Company is able to focus its marketing
efforts, better serve its customers and limit the number of expensive
shorebase facilities required to support its field operations. The Company
believes this allows it to better control costs and maximize financial
performance.
INDUSTRY CONDITIONS
The market for offshore drilling and marine transportation services is
largely determined by the supply of and demand for available equipment. From
the mid-1980s to the early 1990s, demand for offshore drilling and marine
equipment was generally flat, while the over supply of offshore drilling and
marine equipment gradually decreased, primarily due to attrition. Since 1994,
demand has steadily improved and, as a result, day rates and utilization for
offshore drilling and marine equipment have increased. Technological
advancements, such as three dimensional seismic, extended reach drilling and
multilateral drilling techniques, have improved the economics of finding and
developing oil and gas reserves. As a result, oil companies have increased
their exploration and production budgets, which has lead to increased demand
for drilling and marine transportation services. Nearly all actively marketed
offshore rigs in the world are currently under contract, and the demand for
high quality rigs exceeds supply in many markets.
In response to higher demand for offshore rigs, a number of offshore
drilling contractors, including the Company, are upgrading equipment to meet
customer needs for more capable drilling equipment. Some new offshore rigs are
being built, but most new equipment currently planned or under construction,
such as semi-submersible rigs and drillships, is targeted for deep water
drilling. Currently, there are relatively few new jackup rigs on order. The
Company believes that increased demand for offshore rigs and marine
transportation services should be sustained over the next several years.
DRILLING RIG FLEET
The Company operates three types of drilling rigs--jackup rigs, barge
drilling rigs and platform rigs. The Company's drilling rigs consist of
engines, drawworks, derricks, pumps to circulate the drilling fluid, blowout
preventers, drill string and related equipment. The engines power a drive
mechanism that turns a bit consisting of rotating cones so that a hole is
drilled by grinding the rock which is then carried to the surface by the
drilling fluid. The intended well depth and the drilling conditions are the
principal factors that determine the size and type of rig most suitable for a
particular drilling job.
Jackup Rigs
Jackup rigs stand on the ocean floor with their hull and drilling equipment
elevated above the water on connected leg supports. Jackup rigs are generally
preferred in water depths of 350 feet or less. All of the Company's jackup
rigs are of the independent leg design. The majority of the Company's jackup
units are equipped with cantilevers, which allow the rigs to extend outward
from their hulls over fixed platforms enabling drilling of both exploratory
and development wells. The jackup rig hull includes the drilling rig, jacking
system, crews' quarters, storage and loading facilities, helicopter landing
pad and related equipment.
S-9
<PAGE>
Barge Drilling Rigs
Barge drilling rigs are towed to the drilling location and are held in place
by anchors while drilling activities are conducted. The Company's barge
drilling rigs have all of the crews' quarters, storage facilities and related
equipment mounted on floating barges, with the drilling equipment cantilevered
from the stern of the barge.
Platform Rigs
Platform rigs are designed to be temporarily installed on permanently
constructed offshore platforms. The platform rig sections are lifted onto the
offshore platforms with the use of heavy lift cranes. A platform rig typically
stays at a location for a longer period of time than a jackup rig, because
several wells can be drilled from a single offshore platform.
DRILLING RIG AND MARINE FLEET
The following table provides certain information about the Company's
drilling rig fleet as of November 1, 1997:
JACKUP RIGS
<TABLE>
<CAPTION>
YEAR WATER RATED CURRENT CURRENT
RIG NAME BUILT/REBUILT RIG MAKE(1) DEPTH DEPTH LOCATION CUSTOMER
- ------------------------ ------------- --------------- ----- ------- --------------- --------------
<S> <C> <C> <C> <C> <C> <C>
NORTH AMERICA
ENSCO 51................ 1982 FG-780II-C 300' 25,000' Gulf of Mexico Total
ENSCO 54................ 1982/1997 FG-780II-C 300' 25,000' Gulf of Mexico (2)
ENSCO 55................ 1981/1997 FG-780II-C 300' 25,000' Gulf of Mexico Forcenergy
ENSCO 60................ 1981/1997 Lev-111-C 300' 25,000' Gulf of Mexico Enserch
ENSCO 64................ 1974 MLT 53-S 250' 30,000' Gulf of Mexico Newfield
ENSCO 67................ 1976/1996 MLT 84-S 400' 30,000' Gulf of Mexico McMoran
ENSCO 68................ 1976 MLT 84-S 350' 30,000' Gulf of Mexico Murphy
ENSCO 69................ 1976/1995 MLT 84-S 400' 25,000' Gulf of Mexico Newfield
ENSCO 81................ 1979 MLT 116-C 350' 25,000' Gulf of Mexico Coastal
ENSCO 82................ 1979 MLT 116-C 300' 25,000' Gulf of Mexico British Borneo
ENSCO 83................ 1979 MLT 82 SD-C 250' 25,000' Gulf of Mexico Enron
ENSCO 84................ 1981 MLT 82 SD-C 250' 25,000' Gulf of Mexico UMC/Enron
ENSCO 86................ 1981 MLT 82 SD-C 250' 30,000' Gulf of Mexico Exxon
ENSCO 87................ 1982 MLT 116-C 350' 25,000' Gulf of Mexico Coastal
ENSCO 88................ 1982 MLT 82 SD-C 250' 25,000' Gulf of Mexico Hall Houston
ENSCO 89................ 1982 MLT 82 SD-C 250' 25,000' Gulf of Mexico Exxon
ENSCO 90................ 1982 MLT 82 SD-C 250' 25,000' Gulf of Mexico Exxon
ENSCO 93................ 1982 MLT 82 SD-C 250' 25,000' Gulf of Mexico Conoco
ENSCO 94................ 1981 Hitachi-250C 250' 25,000' Gulf of Mexico Mobil
ENSCO 95................ 1981 Hitachi-250C 250' 25,000' Gulf of Mexico Chevron
ENSCO 98................ 1977 MLT 82 SD-C 250' 25,000' Gulf of Mexico Apache
ENSCO 99................ 1985 MLT 82 SD-C 250' 30,000' Gulf of Mexico Exxon
EUROPE
ENSCO 70................ 1981/1996 Hitachi-300C NS 250' 30,000' The Netherlands NAM (Shell)
ENSCO 71................ 1982/1995 Hitachi-300C NS 225' 25,000' The Netherlands NAM (Shell)
ENSCO 72................ 1981/1996 Hitachi-300C NS 225' 25,000' The Netherlands NAM (Shell)
ENSCO 80................ 1978/1995 MLT 116-CE 225' 30,000' United Kingdom Arco
ENSCO 85................ 1981/1995 MLT 116-C 225' 25,000' The Netherlands NAM (Shell)
ENSCO 92................ 1982/1996 MLT 116-C 225' 25,000' United Kingdom Conoco
</TABLE>
S-10
<PAGE>
JACKUP RIGS
<TABLE>
<CAPTION>
YEAR WATER RATED CURRENT CURRENT
RIG NAME BUILT/REBUILT RIG MAKE(1) DEPTH DEPTH LOCATION CUSTOMER
-------- ------------- ------------ ----- ------- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
ASIA PACIFIC
ENSCO 50......... 1983 FG-780II-C 300' 25,000' India ONGC
ENSCO 52......... 1983/1997 FG-780II-C 300' 25,000' Malaysia Petronas
ENSCO 53......... 1982 FG-780II-C 300' 30,000' India ONGC
ENSCO 56......... 1983/1997 FG-780II-C 300' 25,000' Australia Apache
ENSCO 57......... 1982/1997 FG-780II-C 300' 25,000' Thailand Unocal
ENSCO 96......... 1982/1997 Hitachi-250C 250' 25,000' Qatar Ras Laffan
ENSCO 97......... 1980/1997 MLT 82 SD-C 250' 30,000' Qatar Maersk
</TABLE>
BARGE DRILLING RIGS
<TABLE>
<CAPTION>
YEAR RATED CURRENT CURRENT
RIG NAME BUILD/REBUILT DEPTH LOCATION CUSTOMER
-------- ------------- ------- --------- --------
<S> <C> <C> <C> <C>
ENSCO V.......................... 1982/1996 15,000' Venezuela PdVSA
ENSCO VI......................... 1991/1996 15,000' Venezuela PdVSA
ENSCO VII........................ 1993 20,000' Venezuela PdVSA
ENSCO VIII....................... 1993 20,000' Venezuela PdVSA
ENSCO IX......................... 1993 20,000' Venezuela PdVSA
ENSCO X.......................... 1993 20,000' Venezuela PdVSA
ENSCO XI......................... 1994 25,000' Venezuela PdVSA
ENSCO XII........................ 1994 25,000' Venezuela PdVSA
ENSCO XIV........................ 1994 25,000' Venezuela PdVSA
ENSCO XV......................... 1994 25,000' Venezuela PdVSA
</TABLE>
PLATFORM RIGS
<TABLE>
<CAPTION>
YEAR RATED CURRENT CURRENT
RIG NAME BUILT/REBUILT DEPTH LOCATION CUSTOMER
-------- ------------- ------- -------------- ------------
<S> <C> <C> <C> <C>
ENSCO 20(3)............. 1980 25,000' China Arco
ENSCO 21................ 1982/1996 25,000' Gulf of Mexico Phillips
ENSCO 22................ 1982/1997 25,000' Gulf of Mexico Mobil
ENSCO 23................ 1980 30,000' Gulf of Mexico Amerada Hess
ENSCO 24................ 1980 25,000' Gulf of Mexico (2)
ENSCO 25................ 1980 30,000' Gulf of Mexico Texaco
ENSCO 26................ 1982 30,000' Gulf of Mexico Marathon
ENSCO 29................ 1981 30,000' Gulf of Mexico (2)
</TABLE>
- --------
(1) All jackup rigs are independent cantilever design except for ENSCO 64, 67,
68 and 69 which are independent leg slot rigs.
(2) ENSCO 54, 24 and 29 currently are in shipyards for modification and
enhancement.
(3) ENSCO 20 is managed by, but is not owned by, the Company.
S-11
<PAGE>
MARINE TRANSPORTATION OPERATIONS
The Company's marine transportation fleet of 37 vessels consists of five
anchor handling tug supply ("AHTS") vessels, 24 supply vessels and eight mini-
supply vessels.
The Company's five AHTS vessels ordinarily support semi-submersible drilling
rigs and large offshore construction projects or provide towing services. The
24 supply vessels and eight mini-supply vessels support general drilling and
production activity by ferrying supplies between land and offshore facilities.
All of the Company's marine transportation vessels have drilling fluid
handling capabilities which management believes enhance their marketability.
MARINE FLEET
The following table provides certain information about the Company's marine
transportation vessels as of November 1, 1997:
<TABLE>
<CAPTION>
NO. OF YEAR
VESSEL TYPE VESSELS BUILT HORSE POWER LENGTH LOCATION
----------- ------- --------- ----------- --------- --------------
<S> <C> <C> <C> <C> <C>
KODIAKS--AHTS........... 2 1983 12,000 225' Gulf of Mexico
OTHER--AHTS............. 3 1975-1983 6,150-8,100 195'-230' Gulf of Mexico
SUPPLY.................. 24 1976-1985 1,800-5,800 166'-220' Gulf of Mexico
MINI-SUPPLY............. 8 1981-1984 1,200 140'-146' Gulf of Mexico
---
Total................. 37
===
</TABLE>
EXPECTED ACQUISITION
The Company has agreed to acquire the West Omikron, a Marathon LeTourneau
150-88C Gorilla class jackup drilling rig. The purchase price for the rig is
approximately $103 million. The closing of the transaction is expected to
occur by the end of December 1997.
