As filed with the Securities and Exchange Commission on April 13,
1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GLOBAL MARINE INC.
(Exact name of registrant as specified in its charter)
Delaware 95-1849298
(State or other jurisdiction of (IRS employer identification
or organization) number)
777 N. Eldridge Road
Houston, Texas 77079
(713) 596-5100
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
James L. McCulloch, Esq.
Vice President and General Counsel
Global Marine Inc.
777 N. Eldridge Road
Houston, Texas 77079
(713) 596-5100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO
THE PUBLIC: From time to time after the effective date of the
registration statement.
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]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of each class of securities Amount price offering registration
to be registered to be registered per unit(1) price(2) fee
<S> <C> <C> <C> <C>
Debt Securities (4)
Preferred Stock, $.01 par value (5) (3) (3) (3) (3)
Common Stock, $.10 par value (6)
Total $75,000,000(7) 100% $75,000,000(7) $25,862.07
</TABLE>
(footnotes on next page)
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
(1) The proposed maximum offering price per unit will be
determined from time to time by the registrant in connection
with the issuance by the registrant of the securities
registered hereunder.
(2) The proposed maximum aggregate offering price has been
estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(o) under the
Securities Act of 1933.
(3) Not applicable pursuant to General Instruction II.D of Form
S-3.
(4) Subject to note (7) below, there is being registered
hereunder an indeterminate principal amount of Debt
Securities. If any Debt Securities are issued at an
original issue discount, then the offering price shall be in
such greater principal amount as shall result in an
aggregate initial offering price not to exceed $75,000,000
less the dollar amount of any securities previously issued
hereunder.
(5) Subject to note (7) below, there is being registered
hereunder an indeterminate number of shares of Preferred
Stock as may be sold, from time to time, by the registrant.
(6) Subject to note (7) below, there is being registered
hereunder an indeterminate number of shares of Common Stock
as may be sold, from time to time, by the registrant. There
are also being registered hereunder an indeterminate number
of shares of Common Stock as shall be issuable upon
conversion or redemption of Preferred Stock or Debt
Securities registered hereunder.
(7) In no event will the aggregate initial offering price of all
securities issued from time to time pursuant to this
Registration Statement exceed $75,000,000 or the equivalent
thereof in one or more foreign currencies, foreign currency
units, or composite currencies. The aggregate amount of
Common Stock registered hereunder that is offered in an at-
the-market offering is further limited to that which is
permissible under Rule 415(a)(4) under the Securities Act of
1933. The securities registered hereunder may be sold
separately or as units with other securities registered
hereunder.
SUBJECT TO COMPLETION, DATED APRIL 13,1995
PROSPECTUS
GLOBAL MARINE INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
Global Marine Inc. (the "Company"), a Delaware corporation,
may offer from time to time (a) debt securities ("Debt
Securities"), which may be subordinated to other indebtedness of
the Company, (b) shares of preferred stock, $.01 par value per
share ("Preferred Stock"), or (c) shares of common stock, $.10
par value per share ("Common Stock"), all having an aggregate
initial public offering price not to exceed $75,000,000 or the
equivalent thereof in one or more foreign currencies, foreign
currency units, or composite currencies. The Debt Securities,
Preferred Stock, and Common Stock are referred to herein
collectively as the "Offered Securities." The Offered Securities
may be offered, separately or as units with other Offered
Securities in separate series in amounts, at prices and on terms
to be determined at or prior to the time of sale.
The specific terms of the Offered Securities with respect to
which this Prospectus is being delivered will be set forth in an
accompanying supplement to this Prospectus (a "Prospectus
Supplement"), together with the terms of the offering of the
Offered Securities and the initial price and the net proceeds to
the Company from the sale thereof. The Prospectus Supplement
will include, with regard to the particular Offered Securities,
the following information: (a) in the case of Debt Securities,
the specific designation, aggregate principal amount, ranking,
authorized denomination, maturity, rate or method of calculation
of interest and dates for payment thereof, any exchangeability,
conversion, redemption, prepayment, or sinking fund provisions,
the currency or currency unit in which principal, premium, or
interest is payable, the designation of the trustee acting under
the applicable indenture, and the initial offering price; (b) in
the case of Preferred Stock, the designation, number of shares,
liquidation preference per share, initial public offering price,
dividend rate (or method of calculation thereof), dates on which
dividends shall be payable and dates from which dividends shall
accrue, any redemption or sinking fund provisions, and any
conversion or exchange rights; (c) in the case of Common Stock,
the number of shares and the terms of the offering and sale
thereof; and (d) in the case of all Offered Securities, whether
such Offered Securities will be offered separately or as a unit
with other Offered Securities. The Prospectus Supplement will
also contain information, where applicable, about material United
States federal income tax considerations relating to, and any
listing on a securities exchange of, the Offered Securities
covered by such Prospectus Supplement.
The Company may sell the Offered Securities directly,
through agents designated from time to time, or through
underwriters or dealers. If any agents, underwriters, or dealers
are involved in the sale of the Offered Securities, the names of
such agents, underwriters, or dealers and any applicable
commissions or discounts and the net proceeds to the Company from
such sale will be set forth in the applicable Prospectus
Supplement.
AN INVESTMENT IN THE OFFERED SECURITIES INVOLVES A HIGH
DEGREE OF RISK. PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER
THE MATTERS SET FORTH UNDER THE CAPTION "RISK FACTORS."
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.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF
OFFERED SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
The date of this Prospectus is , 1995
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.
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and in accordance therewith files reports,
proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). These reports, proxy
statements and other information can be inspected and copied at
the public reference facilities maintained by the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, as well as the regional offices of the Commission at
Northwest Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60621-2511, and 7 World Trade Center, 13th
Floor, New York, New York 10048. Copies of such materials also
can be obtained by mail from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Common Stock is listed on the New York
Stock Exchange, and such material also can be inspected and
copied at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005.
The Company has filed with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"), a
registration statement on Form S-3 (herein, together with all
amendments and exhibits thereto, the "Registration Statement")
with respect to the Offered Securities. This Prospectus, which
constitutes 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 the exhibits thereto, as
permitted by the rules and regulations of the Commission.
Statements made in this Prospectus as to the contents of any
contract, agreement or other document referred to are not
necessarily complete; with respect to each such contract,
agreement or other document filed as an exhibit to the
Registration Statement, 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. For further information, reference is hereby made to
the Registration Statement and exhibits thereto, which can be
inspected and copied at the Commission's public reference
facilities and regional offices referred to above.
INCORPORATION BY REFERENCE
The following documents, which have been filed by the
Company with the Commission pursuant to the Exchange Act (File
No. 1-5471), are incorporated into this Prospectus by reference:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1994; (b) all other reports filed pursuant to
Section 13(a) or 15(d) of the Exchange Act since the end of the
last fiscal year covered by the Annual Report referred to in (a)
above; and (c) the description of the Company's Common Stock
contained in the Company's Registration Statement on Form 8-A
filed with the Commission pursuant to Section 12 of the Exchange
Act on March 6, 1989, as amended by Amendment No. 1 thereto on
Form 8 filed with the Commission on March 15, 1989. In addition,
all documents filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of
the securities covered hereby 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.
Any statement in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be
modified or superseded for the 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 such
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 undertakes to provide, without charge, to
each person, including any beneficial owner, to whom a copy of
this Prospectus is delivered, upon written or oral request of
such person, a copy of any or all of the documents referred to
above that have been or may be incorporated by reference in the
Prospectus (excluding exhibits to such documents unless such
exhibits are specifically incorporated by reference). Requests
should be directed to the Secretary, Global Marine Inc., 777 N.
Eldridge Road, Houston, Texas 77079, telephone number (713) 596-
5100.
THE COMPANY
Global Marine Inc., a Delaware corporation incorporated in
1964, is a major international offshore drilling contractor with
a modern, diversified fleet of 28 mobile offshore drilling rigs
(all but one of which are owned by the Company), consisting of 24
cantilevered jackup drilling rigs, two semisubmersible drilling
rigs, one self-propelled drillship, and one concrete island
drilling system. The Company's marine drilling business includes
offshore contract drilling and drilling management services on a
turnkey basis. Substantially all of the Company's offshore
contract drilling operations are conducted by Global Marine
Drilling Company ("GMDC"), a wholly-owned subsidiary of the
Company. The remainder of the Company's marine drilling business
is conducted through Applied Drilling Technology Inc. ("ADTI"), a
wholly-owned subsidiary of the Company, and Global Marine
Integrated Services-Europe, a division of GMDC, which provide
offshore drilling management services. The Company also
participates in oil and gas exploration, development and
production primarily in the United States through Challenger
Minerals Inc. ("CMI"), which is a wholly-owned subsidiary of the
Company. Unless otherwise provided, the term "Company" as used
in this Prospectus refers to Global Marine Inc. and, unless the
context otherwise requires, to the Company's consolidated
subsidiaries.
The Company's principal executive offices are located at 777
N. Eldridge Road, Houston, Texas 77079, and its telephone number
is (713) 596-5100.
RECENT DEVELOPMENT
On April 10, 1995, the Company entered into an agreement to
sell the Glomar Main Pass III to Dual Drilling Company, the
customer that has been leasing the rig from the Company under a
bareboat charter. The net proceeds to the Company from the sale,
which is expected to close in June 1995, will be approximately
$22 million in cash, and the Company expects to recognize a gain
of approximately $14 million in the second quarter of 1995.
RISK FACTORS
In addition to the other information contained in this
Prospectus and the Prospectus Supplement and incorporated herein
by reference, prospective investors should carefully consider the
matters set forth below before purchasing any of the Offered
Securities.
HIGH LEVERAGE
Notwithstanding the recapitalization of the Company in 1992,
the Company is highly leveraged. As a result, the Company will
require substantial cash flow to meet its semiannual interest
payment obligations on, and to repay at maturity the principal
of, the Company's 12-3/4% Senior Secured Notes due 1999 (the
"Senior Secured Notes"). The Company had total indebtedness of
$225.0 million at December 31, 1994, as compared with total
shareholders' equity of $212.3 million.
LIMITED LIQUIDITY
The Company believes that it will be able to meet all of its
current obligations, including capital expenditures and debt
service, from its cash flow from operations and its cash, cash
equivalents and marketable securities. The Company's ability,
however, to pay the principal amount of the Senior Secured Notes
upon maturity in December 1999 from its cash flow from operations
would require a substantial improvement in current industry
conditions, including an increase in the average dayrate earned
by the Company's contract drilling fleet. The Company may have
available to it sources of liquidity other than cash flow from
the Company's contract drilling fleet, including certain asset sales
and equity or debt financings, to retire or otherwise refinance the
principal amount of the Senior Secured Notes on or prior to
maturity.
RESTRICTIONS ON OPERATIONS
The ability of the Company to make scheduled semiannual
interest payments on, and retire at maturity the principal of,
the Senior Secured Notes is dependent on the Company's future
performance. The Company's performance is subject to financial,
economic and other factors, many of which are beyond its control.
In addition, the indenture under which the Senior Secured Notes
were issued (the "Senior Notes Indenture") imposes significant
operating and financial restrictions on the Company and provides
for the granting of a first lien in favor of the trustee under
the Senior Notes Indenture, for the benefit of the holders of
Senior Secured Notes, on a significant portion of the Company's
material assets. Such restrictions affect, and in many respects
limit or prohibit, among other things, the ability of the Company
to incur additional indebtedness, make investments in third
parties, create liens, sell assets, engage in mergers or
acquisitions and pay dividends or make other payments. Such
restrictions currently prohibit the issuance of certain of the
securities, including the Debt Securities, which may be offered
by this Prospectus. The highly leveraged position of the Company
and the restrictive covenants contained in and liens provided for
under the Senior Notes Indenture could significantly limit the
ability of the Company to respond to changing business or
economic conditions or to respond to substantial declines in
operating results.
COMPETITION AND CURRENT OPERATING ENVIRONMENT
The offshore contract drilling industry is a highly
competitive and cyclical business. It is characterized by high
capital costs, long lead times for construction of new rigs and
numerous industry participants, none of which has a significant
market share but several of which have substantially greater
financial resources than the Company. Offshore drilling rigs
have few alternative uses and, because of their nature and the
environment in which they work, have relatively high maintenance
costs whether employed or unemployed. Contracts are awarded on a
competitive bid basis and, while an operator selecting a rig may
consider, among other things, quality of service and equipment,
the current oversupply of rigs has led to a market in which
intense price competition is the primary factor in determining
which qualified contractor is awarded a job. In addition, the
Company's offshore drilling business is subject to the usual
risks associated with having a limited number of customers for
its services.
Each of the Company's drilling rigs is employed under an
individual contract which extends over a period of time covering
either a stated term or the time required to drill a well or
number of wells. While the final contract for employment of a
rig is the result of negotiations between the Company and the
customer, most contracts are awarded based upon competitive
bidding. The rates specified in drilling contracts are generally
on a per day basis, payable in U.S. dollars, and vary depending
upon the equipment and services supplied, the areas involved, the
duration of the work, competitive conditions and other variables.
The contracts provide for a basic dayrate during drilling
operations, with no payments or lower rates for periods of
equipment breakdown, adverse weather, or other conditions which
may be beyond the control of the Company. When a rig mobilizes
to or demobilizes from an operating area, a contract may provide
for different dayrates, specified fixed amounts, or for no
payment during the redeployment period. As a result of
competitive conditions within the industry, the Company is, in
certain cases, paying the cost of mobilizing to and/or
demobilizing from an operating area, thus reducing further the
Company's operating margins. A contract may be terminated by the
customer if the rig is destroyed or lost, if drilling operations
are suspended for a specified period of time due to a breakdown
of major equipment or, in some cases, if other events occur that
are beyond the control of either party.
Since 1982, the offshore contract drilling market has been
adversely affected by a supply of offshore rigs that has
significantly exceeded the demand for such equipment as well as
by a reduced level of demand generally for such equipment. The
reduced demand principally has been the result of low oil and gas
prices, reductions in the exploration and development
expenditures of the Company's customers, and prolonged
uncertainty and volatility in oil and gas prices. Worldwide
military, political and economic events are likely to continue to
cause oil and gas price volatility. Factors which influence
demand for the Company's services include the ability of the
Organization of Petroleum Exporting Countries ("OPEC") to set and
maintain production levels and prices, the level of production by
non-OPEC countries, worldwide demand for oil and gas, and
contract and other terms sought by various governments to explore
and develop oil, gas and other hydrocarbons within their offshore
waters. The Company cannot predict the timing or extent of any
improvement in the industry or the future level of demand for the
Company's drilling services.
