<PAGE> 1
As filed with the Securities and Exchange Commission on October 14, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
ENSCO INTERNATIONAL INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 76-0232579
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2700 FOUNTAIN PLACE
1445 ROSS AVENUE
DALLAS, TEXAS 75202-2792
(214) 922-1500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------------
C. CHRISTOPHER GAUT
VICE PRESIDENT-FINANCE AND CHIEF FINANCIAL OFFICER
2700 FOUNTAIN PLACE
1445 ROSS AVENUE
DALLAS, TEXAS 75202-2792
(214) 922-1500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With a copy to:
DANIEL W. RABUN
Baker & McKenzie
2001 Ross Avenue
Suite 4500
Dallas, Texas 75201
(214) 978-3000
----------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box.[x]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
[ ]___________________________________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.
[ ]____________________________________
If delivery of the Prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Maximum
Title of Shares Aggregate Offering Amount of
to be Registered Price (1)(2)(3) Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities . . . . . . . . . . . . .
Serial Preferred Stock, par value $1.00
per share . . . . . . . . . . . . . . . .
Common Stock, par value $.10 per share
(including Preferred Share Purchase
Rights) . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . $ 500,000,000 $151,516
==================================================================================================================================
</TABLE>
(1) Such indeterminate number or amount of Debt Securities, Serial Preferred
Stock or Common Stock as may from time to time be issued at indeterminate
prices in an aggregate public offering price for all securities of
$500,000,000. No separate consideration will be received for any Debt
Securities, Serial Preferred Stock or Common Stock issuable upon
conversion of or in exchange for Debt Securities or Serial Preferred
Stock. Such amount is exclusive of accrued interest or dividends, if any.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933.
(3) In no event will the aggregate offering price of all securities issued
from time to time pursuant to this Registration Statement exceed
$500,000,000 or the equivalent thereof in one or more foreign currencies
(including composite currencies).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
===============================================================================
<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED ____________, 1997
PROSPECTUS
$500,000,000
[ENSCO LOGO]
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, 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 will 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 , 1997.
<PAGE> 3
IN CONNECTION WITH THE OFFERING OF CERTAIN SECURITIES, THE UNDERWRITERS
MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICES OF SUCH SECURITIES, OTHER SECURITIES OF THE COMPANY OR ANY SECURITIES,
THE PRICES OF WHICH MAY BE USED TO DETERMINE PAYMENTS ON SUCH SECURITIES AT
LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE 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 a 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 notes filed as a part thereof.
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.
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<PAGE> 4
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 and June 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 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.
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<PAGE> 5
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,
which may include 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. Any proposal to use
proceeds from any offering of Securities will be disclosed in the Prospectus
Supplement relating to such offering.
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>
Six Months Ended Fiscal Years Ended
June 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 . . . . . . . . . 13.5 6.8 7.6 3.7 3 .6 3.3 --
Ratio of Earnings to
Combined Fixed Charges and
Preferred Stock Dividends(2) . . 13.5 6.8 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.
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<PAGE> 6
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);
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;
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<PAGE> 7
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 on a parity with all other unsecured and unsubordinated
indebtedness of the Company. To the extent provided in the Prospectus
Supplement 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.
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.
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<PAGE> 8
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 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
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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.
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.
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"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.
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 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.
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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 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 13, 1997, 142,273,574 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.
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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.
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;
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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 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.
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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 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
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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.
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
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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
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/or 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 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
15
<PAGE> 17
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.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for the
Company by Baker & McKenzie, Dallas, Texas.
EXPERTS
The financial statements 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 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 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.