S-12
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data as of December 31, 1996 and 1995
and for each of the three years in the period ended December 31, 1996 have
been derived from the audited consolidated financial statements of the Company
incorporated by reference in the accompanying Prospectus. The selected
consolidated financial data as of December 31, 1994, 1993 and 1992 and for
each of the two years in the period ended December 31, 1993 have been derived
from audited consolidated financial statements of the Company not incorporated
by reference in the accompanying Prospectus. The selected consolidated
financial data as of September 30, 1997 and September 30, 1996 are unaudited,
but in the opinion of management have been prepared on the same basis as the
audited consolidated financial statements and include all adjustments,
consisting of normal recurring adjustments, considered necessary for a fair
presentation of such data. The following data should be read in conjunction
with "Management's Discussion and Analysis of Financial Condition and Results
of Operations" and the Company's consolidated financial statements and the
notes thereto included in the Company's Annual Report on Form 10-K for the
year ended December 31, 1996 and the Company's Quarterly Report on Form 10-Q
for the nine months ended September 30, 1997, which are incorporated by
reference in the accompanying Prospectus.
<TABLE>
<CAPTION>
NINE MONTHS ENDED YEAR ENDED
SEPTEMBER 30, DECEMBER 31,
----------------- ---------------------------------------
1997 1996(1) 1996(1) 1995 1994 1993(2) 1992(3)
-------- -------- -------- ------ ------ ------- -------
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF
OPERATIONS(4)
Operating revenues..... $ 580.3 $ 316.4 $ 468.8 $279.1 $245.5 $227.4 $ 84.2
Operating expenses..... 238.1 165.5 238.3 165.5 144.6 151.2 82.0
Depreciation and
amortization.......... 76.9 57.9 81.8 58.4 51.8 41.2 12.5
-------- -------- -------- ------ ------ ------ ------
Operating income
(loss)................ 265.3 93.0 148.7 55.2 49.1 35.0 (10.3)
Other expenses......... 11.5 .9 6.0 7.9 8.8 6.7 8.0
-------- -------- -------- ------ ------ ------ ------
Income (loss) from
continuing operations
before income taxes,
minority interest and
cumulative effect of
accounting change..... 253.8 92.1 142.7 47.3 40.3 28.3 (18.3)
Provision for income
taxes................. 95.2 26.6 44.0 3.4 3.7 5.9 2.0
Minority interest...... 2.3 2.0 3.3 2.1 3.0 6.9 --
-------- -------- -------- ------ ------ ------ ------
Income (loss) from
continuing
operations............ 156.3 63.5 95.4 41.8 33.6 15.5 (20.3)
Income (loss) from
discontinued
operations(4)......... -- -- -- 6.3 3.6 3.5 (9.0)
-------- -------- -------- ------ ------ ------ ------
Income (loss) before
cumulative effect of
accounting change..... 156.3 63.5 95.4 48.1 37.2 19.0 (29.3)
Cumulative effect of
accounting change,
net of minority
interest(5)........... -- -- -- -- -- (2.5) --
-------- -------- -------- ------ ------ ------ ------
Net income (loss)...... 156.3 63.5 95.4 48.1 37.2 16.5 (29.3)
Preferred stock
dividend
requirements.......... -- -- -- -- 2.2 4.3 4.3
-------- -------- -------- ------ ------ ------ ------
Income (loss)
applicable to common
stock................. $ 156.3 $ 63.5 $ 95.4 $ 48.1 $ 35.0 $ 12.2 $(33.6)
======== ======== ======== ====== ====== ====== ======
Income (loss) per
common share(6).......
Continuing
operations.......... $ 1.10 $ .49 $ .72 $ .35 $ .27 $ .14 $ (.41)
Discontinued
operations.......... -- -- -- .05 .03 .04 (.15)
Cumulative effect of
accounting change... -- -- -- -- -- (.03) --
-------- -------- -------- ------ ------ ------ ------
Income (loss) per
common share........ $ 1.10 $ .49 $ .72 $ .40 $ .30 $ .15 $ (.56)
======== ======== ======== ====== ====== ====== ======
Weighted average
common shares
outstanding(7)........ 141.9 129.5 132.6 121.1 115.7 80.7 60.0
BALANCE SHEET DATA (END
OF PERIOD)
Working capital........ $ 181.1 $ 95.1 $ 107.5 $ 78.9 $129.2 $124.6 $ 33.8
Total assets........... 1,486.9 1,250.4 1,315.4 821.5 773.1 689.3 272.4
Long-term debt, net of
current portion....... 209.3 253.5 258.6 159.2 162.5 126.0 23.6
$1.50 preferred stock.. -- -- -- -- -- 71.0 71.0
Stockholders' equity... 1,000.4 814.7 846.0 531.2 488.0 383.9 142.5
</TABLE>
S-13
<PAGE>
- --------
(1) The Company acquired Dual on June 12, 1996. Statement of Operations Data
includes the results of Dual from the acquisition date.
(2) The Company completed the step acquisition of Penrod Holding Corporation
("Penrod") in August 1993.
(3) Amounts have been restated for adoption of Statement of Financial
Accounting Standards No. 109 "Accounting for Income Taxes".
(4) The Company sold its technical services segment in 1995 and its supply
segment in 1993. Results of the technical services segment and the supply
segment have been reclassified for comparative purposes. The 1995 results
include a gain of $5.2 million in connection with the sale of the
technical services segment and the 1993 results include a gain of $2.1
million in connection with the sale of the supply segment.
(5) Effective January 1, 1993, Penrod adopted Statement of Financial
Accounting Standards No. 106, "Employers' Accounting for Postretirement
Benefits Other Than Pensions".
(6) Income (loss) per common share amounts have been adjusted for the two-for-
one stock split effected on September 15, 1997.
(7) Weighted average common shares outstanding has been adjusted for the two-
for-one stock split effected on September 15, 1997.
S-14
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
The Company's net income for the quarter ended September 30, 1997 increased
to $67.8 million, $.48 per share, from $27.2 million, $.19 per share, in the
prior year quarter. For the nine months ended September 30, 1997, net income
increased to $156.3 million, $1.10 per share, from $63.5 million, $.49 per
share, in the prior year period. These increases are due primarily to higher
average day rates for the Company's drilling rigs and marine vessels over 1996
levels and the benefit from the drilling rigs acquired in the Dual acquisition
in mid-June 1996.
The following analysis highlights the Company's operating results for the
three and nine months ended September 30, 1997 and 1996 (in thousands):
<TABLE>
<CAPTION>
THREE MONTHS
ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------ ------------------
1997 1996 1997 1996
-------- -------- -------- --------
<S> <C> <C> <C> <C>
OPERATING RESULTS
Revenues............................... $223,325 $134,588 $580,343 $316,383
Operating margin (1)................... 142,934 69,787 352,684 158,831
Operating income....................... 112,367 43,366 265,266 92,991
Other income (expense)................. (3,651) (2,465) (11,453) (845)
Provision for income taxes............. 40,401 12,979 95,217 26,595
Minority interest...................... 511 710 2,289 2,068
Net income............................. 67,804 27,212 156,307 63,483
</TABLE>
<TABLE>
<S> <C> <C> <C> <C>
REVENUES
Contract drilling
Jackup rigs
North America........................... $100,652 $ 56,670 $255,263 $134,002
Europe.................................. 48,501 22,428 120,145 63,174
Asia Pacific(2)......................... 22,788 11,828 53,932 13,761
-------- -------- -------- --------
Total jackup rigs...................... 171,941 90,926 429,340 210,937
-------- -------- -------- --------
Barge rigs--South America................ 22,150 18,145 63,235 53,232
Platform rigs(2)......................... 5,439 9,176 20,255 10,635
-------- -------- -------- --------
Total contract drilling................ 199,530 118,247 512,830 274,804
-------- -------- -------- --------
Marine transportation
AHTS(3).................................. 5,590 4,146 15,675 11,776
Supply................................... 15,326 10,078 43,655 24,484
Mini-Supply.............................. 2,879 2,117 8,183 5,319
-------- -------- -------- --------
Total marine transportation............ 23,795 16,341 67,513 41,579
-------- -------- -------- --------
Total................................ $223,325 $134,588 $580,343 $316,383
======== ======== ======== ========
OPERATING MARGIN(1)
Contract drilling
Jackup rigs
North America........................... $ 70,473 $ 31,411 $168,886 $ 67,870
Europe.................................. 34,010 9,837 78,899 25,858
Asia Pacific(2)......................... 11,491 4,636 22,210 5,326
-------- -------- -------- --------
Total jackup rigs...................... 115,974 45,884 269,995 99,054
-------- -------- -------- --------
Barge rigs--South America................ 11,509 11,863 36,619 34,976
Platform rigs(2)......................... 1,681 2,328 5,667 2,837
Land rig(4).............................. -- 798 -- 752
-------- -------- -------- --------
Total contract drilling................ 129,164 60,873 312,281 137,619
-------- -------- -------- --------
Marine transportation
AHTS(3).................................. 3,023 2,096 8,605 6,100
Supply................................... 9,046 5,789 27,179 12,678
Mini-supply.............................. 1,701 1,029 4,619 2,434
-------- -------- -------- --------
Total marine transportation............ 13,770 8,914 40,403 21,212
-------- -------- -------- --------
Total................................ $142,934 $ 69,787 $352,684 $158,831
======== ======== ======== ========
</TABLE>
S-15
<PAGE>
- --------
(1) Defined as revenues less operating expenses, exclusive of depreciation and
general and administrative expenses.
(2) The 1996 amounts for Asia Pacific and the platform rigs are comprised
exclusively of operations acquired in the Dual acquisition in June 1996.
(3) Anchor handling tug supply vessels.
(4) The Company sold its remaining land rig in July 1996.
The following is an analysis of certain operating information of the Company
for the three and nine months ended September 30, 1997 and 1996:
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
--------------- ---------------
1997 1996 1997 1996
------- ------- ------- -------
<S> <C> <C> <C> <C>
CONTRACT DRILLING
Utilization
Jackup rigs
North America.............................. 97% 95% 96% 92%
Europe..................................... 100% 83% 100% 85%
Asia Pacific............................... 86% 98% 76% 96%
------- ------- ------- -------
Total jackup rigs......................... 95% 94% 93% 91%
Barge rigs--South America.................... 100% 99% 100% 88%
Platform rigs................................ 56% 78% 60% 77%
------- ------- ------- -------
Total..................................... 91% 93% 90% 89%
======= ======= ======= =======
Average day rate
Jackup rigs
North America.............................. $51,005 $28,422 $44,194 $26,105
Europe..................................... 87,789 46,880 73,737 45,265
Asia Pacific............................... 40,915 25,733 37,658 25,591
------- ------- ------- -------
Total jackup rigs......................... 55,800 30,988 48,644 29,728
Barge rigs--South America.................... 24,061 19,789 23,149 21,989
Platform rigs................................ 20,954 16,612 18,394 16,375
------- ------- ------- -------
Total..................................... $47,224 $26,906 $40,709 $27,019
======= ======= ======= =======
MARINE TRANSPORTATION
Utilization
AHTS(1)...................................... 86% 81% 82% 80%
Supply....................................... 87% 93% 91% 91%
Mini-supply.................................. 95% 95% 97% 85%
------- ------- ------- -------
Total..................................... 88% 92% 91% 88%
======= ======= ======= =======
Average day rates
AHTS(1)...................................... $14,098 $ 9,265 $12,305 $ 8,899
Supply....................................... 8,019 5,120 7,502 4,281
Mini-supply.................................. 4,101 3,020 3,879 2,838
------- ------- ------- -------
Total..................................... $ 7,905 $ 5,242 $ 7,336 $ 4,663
======= ======= ======= =======
</TABLE>
- --------
(1) Anchor handling tug supply vessels.