In the North Sea in 1994, volatile oil prices and the
reduction in U.K. tax relief for exploration and appraisal
expenditures continued to negatively affect demand for offshore
drilling services, resulting in low dayrates and utilization.
Recent events, however, have resulted in higher North Sea
dayrates as operators began contracting available rigs to carry
out 1995 drilling programs. The North Sea averaged 76%
utilization for the year ended December 31, 1994, with an average
of 64 rigs under contract. In West Africa, dayrates and
utilization appear to have stabilized during 1994, despite
political unrest and volatile oil prices. In West Africa,
average industry demand was reflected by 75% utilization for the
year ended December 31, 1994, with an average of 24 rigs under
contract. The strength in the Gulf of Mexico offshore drilling
market in 1994, which was attributable to higher natural gas
prices and a growing number of drilling prospects developed from
enhanced seismic technology, has resulted in an increase in the
supply of rigs competing for jobs in the Gulf, as contractors
have relocated a significant number of rigs to the Gulf from weak
overseas markets. In the U.S. Gulf of Mexico, average industry
demand was reflected by 75% utilization for the year ended
December 31, 1994, with an average of 131 rigs under contract.
Natural gas prices weakened in late 1994. In response to lower
gas prices, demand for offshore drilling rigs in the U.S. Gulf of
Mexico declined from late December through mid-February. Gas
prices have strengthened recently and drilling demand in the
Gulf has stabilized. Unless gas prices continue to strengthen,
however, drilling activity in the Gulf is expected to remain
depressed.
LOSSES FROM OPERATIONS
The Company reported a net loss of $35.8 million for 1990,
and net income of $1.0 million for 1991 and $57.2 million for
1992. In 1993, the Company reported a net loss of $26.5 million.
The Company reported net income of $1.3 million for 1994. Net
income for 1992 is primarily attributable to (i) the proceeds
from the settlement of the Company's take-or-pay litigation, (ii)
an extraordinary gain on the extinguishment of debt in connection
with the recapitalization of the Company, (iii) the gain realized
upon the sale of one of the Company's High Island class jackup
rigs, and, (iv) a lesser extent, to the residual effect of a
limited number of drilling contracts with dayrates higher than
those subsequently prevailing. The Company would have reported a
net loss of $37.1 million in 1992 absent the settlement of its
take-or-pay litigation, the gain on extinguishment of debt and
the rig sale transaction. Despite reporting net income in 1994,
the Company's return to continued profitability will be dependent
upon an improvement in the utilization of and dayrates for its
drilling units. The Company cannot predict when or if any such
return to continued profitability will occur.
LIMITATION ON CASH FLOW FROM OIL AND GAS AND TURNKEY DRILLING
OPERATIONS
Cash flow from the Company's oil and gas operations and
turnkey drilling operations may be limited by certain factors.
In particular, net operating cash flow from the Company's largest
gas property, Matagorda Island Block 668, decreased from $12
million in 1992 to $5 million in 1993 and $4 million in 1994,
reflecting the fact that previous production imbalances between
the Company and its working interest partner in the property were
settled in 1992. Capital expenditures during 1994 for oil and
gas activities were equal to approximately two-thirds of the net
cash flow from the Company's oil and gas properties.
Cash flow from turnkey drilling operations is dependent on
the ability of the Company to obtain and perform successfully
turnkey contracts based on competitive bids and the number of
such contracts available for bid. Accordingly, the Company's
turnkey results of operations may vary widely from year to year.
DIVIDEND RESTRICTIONS
The Company is restricted from paying dividends (other than
stock dividends) on the Common Stock and Preferred Stock under
the terms of the Senior Notes Indenture. Accordingly, it is not
expected that the Company will declare or pay dividends in the
foreseeable future.
OPERATIONAL RISKS AND INSURANCE
The Company's operations are subject to the usual hazards
incident to drilling oil and gas wells, such as blowouts,
explosions, oil spills and fires, which can severely damage or
destroy equipment or cause environmental damage. The Company's
activities are also subject to perils peculiar to marine
operations, such as collision, grounding and damage or loss from
severe weather. These hazards can cause personal injury and loss
of life, severe damage to and destruction of property and
equipment, pollution or environmental damage and suspension of
operations.
The Company maintains insurance coverage against certain
general and marine public liability, including liability for
personal injury, in the amount of $200 million, subject to a
self-insured retention of no more than $250,000 per occurrence.
In addition, the Company's rigs and related equipment are
separately insured under hull and machinery policies against
certain marine and other perils, subject to a self-insured
retention generally of no more than $300,000 per occurrence. The
Company's current practice is to insure each rig for its market
value. Although each rig is insured for more than its carrying
value, the Company's insurance may not cover all costs that would
be required to replace each rig. The Company purchases the
majority of the insurance protecting it from the consequences of
these hazards from the marine and energy insurance market. This
market historically is cyclical in nature, and over the past few
years it has experienced a decline in capacity of available
insurance resulting in increased premiums and reduced coverage
for the Company. In particular, as a result of historical claims
involving damage to the "spud cans" (i.e., the bases of the legs
of jackup rigs) of certain of the Company's jackup drilling
units, insurers have excluded business interruption coverage with
respect to spud can damage incurred after May 3, 1992. Business
interruption coverage applies only to business interruptions as a
result of a loss insured under hull and machinery policies. The
deductible for rig business interruption claims is 30 days. The
Company currently purchases rig business interruption insurance
with respect to all of its operating rigs; however, the decision
to insure a rig against business interruption risks is dependent
on a number of factors, including dayrate and utilization levels,
and no assurance can be made that the Company will continue to
insure any or all of its operating rigs against such risks. All
of the Company's rigs which are operated internationally are
presently insured against loss due to war, including terrorism.
The Company is permitted under the terms of the rig
mortgages securing the Senior Secured Notes to change the limits
on its general and marine public liability insurance to $150
million, and to be subject, with respect to such liability
insurance and its marine hull and machinery insurance, to self-
insured retention amounts of up to $1 million per occurrence. In
addition, the Senior Notes Indenture contains certain
restrictions regarding the use of insurance proceeds realized by
the Company due to the loss of any Company-owned rig, other than
the Glomar Baltic I, the Glomar Adriatic IX, the Glomar Adriatic
X and the Glomar Adriatic XI.
While the general and marine public liability policies cover
liability for pollution under most circumstances, they do not
cover liability for bringing a well under control following a
blowout. In the case of turnkey drilling operations, the Company
maintains insurance covering the cost of controlling the well,
including any environmental damage resulting therefrom, the cost
of cleanup and the cost of redrilling ("well control
liabilities") in an amount not less than $20 million per
occurrence subject to a self-insured retention of $200,000 per
occurrence. Under turnkey drilling contracts, the Company
generally assumes the risk of cost of well control, but on
occasion the Company receives indemnification from the customer
for such risk in excess of the $20 million insurance coverage.
In many instances, however, the Company is not indemnified by its
customers for well control liabilities. Furthermore, the Company
is not insured against certain drilling risks that could result
in delays or nonperformance of a turnkey drilling contract. In
connection with the Company's offshore contract drilling
operations, the Company is generally indemnified for any cost of
well control by its customers; however, in any event, the Company
maintains insurance against such liabilities in the amount of $50
million per occurrence, subject to a self-insured retention of
$200,000 per occurrence.
The occurrence of a significant event, including pollution
or environmental damage, not fully insured or indemnified against
or the failure of a customer to meet its indemnification
obligations, could materially and adversely affect the Company's
operations and financial condition. Moreover, no assurance can
be given that the Company will be able to maintain adequate
insurance in the future at rates it considers reasonable. See
"Governmental Regulation and Environmental Matters."
FOREIGN OPERATIONS
A significant portion of the Company's revenues is
attributable to drilling operations in foreign countries. Such
activities accounted for 29%, 44% and 71% of the Company's total
revenues in 1994, 1993, and 1992, respectively. Risks associated
with the Company's operations in foreign areas include risks of
war and civil disturbances or other risks that may limit or
disrupt markets, expropriation, nationalization, renegotiation or
nullification of existing contracts, foreign exchange
restrictions and currency fluctuations, foreign taxation,
changing political conditions and foreign and domestic monetary
policies. To date, the Company has experienced no material loss
as a result of any of these factors. Additionally, the ability of
the Company to compete in the international drilling market may
be adversely affected by foreign governmental regulations
favoring or requiring the awarding of drilling contracts to local
contractors, or by regulations requiring foreign contractors to
employ citizens of, or purchase supplies from, a particular
jurisdiction. Furthermore, foreign governmental regulations,
which may in the future become applicable to the industry served
by the Company, could reduce demand for the Company's services,
or such regulations could directly affect the Company's ability
to compete for customers.
GOVERNMENTAL REGULATION AND ENVIRONMENTAL MATTERS
The Company's business is affected by changes in public
policy and by federal, state, foreign and local laws and
regulations relating to the energy industry. The adoption of
laws and regulations curtailing exploration and development
drilling for oil and gas for economic, environmental and other
policy reasons adversely affects the Company's operations by
limiting available drilling and other opportunities in the energy
service industry.
The Company's operations are subject to numerous federal,
state and local laws and regulations controlling the discharge of
materials into the environment or otherwise relating to the
protection of the environment. For example, the Company, as an
operator of mobile offshore drilling units in navigable U.S.
waters and certain offshore areas, including the Outer
Continental Shelf, is liable for damages and for the cost of
removing oil spills for which it may be held responsible, subject
to certain limitations. The Company's operations may involve the
use or handling of materials that may be classified as
environmentally hazardous substances. Laws and regulations
protecting the environment have generally become more stringent,
and may in certain circumstances impose "strict liability,"
rendering a person liable for environmental damage without regard
to negligence or fault. The Company does not believe that
environmental regulations have had any material adverse effect on
its capital expenditures, results of operations or competitive
position to date, and does not presently anticipate that any
material expenditures will be required to enable it to comply
with existing laws and regulations. It is possible, however,
that modification of existing regulations or the adoption of new
regulations in the future, particularly with respect to
environmental and safety standards, could have such a material
adverse effect on the Company's operations.
The U.S. Oil Pollution Act of 1990 ("OPA '90") and similar
legislation enacted in Texas, Louisiana and other coastal states
address oil spill prevention and control and significantly expand
liability exposure across all spectrums of the oil and gas
industry. The Company is of the opinion that it maintains
sufficient insurance coverage to respond to the added exposures.
OPA '90 also mandated increases in the amounts of financial
responsibility that must be certified with respect to mobile
offshore drilling units and offshore facilities (e.g., oil and
gas production platforms, among others) located in U.S. waters.
Operators of mobile offshore drilling units, together with
operators of vessels, must provide evidence of financial
responsibility based on a tonnage formula, which, in the
Company's case, would not exceed $15 million for its largest rig
located in U.S. waters. The Company may use its current
Certificate of Financial Responsibility ("COFR") until June 30,
1995, after which time a COFR complying with the new rule must be
obtained. The Company may comply with the requirement by either
posting a cash bond, self insuring by providing evidence of
adequate U.S. based net worth, or by providing evidence of an
insurance policy meeting OPA '90 COFR requirements. Reportably,
at least two insurance facilities which would satisfy the COFR
requirements of the new rule have been approved by the U.S. Coast
Guard. However, no determination has been made whether either of
these insurance facilities would be made available to the Company
on satisfactory terms, if at all. The Company believes that the
probability is remote that it will not be able to satisfy the
financial responsibility requirements of the rule as promulgated.
Furthermore, the Company believes that it will be able to comply
with the COFR requirements, either by self-insuring or by
providing evidence of third-party insurance. The Company's
inability to comply with the rule, however, might have a material
adverse effect on its operations and financial condition. During
1994, 56% of the Company's contract drilling revenues were
attributable to operations in U.S. waters, and, as of March 31,
1995, 13 of the Company's 25 rigs then in service were located in
U.S. waters.
Under OPA '90, operators of offshore facilities will be
required to certify evidence of financial responsibility in the
amount of $150 million. The Department of the Interior ("DOI")
is responsible for promulgating regulations implementing the new
financial responsibility requirements with respect to offshore
facilities, and its regulations are not expected to be finalized
until later this year. The Minerals Management Service of the
DOI issued an Advance Notice of Proposed Rulemaking in 1993 which
contemplated regulations for offshore facilities similar to the
Coast Guard regulations. The DOI solicited comments from the
offshore oil industry with respect to the proposed regulations,
which will also be subject to review and comment before adoption.
The DOI regulations, with the regulations promulgated by the
Coast Guard, could adversely affect CMI, the Company's wholly-
owned oil and gas producing subsidiary, as well as GMDC and ADTI.
CMI presently operates an offshore production platform, and
ADTI's business and GMDC's operations in the Gulf of Mexico are
largely dependent on oil and gas companies' drilling activities
which, in turn, ultimately depend on their ability to operate
offshore facilities. The Company cannot predict the exact nature
or effect of any regulations promulgated under OPA '90.
AVAILABILITY OF FEDERAL INCOME TAX BENEFITS
As of December 31, 1994, the Company had approximately $1.2
billion of net operating loss carryforwards ("NOLs"), expiring
from 1999 to 2009, and $29.0 million in investment tax credit
carryforwards ("Credits") expiring from 1995 to 2000. The NOLs
and the Credits are subject to review and potential disallowance
by the Internal Revenue Service ("IRS") upon audit of the federal
income tax returns of the Company. Section 382 of the Internal
Revenue Code of 1986, as amended, may impair the future
availability of the NOL's and the Credits if there is a change in
ownership of more than 50% of the Company's voting securities,
including future changes in the ownership of the voting
securities. This limitation, if it applied, would limit the
utilization of the NOL's and the Credits in each taxable year to
an amount equal to the product of the federal long-term tax-
exempt bond rate prescribed monthly by the IRS and the fair
market value of all the Company's stock at the time of the
ownership change. The interpretation of Section 382 is subject
to numerous uncertainties. Accordingly, while the Company
believes its loss carryforwards are available to it without
limitation, such availability is not certain, nor is it certain
that such carryforwards, if presently available without
limitation, will continue to be available without limitation.