16
<PAGE> 18
<TABLE>
<S> <C>
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY OR ANY OF THE $500,000,000
UNDERWRITERS. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL OR THE SOLICITATION OF ANY OFFER TO
BUY ANY SECURITY OTHER THAN THE SECURITIES OFFERED [ENSCO LOGO]
BY THIS PROSPECTUS, NOR DOES IT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF ANY OFFER TO BUY THE
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION
IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM
IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THE INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF. DEBT SECURITIES
PREFERRED STOCK
AND COMMON STOCK
TABLE OF CONTENTS
Page
----
Available Information . . . . . . . . . . . . . . 2
Incorporation by Reference . . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . . . . . . 4 P R O S P E C T U S
Use of Proceeds . . . . . . . . . . . . . . . . . 4
Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges
and Preferred Stock Dividends . . . . . . . 4 , 1997
Description of Debt Securities . . . . . . . . . 4
Description of Equity Securities . . . . . . . . 10
Certain Provisions of Certificate of
Incorporation, Bylaws and Statute . . . . . 13
Plan of Distribution . . . . . . . . . . . . . . 15
Legal Matters . . . . . . . . . . . . . . . . . . 16
Experts . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
17
<PAGE> 19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following sets forth the best estimate of the Company as to its
anticipated expenses and costs (other than underwriting discounts and
commissions) expected to be incurred in connection with the issuance and
distribution of the securities registered hereby (except for the Commission
registration fee, all amounts are estimates):
<TABLE>
<S> <C>
Commission Registration Fee . . . . . . . . . . . . . . . . . . . $151,516
Printing and Engraving Expenses . . . . . . . . . . . . . . . . . 150,000
Legal Fees and Expenses . . . . . . . . . . . . . . . . . . . . . 200,000
Accounting Fees and Expenses . . . . . . . . . . . . . . . . . . . 150,000
Blue Sky Fees and Expenses . . . . . . . . . . . . . . . . . . . . 35,000
Trustee's Fees and Expenses . . . . . . . . . . . . . . . . . . . 30,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . 183,484
--------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $900,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
("Section 145") provides generally and in pertinent part that a Delaware
corporation may indemnify its directors and officers against expenses,
judgments, fines and settlements actually and reasonably incurred by them in
connection with any civil, criminal, administrative or investigative suit or
action except actions by or in the right of the corporation if, in connection
with the matters in issue, they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and in connection with any criminal suit or proceeding, if in
connection with the matters in issue, they had no reasonable cause to believe
their conduct was unlawful. Section 145 further provides that in connection
with the defense or settlement of any action by or in the right of the
corporation, a Delaware corporation may indemnify its directors and officers
against expenses actually and reasonably incurred by them if, in connection
with the matters in issue, they acted in good faith, in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made with respect to any
claim, issue or matter as to which such person has been adjudged liable for
negligence or misconduct unless the Court of Chancery or the court in which
such action or suit to be brought approves such indemnification. Section 145
further permits a Delaware corporation to grant its directors and officers
additional rights of indemnification through bylaw provisions and otherwise,
and to purchase indemnity insurance on behalf of its directors and officers.
Article Fifteen of the Company's Amended and Restated Certificate of
Incorporation provides, in general, that the Company must indemnify its
directors and officers under certain of the circumstances defined in Section
145. In addition, Article Fifteen provides that no director of the Company
will be personally liable to the Company or its stockholders for monetary
damages for any breach of such director's fiduciary duty, with certain
exceptions. Article Fifteen further allows the Company to purchase and
maintain insurance on behalf of its directors, officers, employees or agents
and to provide for such indemnification by means of a trust fund, security
interest, letter of credit, surety bond, contract and/or similar arrangement.
The Bylaws provide that the Company shall indemnify its officers, directors,
employees, and agents to the full extent permitted by the General Corporation
Law of the State of Delaware. The directors and officers of the Company and
its subsidiaries are insured (subject to certain exceptions and deductions)
against liabilities which they may incur in their capacity as such, including
liabilities under the Securities Act of 1933, as amended, under a liability
insurance policy carried by the Company. The Company has also entered into
agreements with its officers and directors which essentially provide that the
Company will indemnify the officers and directors to the fullest extent of
applicable law and for the advancement of expenses.