Contract Drilling
For the quarter ended September 30, 1997, revenues from the drilling segment
increased $81.3 million, or 69%, and operating margin increased $68.3 million,
or 112%, from the prior year quarter. For the nine months ended September 30,
1997, revenues increased $238.0 million, or 87%, and operating margin
increased $174.7 million, or 127%, from the prior year period. The
significantly
S-16
<PAGE>
improved 1997 results are primarily due to increased revenue from higher day
rates offset, in part, by higher operating expenses. In general, the Company's
operating expenses have increased due to rig fleet additions, higher wages,
benefits and training costs for offshore rig workers, and increased oilfield
equipment and materials costs. As the demand for offshore drilling services
has increased, so has the demand for qualified personnel and certain oilfield
supply equipment which are fundamental to the Company's operations. The
Company places great importance on managing its operations efficiently in
order to minimize the effects of these cost increases.
North America Jackup Rigs
-------------------------
For the quarter ended September 30, 1997, revenues from North America jackup
rigs increased $44.0 million, or 78%, and operating margin increased by $39.1
million, or 124%, over the prior year quarter. For the nine months ended
September 30, 1997, revenues increased $121.3 million, or 90%, and operating
margin increased by $101.0 million, or 149%, from the prior year period. These
improvements are due primarily to average day rate increases of 79% and 69%
for the quarter and nine months ended September 30, 1997, respectively. The
Dual acquisition in mid-June 1996 added four jackup rigs to the North America
fleet. One of these jackup rigs was transferred from the Gulf of Mexico to the
Asia Pacific fleet in the first quarter of 1997.
Europe Jackup Rigs
------------------
For the quarter ended September 30, 1997, revenues from Europe jackup rigs
increased $26.1 million, or 116%, and operating margin increased $24.2
million, or 246%, over the prior year quarter. For the nine months ended
September 30, 1997, revenues increased $57.0 million, or 90%, and operating
margin increased $53.0 million, or 205%, from the prior year period. These
improvements are due primarily to increased average day rates of 87% and 63%
for the quarter and nine months ended September 30, 1997, respectively. Also,
utilization increased to 100% in the current year periods from 83% and 85% for
the comparable three and nine month periods in the prior year, respectively.
In the prior year, three of the Europe jackup rigs were undergoing
modification and enhancement for a portion of the first nine months of 1996,
including one rig that was in the shipyard for the entire third quarter.
Asia Pacific Jackup Rigs
------------------------
The Asia Pacific operations were acquired in the Dual acquisition.
Subsequent to the Dual acquisition, the Company purchased an additional jackup
rig located in Southeast Asia in November 1996, and relocated another jackup
rig from the Gulf of Mexico to Southeast Asia in the first quarter of 1997. In
May 1997, the Company completed the acquisition of the remaining 51% interest
in a jointly owned jackup rig located in Southeast Asia. This rig was
undergoing modification and enhancement during most of the second quarter and
all of the third quarter of 1997 and returned to work in the first part of
November. During the second quarter of 1997, two of the Company's Asia Pacific
jackup rigs that had previously been in the shipyard since late 1996
undergoing modification and enhancement returned to work. For the quarter
ended September 30, 1997, revenues from the Asia Pacific jackup rigs increased
$11.0 million, or 93%, and operating margin increased $6.9 million, or 148%,
from the prior year quarter. These improvements are primarily attributable to
a 59% increase in average day rates from the prior year quarter offset, in
part, by a decrease in utilization, from 98% to 86%, due to shipyard downtime.
For the nine months ended September 30, 1997, revenues increased $40.2
million, or 292%, and operating margin increased $16.9 million, or 317%, from
the prior year period. These increases are primarily due to a full period of
operations from the rigs acquired in the Dual acquisition. In the fourth
quarter of 1997 the Company plans to begin major modifications to two rigs
currently operating off the India coast. It is estimated that these two rigs
will be in the shipyard until mid-1998.
S-17
<PAGE>
South America Barge Rigs
------------------------
Revenues from South America barge rigs increased $4.0 million, or 22%, and
operating margin decreased by $0.4 million, or 3%, from the prior year
quarter. The increase in revenues is mostly due to a 22% increase in average
day rates. The increase in day rates results from inflation based increases
that effectively reimburse the Company for cost increases, thus, resulting in
the nearly level operating margin. For the nine months ended September 30,
1997, revenues increased $10.0 million, or 19%, and operating margin increased
$1.6 million, or 5%, from the prior year period. The increase in revenues and
operating margin is primarily due to the increase in utilization, to 100% for
the nine months ended September 30, 1997 compared to 88% for the prior year
period. The increase in utilization is attributable to two barge drilling rigs
returning to work in May and June of 1996 that had been under modification
since 1995. In addition, revenues were up due to a 5% increase in average day
rates over the prior year period, principally related to the recovery of
inflationary cost increases.
Marine Transportation
For the quarter ended September 30, 1997, revenues for the marine
transportation segment increased $7.5 million, or 46%, and operating margin
increased $4.9 million, or 54%, from the prior year quarter. For the nine
months ended September 30, 1997, revenues increased $25.9 million, or 62%, and
operating margin increased $19.2 million, or 90%, from the prior year period.
The 1997 results improved significantly over the prior year periods due
primarily to increased average day rates of approximately 51% and 57% for the
comparable three and nine month periods, respectively. In the third quarter of
1997, one of the Company's anchor handling tug supply vessels was converted to
a straight supply vessel, decreasing the number of vessels with anchor
handling tug capabilities to five.
General and Administrative Expense
General and administrative expense increased for the quarter and nine months
ended September 30, 1997 as compared to the prior year periods due primarily
to personnel added in connection with the Dual acquisition and higher
performance based benefit costs.
Depreciation and Amortization
Depreciation and amortization expense for the quarter ended September 30,
1997 increased by $3.4 million, or 14%, and for the nine months ended
September 30, 1997 increased by $19.1 million, or 33%, from the prior year
periods. These increases are due primarily to depreciation and amortization
from the drilling rigs acquired and goodwill recorded in connection with the
Dual acquisition, additional drilling rigs acquired in November 1996 and May
1997, and major modifications and enhancements to the Company's fleet in 1996
and the first part of 1997.
Other Income (Expense)
Other income (expense) for the three and nine months ended September 30,
1997 and 1996 was as follows (in thousands):
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
---------------- ------------------
1997 1996 1997 1996
------- ------- -------- --------
<S> <C> <C> <C> <C>
Interest income..................... $ 1,460 $ 1,051 $ 4,161 $ 3,385
Interest expense.................... (5,006) (6,319) (15,669) (14,755)
Other, net.......................... (105) 2,803 55 10,525
------- ------- -------- --------
$(3,651) $(2,465) $(11,453) $ (845)
======= ======= ======== ========
</TABLE>
S-18
<PAGE>
The Company's interest income increased for the quarter and nine month
periods ended September 30, 1997 over the comparable prior year periods due
primarily to higher average cash balances in the current year.
Interest expense decreased for the quarter ended September 30, 1997 as
compared to the prior year quarter primarily due to lower average debt
balances as a result of debt repayments. Interest expense increased for the
nine month period ended September 30, 1997 over the comparable prior year
period due primarily to the debt that was added in June 1996 in connection
with the Dual acquisition. The Company capitalized interest of $228,000 and
$847,000 for the three and nine months ended September 30, 1997, respectively.
"Other, net" decreased for the quarter ended September 30, 1997 as compared
to the prior year quarter due primarily to a $2.9 million gain recorded in the
third quarter of 1996 from the sale of securities that the Company had
received in the September 1995 disposition of assets of a discontinued
operation. For the nine months ended September 30, 1997, "Other, net"
decreased primarily due to a $6.4 million gain on a settlement with
TransAmerican Natural Gas Corporation recorded in the second quarter of 1996
and the $2.9 million gain recorded in the third quarter of 1996.
Provision for Income Taxes
The Company's provisions for income taxes increased significantly for the
three and nine months ended September 30, 1997 as compared to the prior year
periods due primarily to the increased profitability of the Company and the
recognition of the remaining net operating losses for financial reporting
purposes in 1996.
LIQUIDITY AND CAPITAL RESOURCES
Cash Flow and Capital Expenditures
The Company's cash flow from operations and capital expenditures for the
nine months ended September 30, 1997 and 1996 were as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996
-------- --------
<S> <C> <C>
Cash flow from operations............................... $231,963 $148,131
======== ========
Capital Expenditures
Sustaining............................................ $ 22,664 $ 10,755
Acquisitions.......................................... 96,210 82,262
Enhancements.......................................... 21,676 13,271
-------- --------
Total............................................... $140,550 $106,288
======== ========
</TABLE>
Cash flow from operations increased by $83.8 million for the nine months
ended September 30, 1997 as compared to the same period in the prior year. The
increase in cash flow from operations is primarily a result of increased
operating margin for the first nine months of 1997 offset, in part, by cash
used in the net change in working capital accounts.
Management anticipates that capital expenditures for the full year 1997,
excluding acquisitions, will be approximately $165.0 million to $185.0
million, represented by approximately $30.0 million to $35.0 million for
existing operations and $135.0 million to $150.0 million for modifications and
enhancements of rigs and vessels. In addition, the Company has agreed to
acquire the West Omikron, a Marathon LeTourneau 150-88C Gorilla class jackup
drilling rig. The purchase price for the rig, which the Company intends to
fund with proceeds from this Offering, is approximately $103.0 million and the
transaction is expected to close by the end of December 1997. See "Use of
Proceeds".
S-19
<PAGE>
Financing and Capital Resources
The Company's long-term debt, total capital and debt to capital ratios at
September 30, 1997 and December 31, 1996 are summarized below (in thousands,
except percentages):
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1997 1996
------------- ------------
<S> <C> <C>
Long-term debt................................. $ 209,259 $ 258,635
Total capital.................................. 1,209,666 1,104,586
Long-term debt to total capital................ 17.3% 23.4%
</TABLE>
The decrease in long-term debt is due to $51.0 million of debt repayments in
the first nine months of 1997. The total capital of the Company increased due
primarily to the profitability of the Company in the first nine months of 1997
offset, in part, by the $51.0 million of debt repayments in the first nine
months of 1997 and dividend payments of approximately $3.5 million in the
third quarter.
In September 1997, the Company paid a cash dividend on its common stock of
$.025 per share, after adjustment for a two-for-one stock split which was also
effected in September. This dividend was the first cash dividend ever paid on
the Company's common stock. The Company currently intends to continue to pay
such dividends in the foreseeable future. However, the final determination of
the timing, amount and payment of dividends on the common stock is at the
discretion of the Board of Directors and will depend on, among other things,
the Company's profitability, liquidity, financial condition, and capital
requirements.
As of September 30, 1997, $100.0 million was outstanding under the Company's
amended and restated $200.0 million revolving credit facility with a group of
international banks. The revolving credit facility carries a floating interest
rate tied to the London InterBank Offered Rate. As of October 31, 1997, the
interest rate on such facility was 6.125%. The revolving credit facility is
secured by a majority of the Company's jackup rigs. On October 20, 1997, the
Company repaid $25.0 million of borrowings outstanding under such facility.
The Company intends to use approximately $75.0 million of the proceeds from
this Offering to retire the revolving credit facility. Following the
completion of the Offering, the Company intends to replace such existing
secured credit facility with an unsecured credit facility, if such a facility
can be obtained on terms acceptable to the Company. There can be no assurance
that the Company will replace its existing facility with an unsecured
facility. See "Use of Proceeds".