For alternative minimum tax ("AMT") purposes, NOLs can be
used to offset no more than 90% of alternative minimum taxable
income ("AMTI"). Thus, to the extent the NOLs of the Company are
used to offset its regular taxable income, the Company
nevertheless will be required to pay AMT on 10% of its AMTI at
the AMT rate of 20%.
CHANGE OF CONTROL PROVISION WITH RESPECT TO SENIOR SECURED NOTES
Under the Senior Notes Indenture, in the event of a Change
of Control of the Company, as defined in the Senior Notes
Indenture, the Company would be required, subject to certain
conditions, to offer to purchase all outstanding Senior Secured
Notes at a price equal to 101% of principal amount, plus accrued
interest. As of April 1, 1995, the Company would not have
sufficient funds available to purchase all of the outstanding
Senior Secured Notes were they to be tendered in response to an
offer made as a result of a Change of Control. If, following a
Change of Control, the Company has insufficient funds to purchase
all of the outstanding Senior Secured Notes tendered pursuant to
such an offer, an event of default with respect to the Senior
Secured Notes would occur.
POTENTIAL RESTRICTIONS ON SALES OF CAPITAL STOCK TO NON-U.S.
CITIZENS
Pursuant to U.S. maritime laws, sales of interests in and
control of U.S. flag vessels owned by U.S. citizens to non-
citizens (including through the sale of stock) require the
approval of the Secretary of Transportation, acting through the
United States Maritime Administration ("MARAD"). Such transfers
would include those resulting in a majority of the outstanding
capital stock being held by non-U.S. citizens. Under recently
promulgated regulations (except while the United States is at
war, during periods of national emergency, or if transfers to
non-U.S. citizens would be contrary to declared U.S. policy), all
of such transfers of stock are granted approval by MARAD, so long
as such transfers are not done in conjunction with a transfer of
a rig out of U.S. registry. If an interest in or control of a
U.S.-flag vessel were to be transferred to a non-U.S. citizen in
violation of U.S. maritime laws without MARAD approval, to the
extent such approval is required, such transfer would be void,
and the United States would have the power to seek forfeiture of
the Company's rigs, seek civil penalties (including fines) and
seek enforcement of certain criminal penalties.
USE OF PROCEEDS
Unless otherwise indicated in a Prospectus Supplement with
respect to the proceeds from the sale of the particular Offered
Securities to which such Prospectus Supplement relates, the net
proceeds to be received by the Company from the sale of the
Offered Securities will be used for general corporate purposes,
which may include, but are not limited to, capital expenditures
and the financing of acquisitions.
RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the Company's consolidated
ratio of earnings to fixed charges for each of the years 1994,
1993, 1992, 1991, and 1990. There were no shares of Preferred
Stock outstanding during any of the periods indicated; therefore,
the combined ratio of earnings to fixed charges and preferred
stock dividends would have been the same as below for all periods
indicated.
<TABLE>
<CAPTION>
Year Ended December 31,
1994 1993 1992 1991 1990
<S> <C> <C> <C> <C> <C>
Ratio of earnings
to fixed charges 1.05 .23 1.67 1.07 .42
</TABLE>
For purposes of the foregoing ratios (i) earnings represent
income before income taxes and cumulative effect of accounting
change plus fixed charges excluding interest capitalized, and
(ii) fixed charges represent interest expense, interest
capitalized and the portion of rental expense attributable to
interest. Earnings for the year ended December 31, 1992 include
a $55.0 million gain attributable to the settlement of take-or-pay
litigation and an $11.0 million gain on the sale of an offshore
drilling rig. Excluding the gains from the litigation settlement
and sale of the rig, the ratio of earnings before fixed charges to
fixed charges for the year ended December 31, 1992 would have been
0.23, and the additional amount of earnings required to cover fixed
charges would have been $35.4 million. The Company's earnings before
fixed charges were inadequate on an historical basis to cover fixed
charges for the years ended December 31, 1993 and 1990. The additional
amount of earnings required to cover fixed charges would have been
$26.2 million for 1993 and $34.5 million for 1990.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt
Securities sets forth certain general terms and provisions of the
Debt Securities to which any Prospectus Supplement may relate.
The particular terms of the Debt Securities offered by any
Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered
will be described in the Prospectus Supplement relating to such
Debt Securities. Accordingly, for a description of the terms of
a particular issue of Debt Securities, reference must be made to
both the Prospectus Supplement relating thereto and to the
following description.
The Debt Securities will be general obligations of the
Company and may be subordinated to "Senior Indebtedness" (as
defined below) of the Company to the extent set forth in the
Prospectus Supplement relating thereto. See "Subordination"
below. Debt Securities will be issued under an indenture (the
"Indenture") between the Company and one or more commercial banks
or trust companies to be selected as trustees (collectively, the
"Trustee"). A copy of the form of Indenture has been filed as an
exhibit to the Registration Statement filed with the Commission.
The following discussion of certain provisions of the Indenture
is a summary only and does not purport to be a complete
description of the terms and provisions of the Indenture.
Accordingly, the following discussion is qualified in its
entirety by reference to the provisions of the Indenture,
including the definition therein of terms used below with their
initial letters capitalized.
GENERAL
The Indenture does not limit the aggregate principal
amount of Debt Securities that can be issued thereunder. The
Debt Securities may be issued in one or more series as may be
authorized from time to time by the Company. Reference is made
to the applicable Prospectus Supplement for the following terms
of the Debt Securities of the series with respect to which such
Prospectus Supplement is being delivered:
(a) The title of the Debt Securities of the series;
(b) Any limit on the aggregate principal amount of the Debt
Securities of the series that may be authenticated and
delivered under the Indenture;
(c) The date or dates on which the principal and premium,
if any, with respect to the Debt Securities of the series are
payable;
(d) The rate or rates (which may be fixed or variable) at
which the Debt Securities of the series shall bear interest
(if any) or the method of determining such rate or rates, the
date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable
or the method by which such dates will be determined, the
record dates for the determination of holders thereof to whom
such interest is payable (in the case of Registered
Securities), and the basis upon which interest will be
calculated if other than that of a 360-day year of twelve
30-day months;
(e) The place or places, if any, in addition to or instead
of the corporate trust office of the Trustee (in the case of
Registered Securities) or the principal London office of the
Trustee (in the case of Bearer Securities), where the
principal, premium and interest with respect to Debt
Securities of the series shall be payable;
(f) The price or prices at which, the period or periods
within which, and the terms and conditions upon which Debt
Securities of the series may be redeemed, in whole or in part,
at the option of the Company or otherwise;
(g) Whether Debt Securities of the series are to be issued
as Registered Securities or Bearer Securities or both and, if
Bearer Securities are to be issued, whether coupons will be
attached thereto, whether Bearer Securities of the series may
be exchanged for Registered Securities of the series, and the
circumstances under which and the places at which any such
exchanges, if permitted, may be made;
(h) If any Debt Securities of the series are to be issued
as Bearer Securities or as one or more Global Securities
representing individual Bearer Securities of the series,
whether certain provisions for the payment of additional
interest or tax redemptions shall apply; whether interest with
respect to any portion of a temporary Bearer Security of the
series payable with respect to any interest payment date prior
to the exchange of such temporary Bearer Security for
definitive Bearer Securities of the series shall be paid to
any clearing organization with respect to the portion of such
temporary Bearer Security held for its account and, in such
event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by
a clearing organization will be credited to the persons
entitled to interest payable on such interest payment date;
and the terms upon which a temporary Bearer Security may be
exchanged for one or more definitive Bearer Securities of the
series;
(i) The obligation, if any, of the Company to redeem,
purchase or repay Debt Securities of the series pursuant to
any sinking fund or analogous provisions or at the option of a
holder thereof and the price or prices at which, the period or
periods within which, and the terms and conditions upon which
Debt Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligations;
(j) The terms, if any, upon which the Debt Securities of
the series may be convertible into or exchanged for Capital
Stock (which may be represented by depositary shares), other
Debt Securities or warrants for Capital Stock or indebtedness
or other securities of any kind of the Company or any other
issuer or obligor and the terms and conditions upon which such
conversion or exchange shall be effected, including the
initial conversion or exchange price or rate, the conversion
or exchange period, and any other additional provisions;
(k) If other than denominations of $1,000 or any integral
multiple thereof, the denominations in which Debt Securities
of the series shall be issuable;
(l) If the amount of principal, premium or interest with
respect to the Debt Securities of the series may be determined
with reference to an index or pursuant to a formula, the
manner in which such amounts will be determined;
(m) If the principal amount payable at the stated maturity
of Debt Securities of the series will not be determinable as
of any one or more dates prior to such stated maturity, the
amount that will be deemed to be such principal amount as of
any such date for any purpose, including the principal amount
thereof which will be due and payable upon any maturity other
than the stated maturity or which will be deemed to be
outstanding as of any such date (or, in any such case, the
manner in which such deemed principal amount is to be
determined);
(n) Any changes or additions to the provisions of the
Indenture dealing with defeasance, including the addition of
additional covenants that may be subject to the Company's
covenant defeasance option;
(o) If other than such coin or currency of the United
States as at the time of payment is legal tender for payment
of public and private debts, the coin or currency or
currencies or units of two or more currencies in which payment
of the principal, premium and interest with respect to Debt
Securities of the series shall be payable, and if necessary,
the manner of determining the equivalent thereof in United
States currency;
(p) If other than the principal amount thereof, the portion
of the principal amount of Debt Securities of the series that
shall be payable upon declaration of acceleration of the
maturity thereof or provable in bankruptcy;
(q) The terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Debt Securities of the series
of any properties, assets, moneys, proceeds, securities or
other collateral, including whether certain provisions of the
Trust Indenture Act are applicable and any corresponding
changes to provisions of the Indenture as then in effect;
(r) Any addition to or change in the Events of Default with
respect to the Debt Securities of the series and any change in
the right of the Trustee or the holders to declare the
principal, premium and interest with respect to such Debt
Securities due and payable;
(s) If the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security, the terms
and conditions, if any, upon which such Global Security may be
exchanged in whole or in part for other individual Debt
Securities in definitive registered form, the Depositary for
such Global Security, and the form of any legend or legends to
be borne by any such Global Security in addition to or in lieu
of the legend referred to in the Indenture;
(t) Any Trustee, authenticating or paying agents, transfer
agents or registrars;
(u) The applicability of, and any addition to or change in,
the covenants and definitions then set forth in the Indenture
or in the terms then set forth in the Indenture relating to
permitted consolidations, mergers or transfers of assets,
including conditioning any consolidation, merger or transfer
permitted by the Indenture upon the satisfaction of a
financial standard by the Company or any successor to the
Company;
(v) The terms, if any, of any guarantee of the payment of
principal, premium and interest with respect to Debt
Securities of the series and any corresponding changes to the
provisions of the Indenture as then in effect;
(w) The subordination, if any, of the Debt Securities of
the series pursuant to the Indenture and any changes or
additions to the provisions of the Indenture relating to
subordination;
(x) With regard to Debt Securities of the series that do
not bear interest, the dates for certain required reports to
the Trustee; and
(y) Any other terms of the Debt Securities of the series
(which terms shall not be prohibited by the provisions of the
Indenture).
The Prospectus Supplement will also describe any material
United States federal income tax consequences or other special
considerations applicable to the series of Debt Securities to
which such Prospectus Supplement relates, including those
applicable to (a) Bearer Securities, (b) Debt Securities with
respect to which payments of principal, premium or interest are
determined with reference to an index or formula (including
changes in prices of particular securities, currencies or
commodities), (c) Debt Securities with respect to which
principal, premium or interest is payable in a foreign or
composite currency, (d) Debt Securities that are issued at a
discount below their stated principal amount, bearing no interest
or interest at a rate that at the time of issuance is below
market rates ("Original Issue Discount Debt Securities"), and
(e) variable rate Debt Securities that are exchangeable for fixed
rate Debt Securities.
Payments of interest on Registered Securities may be made at
the option of the Company by check mailed to the registered
holders thereof or, if so provided in the applicable Prospectus
Supplement, at the option of a holder by wire transfer to an
account designated by such holder. Except as otherwise provided
in the applicable Prospectus Supplement, no payment on a Bearer
Security will be made by mail to an address in the United States
or by wire transfer to an account in the United States.
Unless otherwise provided in the applicable Prospectus
Supplement, Registered Securities may be transferred or exchanged
at the office of the Trustee at which its corporate trust
business is principally administered in the United States or at
the office of the Trustee or the Trustee's agent in the Borough
of Manhattan, the City and State of New York, at which its
corporate agency business is conducted, subject to the
limitations provided in the Indenture, without the payment of any
service charge, other than any tax or governmental charge payable
in connection therewith. Bearer Securities will be transferable
only by delivery. Provisions with respect to the exchange of
Bearer Securities will be described in the Prospectus Supplement
relating to such Bearer Securities.
All funds paid by the Company to a paying agent for the
payment of principal, premium or interest with respect to any
Debt Securities that remain unclaimed at the end of two years
after such principal, premium or interest shall have become due
and payable will be repaid to the Company, and the holders of
such Debt Securities or any coupons appertaining thereto will
thereafter look only to the Company for payment thereof.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in
part in the form of one or more Global Securities. A Global
Security is a Debt Security that represents, and is denominated
in an amount equal to the aggregate principal amount of, all
outstanding Debt Securities of a series or any portion thereof,
in either case having the same terms, including the same original
issue date, date or dates on which principal and interest are
due, and interest rate or method of determining interest. A
Global Security will be deposited with, or on behalf of, a
Depositary, which will be identified in the Prospectus Supplement
relating to such Debt Securities. Global Securities may be
issued in either registered or bearer form and in either
temporary or definitive form. Unless and until it is exchanged
in whole or in part for the individual Debt Securities
represented thereby, a Global Security may not be transferred
except as a whole by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or
another nominee of the Depositary, or by the Depositary or any
nominee of the Depositary to a successor Depositary or any
nominee of such successor.