<PAGE> 20
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
*1.1 Form of Underwriting Agreement
*4.1 Form of Certificate of Designations of Preferred Stock
4.2 Form of Indenture
*4.3 Form of Debt Securities
*5.1 Legal Opinion of Baker & McKenzie
12.1 Statement regarding computation of ratios
15.1 Letter regarding unaudited interim financial information
*23.1 Consent of Baker & McKenzie (included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
24.1 Powers of Attorney (included on page II-4)
*25.1 Statement of eligibility of trustee on Form T-1
</TABLE>
_________________
* To be filed by amendment or by a Current Report on Form 8-K pursuant to Item
601 of Regulation S-K.
ITEM 17. UNDERTAKINGS.
(a) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of
such issue.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this Registration Statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the Registrant pursuant to Rule 424(b)(1) or (4), or
497(h) under the Securities Act shall be deemed to be part of
this Registration Statement as of the time it was declared
effective.
(2) For the purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus shall be determined to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(d) The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
II-2
<PAGE> 21
(i) To include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) To reflect in the Prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high and of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs (d)(1)(i) and (d)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the Registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(e) The undersigned Registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Trust Indenture Act.
II-3
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on the 14th day of October,
1997.
ENSCO INTERNATIONAL INCORPORATED
By: /s/ Carl F. Thorne
------------------------------------
Carl F. Thorne,
Chairman, Chief Executive Officer
and President
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates stated. Each person whose signature to this
Registration Statement appears below hereby appoints Carl F. Thorne, Richard A.
Wilson and C. Christopher Gaut, jointly and severally, as his
attorneys-in-fact, to sign on his behalf, individually and in the capacities
stated below, and to file (i) any and all amendments and post-effective
amendments to this Registration Statement and (ii) any registration statement
relating to the same offering pursuant to Rule 462(b) under the Securities Act
of 1933, which amendment or amendments or registration statement may make such
changes and additions as such attorney-in-fact may deem necessary or
appropriate.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Carl F. Thorne Chairman, Chief Executive Officer, President
-------------------------------------- (Principal Executive Officer) October 14, 1997
CARL F. THORNE
/s/ Richard A. Wilson Senior Vice President,
-------------------------------------- Chief Operating Officer and Director October 14, 1997
RICHARD A. WILSON
/s/ C. Christopher Gaut Vice President-Finance and
-------------------------------------- Chief Financial Officer (Principal Financial October 14, 1997
C. CHRISTOPHER GAUT Officer)
/s/ H.E. Malone Vice President-Controller and Chief Accounting
-------------------------------------- Officer (Principal Accounting Officer) October 14, 1997
H.E. MALONE
/s/ Craig I. Fields Director
--------------------------------------
CRAIG I. FIELDS, Ph.D. October 14, 1997
/s/ Orville D. Gaither, Sr. Director
--------------------------------------
ORVILLE D. GAITHER, SR. October 14, 1997
/s/ Gerald W. Haddock Director
--------------------------------------
GERALD W. HADDOCK October 14, 1997
/s/ Dillard S. Hammett Director
--------------------------------------
DILLARD S. HAMMETT October 14, 1997
/s/ Thomas L. Kelly, II Director
--------------------------------------
THOMAS L. KELLY, II October 14, 1997
/s/ Morton H. Meyerson Director
--------------------------------------
MORTON H. MEYERSON October 14, 1997
</TABLE>
II-4
<PAGE> 23
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
*1.1 Form of Underwriting Agreement
*4.1 Form of Certificate of Designations of Preferred Stock
4.2 Form of Indenture
*4.3 Form of Debt Securities
*5.1 Legal Opinion of Baker & McKenzie
12.1 Statement regarding computation of ratios
15.1 Letter regarding unaudited interim financial information
*23.1 Consent of Baker & McKenzie (included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
24.1 Powers of Attorney (included on page II-4)
*25.1 Statement of eligibility of trustee on Form T-1
</TABLE>
_________________
* To be filed by amendment or by a Current Report
on Form 8-K pursuant to Item 601 of Regulation
S-K.