The Company's liquidity position at September 30, 1997 and December 31, 1996
is summarized in the table below (in thousands, except ratios):
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1997 1996
------------- ------------
<S> <C> <C>
Cash and cash equivalents...................... $121,697 $ 80,698
Working capital................................ 181,144 107,519
Current ratio.................................. 2.5 2.0
</TABLE>
S-20
<PAGE>
DESCRIPTION OF THE NOTES AND DEBENTURES
The Notes and the Debentures (the "Securities") are each a separate series
of Debt Securities as described in the accompanying Prospectus under the
caption "Description of Debt Securities". Capitalized terms not otherwise
defined herein have the meanings given to them in the accompanying Prospectus.
GENERAL
The Securities will be issued as general unsecured, unsubordinated
obligations of the Company. The Notes will be limited to $150,000,000
aggregate principal amount and will mature on November 15, 2007. The
Debentures will be limited to $150,000,000 aggregate principal amount, and
will mature on November 15, 2027.
Each series of Securities will bear interest from November 25, 1997, payable
semi-annually in arrears on each May and November 15, commencing May 15, 1998,
at the rates set forth on the cover page of this Prospectus Supplement to the
persons in whose names the Securities are registered at the close of business
on the next preceding April 30 and October 31, respectively.
The Securities will be issued under an Indenture dated as of November 20,
1997, (the "Indenture"), and a Supplemental Indenture dated as of November 20,
1997 (the "Supplemental Indenture"). Reference should be made to the
accompanying Prospectus for a detailed summary of additional provisions of the
Securities and of the Indenture.
The Trustee for the Securities under the Indenture and the Supplemental
Indenture is Bankers Trust Company.
The Securities will not be entitled to the benefit of any sinking fund or
other mandatory redemption provisions.
RANKING
The Securities will rank pari passu with all existing unsecured,
unsubordinated indebtedness of the Company. The Securities will be junior in
right of payment to all of the Company's secured obligations (insofar as the
assets securing such obligations are concerned). In addition, the rights of
creditors of the Company, including the Holders of the Securities, to
participate in the assets of any Subsidiary upon such Subsidiary's liquidation
or recapitalization, will be subject to prior claims of such Subsidiary's
creditors. Substantially all of the assets of the Company are owned by
Subsidiaries.
OPTIONAL REDEMPTION
The Notes and the Debentures may be redeemed at any time at the option of
the Company, in whole or in part, upon not less than 30 and not more than 60
days' notice mailed to each holder of Securities to be redeemed at the
holder's address appearing in the Securities Register, on any date prior to
maturity (the "Redemption Date") at a price equal to 100% of the principal
amount thereof plus accrued interest to the Redemption Date (subject to the
right of holders of record on the relevant record date to receive interest due
on an interest payment date that is on or prior to the Redemption Date) plus a
Make-Whole Premium, if any (the "Redemption Price"). In no event will the
Redemption Price be less than 100% of the principal amount of the Notes or
Debentures plus accrued interest to the Redemption Date.
The amount of the Make-Whole Premium with respect to any Security (or
portion thereof) redeemed will be equal to the excess, if any, of:
(i) the sum of the present values, calculated as of the Redemption Date,
of:
A. each interest payment that, but for such redemption, would have
been payable on the Security (or portion thereof) redeemed on each
Interest Payment Date occurring after the Redemption Date (excluding
any accrued interest for the period prior to the Redemption Date); and
B. the principal amount that, but for such redemption, would have
been payable at the final maturity of the Security (or portion thereof)
redeemed;
S-21
<PAGE>
over
(ii) the principal amount of the Security (or portion thereof) redeemed.
The present values of interest and principal payments referred to in clause
(i) above will be determined in accordance with generally accepted principles
of financial analysis. Such present values will be calculated by discounting
the amount of each payment of interest and principal from the date that each
such payment would have been payable, but for the redemption, to the
Redemption Date at a discount rate equal to the Treasury Yield (as defined
below) plus 15 and 20 basis points for the Notes and Debentures, respectively.
The Make-Whole Premium will be calculated by an independent investment
banking institution of national standing appointed by the Company, provided,
that if the Company fails to make such appointment at least 45 business days
prior to the Redemption Date, or if the institution so appointed is unwilling
or unable to make such calculation, such calculation will be made by Goldman,
Sachs & Co. or, if such firm is unwilling or unable to make such calculation,
by an independent investment banking institution of national standing
appointed by the Trustee (in any such case, an "Independent Investment
Banker").
For purposes of determining the Make-Whole Premium, "Treasury Yield" means a
rate of interest per annum equal to the weekly average yield to maturity of
United States Treasury Notes that have a constant maturity that corresponds to
the remaining term to maturity of the Securities, calculated to the nearest
1/12th of a year (the "Remaining Term"). The Treasury Yield will be determined
as of the third business day immediately preceding the applicable Redemption
Date.
The weekly average yields of United States Treasury Notes will be determined
by reference to the most recent statistical release published by the Federal
Reserve Bank of New York and designated "H.15(519) Selected Interest Rates" or
any successor release (the "Statistical Release"). If the Statistical Release
sets forth a weekly average yield for United States Treasury Notes having a
constant maturity that is the same as the Remaining Term, then the Treasury
Yield will be equal to such weekly average yield. In all other cases, the
Treasury Yield will be calculated by interpolation, on a straight-line basis,
between the weekly average yields on the United States Treasury Notes that
have a constant maturity closest to and greater than the Remaining Term and
the United States Treasury Notes that have a constant maturity closest to and
less than the Remaining Term (in each case as set forth in the Statistical
Release). Any weekly average yields so calculated by interpolation will be
rounded to the nearest 1/100th of 1%, with any figure of 1/200th of 1% or
above being rounded upward. If weekly average yields for United States
Treasury Notes are not available in the Statistical Release or otherwise, then
the Treasury Yield will be calculated by interpolation of comparable rates
selected by the Independent Investment Banker.
If less than all of the Securities are to be redeemed, the Trustee will
select the Securities to be redeemed by such method as the Trustee shall deem
fair and appropriate. The Trustee may select for redemption Securities and
portions of Securities in amounts of $1,000 or whole multiples of $1,000.
CERTAIN COVENANTS
Limitations on Liens
The Indenture Supplement provides that 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 so to do, without securing the 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: (1) Liens
existing on the date of issuance of the Securities; (2) Liens on Restricted
Property of Subsidiaries at the time they become Subsidiaries; (3)
S-22
<PAGE>
Liens existing on Restricted Property when acquired; (4) any Lien to secure
any debt incurred prior to, at the time of, or within 24 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 acquired Restricted Property; (5) any
Lien to secure any debt incurred prior to, at the time of, or within 24 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;
(6) any Lien securing debt of a Subsidiary owing to the Company or to another
Subsidiary; (7) Liens on the stock, partnership or other equity interest of
the Company or any Subsidiary in any Joint Venture (as defined below) to
secure debt, provided the amount of such debt is contributed and/or advanced
solely to such Joint Venture; (8) any Lien in favor of the United States of
America or any State thereof or any other country, or any agency,
instrumentality or political subdivision of 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; (9) Liens imposed by
law, such as mechanics', workers', repairmen's, materialmen's, carriers',
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; (10) certain pledges
or deposits under workers' compensation or similar legislation or in certain
other circumstances; (11) certain Liens in connection with legal proceedings,
including certain Liens arising out of judgments or awards; (12) Liens for
certain taxes or assessments; (13) any extension, renewal or replacement (or
successive extensions, renewals or replacements) in whole or in part of any
Lien referred to in clauses (1) through (12) 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, also may be secured by the Lien) and
the Lien is limited to the same property subject to the Lien so extended,
renewed or replaced (plus improvements on the property); and (14) 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), do not exceed 15% of the Company's Consolidated Net Tangible
Assets (as defined below).
Limitation on Sale and Leaseback
The Indenture Supplement provides that 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 (1) 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 Securities, or (2) after the date on which the Securities are
originally issued and within a period commencing nine months prior to the
effective date of such Sale and Leaseback Transaction and ending nine months
after such effective date, the Company or such Subsidiary shall have expended,
for Restricted Property used or to be used in the ordinary course of business
of the Company and its Subsidiaries, an amount equal to all or a portion of
the value of such Sale and Leaseback Transaction and the Company shall have
elected to designate such amount as a credit against such Sale and Leaseback
Transaction (with any such amount not being so designated to be applied as set
forth in clause (3) below or as otherwise permitted); or (3) the Company
during the nine months following the effective date of such Sale and Leaseback
Transaction, shall have applied either an amount equal (a) to the value of
such Sale and Leaseback Transaction to the voluntary retirement of long-term
debt or (b) to the acquisition of
S-23
<PAGE>
Restricted Property (in either case adjusted to reflect the remaining term of
the lease and any amount expended by the Company as set forth in clause (2)
above).
Consolidation, Merger and Sale of Assets
The Securities are entitled to the benefit of certain restrictive covenants
described in the accompanying Prospectus under the heading "Description of
Debt Securities--Consolidation, Merger and Sale of Assets".
Definitions
"Consolidated Net Tangible Assets" means the total amount of assets (less
applicable reserves and other properly deductible items) after deducting (1)
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 (2)
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.
"Joint Venture" means any partnership, corporation or other entity, in which
up to and including 50% of the partnership interests, outstanding voting stock
or other equity interests is owned, directly or indirectly, by the Company
and/or one or more Subsidiaries. A Joint Venture shall not be a Subsidiary.
"Lien" means any mortgage, pledge, lien, encumbrance, charge or security
interest.
"Restricted Property" means (1) any drilling rig or vessel, 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 vessel, or portion
thereof, shall be deemed of material importance if its gross book value
(before deducting accumulated depreciation) is less than 1.5% of Consolidated
Net Tangible Assets, or (2) any shares of capital stock or indebtedness of any
Subsidiary owning any such drilling rig or vessel.
"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 (1) temporary leases for a term, including renewals
at the option of the lessee, of not more than five years, (2) leases between
the Company and a Subsidiary or between Subsidiaries, (3) 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 (4)
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.
BOOK-ENTRY SYSTEM
The Securities initially will be represented by one or more Global
Securities deposited with DTC and registered in the name of a nominee of DTC.
Except as set forth below, the Securities will be available for purchase in
denominations of $1,000 and integral multiples thereof in book-entry form
only. The term "Depository" refers to DTC or any successor depository.
DTC has advised the Company and the Underwriters as follows: DTC is a
limited-purpose trust company organized under the laws of the State of New
York, a member of the Federal Reserve
S-24
<PAGE>
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Exchange Act. DTC was created to hold securities of
persons who have accounts with DTC ("participants") and to facilitate the
clearance and settlement of securities transactions among its participants in
such securities through electronic book-entry changes in accounts of the
participants, thereby eliminating the need for physical movement of securities
certificates. DTC's participants include securities brokers and dealers
(including the Underwriters), banks, trust companies, clearing corporations
and certain other organizations, some of which (and/or their representatives)
own DTC. Access to DTC's book-entry system is also available to others, such
as banks, brokers, dealers and trust companies that clear through or maintain
a custodial relationship with a participant, either directly or indirectly.
Upon the issuance by the Company of Securities represented by the Global
Securities, the Depository or its nominee will credit, on its book-entry
registration and transfer system, the respective principal amounts of the
Securities represented by such Global Securities to the accounts of
participants. The accounts to be credited shall be designated by the
Underwriters. Ownership of beneficial interests in Securities represented by
the Global Securities will be limited to participants or persons that hold
interests through participants. Ownership of such beneficial interests in
Securities will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the Depository (with respect to
interests of participants in the Depository), or by participants in the
Depository or persons that may hold interests through such participants (with
respect to persons other than participants in the Depository). The laws of
some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interest in Securities represented
by Global Securities.