The specific terms of the depositary arrangement with respect
to a series of Debt Securities will be described in the
Prospectus Supplement relating to such Debt Securities. The
Company anticipates that the following provisions will generally
apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary for
such Global Security will credit, on its book-entry registration
and transfer system, the respective principal amounts of the
individual Debt Securities represented by such Global Security to
the accounts of persons that have accounts with the Depositary
("participants"). Such accounts shall be designated by the
dealers or underwriters with respect to such Debt Securities or,
if such Debt Securities are offered and sold directly by the
Company or through one or more agents, by the Company or such
agents. Ownership of beneficial interests in a Global Security
will be limited to participants or persons that hold beneficial
interests through participants. Ownership of beneficial
interests in such Global Security will be shown on, and the
transfer of that ownership will be effected only through, records
maintained by the Depositary (with respect to interests of
participants) or records maintained by participants (with respect
to interests of persons other than participants). The laws of
some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such
limitations and laws may impair the ability to transfer
beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its
nominee, is the registered owner or holder of such Global
Security, such Depositary or nominee, as the case may be, will be
considered the sole owner or holder of the individual Debt
Securities represented by such Global Security for all purposes
under the Indenture. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to
have any of the individual Debt Securities represented by such
Global Security registered in their names, will not receive or be
entitled to receive physical delivery of any of such Debt
Securities in definitive form, and will not be considered the
owners or holders thereof under the Indenture.
Subject to the restrictions described under "Limitations on
Issuance of Bearer Securities" below, payments of principal,
premium and interest with respect to individual Debt Securities
represented by a Global Security will be made to the Depositary
or its nominee, as the case may be, as the registered owner or
holder of such Global Security. Neither the Company, the
Trustee, any paying agent or registrar for such Debt Securities,
or any agent of the Company or the Trustee will have any
responsibility or liability for (a) any aspect of the records
relating to or payments made by the Depositary, its nominee or
any participants on account of beneficial interests in the Global
Security or for maintaining, supervising or reviewing any records
relating to such beneficial interests, (b) the payment to the
owners of beneficial interests in the Global Security of amounts
paid to the Depositary or its nominee or (c) any other matter
relating to the actions and practices of the Depositary, its
nominee or its participants. Neither the Company, the Trustee,
any paying agent or registrar for such Debt Securities or any
agent of the Company or the Trustee will be liable for any delay
by the Depositary, its nominee or any of its participants in
identifying the owners of beneficial interests in the Global
Security, and the Company and the Trustee may conclusively rely
on, and will be protected in relying on, instructions from the
Depositary or its nominee for all purposes.
The Company expects that the Depositary for a series of Debt
Securities or its nominee, upon receipt of any payment of
principal, premium or interest with respect to a definitive
Global Security representing any of such Debt Securities, will
immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security, as shown on the
records of the Depositary or its nominee. The Company also
expects that payments by participants to owners of beneficial
interests in such Global Security held through such participants
will be governed by standing instructions and customary
practices, as is now the case with securities held for the
accounts of customers and registered in "street name." Such
payments will be the responsibility of such participants.
Receipt by owners of beneficial interests in a temporary Global
Security of payments of principal, premium or interest with
respect thereto will be subject to the restrictions described
under "Limitations on Issuance of Bearer Securities" below.
If the Depositary for a series of Debt Securities is at any
time unwilling, unable or ineligible to continue as depositary,
the Company shall appoint a successor depositary. If a successor
depositary is not appointed by the Company within 90 days, the
Company will issue individual Debt Securities of such series in
exchange for the Global Security representing such series of Debt
Securities. In addition, the Company may at any time and in its
sole discretion, subject to any limitations described in the
Prospectus Supplement relating to such Debt Securities, determine
no longer to have Debt Securities of a series represented by a
Global Security and, in such event, will issue individual Debt
Securities of such series in exchange for the Global Security
representing such series of Debt Securities. Furthermore, if the
Company so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in a Global Security
representing Debt Securities of such series may, on terms
acceptable to the Company, the Trustee and the Depositary for
such Global Security, receive individual Debt Securities of such
series in exchange for such beneficial interests, subject to any
limitations described in the Prospectus Supplement relating to
such Debt Securities. In any such instance, an owner of a
beneficial interest in a Global Security will be entitled to
physical delivery of individual Debt Securities of the series
represented by such Global Security equal in principal amount to
such beneficial interest and to have such Debt Securities
registered in its name (if the Debt Securities are issuable as
Registered Securities). Individual Debt Securities of such
series so issued will be issued (a) as Registered Securities in
denominations, unless otherwise specified by the Company, of
$1,000 and integral multiples thereof if the Debt Securities are
issuable as Registered Securities, (b) as Bearer Securities in
the denomination or denominations specified by the Company if the
Debt Securities are issuable as Bearer Securities or (c) as
either Registered Securities or Bearer Securities as described
above if the Debt Securities are issuable in either form. See,
however, "Limitations on Issuance of Bearer Securities" below for
a description of certain restrictions on the issuance of
individual Bearer Securities in exchange for beneficial interests
in a bearer Global Security.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
The Debt Securities of a series may be issued as Registered
Securities (which will be registered as to principal and interest
in the register maintained by the registrar for such Debt
Securities) or Bearer Securities (which will be transferable only
by delivery). If such Debt Securities are issuable as Bearer
Securities, certain special limitations and considerations will
apply.
In compliance with United States federal income tax laws and
regulations, the Company and any underwriter, agent or dealer
participating in an offering of Bearer Securities will agree
that, in connection with the original issuance of such Bearer
Securities and during the period ending 40 days after the issue
date, they will not offer, sell or deliver any such Bearer
Security, directly or indirectly, to a United States Person (as
defined below) or to any person within the United States, except
to the extent permitted under United States Treasury Regulations.
Bearer Securities will bear a legend to the following effect
"Any United States Person who holds this obligation will be
subject to limitations under the United States federal income tax
laws, including the limitations provided in Sections 165(i) and
1287(a) of the Internal Revenue Code." The sections referred to
in the legend provide that, with certain exceptions, a United
States taxpayer who holds Bearer Securities will not be allowed
to deduct any loss with respect to, and will not be eligible for
capital gain treatment with respect to any gain realized on the
sale, exchange, redemption or other disposition of, such Bearer
Securities.
For this purpose, "United States" includes the United States
of America and its possessions, and "United States Person" means
a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the
laws of the United States or an estate or trust the income of
which is subject to United States federal income taxation
regardless of its source.
Pending the availability of a definitive Global Security or
individual Bearer Securities, as the case may be, Debt Securities
that are issuable as Bearer Securities may initially be
represented by a single temporary Global Security, without
interest coupons, to be deposited with a common depositary in
London for Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System ("Euroclear"), or
Centrale de Livraison de Valeurs Mobilleres S.A. ("CEDEL") for
credit to the accounts designated by or on behalf of the
purchasers thereof. Following the availability of a definitive
Global Security in bearer form, without coupons attached, or
individual Bearer Securities and subject to any further
limitations described in the applicable Prospectus Supplement,
the temporary Global Security will be exchangeable for interests
in such definitive Global Security or for such individual Bearer
Securities, respectively, only upon receipt of a "Certificate of
Non-U.S. Beneficial Ownership," which is a certificate to the
effect that a beneficial interest in a temporary Global Security
is owned by a person that is not a United States Person or is
owned by or through a financial institution in compliance with
applicable United States Treasury regulations. No Bearer
Security will be delivered in or to the United States. If so
specified in the applicable Prospectus Supplement, interest on a
temporary Global Security will be paid to Euroclear or CEDEL with
respect to that portion of such temporary Global Security held
for its account, but only upon receipt as of the relevant
interest payment date of a Certificate of Non-U.S. Beneficial
Ownership.
SUBORDINATION
Debt Securities of a series may be subordinated ("Subordinated
Debt Securities") to Senior Indebtedness (as defined below) to
the extent set forth in the Prospectus Supplement relating
thereto. The Company currently conducts substantially all its
operations through subsidiaries, and the holders of Debt
Securities (whether or not Subordinated Debt Securities) will be
structurally subordinated to the creditors of the Company's
subsidiaries.
Subordinated Debt Securities of a series and any coupons
appertaining thereto will be subordinate in right of payment, to
the extent and in the manner set forth in the Indenture and the
Prospectus Supplement relating to such Subordinated Debt
Securities, to the prior payment of all indebtedness of the
Company that is designated as "Senior Indebtedness" with respect
to such series. "Senior Indebtedness," with respect to any
series of Subordinated Debt Securities, will consist of any
indebtedness of the Company that is designated in a resolution of
the Company's Board of Directors or the supplemental indenture
establishing such series as Senior Indebtedness with respect to
such series.
By reason of such subordination, in the event of insolvency,
creditors of the Company who are holders of Senior Indebtedness,
as well as certain general creditors of the Company, may recover
more, ratably, than the holders of the Subordinated Debt
Securities.
EVENTS OF DEFAULT AND REMEDIES
The following events are defined in the Indenture as "Events
of Default" with respect to a series of Debt Securities:
(a) Default in the payment of any installment of interest
on any Debt Securities of that series or any payment with
respect to the related coupons, if any, as and when the same
shall become due and payable (whether or not, in the case of
Subordinated Debt Securities, such payment shall be prohibited
by reason of the subordination provisions described above) and
continuance of such default for a period of 30 days;
(b) Default in the payment of principal or premium with
respect to any Debt Securities of that series as and when the
same shall become due and payable, whether at maturity, upon
redemption, by declaration, upon required repurchase or
otherwise (whether or not, in the case of Subordinated Debt
Securities, such payment shall be prohibited by reason of the
subordination provisions described above);
(c) Default in the payment of any sinking fund payment with
respect to any Debt Securities of that series as and when the
same shall become due and payable;
(d) Failure on the part of the Company to comply with the
provisions of the Indenture relating to consolidations,
mergers and sales of assets;
(e) Failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part
of the Company in the Debt Securities of that series, in any
resolution of the Board of Directors of the Company
authorizing the issuance of that series of Debt Securities, in
the Indenture with respect to such series or in any
supplemental indenture with respect to such series (other than
a covenant a default in the performance of which is otherwise
specifically dealt with) continuing for a period of 60 days
after the date on which written notice specifying such failure
and requiring the Company to remedy the same shall have been
given to the Company by the Trustee or to the Company and the
Trustee by the holders of at least 25 percent in aggregate
principal amount of the Debt Securities of that series at the
time outstanding.
(f) Indebtedness for borrowed money of the Company or any
subsidiary of the Company is not paid within any applicable
grace period after final maturity or is accelerated by the
holders thereof because of a default, the total amount of such
indebtedness unpaid or accelerated exceeds $20 million or the
United States dollar equivalent thereof at the time, and such
default remains uncured or such acceleration is not rescinded
for 10 days after the date on which written notice specifying
such failure and requiring the Company to remedy the same
shall have been given to the Company by the Trustee or to the
Company and the Trustee by the holders of at least 25% in
aggregate principal amount of the Debt Securities of that
series at the time outstanding;
(g) The Company or any of its "Significant Subsidiaries"
(defined as any subsidiary of the Company that would be a
"significant subsidiary" as defined in Rule 405 under the
Securities Act as in effect on the date of the Indenture)
shall (1) voluntarily commence any proceeding or file any
petition seeking relief under the United States Bankruptcy
Code or other federal or state bankruptcy, insolvency or
similar law, (2) consent to the institution of, or fail to
controvert within the time and in the manner prescribed by
law, any such proceeding or the filing of any such petition,
(3) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator or similar official for the
Company or any such Significant Subsidiary or for a
substantial part of its property, (4) file an answer admitting
the material allegations of a petition filed against it in any
such proceeding, (5) make a general assignment for the benefit
of creditors, (6) admit in writing its inability or fail
generally to pay its debts as they become due, (7) take
corporate action for the purpose of effecting any of the
foregoing or (8) take any comparable action under any foreign
laws relating to insolvency.
(h) The entry of an order or decree by a court having
competent jurisdiction for (1) relief with respect to the
Company or any of its Significant Subsidiaries or a
substantial part of any of their property under the United
States Bankruptcy Code or any other federal or state
bankruptcy, insolvency or similar law, (2) the appointment of
a receiver, trustee, custodian, sequestrator or similar
official for the Company or any such Significant Subsidiary or
for a substantial part of any of their property (except any
decree or order appointing such official of any Significant
Subsidiary pursuant to a plan under which the assets and
operations of such Significant Subsidiary are transferred to
or combined with another Significant Subsidiary or
Subsidiaries of the Company or to the Company) or (3) the
winding-up or liquidation of the Company or any such
Significant Subsidiary (except any decree or order approving
or ordering the winding-up or liquidation of the affairs of a
Significant Subsidiary pursuant to a plan under which the
assets and operations of such Significant Subsidiary are
transferred to or combined with another Significant Subsidiary
or Subsidiaries of the Company or to the Company), and such
order or decree shall continue unstayed and in effect for 60
consecutive days or any similar relief is granted under any
foreign laws and the order or decree stays in effect for 60
consecutive days;
(i) Any judgment or decree for the payment of money in
excess of $20 million or the United States dollar equivalent
thereof at the time is entered against the Company or any
Subsidiary of the Company by a court of competent
jurisdiction, which judgment is not covered by insurance, and
is not discharged and either (1) an enforcement proceeding has
been commenced by any creditor upon such judgment or decree or
(2) there is a period of 60 days following the entry of such
judgment or decree during which such judgment or decree is not
discharged or waived or the execution thereof stayed and, in
either case, such default continues for 10 days after the date
on which written notice specifying such failure and requiring
the Company to remedy the same shall have been given to the
Company by the Trustee or to the Company and the Trustee by
the holders of at least 25% in aggregate principal amount of
the Debt Securities of that series at the time outstanding;
and
(j) Any other Event of Default provided with respect to
Debt Securities of that series.
An Event of Default with respect to one series of Debt Securities
is not necessarily an Event of Default for another series.