<PAGE> 1
EXHIBIT 4.2
ENSCO INTERNATIONAL INCORPORATED
AND
___________________________________________________________,
TRUSTEE
____________________
INDENTURE
DATED AS OF
_________________, 199_
DEBT SECURITIES
<PAGE> 2
ENSCO INTERNATIONAL INCORPORATED
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF _______________, 199_
____________________
<TABLE>
<CAPTION>
Section of
Trust Indenture Section(s) of
ACT OF 1939 INDENTURE
<S> <C> <C>
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
</TABLE>
- ------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
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
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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
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ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 302. DENOMINATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 304. TEMPORARY SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 308. PERSONS DEEMED OWNERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 309. CANCELLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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 . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 506. APPLICATION OF MONEY COLLECTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 507. LIMITATION ON SUITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 602. NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 603. CERTAIN RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 605. MAY HOLD SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 606. MONEY HELD IN TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 607. COMPENSATION AND REIMBURSEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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 . . . . . . . . . . . . . . . . . . . . . . . . 33
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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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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 _______________, 199_ 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 ________________, as Trustee (herein called the "Trustee"), the
office of the Trustee at which at the date hereof its corporate trust business
is principally administered being ________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
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.
<PAGE> 10
"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 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 the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"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," when used with respect to the Trustee, means
any officer of the Trustee with direct responsibility for the administration of
the Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
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"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:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United
States Code.
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"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 the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
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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 the Trustee receives the notice of
revocation before the date the Act becomes effective.
SECTION 106. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
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(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, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If temporary Securities of
any series are issued in global form as permitted by Section 304, the form
thereof shall be established as provided in the preceding sentence. A copy of
the Board Resolution establishing the form or forms of Securities of any series
(or any such temporary global Security) shall be 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.
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".
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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 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
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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. The Trustee or any
Authenticating Agent shall deliver such Securities to the persons in whose
names such Securities are so registered.
(d) The Company and the Trustee shall be entitled to treat the
Person in whose name any Book-Entry Security is registered as the Holder
thereof for all purposes of the Indenture and any applicable laws,
notwithstanding any notice to the contrary received by the Trustee or the
Company; and the Trustee and the Company shall have no responsibility for
transmitting payments to, communication with, notifying, or otherwise dealing
with any beneficial owners of any Book-Entry Security. Neither the Company nor
the Trustee shall have any responsibility or obligations, legal or otherwise,
to the beneficial owners or to any other party including the Depositary, except
for the Holder of any Book-Entry Security; PROVIDED HOWEVER, notwithstanding
anything herein to the contrary, (i) for the purposes of determining whether
the requisite principal amount of Outstanding Securities have given, made or
taken any request, demand, authorization, direction, notice, consent, waiver,
instruction or other action hereunder as of any date, the Trustee shall treat
any Person specified in a written statement of the Depositary with respect to
any Book-Entry Securities as the Holder of the principal amount of such
Securities set forth therein and (ii) nothing herein shall prevent the Company,
the Trustee, or any agent of the Company or Trustee, from giving effect to any
written certification, proxy or other authorization furnished by a Depositary
with respect to any Book-Entry Securities, or impair, as between a Depositary
and holders of beneficial interests in such Securities, the operation of
customary practices governing the exercise of the rights of the Depositary as
Holder of such Securities.
(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.
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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;
(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;
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<PAGE> 21
(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. 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, under its corporate seal reproduced thereon or affixed thereto
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile. Coupons
shall bear the facsimile signature of the Chairman of the Board, President,
Treasurer or any Vice President of the Company.
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<PAGE> 22
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 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) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 201, that
such form has been established in conformity with the provisions of
this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 301, that
such terms have been established in conformity with the provisions of
this Indenture; and
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, except as such enforcement
is subject to the effect of 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 Registered 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.
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.
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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 exchanged;
PROVIDED, HOWEVER, that no such exchanges may occur during a period beginning
at the opening of business 15 days before any selection of Securities of that
series is to be redeemed and ending on the relevant Redemption Date. Promptly
following any such exchange in part, such permanent global Security marked to
evidence the partial exchange shall be returned by the Trustee to the
Depositary or such other depositary referred to above in accordance with the
instructions of 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
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<PAGE> 24
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 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
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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 (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
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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 as directed by a Company
Order; PROVIDED that the Trustee shall not be required to destroy such
Securities.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year comprising twelve 30-day months.