So long as the Depository for a Global Security, or its nominee, is the
registered owner of such Global Security, the Depository or its nominee, as
the case may be, will be considered the sole owner or holder of the Securities
represented by such Global Security registered in its name. Participants and
persons that hold interests through participants will not receive or be
entitled to receive physical delivery of Securities in definitive form and
will not be considered the owners or holders thereof under the Indenture.
Unless and until the Global Securities are exchanged in whole or in part for
individual certificates evidencing the Securities represented thereby, such
Global Securities may not be transferred except as a whole by the Depository
to a nominee of such Depository or by the Depository or any nominee of such
Depository to a successor Depository or any nominee of such successor
Depository.
Payments of principal, premium, if any, of and interest on the Securities
represented by Global Securities registered in the name of the Depository or
its nominee will be made by the Company through the Paying Agent in
immediately available funds to the Depository or its nominee, as the case may
be, as the registered owner of the Securities represented by such Global
Securities.
The Company has been advised that the Depository or its nominee, upon
receipt of any payment of principal, premium, if any, or interest in respect
of the Securities represented by Global Securities, will credit immediately
the accounts of the related participants with payment in amounts proportionate
to their respective beneficial interest in the Securities represented by the
Global Securities as shown on the records of the Depository. The Company
expects that payments by participants to owners of beneficial interests in the
Securities represented by the Global Securities will be governed by standing
customer instructions and customary practices. Such payments will be the
responsibility of such participants.
If the Depository is at any time unwilling or unable to continue as
Depository and a successor Depository is not appointed by the Company within
90 days, the Company will issue individual Securities in definitive form in
exchange for the Global Securities. In addition, the Company may at any
S-25
<PAGE>
time in its sole discretion determine not to have Global Securities and, in
such event, will issue individual Securities in definitive form in exchange
for the Global Securities. In either instance, the Company will issue
Securities in definitive form, equal in aggregate principal amount to the
Global Securities, in such names and in such principal amounts as the
Depository shall request. Securities so issued in definitive form will be
issued in denominations of $1,000 and integral multiples thereof and will be
issued in registered form only, without coupons.
Neither the Company, the Trustee, any Paying Agent nor the registrar for the
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in the Securities represented by such Global Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
S-26
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement
and the Pricing Agreement, the Company has agreed to sell to each of the
Underwriters named below, and each of such Underwriters has severally agreed
to purchase, the principal amount of Securities set forth opposite its name
below:
<TABLE>
<CAPTION>
PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF
UNDERWRITER NOTES DEBENTURES
----------- ------------ ------------
<S> <C> <C>
Goldman, Sachs & Co............................... $ 37,500,000 $ 37,500,000
BT Alex. Brown Incorporated....................... 37,500,000 37,500,000
Credit Suisse First Boston Corporation............ 37,500,000 37,500,000
Salomon Brothers Inc.............................. 37,500,000 37,500,000
------------ ------------
Total........................................... $150,000,000 $150,000,000
============ ============
</TABLE>
Under the terms and conditions of the Underwriting Agreement and the Pricing
Agreement, the Underwriters are committed to take and pay for all of the Notes
or Debentures, if any are taken. The Notes and Debentures are being offered
separately and not as a unit.
The Underwriters propose to offer the Notes in part directly to the public
at the initial public offering price set forth on the cover page of this
Prospectus Supplement and in part to certain securities dealers at such price
less a concession of 0.40% of the principal amount of the Notes. The
Underwriters may allow, and such dealers may reallow, a concession not to
exceed 0.25% of the principal amount of the Notes to certain brokers and
dealers. After the Notes are released for sale to the public, the offering
price and other selling terms may from time to time be varied by the
Underwriters.
The Underwriters propose to offer the Debentures in part directly to the
public at the initial public offering price set forth on the cover page of
this Prospectus Supplement and in part to certain securities dealers at such
price less a concession of 0.50% of the principal amount of the Debentures.
The Underwriters may allow, and such dealers may reallow, a concession not to
exceed 0.25% of the principal amount of the Debentures to certain brokers and
dealers. After the Debentures are released for sale to the public, the
offering price and other selling terms may from time to time be varied by the
Underwriters.
In connection with the offering, the Underwriters may purchase and sell the
Notes and Debentures in the open market. These transactions may include over-
allotment and stabilizing transactions and purchases to cover short positions
created by the Underwriters in connection with the offering. Stabilizing
transactions consist of certain bids or purchases for the purpose of
preventing or retarding a decline in the market price of the Notes and
Debentures, and short positions created by the Underwriters involve the sale
by the Underwriters of a greater number of Notes and Debentures than they are
required to purchase from the Company in the offering. The Underwriters also
may impose a penalty bid, whereby selling concessions allowed to broker-
dealers in respect of the Notes and Debentures sold in the offering may be
reclaimed by the Underwriters if such Notes and Debentures are repurchased by
the Underwriters in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the Notes and
Debentures, which may be higher than the price that might otherwise prevail in
the open market; and these activities, if commenced, may be discontinued at
any time. These transactions may be effected on the New York Stock Exchange,
in the over-the-counter market or otherwise.
The Notes and the Debentures are each a new issue of securities with no
established trading market. The Company has been advised by the Underwriters
that the Underwriters intend to make a market in the Notes and Debentures but
are not obligated to do so and may discontinue market making
S-27
<PAGE>
at any time without notice. No assurance can be given as to the liquidity of
the trading market for the Notes or the Debentures.
In the ordinary course of their respective businesses, certain of the
Underwriters and their affiliates have engaged in, and may in the future
engage in, investment banking and commercial banking activities with the
Company and its subsidiaries.
The Company has agreed to indemnify the several Underwriters against certain
liabilities, including liabilities under the Securities Act.
VALIDITY OF THE NOTES AND DEBENTURES
The validity of the Notes and Debentures offered hereby will be passed upon
for the Company by Baker & McKenzie, Dallas, Texas and New York, New York, and
for the Underwriters by Sullivan & Cromwell, New York, New York.
S-28
<PAGE>
PROSPECTUS
$500,000,000
[Logo of ENSCO International Incorporated appears here]
DEBT SECURITIES, PREFERRED STOCK AND COMMON STOCK
ENSCO International Incorporated (the "Company") may from time to time
offer, together or separately, 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 debt securities (the "Senior
Debt Securities") or subordinated debt securities (the "Subordinated Debt
Securities"), (ii) shares of its Serial Preferred Stock, par value $1.00 per
share (the "Preferred Stock"), and (iii) shares of its Common Stock, par value
$.10 per share (the "Common Stock"), in amounts, at prices and on terms to be
determined at the time of the offering. The Debt Securities, Preferred Stock
and Common Stock are collectively called the "Securities."
The Securities offered pursuant to this Prospectus may be issued in one or
more series or issuances and will be limited to $500,000,000 in aggregate
initial public offering price. Certain specific terms of the particular
Securities in respect of which this Prospectus is being delivered will be set
forth in an accompanying Prospectus Supplement (the "Prospectus Supplement"),
including, where applicable, (i) in the case of Debt Securities, the specific
title, aggregate principal amount, the denomination, maturity, premium, if
any, the interest rate, if any (which may be at a fixed or variable rate), the
time and method of calculating payment of interest, if any, the place or
places where principal of (and premium, if any) and interest, if any, on such
Debt Securities will be payable, the currency or currencies (including
composite currencies) in which principal of (and premium, if any) and
interest, if any, on such Debt Securities will be payable, any terms of
redemption at the option of the Company or the holder, any sinking fund
provisions, terms for any conversion into Common Stock, the initial public
offering price, listing (if any) on a securities exchange or quotation (if
any) on an automated quotation system, acceleration, if any, and other terms
and (ii) in the case of Preferred Stock, the specific title, the aggregate
number of shares offered, any dividend (including the method of calculating
payment of dividends), liquidation, redemption, voting and other rights, any
terms for any conversion or exchange into Common Stock or Debt Securities, the
initial public offering price, listing (if any) on a securities exchange or
quotation (if any) on an automated quotation system and other terms. If so
specified in the applicable Prospectus Supplement, Debt Securities of a series
may be issued in whole or in part in the form of one or more temporary or
permanent global securities.
The Common Stock is listed on the New York Stock Exchange under the trading
symbol "ESV." Any Common Stock sold pursuant to a Prospectus Supplement will
be listed on the New York Stock Exchange, subject to official notice of
issuance.
Unless otherwise specified in a Prospectus Supplement, the Senior Debt
Securities, when issued, will be unsecured and will rank equally with all
other unsecured and unsubordinated indebtedness of the Company. The
Subordinated Debt Securities, when issued, will be subordinated in right of
payment to all Senior Debt (as defined in the applicable Prospectus
Supplement) of the Company.
The Prospectus Supplement will contain information concerning certain United
States federal income tax considerations, if applicable, to the Securities
offered.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement relating to such Securities. Any
statement contained in this Prospectus will be deemed to be modified or
superseded by any inconsistent statement contained in an accompanying
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 Securities may be sold directly, through agents, underwriters or dealers
as designated from time to time, or through a combination of such methods. If
agents of the Company or any dealers or underwriters are involved in the sale
of the Securities in respect of which this Prospectus is being delivered, the
names of such agents, dealers or underwriters and any applicable commissions
or discounts will be set forth in or may be calculated from the Prospectus
Supplement with respect to such Securities. See "Plan of Distribution" for
possible indemnification arrangements with agents, dealers and underwriters.
The date of this Prospectus is November 5, 1997.
<PAGE>
IN CONNECTION WITH AN OFFERING THROUGH UNDERWRITERS, THE UNDERWRITERS MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF THE SECURITIES OFFERED AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL
IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON ANY EXCHANGES ON
WHICH THE SECURITIES ARE LISTED, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
No person is authorized to give any information or to make any
representations other than those contained in this Prospectus or the
accompanying Prospectus Supplement in connection with the offering described
herein and therein, and any information or representations not contained
herein or therein must not be relied upon as having been authorized by the
Company or by any underwriter, dealer or agent. This Prospectus may not be
used to consummate sales of Securities unless accompanied by a Prospectus
Supplement relating to such Securities. Neither this Prospectus nor any
Prospectus Supplement shall constitute an offer to sell or a solicitation of
an offer to buy any of the Securities covered by this Prospectus in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. The delivery of this Prospectus and the
applicable Prospectus Supplement at any time does not imply that the
information herein is correct as of any time subsequent to the date hereof.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Securities being
offered by this Prospectus (the "Registration Statement"). This Prospectus,
which constitutes a part of the Registration Statement, does not contain all
of the information set forth in the Registration Statement, certain items of
which are contained in exhibits and schedules to the Registration Statement as
permitted by the rules and regulations of the Commission. For further
information with respect to the Company and the Securities offered hereby,
reference is made to the Registration Statement, including the exhibits
thereto, and the financial statements and the notes thereto filed as a part of
the Registration Statement. Statements made in this Prospectus concerning the
contents of any contract, agreement or other document filed with the
Commission as an exhibit are not necessarily complete. With respect to each
such contract, agreement or other document filed with the Commission as an
exhibit, reference is made to the exhibit for a more complete description of
the matter involved, and each such statement shall be deemed qualified in its
entirety by such reference.
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
Commission. The reports, proxy statements and other information filed by the
Company with the Commission pursuant to the informational requirements of the
Exchange Act may be inspected and copied at the public reference facilities
maintained by the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's Regional Offices at 7 World
Trade Center, 13th Floor, New York, New York 10048 and the Northwestern Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies
of such documents can also be obtained at prescribed rates from the Public
Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549. The Company is an electronic filer under the
EDGAR (Electronic Data Gathering, Analysis and Retrieval) system maintained by
the Commission. The Commission maintains a Web site (http://www.sec.gov) on
the Internet that contains reports, proxy and information statements and other
information regarding companies that file electronically with the Commission.