If an Event of Default described in clause (a), (b), (c), (d),
(e), (f), (i) or (j) above occurs and is continuing with respect
to any series of Debt Securities, unless the principal and
interest with respect to all the Debt Securities of such series
shall have already become due and payable, either the Trustee or
the holders of not less than 25% in aggregate principal amount of
the Debt Securities of such series then outstanding may declare
the principal amount (or, if Original Issue Discount Debt
Securities, such portion of the principal amount as may be
specified in such series) of and interest on all the Debt
Securities of such series due payable immediately, if an Event of
Default described in clause (g) or (h) above occurs, unless the
principal and interest with respect to all the Debt Securities of
all series shall have become due and payable, the principal
amount (or, if any series are Original Issue Discount Debt
Securities, such portion of the principal amount as may be
specified in such series) of and interest on all Debt Securities
of all series then outstanding shall become and be immediately
due and payable without any declaration or other act on the part
of the Trustee or any holder of Debt Securities. After any such
acceleration with respect to Debt Securities of any series, but
before a judgment or decree based on such acceleration, the
holders of a majority in principal amount of the Debt Securities
of such series may, under certain circumstances, rescind and
annul such acceleration with respect to such series if all Events
of Default with respect to such series, other than the non-
payment of accelerated principal, have been cured or waived as
provided in the Indenture.
If an Event of Default occurs and is continuing, the Trustee
shall be entitled and empowered to institute any action or
proceeding for the collection of the sums so due and unpaid or to
enforce the performance of any provision of the Debt Securities
of the affected series or the Indenture, to prosecute any such
action or proceeding to judgment or final decree, and to enforce
any such judgment or final decree against the Company or any
other obligor on the Debt Securities of such series. In
addition, if there shall be pending proceedings for the
bankruptcy or reorganization of the Company or any other obligor
on the Debt Securities or if a receiver, trustee or similar
official shall have been appointed for its property, the Trustee
shall be entitled and empowered to file and prove a claim for the
whole amount of principal, premium and interest (or, in the case
of Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of such series)
owing and unpaid with respect to the Debt Securities. No holder
of any Debt Security or coupon of any series shall have any right
to institute any action or proceeding upon or under or with
respect to the Indenture, for the appointment of a receiver or
trustee or for any other remedy, unless (a) such holder
previously shall have given to the Trustee written notice of an
Event of Default with respect to Debt Securities of that series
and of the continuance thereof, (b) the holders of not less than
25% in aggregate principal amount of the outstanding Debt
Securities of that series shall have made written request to the
Trustee to institute such action or proceeding with respect to
such Event of Default and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, (c)
the Trustee, for 60 days after its receipt of such notice,
request, and offer of indemnity shall have failed to institute
such action or proceeding and (d) no direction inconsistent with
such written request shall have been given to the Trustee
pursuant to the provisions of the Indenture.
The holders of a majority in aggregate principal amount of the
Debt Securities of that series at the time outstanding may, on
behalf of the holders of all Debt Securities and any related
coupons of that series, waive any past default or Event of
Default and its consequences for that series, except (a) a
default in the payment of the principal, premium or interest with
respect to such Debt Securities or (b) a default with respect to
a provision of the Indenture that cannot be amended without the
consent of each holder affected thereby. In case of any such
waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for
all purposes.
The Trustee shall, within 90 days after the occurrence of a
default known to it with respect to a series of Debt Securities,
give to the holders of the Debt Securities of such series notice
of all uncured defaults with respect to such series known to it,
unless such defaults shall have been cured or waived before the
giving of such notice; provided, however, that except in the case
of default in the payment of principal, premium or interest with
respect to the Debt Securities of such series or in the making of
any sinking fund payment with respect to the Debt Securities of
such series, the Trustee shall 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 such Debt
Securities.
MODIFICATION OF THE INDENTURE
The Company and the Trustee may enter into supplemental
indentures without the consent of the holders of Debt Securities
for one or more of the following purposes:
(a) To evidence the succession of another person to the
Company pursuant to the provisions of the Indenture relating
to consolidations, mergers and sales of assets and the
assumption by such successor of the covenants, agreements and
obligations of the Company in the Indenture and in the Debt
Securities;
(b) To surrender any right or power conferred upon the
Company by the Indenture, to add to the covenants of the
Company such further covenants, restrictions, conditions or
provisions for the protection of the holders of all or any
series of Debt Securities as the Board of Directors of the
Company shall consider to be for the protection of the holders
of such Debt Securities, and to make the occurrence, or the
occurrence and continuance, of a default in any of such
additional covenants, restrictions, conditions or provisions a
default or an Event of Default under the Indenture (provided,
however, that with respect to any such additional covenant,
restriction, condition or provision, such supplemental
indenture may provide for a period of grace after default,
which may be shorter or longer than that allowed in the case
of other defaults, may provide for an immediate enforcement
upon such default, may limit the remedies available to the
Trustee upon such default, or may limit the right of holders
of a majority in aggregate principal amount of any or all
series of Debt Securities to waive such default);
(c) To cure any ambiguity or to correct or supplement any
provision contained in the Indenture, in any supplemental
indenture or in any Debt Securities that may be defective or
inconsistent with any other provision contained therein, to
convey, transfer, assign, mortgage or pledge any property to
or with the Trustee, or to make such other provisions in
regard to matters or questions arising under the Indenture as
shall not adversely affect the interests of any holders of
Debt Securities of any series in any material respect;
(d) To modify or amend the Indenture in such a manner as to
permit the qualification of the Indenture of any supplemental
indenture under the Trust Indenture Act as then in effect;
(e) To add to or change any of the provisions of the
Indenture to provide that Bearer Securities may be
registerable as to principal, to change or eliminate any
restrictions on the payment of principal or premium with
respect to Registered Securities or of principal, premium or
interest with respect to Bearer Securities, or to permit
Registered Securities to be exchanged for Bearer Securities,
so long as any such action does not adversely affect the
interests of the holders of Debt Securities or any coupons of
any series in any material respect or permit or facilitate the
issuance of Debt Securities of any series in uncertificated
form;
(f) To comply with the provisions of the Indenture relating
to consolidations, mergers and sales of assets;
(g) In the case of Subordinated Debt Securities, to make
any change in the provisions of the Indenture relating to
subordination that would limit or terminate the benefits
available to any holder of Senior Indebtedness under such
provisions (but only if such holder of Senior Indebtedness
consents to such change);
(h) To add guarantees with respect to the Debt Securities
or to secure the Debt Securities;
(i) To make any change that does not adversely affect the
rights of any holder;
(j) To add to, change or eliminate any of the provisions of
the Indenture with respect to one or more series of Debt
Securities, so long as any such addition, change or
elimination not otherwise permitted under the Indenture shall
(1) neither apply to any Debt Security of any series created
prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor modify the
rights of the holders of any such Debt Security with respect
to such provision or (2) become effective only when there is
no such Debt Security outstanding;
(k) To evidence and provide for the acceptance of
appointment by a successor or separate Trustee with respect to
the Debt Securities of one or more series and to add to or
change any of the provisions of the Indenture as shall be
necessary to provide for or facilitate the administration of
the Indenture by more than one Trustee; and
(l) To establish the form or terms or Debt Securities and
coupons of any series, as described under "General" above.
With the consent of the holders of a majority in aggregate
principal amount of the outstanding Debt Securities of each
series affected thereby, the Company and the Trustee may from
time to time and at any time enter into a supplemental indenture
for the purpose of adding any provisions to, changing in any
manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or modifying in any manner the
rights of the holder of the Debt Securities of such series;
provided, however, that without the consent of the holders of
each Debt Security so affected, no such supplemental indenture
shall (a) reduce the percentage in principal amount of Debt
Securities of any series whose holders must consent to an
amendment, (b) reduce the rate of or extend the time for payment
of interest on any Debt Security or coupon or reduce the amount
of any payment to be made with respect to any coupon, (c) reduce
the principal of or extend the stated maturity of any Debt
Security, (d) reduce the premium payable upon the redemption of
any Debt Security or change the time at which any Debt Security
may or shall be redeemed, (e) make any Debt Security payable in a
currency other than that stated in the Debt Security, (f) in the
case of any Subordinated Debt Security or coupons appertaining
thereto, make any changes in the provisions of the Indenture
relating to subordination that adversely affects the rights of
any holder under such provisions, (g) release any security that
may have been granted with respect to the Debt Securities, (h)
make any change in the provisions of the Indenture relating to
waivers of defaults or amendments that require unanimous consent,
(i) change any obligation of the Company provided for in the
Indenture to pay additional interest with respect to Bearer
Securities or (j) limit the obligation of the Company to maintain
a paying agency outside the United States for payment on Bearer
Securities or limit the obligation of the Company to redeem
certain Bearer Securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge with or into any
person, or convey, transfer or lease all or substantially all of
its assets, unless the following conditions have been satisfied:
(a) Either (1) the Company shall be the continuing person
in the case of a merger or (2) the resulting, surviving or
transferee person, if other than the Company (the "Successor
Company"), shall be a corporation organized and existing under
the laws of the United States, any State or the District of
Columbia and shall expressly assume all of the obligations of
the Company under the Debt Securities and coupons and the
Indenture;
(b) Immediately after giving effect to such transaction
(and treating any indebtedness that becomes an obligation of
the Successor Company or any subsidiary of the Company as a
result of such transaction as having been incurred by the
Successor Company or such subsidiary at the time of such
transaction), no Default or Event of Default would occur or be
continuing;
(c) The Successor Company waives any right to redeem any
Bearer Security under circumstances in which the Successor
Company would be entitled to redeem such Bearer Security but
the Company would not have been so entitled to redeem if the
consolidation, merger, conveyance, transfer or lease had not
occurred; and
(d) The Company shall have delivered to the Trustee an
officers' certificate and an opinion of counsel, each stating
that such consolidation, merger, conveyance, transfer or lease
complies with the Indenture.
SATISFACTION AND DISCHARGE OF THE INDENTURE; DEFEASANCE
The Indenture shall generally cease to be of any further
effect with respect to a series of Debt Securities if (a) the
Company has delivered to the Trustee for cancellation all Debt
Securities of such series (with certain limited exceptions) or
(b) all Debt Securities and coupons of such series not
theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption, and
the Company shall have deposited with the Trustee as trust funds
the entire amount sufficient to pay at maturity or upon
redemption all such Debt Securities and coupons (and if, in
either case, the Company shall also pay or cause to be paid all
other sums payable under the Indenture by the Company).
In addition, the Company shall have a "legal defeasance
option" (pursuant to which it may terminate, with respect to the
Debt Securities of a particular series, all of its obligations
under such Debt Securities and the Indenture with respect to such
Debt Securities) and a "covenant defeasance option" (pursuant to
which it may terminate, with respect to the Debt Securities of a
particular series, its obligations with respect to such Debt
Securities under certain specified covenants contained in the
Indenture). If the Company exercises its legal defeasance option
with respect to a series of Debt Securities, payment of such Debt
Securities may not be accelerated because of an Event of Default.
If the Company exercises its covenant defeasance option with
respect to a series of Debt Securities, payment of such Debt
Securities may not be accelerated because of an Event of Default
related to the specified covenants.
The Company may exercise its legal defeasance option or its
covenant defeasance option with respect to the Debt Securities of
a series only if (a) the Company irrevocably deposits in trust
with the Trustee cash or U.S. Government Obligations (as defined
in the Indenture) for the payment of principal, premium and
interest with respect to such Debt Securities to maturity or
redemption, as the case may be, (b) the Company delivers to the
Trustee a certificate from a nationally recognized firm of
independent accountants expressing their opinion that the
payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such
times and in such amounts as will be sufficient to pay the
principal, premium and interest when due with respect to all the
Debt Securities of such series to maturity or redemption, as the
case may be, (c) 123 days pass after the deposit is made and
during the 123-day period no default described in clause (g) or
(h) under "Events of Default and Remedies" above with respect to
the Company occurs that is continuing at the end of such period,
(d) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto, (e) the deposit does not
constitute a default under any other agreement binding on the
Company and, in the case of Subordinated Debt Securities, is not
prohibited by the provisions of the Indenture relating to
subordination, (f) the Company delivers to the Trustee an opinion
of counsel to the effect that the trust resulting from the
deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940, (g)
the Company shall have delivered to the Trustee an opinion of
counsel addressing certain federal income tax matters relating to
the defeasance, and (h) the Company delivers to the Trustee an
officers' certificate and an opinion of counsel, each stating
that all conditions precedent to the defeasance and discharge of
the Debt Securities of such series as contemplated by the
Indenture have been complied with.
The Trustee shall hold in trust cash or U.S. Government
Obligations deposited with it as described above and shall apply
the deposited cash and the proceeds from deposited U.S.
Government Obligations to the payment of principal, premium and
interest with respect to the Debt Securities and coupons of the
defeased series. In the case of Subordinated Debt Securities and
coupons related thereto, the money and U.S. Government
Obligations so held in trust will not be subject to the
subordination provisions of the Indenture.
THE TRUSTEE
The Company may appoint a separate Trustee for any series of
Debt Securities. As used herein in the description of a series
of Debt Securities, the term "Trustee" refers to the Trustee
appointed with respect to such series of Debt Securities.
The Company may maintain banking and other commercial
relationships with the Trustee and its affiliates in the ordinary
course of business, and the Trustee may own Debt Securities.
DESCRIPTION OF CAPITAL STOCK
GENERAL
The authorized capital stock of the Company consists of (a)
300,000,000 shares of Common Stock and (b) 10,000,000 shares of
Preferred Stock issuable in series. No class of capital stock of
the Company entitles the holder thereof to any preemptive rights
to purchase or subscribe for shares of any class or any other
securities, other than as the Board of Directors may fix.
The following description of the capital stock of the Company
is subject to the detailed provisions of the Company's Restated
Certificate of Incorporation, as amended (the "Certificate"), and
by-laws as currently in effect (the "By-laws"). This description
does not purport to be complete or to give full effect to the
terms of the provisions of statutory or common law and is subject
to, and qualified in its entirety by reference to, the
Certificate and the By-laws, each of which is filed as an exhibit
to the Registration Statement of which this Prospectus is a part.