SECTION 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of a series, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to Securities of such series, when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities that
have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 306, and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation;
(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
(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;
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(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the 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 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;
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(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;
(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
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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.
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
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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
(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.
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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.
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),
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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
(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.
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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:
(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.
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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.
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
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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 known to the Trustee to all Holders of
Securities of such series in the manner provided in Section 107, unless such
Default or Event 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 rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond,
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debenture, note, coupon, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon, other
evidence of indebtedness or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and, except for any Affiliates of the
Trustee, the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(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;
and
(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.
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.
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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 from time to time
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the compensation and the reasonable
expenses and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and each of its
directors, officers, employees, agents and/or representatives
for, and to hold each of them harmless against, any loss,
liability or expense incurred without negligence or bad faith
on each of their part, arising out of or in connection with
the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending
themselves against any claim or liability in connection with
the exercise or performance of any of the Trustee's powers or
duties hereunder.
As security for the performance of the obligations of the Company
under this Section 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.
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
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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:
(1) the Trustee shall fail to comply with Section
608(a) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder of Securities,
or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the
Company by a Board Resolution may remove the Trustee with
respect to all Securities, or (ii) subject to Section 513, any
Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in
the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities
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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 its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
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SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto; 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 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.
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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:
(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.
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(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 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, unless:
(1) the Person formed by such consolidation or
into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation, partnership or trust and shall expressly assume,
by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and
interest (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
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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 Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any), interest on and any Additional Amounts with respect to the Securities
of that series in accordance with the terms of the Securities and this
Indenture.
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 of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, the Company will, on or before each due date of the
principal of (and premium, if any) or interest on any Securities of that
series, deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of
the principal of (and premium, if any), interest on or any
Additional Amounts with respect to Securities of that series
in trust for the benefit of
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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
three 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 and any Paying Agent for, and to hold them harmless against any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section 1007.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, a
reasonable period prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such
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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" 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> 52
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> 53
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, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
ENSCO INTERNATIONAL INCORPORATED
[CORPORATE SEAL] By
-----------------------------------
Name: -----------------------------
Title: ----------------------------
--------------------------------------,
TRUSTEE
[CORPORATE SEAL] By
-----------------------------------
Name: -----------------------------
Title: ----------------------------
STATE OF _________________ )
) ss.
COUNTY OF ________________ )
On the ____ day of _____________, _____, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say
that he is ________________ of ENSCO International Incorporated, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
-----------------------------------
Notary Public
[NOTARIAL SEAL]
45
<PAGE> 54
STATE OF _________________ )
) ss.
COUNTY OF ________________ )
On the ___ day of _______, ____, before me personally came _________,
to me known, who, being by me duly sworn, did depose and say that he is
______________ of ________________________________________________, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
-----------------------------------
Notary Public
[NOTARIAL SEAL]
46
<PAGE> 55
EXHIBIT A
FORM OF CERTIFICATE TO BE
GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF
INTEREST IN A GLOBAL SECURITY
ENSCO INTERNATIONAL INCORPORATED
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities that are held by the undersigned or held
by you for the account of the undersigned (i) are owned by person(s) that are
not citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
persons"), (ii) are owned by United States person(s) that (A) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing
for their own account or for resale, or (B) acquired Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (A) or (B), each such United States financial institution hereby
certifies, on its own behalf or through its agent, that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder), or (iii) are owned by
United States or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)) and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is to further
certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, (i) in
the case of debt securities, the Securities are beneficially owned by (a)
non-U.S. person(s) or (b) U.S. person(s) who purchased the Securities in
transactions which did not require registration under the Act; or (ii) in the
case of equity securities, the Securities are owned by (x) non-U.S. person(s)
(and such person(s) are not acquiring the Securities for the account or benefit
of U.S. person(s)) or (y) U.S. person(s) who purchased the Securities in a
transaction which did not require registration under the Act. If this
certification is being delivered in connection with the exercise of warrants
pursuant to Section 230.902(m) of Regulation S under the Act, then this is
further to certify that, except as set forth below, the Securities are being
exercised by and on behalf of non-U.S. person(s). As used in this paragraph the
term "U.S. person" has the meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America
(including the States and District of Columbia); and its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to $______________ of
such interest in the above Securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
interest) cannot be made until we do so certify.