In addition, documents filed by the Company can be inspected at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
2
<PAGE>
INCORPORATION BY REFERENCE
The following documents, which have been filed by the Company (File No. 1-
8097) with the Commission, are incorporated herein by reference:
(i) the Company's Annual Report on Form 10-K for the year ended December
31, 1996;
(ii) the Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1997, June 30, 1997 and September 30, 1997;
(iii) the Company's Current Report on Form 8-K dated March 4, 1997;
(iv) the description of the Company's Preferred Share Purchase Rights
contained in its Registration Statement on Form 8-A filed with the
Commission on February 23, 1995 as amended by Form 8-A/A-1 filed with the
Commission on March 4, 1997; and
(v) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-B filed with the Commission on
November 12, 1987 and the Registration Statement on Form 8-A, filed with
the Commission on February 3, 1981, as amended by Form 8, filed with the
Commission on August 22, 1985.
All documents and reports filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of the offering of Securities (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 into this Prospectus and to be a part hereof from the date of filing
of such documents or reports.
Any statement contained in a document which is, or is 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 which also is, or is
deemed to be, incorporated by reference herein) modifies or supersedes the
previous statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy
of any document incorporated by reference in this Prospectus, other than
exhibits to any such document unless such exhibits are specifically
incorporated by reference in the documents this Prospectus incorporates.
Requests for such documents should be directed to ENSCO International
Incorporated, 2700 Fountain Place, 1445 Ross Avenue, Dallas, Texas 75202-2792,
Attention: Corporate Secretary; telephone number (214) 922-1500.
3
<PAGE>
THE COMPANY
The Company is an international offshore contract drilling company that also
provides marine transportation services in the Gulf of Mexico. The Company's
complement of offshore drilling rigs includes 35 jackup rigs, 10 barge
drilling rigs and eight platform rigs. The Company's operations are integral
to the exploration, development and production of oil and gas.
The Company was formed as a Texas corporation in 1975 and was reincorporated
in Delaware in 1987. The Company's principal office is located at 2700
Fountain Place, 1445 Ross Avenue, Dallas, Texas 75202-2792 and its telephone
number is (214) 922-1500.
USE OF PROCEEDS
Except as otherwise set forth in a Prospectus Supplement, the net proceeds
from the sale of the Securities will be used for general corporate purposes,
including, but not limited to the repayment of existing debt, working capital,
capital expenditures, acquisitions and/or the repurchase of securities of the
Company. The precise amounts and timing of the application of such net
proceeds for such purposes will depend upon a variety of factors, including
the Company's funding requirements and the availability of alternative sources
of funding. The Company routinely reviews acquisition opportunities.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the Company's ratios of earnings to fixed
charges and the ratio of earnings to combined fixed charges and preferred
stock dividends for each of the periods set forth below.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED FISCAL YEARS ENDED
SEPTEMBER 30, DECEMBER 31,
------------- --------------------------
1997 1996 1996 1995 1994 1993 1992(1)
------- ------ ---- ---- ---- ---- ------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges.. 15.8 7.0 7.6 3.7 3.6 3.3 --
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock
Dividends(2)....................... 15.8 7.0 7.6 3.7 3.1 2.3 --
</TABLE>
- --------
(1) The Company's earnings before fixed charges were inadequate on a
historical basis to cover fixed charges for the year ended December 31,
1992. The additional amount of earnings required to cover fixed charges
for 1992 would have been $18.3 million, and the additional amount of
earnings required to cover combined fixed charges and preferred stock
dividends for 1992 would have been $22.1 million.
(2) The Company eliminated its preferred stock dividend obligations in 1994.
For purposes of computing the ratio of earnings to fixed charges and the
ratio of earnings to combined fixed charges and preferred stock dividends,
"earnings" consist of income before income taxes plus fixed charges (excluding
capitalized interest). "Fixed charges" represent interest incurred (whether
expensed or capitalized), amortization of debt expense and that portion of
rental expense on operating leases deemed to be the equivalent of interest.
4
<PAGE>
DESCRIPTION OF DEBT SECURITIES
GENERAL
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities to which any Prospectus Supplement
may relate (the "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 issued under an Indenture (the "Indenture")
between the Company and a trustee (the "Trustee"). The statements under this
caption relating to the Debt Securities and the Indenture are summaries only
and do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, all of the provisions of the Indenture,
including the definitions therein. A copy of the form of the Indenture is
filed as an exhibit to the Registration Statement of which this Prospectus is
a part. See "Available Information." Certain capitalized terms used below and
not defined herein have the respective meanings assigned to them in the
Indenture.
TERMS
The Debt Securities will be general unsecured obligations of the Company and
may be either Senior Debt Securities or Subordinated Debt Securities. The
Indenture does not limit the aggregate principal amount of Debt Securities
that can be issued thereunder and provides 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. The Indenture
does 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.
The specific terms of each series of Offered Debt Securities, which will be
issued in registered form, will be set forth in the applicable Prospectus
Supplement relating thereto, including, without limitation, the following, as
applicable:
1. the title and aggregate principal amount of the Offered Debt
Securities;
2. the date or dates on which the Offered Debt Securities will mature;
3. the rate or rates (which may be fixed or variable) per annum, if any,
at which the Offered Debt Securities will bear interest or the method of
determining such rate or rates;
4. the date or dates from which such interest, if any, will accrue and
the date or dates at which such interest, if any, will be payable;
5. the place or places, where, subject to any provision of the Indenture,
the principal of (and premium, if any) and any interest on the Offered Debt
Securities is payable;
6. whether the Offered Debt Securities will be Senior Debt Securities or
Subordinated Debt Securities;
7. the terms for redemption or early payment, if any, including any
mandatory or optional sinking fund or analogous provision;
8. the terms and conditions, if applicable, upon which such Offered Debt
Securities will be convertible into Preferred Stock or Common Stock or
exchangeable for Preferred Stock or Common Stock, including the conversion
price or exchange rate, as the case may be (or the manner of calculation
thereof);
5
<PAGE>
9. 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;
10. if other than U.S. dollars, the currency or currencies (including
composite currencies) in which such Offered Debt Securities will be
denominated and in which the principal of, and premium and interest, if
any, on, such Offered Debt Securities will be payable;
11. whether, and the terms and conditions on which, the Company or a
Holder may elect that, or the other circumstances under which, payment of
principal of, or premium or interest, if any, on, such Offered Debt
Securities is to be made in a currency or currencies (including composite
currencies) other than that in which such Offered Debt Securities are
denominated;
12. if the amount of payments of principal of (and premium, if any) and
any interest on the Offered Debt Securities may be determined with
reference to any commodities, currencies or indices, or values, rates or
prices, and the manner in which such amounts shall be determined;
13. if other than the entire principal amount, the portion of the
principal amount of the Offered Debt Securities that shall be payable upon
acceleration of the stated maturity;
14. in addition to those provided in the Indenture, any additional means
of satisfaction and discharge of the Indenture with respect to the Offered
Debt Securities or any additional conditions or discharges;
15. any deletions or modifications of or additions to the Events of
Default or the covenants of the Company with respect to the Offered Debt
Securities; and
16. any other specific terms of the Offered Debt Securities.
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.
Substantially all of the assets of the Company are owned by Subsidiaries.
Therefore, the Company's rights and the rights of its creditors, including the
Holders of Debt Securities, to participate in the assets of any Subsidiary
upon the Subsidiary's liquidation or recapitalization, will be subject to the
prior claims of such Subsidiary's creditors.
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.
Senior and Subordinated Debt Securities
The Senior Debt Securities will be direct, unsecured obligations of the
Company, ranking pari passu with all other unsecured and unsubordinated
indebtedness of the Company. To the extent provided in the Prospectus
Supplement, and any supplemental indenture, relating thereto, the Company may
be required to secure Senior Debt Securities equally and ratably with other
indebtedness with respect to which the Company elects or is required to
provide security. The Subordinated Debt Securities will be unsecured and will
be subordinated and junior to all "Senior Indebtedness" (which for this
purpose includes any Senior Debt Securities) to the extent set forth in the
applicable supplemental Indenture and the Prospectus Supplement relating to
such series.
6
<PAGE>
The Subordinated Debt Securities will be direct, unsecured obligations of
the Company. The obligations of the Company pursuant to the Subordinated Debt
Securities will be subordinate in right of payment to the extent set forth in
the Indenture and the applicable supplemental Indenture to all Senior
Indebtedness (including all Senior Debt Securities) (in each case as defined
in the applicable supplemental Indenture). Except to the extent otherwise set
forth in a Prospectus Supplement, the Indenture does not contain any
restriction on the amount of Senior Indebtedness which the Company may incur.
The terms of the subordination of a series of Subordinated Debt Securities,
together with the definition of Senior Indebtedness related thereto, will be
as set forth in the applicable supplemental Indenture and the Prospectus
Supplement relating to such series.
The Subordinated Debt Securities will not be subordinated to indebtedness of
the Company that is not Senior Indebtedness, and the creditors of the Company
who do not hold Senior Indebtedness will not benefit from the subordination
provisions described herein. In the event of the bankruptcy or insolvency of
the Company before or after maturity of the Subordinated Debt Securities, such
other creditors would rank pari passu with holders of the Subordinated Debt
Securities, subject, however, to the broad equity powers of the Federal
bankruptcy court pursuant to which such court may, among other things,
reclassify the claims of any series of Subordinated Debt Securities into a
class of claims having a different relative priority with respect to the
claims of such other creditors or any other claims against the Company.
Events of Default
Unless otherwise provided with respect to any series of Debt Securities, the
following are Events of Default under the Indenture with respect to the Debt
Securities of such series issued under such Indenture: (i) failure to pay
principal of (or premium, if any, on) any Debt Security of such series when
due; (ii) failure to pay any interest on any Debt Security of such series when
due, continued for 30 days; (iii) failure to deposit any mandatory sinking
fund payment, when due, in respect of the Debt Securities of such series,
continued for 30 days; (iv) failure to perform any other covenant of the
Company in the Indenture (other than a covenant included in the Indenture for
the benefit of a series of Debt Securities other than such series), continued
for 90 days after written notice as provided in the Indenture; (v) certain
events of bankruptcy, insolvency or reorganization; and (vi) any other Event
of Default as may be specified with respect to Debt Securities of such series.
If an Event of Default with respect to any outstanding series of Debt
Securities occurs and is continuing, either the 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 (i), (ii),
(iii) or (vi) above) or at least 25% in principal amount of all outstanding
Debt Securities under the Indenture (in the case of other Events of Default)
may declare the principal amount of all the Debt Securities of the applicable
series (or of all outstanding Debt Securities under the Indenture, as the case
may be) to be due and payable immediately. 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 declaration of acceleration. 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.
The Indenture provides that, within 90 days after the occurrence of a
default in respect of any series of Debt Securities, the Trustee will give to
the Holders of the Debt Securities of such series
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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, or any sinking fund installment with
respect to, any Debt Securities of such series, the 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 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 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.
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 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). The 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 skill in its exercise as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs. Subject to such provisions, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request of any of the Holders of the Debt Securities unless they shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request.
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 Indenture) may on behalf of the Holders of all Debt
Securities of such series (or of all outstanding Debt Securities under the
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 any Debt
Security or in respect of a provision that under the applicable Indenture
cannot be modified or amended without the consent of the Holder of each
outstanding Debt Security affected. 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.
The Company is required to furnish to the Trustee annually a statement as to
the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance.