COMMON STOCK
All issued and outstanding shares of Common Stock are fully
paid and nonassessable, and any shares of Common Stock offered
hereby will, upon full payment of the purchase price therefor,
likewise be fully paid and nonassessable. Each share of Common
Stock is entitled to participate equally in dividends, as and
when declared by the Company's Board of Directors, and in the
distribution of assets in the event of liquidation, subject in
all cases to any prior rights of outstanding shares of Preferred
Stock. The shares of Common Stock have no preemptive or
conversion rights, redemption rights, or sinking fund provisions.
The outstanding shares of Common Stock are listed on the New
York Stock Exchange and trade under the symbol "GLM."
PREFERRED STOCK
The following description of the terms of the Preferred Stock
sets forth certain general terms and provisions of the Preferred
Stock to which a Prospectus Supplement may relate. Specific
terms of any series of Preferred Stock offered by a Prospectus
Supplement will be described in the Prospectus Supplement
relating to such series. The description set forth below is
subject to and qualified in its entirety by reference to the
certificate of designations establishing a particular series of
Preferred Stock, which will be filed with the Commission in
connection with the offering of such series.
Under the Certificate, the Board of Directors of the Company
is authorized, without further stockholder action, to provide for
the issuance of up to 10,000,000 shares of Preferred Stock in one
or more series. The rights, preferences, privileges, and
restrictions, including dividend rights, voting rights,
conversion rights, terms of redemption, and liquidation
preferences, of the Preferred Stock of each series will be fixed
or designated by the Board of Directors pursuant to a certificate
of designations. The specific terms of a particular series of
Preferred Stock offered hereby will be described in a Prospectus
Supplement relating to such series and will include the
following: (a) the maximum number of shares to constitute the
series and the distinctive designation thereof; (b) the annual
dividend rate, if any, on shares of the series (or the method of
calculating such rate), whether such rate is fixed or variable or
both, the date or dates from which dividends will begin to accrue
or accumulate, and whether dividends will be cumulative; (c)
whether the shares of the series will be redeemable and, if so,
the price at and the terms and conditions on which such shares
may be redeemed, including the time during which such shares may
be redeemed and any accumulated dividends thereon that the
holders of such shares shall be entitled to receive upon the
redemption thereof; (d) the liquidation preference, if any,
applicable to shares of the series; (e) whether the shares of the
series will be subject to operation of a retirement or sinking
fund and, if so, the extent and manner in which any such fund
shall be applied to the purchase or redemption of such shares for
retirement or for other corporate purposes, and the terms and
provisions relating to the operation of such fund; (f) the terms
and conditions, if any, on which the shares of the series will be
convertible into, or exchangeable for, shares of any other class
or classes of capital stock of the Company or another corporation
or any series of any other class or classes, or of any other
series of the same class, including the price or rate of
conversion or exchange and the method, if any, of adjusting the
same; (g) the voting rights, if any, on the shares of the series,
provided, however, that such voting rights can not be other than
one vote per share; and (h) any other preferences and relative,
participating, optional, or other special rights or
qualifications, limitations, or restrictions thereof.
The Preferred Stock will, when issued, be fully paid and
nonassessable.
The transfer agent, registrar, and dividend disbursement agent
for a series of Preferred Stock will be selected by the Company
and will be described 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.
VOTING RIGHTS
Each holder of shares of Common Stock, except where otherwise
provided by law or the Company's Certificate, is entitled to one
vote, in person or by proxy, for each share of Common Stock
standing in his, her or its name on the books of the Company.
Holders of the Preferred Stock, if any, will only be entitled to
vote upon the election of directors or upon any questions
affecting the Company if and to the extent that the holders of
any series of Preferred Stock are granted voting rights fixed for
such series by the Board of Directors in the resolution creating
such series. In no event will a holder of Preferred Stock be
entitled to other than one vote, in person or by proxy, for each
share of Preferred Stock standing in his, her or its name on the
books of the Company. Certain Business Transactions, as defined
in the Company's Certificate and discussed under "Certain
Business Transactions" below, require a vote greater than a
simple majority.
CLASSIFICATION OF BOARD OF DIRECTORS; CUMULATIVE VOTING
The Board of Directors of the Company is divided into three
classes, as nearly equal in number of directors as possible. The
directors of each class serve until the annual meeting of
stockholders in the year in which the term of their class expires
and until their respective successors are elected and qualified,
subject to prior death, resignation, or removal from office.
Classification of the Board of Directors potentially affects
the ability of a substantial stockholder to effect a rapid change
in control of the Company. The classification of the Board of
Directors may discourage actions to acquire control of the
Company by extending the time needed to effect a change in
control of the Board of Directors because only a minority of the
directors are elected at each annual meeting.
At all elections of directors of the Company, each stockholder
entitled to vote has a number of votes equal to the number of
votes to which such stockholder's shares are entitled (without
regard to the provision for cumulative voting) multiplied by the
number of directors to be elected. Such stockholder may cast all
such votes for a single director or may distribute them among the
number to be voted for or any two or more of them.
CERTAIN BUSINESS TRANSACTIONS
The affirmative vote of the holders of at least 75% of the
voting power of the then outstanding shares of capital stock of
the Company eligible to vote generally in the election of
directors (as of the date of this Prospectus, the shares of
Common Stock) (the "Voting Stock") is required to approve certain
Business Transactions (as such term is defined in the Company's
Certificate). The transactions included in the definition of
Business Transaction are those between the Company and an
Interested Stockholder or an Affiliate of an Interested
Stockholder (as such terms are defined in the Company's
Certificate) or, in certain instances, proposed by an Interested
Stockholder or Affiliate of an Interested Stockholder and include
(i) any merger or consolidation of the Company or any subsidiary,
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition of any assets of the Company with a fair market
value of $10 million or more, (iii) with certain exceptions, the
issuance or transfer by the Company or any subsidiary of any
securities of the Company or any subsidiary in exchange for
consideration of $10 million or more, (iv) the adoption of any
plan or proposal for liquidation or dissolution of the Company,
and (v) any reclassification of securities or recapitalization of
the Company which has the effect of increasing the proportionate
share of the outstanding shares of any class or series of equity
securities of the Company or any subsidiary which is directly or
indirectly beneficially owned by any Interested Stockholder or an
Affiliate of an Interested Stockholder.
The provisions of the Company's Certificate described in the
preceding paragraph may have the effect of delaying, deferring or
preventing a change in control of the Company. The special vote
requirement of such provisions may be waived if the Business
Transaction is duly approved by the Disinterested Directors (as
such term is defined in the Company's Certificate) or if certain
fair price, nature of consideration and procedural requirements
are met. There is no requirement that a Business Transaction
duly approved by the Disinterested Directors meet any minimum
price, nature of consideration or procedural requirements.
DELAWARE ANTI-TAKEOVER STATUTE
The Company is a Delaware corportion and is subject to Section
203 of the General Corporation Law of Delaware ("Delaware Law").
In general, Section 203 prevents an "interested stockholder"
(defined generally as a person owning 15% or more of the
Company's outstanding voting stock) from engaging in a "business
combination" (as defined in Section 203) with the Company for
three years following the date that person becomes an interested
stockholder unless (a) before that person became an interested
stockholder, the Company's Board of Directors approved the
transaction in which the interested stockholder became an
interested stockholder or approved the business combination, (b)
upon completion of the transaction that resulted in the
interested stockholder's becoming an interested stsockholder, the
interested stockholder owns at least 85% of the Company's voting
stock outstanding at the time the transaction commenced
(excluding stock held by directors who are also officers of the
Company and by employee stock plans that do not provide employees
with the right to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange
offer), or (c) following the transaction in which that person
became an interested stockholder, the business combination is
approved by the Company's Board of Directors and authorized at a
meeting of stockholders by the affirmative vote of the holders of
at least two-thirds of the outstanding Company voting stock not
owned by the interested stockholder.
Under Section 203, these restrictions also do not apply to
certain business combinations proposed by an interested
stockholder following the announcement or notification of one of
certain extraordinary transactions involving the Company and a
person who was not an interested stockholder during the previous
three years or who became an interested stockholder with the
approval of a majority of the Company's directors, if that
extraordinary transaction is approved or not opposed by a
majority of the directors who were directors before any person
became an interested stockholder in the previous three years or
who were recommended for election or elected to succeed such
directors by a majority of such directors then in office.
DELAWARE LAW AND CERTAIN CHARTER AND BY-LAW PROVISIONS
The Company's Certificate and By-laws contain certain
provisions providing for (i) the elimination of the personal
liability of its directors for monetary damages resulting from
breaches of their fiduciary duty, to the extent permitted by
Section 102(b)(7) of Delaware Law and (ii) the indemnification of
its directors and officers to the fullest extent permitted by
Section 145 of the Delaware Law, including in circumstances in
which indemnification is otherwise discretionary. The Company
believes that these provisions are necessary to attract and
retain qualified persons as directors and officers.
POTENTIAL RESTRICTIONS ON SALES OF CAPITAL STOCK TO NON-U.S.
CITIZENS
Pursuant to recent amendments to United States maritime laws
relating to sales of interests in and control of vessels owned by
United States citizens to non-citizens, the Secretary of
Transportation, acting through the United States Maritime
Administration, has prior consent authority over certain
transfers of the Company's capital stock. See "Risk Factors --
Potential Restrictions on Sales of Capital Stock to Non-U.S.
Citizens."
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is
Harris Trust and Savings Bank, Chicago, Illinois.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities in or outside the
United States in any of the following ways: (i) through
underwriters or dealers; (ii) through agents; or (iii) directly
to one or more purchasers. The accompanying Prospectus
Supplement will set forth the terms of the offering of the
Offered Securities, including the name or names of any
underwriters or agents, the purchase price of the Offered
Securities and the proceeds to the Company of the sale thereof,
any delayed delivery arrangements, any underwriting discounts and
other items constituting underwriters compensation, and any
discounts or concessions allowed or reallowed or paid to dealers.
The distribution of the Offered Securities may be effected from
time to time in one or more transactions (which may involve
crosses or block transactions) (A) on the New York Stock Exchange
(or on such other national stock exchanges on which the Offered
Securities may be listed from time to time) in transactions which
may include special offerings, exchange distributions and/or
secondary distributions pursuant to and in accordance with the
rules of such exchanges, (B) in the over-the-counter market, (C)
in transactions other than on such exchanges or in the over-the-
counter market, or a combination of such transactions, or (D)
through the writing of options on the shares (whether such
options are listed on an options exchange or otherwise). Any
such transactions may be effected at market prices prevailing at
the time of sale, at prices related to such prevailing market
prices, at negotiated prices or at fixed prices.
The Company or any underwriter for the Offered Securities may
effect such transactions by selling shares to or through broker-
dealers, and such broker-dealers may receive compensation in the
form of underwriting discounts, concessions or commissions from
the Company or such underwriter and/or commissions from
purchasers of shares for whom they may act as agent (which
discounts, concessions or commissions will not exceed those
customary in the types of transactions involved). Any
underwriter of the shares also may receive commissions from
purchasers of shares for whom it may act as agent. The Company
and any underwriters, broker-dealers or agents that participate
in the distribution of shares might be deemed to be underwriters,
and any profit on the sale of shares by them and any discounts,
commissions or concessions received by any such underwriters,
broker-dealers or agents might be deemed to be underwriting
discounts and commissions under the Securities Act.
Under agreements which may be entered into by the Company,
underwriters, dealers and agents who participate in the
distribution of Offered Securities may be entitled to
indemnification by the Company against certain liabilities,
including liabilities under the Securities Act.
The Offered Securities may or may not be listed on a national
securities exchange. No assurances can be given that there will
be a market for the Offered Securities.
LEGAL MATTERS
Certain legal matters in connection with the Offered
Securities will be passed upon for the Company by James L.
McCulloch, Vice President and General Counsel of the Company, and
for any underwriters or agents by a firm named in the Prospectus
Supplement relating to a particular issue of Offered Securities.
INDEPENDENT PUBLIC ACCOUNTANTS
The Company's consolidated balance sheet at December 31, 1994
and 1993 and the related consolidated statements of operations,
shareholders' equity and cash flows for each of the three years
ended December 31, 1994, 1993 and 1992, as incorporated by
reference from the Company's Annual Report on Form 10-K for the
year ended December 31, 1994 into this Prospectus and the
Registration Statement (including the related financial statement
schedule which is incorporated by reference) of which this
Prospectus is a part, have been incorporated herein in reliance
on the report on the audits of the consolidated financial
statements, which report includes an explanatory paragraph that
describes the Company's adoption of the method of accounting for
income taxes, the method of accounting for postretirement
benefits other than pensions, and the method of accounting for
postemployment benefits, as prescribed by applicable statements
of the Financial Accounting Standards Board, and the report on
the audits of the consolidated financial statement schedule of
Coopers & Lybrand L.L.P., independent accountants, given on the
authority of that firm as experts in accounting and auditing.
With respect to the unaudited interim financial information
included in the Company's quarterly reports on Form 10-Q
subsequently filed pursuant to the Exchange Act and deemed to be
incorporated by reference in this Prospectus, it is anticipated
that the Company's independent accountants will report that they
have applied limited procedures in accordance with professional
standards for a review of such information. However, their
separate reports included in the Company's subsequent quarterly
reports on Form 10-Q and incorporated by reference herein will
state that they did not audit and do not express an opinion on
that interim financial information. Accordingly, the degree of
reliance on their reports on interim financial information should
be restricted in light of the limited nature of the review
procedures applied. The independent accountants are not subject
to the liability provisions of Section 11 of the Securities Act
for their reports on unaudited interim financial information
because these reports are not a "report" or a "part" of a
registration statement prepared or certified by the accountants
within the meaning of Sections 7 and 11 of the Securities Act.
EXPERTS
The information regarding oil and gas reserves of the Company
for each of the three years ended December 31, 1994, 1993 and
1992, included in the Company's Annual Report on Form 10-K for
the year ended December 31, 1994 has been included therein and
incorporated by reference into this Prospectus and the
Registration Statement of which this Prospectus is a part in
reliance upon the reports and the authority as experts of Ryder
Scott Company Petroleum Engineeers.
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 REPRESENTATION
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE
IN THE AFFAIRS OF THE COMPANY SINCE THE DATES AS OF WHICH INFORMATION IS
GIVEN IN THIS PROSPECTUS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER
OR SOLICITATION 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.