Exhibit A - 1
<PAGE> 56
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
*Dated: __________________, _____
NAME OF PERSON MAKING CERTIFICATION
By:
------------------------------------------------
As, or as Agent for, the beneficial owner(s) of the Securities to
which this Certificate relates
By:
------------------------------------------------
As, or as Agent for, the financial institution (if any) through which a
United States Person acquired the Securities to which this Certificate
relates
- ----------------
*To be dated no earlier than the Certification Date.
Exhibit A - 2
<PAGE> 1
EXHIBIT 12.1
ENSCO INTERNATIONAL INCORPORATED AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
(DOLLAR AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
-------------------- ----------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
-------- -------- -------- -------- -------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings
Income (loss) from continuing operations
before provision for income taxes $145,097 $ 51,245 $142,680 $ 47,339 $ 40,321 $ 28,351 $(18,295)
Add:
Interest on indebtedness and
amortization of debt expense 10,427 8,431 20,539 16,564 13,377 9,917 4,465
and premium
Portion of rents representative of
the interest factor 527 424 1,029 1,009 1,073 1,208 942
-------- -------- -------- -------- -------- -------- --------
Earnings (losses) as adjusted $156,051 $ 60,100 $164,248 $ 64,912 $ 54,771 $ 39,476 $(12,888)
======== ======== ======== ======== ======== ======== ========
Fixed Charges
Interest on indebtedness and
amortization of debt expense $ 10,427 $ 8,431 $ 20,539 $ 16,564 $ 13,377 $ 9,917 $ 4,465
and premium 619 -- -- -- 731 735 --
Capitalized interest
Portion of rents representative of the
interest factor 527 424 1,029 1,009 1,073 1,208 942
-------- -------- -------- -------- -------- -------- --------
Fixed charges $ 11,573 $ 8,855 $ 21,568 $ 17,573 $ 15,181 $ 11,860 $ 5,407
======== ======== ======== ======== ======== ======== ========
Preferred dividends on a pretax
basis -- -- -- -- 2,355 5,390 3,839
Fixed charges and preferred
dividends combined $ 11,573 $ 8,855 $ 21,568 $ 17,573 $ 17,536 $ 17,250 $ 9,246
======== ======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges 13.48 6.79 7.62 3.69 3.61 3.33 (2.38)
======== ======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges and
preferred dividends combined 13.48 6.79 7.62 3.69 3.12 2.29 (1.39)
======== ======== ======== ======== ======== ======== ========
Amount by which earnings did not
cover fixed charges $ 18,295
========
Amount by which earnings did not
cover fixed charges and
preferred dividends combined $ 22,134
========
</TABLE>
<PAGE> 1
EXHIBIT 15.1
[Price Waterhouse LLP letterhead]
October 14, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We are aware that ENSCO International Incorporated has included our reports
dated April 28, 1997, and July 28, 1997 (issued pursuant to the provisions of
Statement on Auditing Standards No. 71) in the Prospectus constituting part of
its Registration Statement on Form S-3 to be filed on or about October 14,
1997. We are also aware of our responsibilities under the Securities Act of
1933.
Yours very truly,
/s/ Price Waterhouse LLP
<PAGE> 1
EXHIBIT 23.2
[Price Waterhouse LLP letterhead]
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated January 28, 1997 appearing on page 22 of ENSCO International
Incorporated's Annual Report on Form 10-K for the year ended December 31, 1996.
We also consent to the reference to us under the heading "Experts" in such
Prospectus.
Dallas, Texas
October 14, 1997
/s/ Price Waterhouse LLP