Modification
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of a majority in principal amount
of the outstanding Debt Securities under the Indenture affected thereby;
provided, however, that no such modification or amendment may, without the
consent of the Holder of each outstanding Debt Security affected thereby, (i)
change the stated maturity date of the principal of, or any installment of
principal of or interest on, any Debt Security, (ii) reduce the principal
amount of, or the premium (if any) or interest on, any Debt Security, (iii)
change the place or currency or currencies (including composite currencies) of
payment of principal of, or premium (if any) or interest on, any Debt
Security, (iv) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security or (v) 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.
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The Indenture provides that the Company and the 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.
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 expressly assumes by supplemental indenture the Company's
obligations on the Debt Securities and under the Indenture, (ii) after giving
effect to the transaction, no Event of Default and no event 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 Indenture and the
Debt Securities.
Discharge and Defeasance
The Company may terminate its obligations under the Indenture, other than
its obligation to pay the principal of (and premium, if any) and interest on
the Debt Securities of any series and certain other obligations, provided that
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 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.
The terms of any series of Debt Securities may also provide for legal
defeasance pursuant to the 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, the obligations of the
Company under the 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.
"U.S. Government Obligations" is defined in the Indenture 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.
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Form, Exchange, Registration and Transfer
Debt Securities are issuable in definitive form as Registered Debt
Securities. 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.
Registered Debt Securities of any series will be exchangeable for other
Registered Debt Securities of the same series and of a like aggregate
principal amount and tenor of different authorized denominations.
Registered 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
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. Except to
the extent otherwise indicated in the applicable Prospectus Supplement, the
Company will appoint the Trustee as Security Registrar. If a Prospectus
Supplement refers to any transfer agents (in addition to the Security
Registrar) 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, except that, if Debt Securities of a series are issuable
solely as Registered Debt Securities, 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.
In the event of any redemption in part, the Company shall not be required to
(i) issue, register the transfer of or exchange Registered Debt Securities of
any series during a period beginning at the opening of 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 Registered Debt
Security, or portion thereof, called for redemption, except the unredeemed
portion of any Registered Debt Security being redeemed in part.
Payment and Paying Agents
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Registered 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
Registered Debt Securities will be made to the Person in whose name such
Registered Debt Security is registered at the close of business on the Regular
Record Date for such interest.
Unless otherwise indicated in an applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee in New York, New York 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.
All monies paid by the Company to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security that remain
unclaimed at the end of three years after such
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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 or any coupon will thereafter look only to the Company for
payment thereof.
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.
Global Debt Securities may be issued in either temporary or permanent form.
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.
Meetings
The Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series. 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. 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 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 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.
Governing Law
The Indenture and the Debt Securities will be governed by and construed in
accordance with the laws of the State of New York.
Notices
Notices to Holders of Registered Debt Securities will be given by mail to
the addresses of such Holders as they appear in the Security Register.
The Trustee
The Trustee for each series of Debt Securities will be identified in the
applicable Prospectus Supplement. The Indenture contains certain limitations
on the right of the 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. The Trustee is permitted
to engage in other
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transactions, except that, if it acquires any conflicting interest (as
defined), it must eliminate such conflict or resign.
The Trustee may from time to time serve as a depositary of funds of, make
loans to and perform other services for the Company.
DESCRIPTION OF EQUITY SECURITIES
GENERAL
The authorized capital stock of the Company consists of 250,000,000 shares
of Common Stock, par value $.10 per share, 15,000,000 shares of Preferred
Stock, par value $1.00 per share and 5,000,000 shares of First Preferred
Stock, par value $1.00 per share. On October 31, 1997, 142,282,699 shares of
Common Stock were issued and outstanding and no shares of Preferred Stock or
First Preferred Stock were outstanding. All issued and outstanding shares of
Common Stock are fully-paid and non-assessable.
The Company's Amended and Restated Certificate of Incorporation provides
that any dividend on shares of First Preferred Stock shall be paid, or
declared and set apart for payment, before any dividend shall be paid, or
declared and set apart for payment, on shares of Common Stock or any
subordinate series of Preferred Stock. In addition, the Amended and Restated
Certificate of Incorporation provides that the Preferred Stock shall generally
be subordinate to the First Preferred Stock. However, the Board of Directors
may grant powers, preferences and rights to any series of Preferred Stock
which are on parity with, or senior to, the powers, preferences and rights of
any series of First Preferred Stock, provided that such series or class of
First Preferred Stock shall have approved of such powers, preferences and
rights by an applicable vote.
On February 21, 1995, the Company filed a Certificate of Designations
creating a series of 1,250,000 shares of Preferred Stock designated as Series
A Junior Participating Preferred Stock (the "Series A Junior Participating
Preferred Stock") in connection with establishing a stockholder rights plan.
See "Certain Provisions of Certificate of Incorporation, Bylaws and Statute--
Stockholder Rights Plan."
PREFERRED STOCK
Terms
The following description of the Preferred Stock summarizes certain general
terms and provisions of each series of Preferred Stock to which any Prospectus
Supplement may relate. Certain other terms of a particular series of Preferred
Stock will be summarized in the Prospectus Supplement relating to such series.
The summaries of the terms of the Preferred Stock below and in any Prospectus
Supplement do not, and will not, purport to be complete and are subject to,
and qualified in their entirety by reference to, the Company's Amended and
Restated Certificate of Incorporation (as it may be amended from time to time)
and the certificate of designations establishing a series of Preferred Stock
(each, a "Certificate of Designations"), which will be filed with the
Commission as an exhibit to or incorporated by reference in the Registration
Statement of which this Prospectus forms a part, at or prior to the time of
the issuance of such series of Preferred Stock.
The Board of Directors is authorized (without further stockholder action) to
provide for issuance of the Preferred Stock of the Company from time to time,
in one or more series, and to fix the dividend rate, conversion or exchange
rights, voting rights, terms of redemption, redemption price or prices,
liquidation preferences and qualifications, limitations and restrictions
thereof with respect to each series.
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An applicable Prospectus Supplement will set forth or describe other
specific terms regarding each series of Preferred Stock offered thereby,
including, without limitation:
1. the distinctive title of such Preferred Stock;
2. the number of shares of such Preferred Stock offered, the liquidation
preference per share and the initial offering price of such Preferred
Stock;
3. the dividend rate, period and/or payment date applicable to such
Preferred Stock;
4. the date from which dividends on such Preferred Stock shall
accumulate, if applicable;
5. whether the shares of Preferred Stock may be issued at a discount
below their liquidation preference ("Original Issue Discount Preferred
Stock"), and material United States federal income tax, accounting and
other considerations applicable to Original Issue Discount Preferred Stock;
6. whether the dividends, if any, on the Preferred Stock are to be
payable, at the election of the Company or a holder thereof, in cash or in
additional shares of Preferred Stock ("PIK Preferred Stock") and the period
or periods within which, and the terms and conditions upon which, such
election may be made, and material United States federal income tax,
accounting and other considerations applicable to such PIK Preferred Stock;
7. the provision for a sinking fund, if any, for such Preferred Stock;
8. the provision for redemption, if applicable, of such Preferred Stock;
9. any listing of such Preferred Stock on any securities exchange or any
quotation on an automated quotation system;
10. the terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Common Stock or exchangeable for Debt
Securities, including the conversion price or exchange rate, as the case
may be (or the manner of calculation thereof);
11. a discussion of federal tax considerations applicable to such
Preferred Stock;
12. the relative ranking and preference of such Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up of
the affairs of the Company;
13. any limitations on issuance of any series of Preferred Stock ranking
senior to or on a parity with a series of Preferred Stock as to dividend
rights and rights upon liquidation, dissolution or winding up of the
affairs of the Company;
14. the voting powers, if any, of such Preferred Stock, in addition to
those set forth below; and
15. any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock.
The Preferred Stock will have no preemptive rights. All of the Preferred
Stock, upon payment in full therefor, will be fully-paid and non-assessable.
Dividends
Unless otherwise set forth in an applicable Prospectus Supplement, the
holders of the Preferred Stock of each series shall be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of the
funds of the Company legally available therefor, dividends at such rate and on
such dates and on such terms as shall be set forth in the Prospectus
Supplement relating to such series. Different series of the Preferred Stock
may be entitled to dividends at different rates or based upon different
methods of determination. Such rate may be fixed or variable or both. Each
such dividend will be payable to the holders of record as they appear on the
stock books of the Company on such record dates as will be fixed by the Board
of Directors of the Company or a duly authorized
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committee thereof. Dividends on any series of the Preferred Stock may be
cumulative or noncumulative, as provided in the Prospectus Supplement relating
thereto.
Ranking
The Preferred Stock will rank senior in right of payment to the Common
Stock, and the First Preferred Stock (unless its terms otherwise provide) will
rank senior in right of payment to the Preferred Stock, as to dividends and
upon liquidation, dissolution or winding up of the Company, except as set
forth in the Prospectus Supplement relating thereto.
Conversion
The terms and conditions, if any, upon which any series of Preferred Stock
will be convertible into Common Stock will be set forth in the Prospectus
Supplement relating thereto. Such terms will include the conversion price (or
manner of calculation thereof), the conversion period, provisions as to
whether conversion will be at the option of the holders of such series of
Preferred Stock or at the option of the Company, the events requiring an
adjustment of the conversion price and provisions affecting conversion in the
event of the redemption of such series of Preferred Stock.
Exchange
The Prospectus Supplement may provide that the Company may, at its option,
exchange, in whole or in part, any series of Preferred Stock for Debt
Securities. The terms, notice and procedures for any such exchange will be set
forth in the applicable Prospectus Supplement.
Voting Rights
Unless otherwise provided in the applicable Prospectus Supplement, holders
of record of each series of Preferred Stock will have no voting rights, except
as required by law and as provided in the applicable Certificate of
Designations. However, if any series of Preferred Stock has voting rights,
such Preferred Stock shall not have the right to vote as a separate class on
any matter, except as provided by law.
Redemption Provisions
The Preferred Stock of each series will have such optional or mandatory
redemption terms, if any, as shall be set forth in the applicable Prospectus
Supplement.
Certain Covenants
The applicable Prospectus Supplement will describe any material covenants in
respect of any series of Preferred Stock.
Transfer Agent and Registrar
The transfer agent, registrar and dividend disbursement agent for the
Preferred Stock will be designated in the applicable Prospectus Supplement.
The registrar for shares of Preferred Stock will send notices to stockholders
of any meetings at which holders of the Preferred Stock have the right to
elect directors of the Company or to vote on any other matter.
COMMON STOCK
Dividends
The Company paid no dividends on its Common Stock until September 1997. In
September 1997, the Company paid a cash dividend of $.025 per share on its
shares of Common Stock. The Company
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currently intends to continue to pay such dividend in the foreseeable future.
However, the final determination of the timing, amount and payment of
dividends on the Common Stock is at the discretion of the Board of Directors
and will depend on, among other things, the Company's profitability,
liquidity, financial condition, and capital requirements.
Voting Rights
Each share of Common Stock is entitled to one vote.
Transfer Agent and Registrar
The transfer agent and registrar for the Common Stock is American Stock
Transfer and Trust Company.
The foregoing descriptions of the Preferred Stock and Common Stock are
summaries, and reference is herein made to the detailed provisions of the
Company's Amended and Restated Certificate of Incorporation (including,
without limitation, the Certificate of Designations relating to any series of
Preferred Stock filed hereafter and incorporated by reference herein) and the
Company's Bylaws, copies of which are incorporated by reference herein.