Table of Contents
Page
Available Information 2
Incorporation by Reference 2
The Company 3
Recent Development 3
Risk Factors 3
Use of Proceeds 9
Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges and
Preferred Stock Dividends 9
Description of Debt Securities 10
Description of Capital Stock 22
Plan of Distribution 25
Legal Matters 26
Independent Public Accountants 26
Experts 26
GLOBAL MARINE INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
PROSPECTUS
Dated , 1995
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses to be paid by the Company in connection with
the offering described in this Registration Statement (other than
underwriting discounts and commissions) are estimated as follows:
Securities and Exchange Commission registration fee $25,862.07
NASD filing fee *
Printing *
Accounting fees and expenses *
Legal fees and expenses *
Blue Sky fees and expenses (including counsel fees) *
Miscellaneous expenses *
Total $ *
* To be supplied by amendment.
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers a
Delaware corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action
by or in the right of such corporation) by reason of the fact
that such person is or was a director or officer, employee or
agent of such corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection
with such action, suit or proceeding, provided that he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. A Delaware
corporation may indemnify directors, officers, employees and
others in an action by or in the right of the corporation under
the same conditions, except that no indemnification is permitted
without judicial approval if the person to be indemnified has
been adjudged to be liable to the corporation. Where a director
or officer is successful on the merits or otherwise in the
defense of any action referred to above or in defense of any
claim, issue or matter therein, the corporation must indemnify
such director or officer against the expenses (including
attorneys' fees) which he or she actually and reasonably incurred
in connection therewith.
Section III-11 of the By-laws of Global Marine Inc. provides
for indemnification of the directors and officers of Global
Marine Inc. to the full extent permitted by law, as now in effect
or later amended. Section III-11 of the By-laws provides that
expenses incurred by a director or officer in defending a suit or
other similar proceeding shall be paid by the Company upon
receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it is ultimately determined that
such director or officer is not entitled to be indemnified by the
Company.
Additionally, the Company's Restated Certificate of
Incorporation (the "Charter") contains a provision that limits
the liability of the Company's directors to the fullest extent
permitted by the Delaware General Corporation Law. The provision
eliminates the personal liability of directors to the Company or
its stockholders for monetary damages for breach of the
director's fiduciary duty of care as a director. As a result,
stockholders may be unable to recover monetary damages against
directors for negligent or grossly negligent acts or omissions in
violation of their duty of care. The provision does not change
the liability of a director for breach of his duty of loyalty to
the Company or to stockholders, for acts or omissions not in good
faith or which involve intentional misconduct or a knowing
violation of law, the declaration or payment of dividends in
violation of Delaware law, or in respect of any transaction from
which a director receives an improper personal benefit.
In addition to its Charter and By-law provisions, the Company
has taken such other steps as are reasonably necessary to effect
its indemnification policy. Included among such other steps is
liability insurance provided by the Company for its directors and
officers for certain losses arising from claims or charges made
against them in their capacities as directors or officers of the
Company. The Company has also entered into indemnification
agreements with individual officers and directors. These
agreements generally provide such officers and directors with a
contractual right to indemnification to the full extent provided
by applicable law and the By-laws of the Company as in effect at
the respective dates of such agreements.
Agreements which may be entered into by the Selling
Stockholder with underwriters, dealers and agents who participate
in the distribution of Common Stock may contain provisions
relating to the indemnification of the Company's officers and
directors.
ITEM 16. EXHIBITS.
The following instruments and documents are included as
exhibits to this Registration Statement and are filed herewith
unless otherwise indicated. Exhibits incorporated by reference
are so indicated by parenthetical information.
1.1 Underwriting Agreement.*
4.1 Restated Certificate of Incorporation of the Company as
filed with the Secretary of State of Delaware on March
15, 1989, effective March 16, 1989. (Incorporated
herein by this reference to Exhibit 3(i).1 of the
Registrant's Annual Report on Form 10-K for the year
ended December 31, 1993.)
4.2 Certificate of Amendment of the Restated Certificate of
Incorporation of the Company as filed with the
Secretary of State of Delaware on May 11, 1990.
(Incorporated herein by this reference to Exhibit
3(i).2 of the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1993.)
4.3 Certificate of Correction of the Restated Certificate
of Incorporation of the Company as filed with the
Secretary of State of Delaware on September 25, 1990.
(Incorporated herein by this reference to Exhibit
3(i).3 of the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1993.)
4.4 Certificate of Amendment of the Restated Certificate of
Incorporation of the Company as filed with the
Secretary of State of Delaware on May 11, 1992.
(Incorporated herein by this reference to Exhibit
3(i).4 of the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1993.)
4.5 Certificate of Amendment of the Restated Certificate of
Incorporation of the Company as filed with the
Secretary of State of Delaware on May 12, 1994.
(Incorporated herein by this reference to Exhibit 4.5
of the Registrant's Registration Statement on Form S-3
(No. 33-53691) filed with the Commission on May 18,
1994.)
4.6 By-laws of the Company as amended on May 10, 1989.
(Incorporated herein by this reference to Exhibit
3(ii).1 of the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1993.)
4.7 Indenture, dated as of December 23, 1992, between the
Company and Wilmington Trust Company, as Trustee, with
respect to the Senior Secured Notes. (Incorporated
herein by this reference to Exhibit 4.5 of Post-
Effective Amendment No. 2 to the Registrant's
Registration Statement on Form S-3 (No. 33-34013) filed
with the Commission on January 22, 1993.)
4.8 First Priority Naval Mortgage, dated April 29, 1993,
from Global Marine Drilling Company to Wilmington Trust
Company, as Trustee. (Incorporated herein by this
reference to Exhibit 4.6 of the Registrant's
Registration Statement on Form S-3 (No. 33-65272) filed
with the Commission on June 30, 1993.)
4.9 First Preferred Fleet Mortgage, dated December 23,
1992, from Global Marine Drilling Company to Wilmington
Trust Company, as Trustee. (Incorporated herein by
this reference to Exhibit 4.7 of Post-Effective
Amendment No. 2 to the Registrant's Registration
Statement on Form S-3 (No. 33-34013) filed with the
Commission on January 22, 1993.)
4.10 Release of Vessel from Lien of First Preferred Fleet
Mortgage, dated April 30, 1993, by Wilmington Trust
Company, as Trustee. (Incorporated herein by this
reference to Exhibit 4.8 of the Registrant's
Registration Statement on Form S-3 (No. 33-65272) filed
with the Commision on June 30, 1993.)
4.11 First Preferred Fleet Mortgage, dated December 23,
1992, from Global Marine Deepwater Drilling Inc. to
Wilmington Trust Company, as Trustee. (Incorporated
herein by this reference to Exhibit 4.8 of Post-
Effective Amendment No. 2 to the Registrant's
Registration Statement on Form S-3 (No. 33-34013) filed
with the Commission on January 22, 1993.)
4.12 Release of Vessel from Lien of Mortgage, dated January
27, 1993, by Wilmington Trust Company, as Trustee.
(Incorporated herein by this reference to Exhibit 4.6
of the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1993.)
4.13 First Priority Naval Mortgage, dated March 17, 1993,
from Global Marine Nautilus Inc. to Wilmington Trust
Company, as Trustee. (Incorporated herein by the
reference to Exhibit 4.10 of the Registrant's
Registration Statement on Form S-3 (No. 33-65272) filed
with the Commission on June 30, 1993.)
4.14 Release of Vessel from Lien of First Priority Naval
Fleet Mortgage, dated September 8, 1993, by Wilmington
Trust Company, as Trustee. (Incorporated herein by
this reference to Exhibit 4.8 of the Registrant's
Annual Report on Form 10-K for the year ended December
31, 1993.)
4.15 Supplement No.1, dated September 8, 1993, to First
Priority Naval Fleet Mortgage from Global Marine
Nautilus Inc. to Wilmington Trust Company, as Trustee.
(Incorporated herein by this reference to Exhibit 4.9
of the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1993.)
4.16 Assumption Agreement and Supplement No. 2 dated
December 16, 1993, to First Priority Naval Fleet and
Mortgage among Global Marine Drilling Company and
Wilmington Trust Company, as Trustee. (Incorporated
herein by this reference to Exhibit 4.10 of the
Registrant's Annual Report on Form 10-K for the year
ended December 31, 1993.)
4.17 First Preferred Fleet Mortgage, dated December 23,
1992, from Global Marine West Africa Inc. to Wilmington
Trust Company, as Trustee. (Incorporated herein by
this reference to Exhibit 4.10 of Post-Effective
Amendment No. 2 to the Registrant's Registration
Statement on Form S-3 (No. 33-34013) filed with the
Commission on January 22, 1993.)
4.18 First Preferred Ship Mortgage, dated December 23, 1992,
from Global Marine Adriatic Inc. to Wilmington Trust
Company, as Trustee. (Incorporated herein by this
reference to Exhibit 4.11 of Post-Effective Amendment
No. 2 to the Registrant's Registration Statement on
Form S-3 (No. 33-34013) filed with the Commission on
January 22, 1993.)
4.19 Assumption Agreement and Supplement No. 1, dated March
4, 1993, to First Preferred Ship Mortgage among Global
Marine Adriatic Inc., as Original Mortgagor, Global
Marine Drilling Company, as Assuming Mortgagor, and
Wilmington Trust Company, as Trustee. (Incorporated
herein by this reference to Exhibit 4.13 of the
Registrant's Registration Statement on Form S-3 (No.
33-65272) filed with the Commission on June 30, 1993.)
4.20 First Preferred Ship Mortgage, dated December 23, 1992,
from Global Marine Australia Inc. to Wilmington Trust
Company, as Trustee. (Incorporated herein by this
reference to Exhibit 4.12 of Post-Effective Amendment
No. 2 to the Registrant's Registration Statement on
Form S-3 (No. 33-34013) filed with the Commission on
January 22, 1993.)
4.21 First Preferred Ship Mortgage, dated December 23, 1992,
from Global Marine Bismarck Sea Inc. to Wilmington
Trust Company, as Trustee. (Incorporated herein by
this reference to Exhibit 4.13 of Post-Effective
Amendment No. 2 to the Registrant's Registration
Statement on Form S-3 (No. 33-34013) filed with the
Commission on January 22, 1993.)
4.22 First Priority Naval Mortgage, dated March 17, 1993,
from Global Marine North Sea Inc. to Wilmington Trust
Company, as Trustee. (Incorporated herein by this
reference to Exhibit 4.16 of the Registrant's
Registration Statement on Form S-3 (No. 33-65272) filed
with the Commission on June 30, 1993.)
4.23 Subsidiary Pledge Agreement, dated December 23, 1992,
between Global Marine Adriatic Inc. and Wilmington
Trust Company, as Trustee. (Incorporated herein by
this reference to Exhibit 4.15 of Post-Effective
Amendment No. 2 to the Registrant's Registration
Statement on Form S-3 (No. 33-34013) filed with the
Commission on January 22, 1993.)
4.24 Subsidiary Pledge Agreement, dated December 23, 1992,
between Global Marine Australia Inc. and Wilmington
Trust Company, as Trustee. (Incorporated herein by
this reference to Exhibit 4.16 of Post-Effective
Amendment No. 2 to the Registrant's Registration
Statement on Form S-3 (No. 33-34013) filed with the
Commission on January 22, 1993.)
4.25 Subsidiary Pledge Agreement, dated December 23, 1992,
between Global Marine Bismarck Sea Inc. and Wilmington
Trust Company, as Trustee. (Incorporated herein by
this reference to Exhibit 4.17 of Post-Effective
Amendment No. 2 to the Registrant's Registration
Statement on Form S-3 (No. 33-34013) filed with the
Commission on January 22, 1993.)
4.26 Subsidiary Pledge Agreement, dated December 23, 1992,
between Global Marine Deepwater Drilling Inc. and
Wilmington Trust Company, as Trustee. (Incorporated
herein by this reference to Exhibit 4.18 of Post-
Effective Amendment No. 2 to the Registrant's
Registration Statement on Form S-3 (No. 33-34013) filed
with the Commission on January 22, 1993.)
4.27 Subsidiary Pledge Agreement, dated December 23, 1992,
between Global Marine Drilling Company Inc. and
Wilmington Trust Company, as Trustee. (Incorporated
herein by this reference to Exhibit 4.19 of Post-
Effective Amendment No. 2 to the Registrant's
Registration Statement on Form S-3 (No. 33-34013) filed
with the Commission on January 22, 1993.)
4.28 Subsidiary Pledge Agreement, dated December 23, 1992,
between Global Marine Nautilus Inc. and Wilmington
Trust Company, as Trustee. (Incorporated herein by
this reference to Exhibit 4.20 of Post-Effective
Amendment No. 2 to the Registrant's Registration
Statement on Form S-3 (No. 33-34013) filed with the
Commission on January 22, 1993.)
4.29 Subsidiary Pledge Agreement, dated December 23, 1992,
between Global Marine North Sea Inc. and Wilmington
Trust Company, as Trustee. (Incorporated herein by
this reference to Exhibit 4.21 of Post-Effective
Amendment No. 2 to the Registrant's Registration
Statement on Form S-3 (No. 33-34013) filed with the
Commission on January 22, 1993.)
4.30 Subsidiary Pledge Agreement, dated December 23, 1992,
between Global Marine West Africa Inc. and Wilmington
Trust Company, as Trustee. (Incorporated herein by
this reference to Exhibit 4.22 of Post-Effective
Amendment No. 2 to the Registrant's Registration
Statement on Form S-3 (No. 33-34013) filed with the
Commission on January 22, 1993.)
4.31 Form of Indenture between the Company and one or more
commercial banks to be named, as trustee.
4.32 Form of Debt Security.*
5.1 Opinion and Consent of James L. McCulloch, Vice
President and General Counsel of the Company.
12.1 Statement re computation of earnings to fixed charges.
23.1 Consent of James L. McCulloch (contained in the opinion
filed as Exhibit 5.1 hereof).
23.2 Consent of Coopers & Lybrand L.L.P., Independent
Accountants.
23.3 Consent of Ryder Scott Company Petroleum Engineers.
24.1 Power of Attorney pursuant to which amendments to this
Registration Statement may be filed (included on the
signature page contained in Part II hereof).