CERTAIN PROVISIONS OF CERTIFICATE OF INCORPORATION, BYLAWS AND STATUTE
LIMITATION OF DIRECTORS' LIABILITY AND INDEMNIFICATION
The General Corporation Law of the State of Delaware (the "DGCL") provides
that a corporation may limit the personal liability of each director to the
corporation or its stockholders for monetary damages except for liability (i)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) in respect of
certain unlawful dividend payments or stock redemptions or repurchases and
(iv) for any transaction from which the director derives an improper personal
benefit. The Amended and Restated Certificate of Incorporation provides for
the elimination and limitation of the personal liability of directors of the
Company for monetary damages except for situations described in (i) through
(iv) above. The effect of this provision is to eliminate the rights of the
Company and its stockholders (through stockholders' derivative suits on behalf
of the Company) to recover monetary damages against a director for breach of
the fiduciary duty of care as a director (including breaches resulting from
negligent or grossly negligent behavior) except in the situations described in
clauses (i) through (iv) above. This provision does not limit or eliminate the
rights of the Company or any stockholder to seek non-monetary relief such as
an injunction or rescission in the event of a breach of a director's duty of
care.
Pursuant to Section 145 of the DGCL, the Company generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they
are, or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of the Company, and
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. The statute also expressly provides that the power
to indemnify authorized thereby is not exclusive of any rights granted under
any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise.
The Company's Amended and Restated Certificate of Incorporation provides, in
general, that the Company must indemnify its officers and directors under
certain of the circumstances defined in Section 145 of the DGCL. In addition,
the Amended and Restated Certificate of Incorporation provides that no
directors of the Company will be liable to the Company or its stockholders for
monetary damages for any breach of such director's fiduciary duties, with
certain exceptions.
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The Bylaws provide that the Company shall indemnify its officers, directors,
employees, and agents to the full extent permitted by the DGCL.
The Company has entered into an indemnity agreement with each officer and
director of the Company that provides for indemnification to the fullest
extent of applicable law for any threatened, pending or completed action, suit
or proceeding arising out of the fact that such person was serving as an
officer or director of the Company. In addition, the agreements provide for
the advancement of expenses for defending against such claims upon such
person's undertaking to repay such advances if it is determined that he is in
fact not entitled to indemnification.
SECTION 203 OF THE DGCL
The Company is subject to the "business combination" statute of the DGCL, an
anti-takeover law enacted in 1988. In general, Section 203 of the DGCL
("Section 203") prohibits a publicly-held Delaware corporation from engaging
in a "business combination" with an "interested stockholder," for a period of
three years after the date of the transaction in which a person became an
"interested stockholder," unless (i) prior to such date the board of directors
of the corporation approved either the "business combination" or the
transaction which resulted in the stockholder becoming an "interested
stockholder," (ii) upon consummation of the transaction which resulted in the
stockholder becoming an "interested stockholder," the "interested stockholder"
owned at least 85% of the voting stock of the corporation outstanding at the
time the transaction commenced, excluding for purposes of determining the
number of shares outstanding those shares owned by (a) persons who are
directors and also officers and (b) employee stock plans in which employee
participants do not have the right to determine confidentially whether shares
held subject to the plan will be tendered in a tender or exchange offer, or
(iii) on or subsequent to such date the "business combination" is approved by
the board of directors and authorized at an annual or special meeting of
stockholders by the affirmative vote of at least 66 2/3% of the outstanding
voting stock which is not owned by the "interested stockholder." A "business
combination" includes mergers, stock or asset sales and other transactions
resulting in a financial benefit to the "interested stockholders." An
"interested stockholder" is a person who, together with affiliates and
associates, owns (or within three years, did own) 15% or more of the
corporation's voting stock. Although Section 203 permits the Company to elect
not to be governed by its provisions, the Company to date has not made this
election. As a result of the application of Section 203, potential acquirors
of the Company may be discouraged from attempting to effect an acquisition
transaction with the Company, thereby possibly depriving holders of the
Company's securities of certain opportunities to sell or otherwise dispose of
such securities at above-market prices pursuant to such transactions.
RESTRICTIONS ON ALIEN OWNERSHIP
The Company's Amended and Restated Certificate of Incorporation contains
certain provisions to limit ownership and control of shares of any class of
capital stock of the Company by certain non-U.S. citizens in order to permit
the Company to hold, obtain or reinstate a license or franchise from a
governmental agency necessary to conduct its business as an owner and operator
of U.S.-flag vessels. The Company's Amended and Restated Certificate of
Incorporation restricts the transfer of shares of Common Stock when such
transfer would result in the ownership or control by one or more non-U.S.
citizens of an aggregate percentage of the shares of Common Stock in excess of
a specified percentage and under certain circumstances, provides that certain
capital stock owned by non-U.S. citizens may not be permitted to vote or
receive dividends.
CLASSIFIED BOARD OF DIRECTORS
The Company's Amended and Restated Certificate of Incorporation provides
that the Board of Directors of the Company is divided into three classes of
directors. Each class of directors serves a staggered three-year term. The
classified board may make it more difficult for any stockholder who is
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attempting to acquire the Company, including a stockholder holding a majority
of shares, to succeed. Such a stockholder will be unable to force immediate
changes in the composition of a majority of the Board of Directors, since the
terms of approximately one-third of the incumbent directors would expire each
year, and at least two annual meetings would be required for stockholders to
change a majority of the Board of Directors.
STOCKHOLDER RIGHTS PLAN
On February 21, 1995, the Company's Board of Directors declared a dividend
of one preferred share purchase right (a "Right") for each outstanding share
of Common Stock. The dividend was payable on March 6, 1995 (the "Rights Record
Date") to the stockholders of record on that date. Each Right entitles the
registered holder to purchase from the Company one-hundredth of a share of
Series A Junior Participating Preferred Stock of the Company at a price of
$250.00 per one-hundredth of a share of Series A Junior Participating
Preferred Stock (the "Purchase Price"), subject to adjustment. The Rights are
described in the Company's Registration Statement on Form 8-A filed with the
Commission on February 23, 1995, as amended by Form 8-A/A-1 filed with the
Commission on March 4, 1997, which are incorporated herein by reference.
PLAN OF DISTRIBUTION
The Company may sell Securities to one or more underwriters for public
offering and sale, and also may sell Securities directly to investors or to
other purchasers or through dealers or agents. Any such underwriter, dealer or
agent involved in the offer and sale of the Securities will be named in an
applicable Prospectus Supplement.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. Sales of Common Stock
offered hereby may be effected from time to time in one or more transactions
on the New York Stock Exchange or in negotiated transactions or a combination
of such methods of sale.
In connection with distributions of Common Stock or otherwise, the Company
may enter into hedging transactions with broker-dealers in connection with
which such broker-dealers may sell Common Stock registered hereunder in the
course of hedging through short sales of the positions they assume with the
Company.
In connection with the sale of Securities, underwriters, dealers or agents
may receive compensation from the Company or from purchasers of Securities for
whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters may sell Securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and commissions from the purchasers for whom
they may act as agents. Underwriters, dealers and agents who participate in
the distribution of Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on
the resale of Securities by them may be deemed to be underwriting discounts
and commissions, under the Securities Act. Any such underwriter, dealer or
agent will be identified, and any such compensation received from the Company
will be described, in the Prospectus Supplement. Unless otherwise indicated in
a Prospectus Supplement, an agent will be acting on a best efforts basis and a
dealer will purchase Securities as a principal, and may then resell such
Securities at varying prices to be determined by the dealer.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Securities may be
entitled to indemnification by the Company
17
<PAGE>
against and contribution toward certain civil liabilities, including
liabilities under the Securities Act, and to reimbursement by the Company for
certain expenses.
If so indicated in a Prospectus Supplement, the Company will authorize
agents and underwriters or dealers to solicit offers by certain purchasers to
purchase 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 to only those conditions set forth in the Prospectus Supplement, and
the Prospectus Supplement will set forth the commission payable for
solicitation of such offers.
Certain of the underwriters, dealers or agents and their associates may
engage in transactions with and perform services for the Company in the
ordinary course of business.
The Securities may or may not be listed on a national securities exchange or
quoted on an automated quotation system (other than the Common Stock, which is
listed on the New York Stock Exchange). Any Common Stock sold pursuant to a
Prospectus Supplement will be listed on the New York Stock Exchange, subject
to official notice of issuance. Any underwriters to whom Securities are sold
by the Company for public offering and sale may make a market in such
Securities, but such underwriters will not be obligated to do so and may
discontinue any market-making activities at any time without notice. No
assurances can be given that there will be an active trading market for the
Securities.
VALIDITY OF THE SECURITIES
The validity of the Securities offered hereby will be passed upon for the
Company by Baker & McKenzie, Dallas, Texas.
EXPERTS
The financial statements and notes thereto incorporated in this Prospectus
by reference to the Annual Report on Form 10-K for the year ended December 31,
1996, have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts
in auditing and accounting.
With respect to the unaudited consolidated financial information of the
Company for the nine-month periods ended September 30, 1997 and 1996, for the
six-month periods ended June 30, 1997 and 1996 and for the three-month periods
ended March 31, 1997 and 1996 incorporated by reference in this Prospectus,
Price Waterhouse LLP reported that they have applied limited procedures in
accordance with professional standards for a review of such information.
However, their separate reports dated October 31, 1997, July 28, 1997 and
April 28, 1997 incorporated by reference herein, state that they did not audit
and they do not express an opinion on that unaudited consolidated financial
information. Price Waterhouse LLP has not carried out any significant or
additional audit tests beyond those which would have been necessary if their
reports had not been included. Accordingly, the degree of reliance on their
reports on such information should be restricted in light of the limited
nature of the review procedures applied. Price Waterhouse LLP is not subject
to the liability provisions of section 11 of the Securities Act of 1933 for
their reports on the unaudited consolidated financial information because
those reports are not a "report" or a "part" of the registration statement
prepared or certified by Price Waterhouse LLP within the meaning of sections 7
and 11 of the Securities Act of 1933.
18
<PAGE>
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRE-
SENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS SUPPLEMENT AND
THE PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES DESCRIBED IN THIS PRO-
SPECTUS SUPPLEMENT OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY
SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS
NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CRE-
ATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COM-
PANY SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN OR THEREIN
IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
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TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Forward-Looking Information............................................... S-2
Prospectus Supplement Summary............................................. S-3
The Offering.............................................................. S-5
Summary Consolidated Financial Data....................................... S-6
Use of Proceeds........................................................... S-7
Capitalization............................................................ S-7
Business.................................................................. S-8
Selected Consolidated Financial Data...................................... S-13
Management's Discussion and Analysis of Financial Condition and Results of
Operations............................................................... S-15
Description of the Notes and Debentures................................... S-21
Underwriting.............................................................. S-27
Validity of the Notes and Debentures...................................... S-28
PROSPECTUS
Available Information..................................................... 2
Incorporation by Reference................................................ 3
The Company............................................................... 4
Use of Proceeds........................................................... 4
Ratios of Earnings to Fixed Charges and Earnings to Combined Fixed Charges
and Preferred Stock Dividends............................................ 4
Description of Debt Securities............................................ 5
Description of Equity Securities.......................................... 12
Certain Provisions of Certificate of Incorporation, Bylaws and Statute.... 15
Plan of Distribution...................................................... 17
Validity of the Securities................................................ 18
Experts................................................................... 18
</TABLE>
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$300,000,000
ENSCO INTERNATIONAL
INCORPORATED
$150,000,000
6.75% NOTES DUE NOVEMBER 15, 2007
$150,000,000
7.20% DEBENTURES DUE NOVEMBER 15, 2027
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[Logo of ENSCO International Incorporated appears here]
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GOLDMAN, SACHS & CO.
BT ALEX. BROWN
CREDIT SUISSE FIRST BOSTON
SALOMON BROTHERS INC
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