25.1 Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of Trustee.**
99.1 Sale and Purchase Agreement, dated April 10, 1995,
between Global Marine Australia Inc. and Dual Drilling
Company.
* To be filed, if applicable, as an exhibit to a report on Form
8-K at the time of the sale of the Offered Securities.
** To be filed at or prior to the time of the sale of the Offered
Securities.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement;
(i)
To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement;
(iii)
To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or 15(d)
of the Securities and Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the provisions outlined in Item 15 above or otherwise, the
registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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 ("Act") in accordance with the rules and
regulations prescribed by the Commission under Section 305(b) (2)
of the Act.
SIGNATURES AND POWER OF ATTORNEY
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 Houston, State of Texas, on the 13th day of April,
1995.
GLOBAL MARINE INC.
By: /s/ Jerry C. Martin
J. C. Martin
Senior Vice President and
Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Jerry C. Martin,
James L. McCulloch and Alexander A. Krezel, and each or any one
of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-
in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitutes or substitute,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ C. R. Luigs Chairman of the Board, April 13, 1995
(C. R. Luigs) President and Chief
Executive Officer
/s/ J. C. Martin Senior Vice President, April 13, 1995
(J. C. Martin) Chief Financial Officer
(Principal Financial Officer)
and Director
/s/Thomas R. Johnson Vice President and April 13, 1995
(Thomas R. Johnson) Corporate Controller
(Principal Accounting Officer)
/s/ Patrick M. Ahern Director April 13, 1995
(Patrick M. Ahern)
/s/ Donald B. Brown Director April 13, 1995
(Donald B. Brown)
/s/ E. J. Campbell Director April 13, 1995
(E. J. Campbell)
/s/ Peter T. Flawn Director April 13, 1995
(Peter T. Flawn)
/s/ John M. Galvin Director April 13, 1995
(John M. Galvin)
/s/ L. L. Leigh Director April 13, 1995
(L. L. Leigh)
/s/ Sidney A. Shuman Director April 13, 1995
(Sidney A. Shuman)
/s/ William R. Thomas Director April 13, 1995
(William R. Thomas)
/s/ William C. Walker Director April 13, 1995
(William C. Walker)
EXHIBIT INDEX
Exhibit
4.31 Form of Indenture between the Company and one or more
commercial banks to be named, as trustee.
5.1 Opinion of James L. McCulloch, Vice President and General
Counsel of the Company.
12.1 Statement re computation of earnings to fixed charges.
23.1 Consent of James L. McCulloch (included in Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P., Independent
Accountants.
23.3 Consent of Ryder Scott Company Petroleum Engineers.
24.1 Power of Attorney pursuant to which amendment to the
Registration Statement may be filed (included on the
signature page contained in Part II of the Registration
Statement).
99.1 Sale and Purchase Agreement between Global Marine Australia
Inc. and Dual Drilling Company.
The following exhibits are incorporated by reference
into the Registration Statement with which this set of Exhibits
is filed, as stated at pages II-2 through II-5 of the
Registration Statement. Descriptions of said exhibits are
incorporated herein by this reference to Item 16 of the
Registration Statement.
4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10,
4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19,
4.20, 4.21, 4.22, 4.23, 4.24, 4.25, 4.26, 4.27, 4.28,
4.29 and 4.30
GLOBAL MARINE INC.
and
,
Trustee
Indenture
Dated as of
Debt Securities
GLOBAL MARINE INC.
Debt Securities
CROSS REFERENCE SHEET
This Cross Reference Sheet shows the location in the
Indenture of the provisions inserted pursuant to Sections
310-318(a), inclusive, of the Trust Indenture Act of 1939.
INDENTURE
TRUST INDENTURE ACT SECTION
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) 7.10
(a)(4) 7.10
(a)(5) 7.10
(b) 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 5.1
(b) 5.2
(c) 5.2
313(a) 5.4
(b)(1) 5.4
(b)(2) 5.4
(c) 12.3
(d) 5.4
314(a)(1) 5.3(a)
(a)(2) 5.3(b)
(a)(3) 5.3(a) & (b)
& 12.3
(a)(4) 4.5
* The Cross Reference Shet is not part of the Indenture
** N.A. means "Not Applicable."
(b) N.A.
(c)(1) 12.5
(c)(2) 12.5
(c)(3) N.A.
(d) N.A.
(e) 12.5
(f) 4.6
315(a) 7.1(a)
(b) 6.7 & 12.3
(c) 7.1
(d) 7.1
(e) 6.8
316(a)(last sentence) 1.1
(a)(1)(A) 6.6
(a)(1)(B) 6.6
(a)(2) 9.1(d)
(b) 6.4
(c) 5.5
317(a)(1) 6.2
(a)(2) 6.2
(b) 4.4
318(a) 12.7
TABLE OF CONTENTS
Page
Recitals of the Company 1
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms Defined 1
SECTION 1.2 Incorporation by Reference of Trust
Indenture Act 10
SECTION 1.3 Rules of Construction 10
ARTICLE II
DEBT SECURITIES
SECTION 2.1 Forms Generally 11
SECTION 2.2 Form of Trustee's Certificate of Authentication 12
SECTION 2.3 Principal Amount; Issuable in Series 12
SECTION 2.4 Execution of Debt Securities 17
SECTION 2.5 Authentication and Delivery of Debt Securities 17
SECTION 2.6 Denomination of Debt Securities 20
SECTION 2.7 Registration of Transfer and Exchange 20
SECTION 2.8 Temporary Debt Securities 22
SECTION 2.9 Mutilated, Destroyed, Lost or Stolen
Debt Securities 24
SECTION 2.10 Cancellation of Surrendered Debt
Securities 25
SECTION 2.11 Provisions of the Indenture and Debt
Securities for the Sole Benefit of the
Parties and the Holders 26
SECTION 2.12 Payment of Interest; Interest Rights
Preserved 26
SECTION 2.13 Securities Denominated in Foreign
Currencies 28
SECTION 2.14 Wire Transfers 29
SECTION 2.15 Securities Issuable in the Form of a
Global Security 29
SECTION 2.16 Medium Term Securities 33
SECTION 2.17 Defaulted Interest 34
SECTION 2.18 Judgments 36
SECTION 2.19 Computation of Interest 36
ARTICLE III
REDEMPTION OF DEBT SECURITIES
SECTION 3.1 Applicability of Article 36
SECTION 3.2 Tax Redemption: Special Tax Redemption 37
SECTION 3.3 Notice of Redemption; Selection of
Debt Securities 40
SECTION 3.4 Payment of Debt Securities Called for Redemption 42
SECTION 3.5 Mandatory and Optional Sinking Funds 44
SECTION 3.6 Redemption of Debt Securities for
Sinking Fund 44
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.1 Payment of Principal of, and Premium,
If Any, and Interest on, Debt
Securities 46
SECTION 4.2 Maintenance of Offices or Agencies
for Registration of Transfer, Exchange
and Payment of Debt Securities 47
SECTION 4.3 Appointment to Fill a Vacancy in the
Office of Trustee 48
SECTION 4.4 Duties of Paying Agents, etc 48
SECTION 4.5 Statement by Officers as to Default 50
SECTION 4.6 Payment of Additional Interest 50
SECTION 4.7 Further Instruments and Acts 53
SECTION 4.8 Existence 53
SECTION 4.9 Maintenance of Properties 53
SECTION 4.10 Payment of Taxes and Other Claims 53
ARTICLE V
HOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.1 Company to Furnish Trustee Information
as to Names and Addresses of Holders; Preservation
of Information 54
SECTION 5.2 Communications to Holders 55
SECTION 5.3 Reports by Company 55
SECTION 5.4 Reports by Trustee 55
ARTICLE VI
REMEDIES OF THE TRUSTEE AND HOLDERS
IN EVENT OF DEFAULT
SECTION 6.1 Events of Default 56
SECTION 6.2 Collection of Indebtedness by Trustee,
etc 61
SECTION 6.3 Application of Moneys Collected by
Trustee 63
SECTION 6.4 Limitation on Suits by Holders 64
SECTION 6.5 Remedies Cumulative; Delay or Omission
in Exercise of Rights Not a Waiver of
Default 65
SECTION 6.6 Rights of Holders of Majority in
Principal Amount of Debt Securities to
Direct Trustee and to Waive Default 66
SECTION 6.7 Trustee to Give Notice of Defaults
Known to It, but May Withhold Such
Notice in Certain Circumstances 67
SECTION 6.8 Requirement of an Undertaking To Pay
Costs in Certain Suits under the
Indenture or Against the Trustee 67
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.1 Certain Duties and Responsibilities 68
SECTION 7.2 Certain Rights of Trustee 69
SECTION 7.3 Trustee Not Liable for Recitals in
Indenture or in Debt Securities 70
SECTION 7.4 Trustee, Paying Agent or Registrar
May Own Debt Securities 71
SECTION 7.5 Moneys Received by Trustee to Be
Held in Trust 71
SECTION 7.6 Compensation and Reimbursement 71
SECTION 7.7 Right of Trustee to Rely on an
Officers' Certificate Where No Other
Evidence Specifically Prescribed 72
SECTION 7.8 Separate Trustee; Replacement of
Trustee 72
SECTION 7.9 Successor Trustee by Merger 74
SECTION 7.10 Eligibility; Disqualification 75
SECTION 7.11 Preferential Collection of Claims
Against Company 75
SECTION 7.12 Compliance with Tax Laws 75
ARTICLE VIII
CONCERNING THE HOLDERS
SECTION 8.1 Evidence of Action by Holders 76
SECTION 8.2 Proof of Execution of Instruments
and of Holdings of Debt Securities 76
SECTION 8.3 Who May Be Deemed Owner of Debt
Securities 77
SECTION 8.4 Instruments Executed by Holders
Bind Future Holders 78
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indenture Without
Consent of Holders 79
SECTION 9.2 Supplemental Indentures with Consent
of Holders 82
SECTION 9.3 Effect of Supplemental Indenture 84
SECTION 9.4 Debt Securities May Bear Notation
of Changes by Supplemental Indentures 84
ARTICLE X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.1 Consolidations and Mergers of the
Company 85
SECTION 10.2 Rights and Duties of Successor
Corporation 85
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE; UNCLAIMED MONEYS
SECTION 11.1 Applicability of Article 86
SECTION 11.2 Satisfaction and Discharge of
Indenture; Defeasance 87
SECTION 11.3 Conditions of Defeasance 88
SECTION 11.4 Application of Trust Money 90
SECTION 11.5 Repayment to Company 90
SECTION 11.6 Indemnity for U.S. Government
Obligations 90
SECTION 11.7 Reinstatement 90
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1 Successors and Assigns of Company
Bound by Indenture 91
SECTION 12.2 Acts of Board, Committee or Officer
of Successor Company Valid 91
SECTION 12.3 Required Notices or Demands 91
SECTION 12.4 Governing Law 92
SECTION 12.5 Officers' Certificate and Opinion
of Counsel to Be Furnished upon
Application or Demand by the Company 93
SECTION 12.6 Payments Due on Legal Holidays 93
SECTION 12.7 Provisions Required by Trust Indenture
Act to Control 94
SECTION 12.8 Rules by Trustee, Paying Agent
and Registrar 94
SECTION 12.9 No Recourse Against Others 94
SECTION 12.10 Severability 94
SECTION 12.11 Effect of Headings 94
SECTION 12.12 Indenture May Be Executed in
Counterparts 94
INDENTURE dated as of between GLOBAL MARINE
INC., a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter sometimes called
the "Company"), and , a corporation duly
incorporated and existing under the laws of the State of
(hereinafter sometimes called the "Trustee").
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 debentures, notes, bonds or other
evidences of indebtedness to be issued in one or more series
unlimited as to principal amount (herein called the "Debt
Securities"), as in this Indenture provided.
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
That in order to declare the terms and conditions upon
which the Debt Securities are authenticated, issued and
delivered, and in consideration of the premises, and of the
purchase and acceptance of the Debt Securities by the
holders thereof, the Company and the Trustee covenant and
agree with each other, for the benefit of the respective
Holders from time to time of the Debt Securities or any
series thereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED. The terms defined in
this Section 1.1 (except as herein otherwise expressly
provided or unless the context otherwise requires) for all
purposes of this Indenture and of any Indenture supplemental
hereto shall have the respective meanings specified in this
Section 1.1. All other terms used in this Indenture which
are defined in the Trust Indenture Act or which are by
reference therein defined in the Securities Act (except as
herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to
such terms in the Trust Indenture Act and in the Securities
Act as in force as of the date of original execution of this
Indenture.
"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 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.
"AUTHORIZED NEWSPAPER" means a newspaper in an
official language of the country of publication customarily
published at least once a day, and customarily published for
at least five days in each calendar week, and of general
circulation in such city or cities specified pursuant to
Section 2.3 with respect to the Debt Securities of any
series. 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 in such city.
"BEARER HOLDER" means, with respect to any Bearer
Security or Coupon, the bearer thereof.
"BEARER SECURITY" means any Debt Security (with or
without Coupons), title to which passes by delivery only,
but does not include any Coupons.
"BOARD OF DIRECTORS" means either the Board of
Directors of the Company or any duly authorized committee or
subcommittee of such Board, except as the context may
otherwise require.
"BUSINESS DAY" means, when used with respect to any
Place of Payment specified pursuant to Section 2.3, any day
that is not a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies in such
Place of Payment are authorized or obligated by law to
close, except as otherwise specified pursuant to Section
2.3.
"CAPITAL STOCK" of any Person means any and all
shares, interests, rights to purchase, warrants, options,
participations or other equivalents of or interests
(including partnership interests) in (however designated)
equity of such Person, excluding any debt securities
convertible into such equity.
"COMPANY" means Global Marine Inc., a Delaware
corporation, and, subject to the provisions of Article X,
shall also include its successors and assigns.
"COMPANY ORDER" means a written order of the Company,
signed by its Chairman of the Board, Vice Chairman,
President or any Vice President and by its Treasure,
Secretary, any Assistant Treasurer or any Assistant
Secretary.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" or other
similar term means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any
particular time, be principally administered in the United
States of America, except that with respect to the
presentation of Debt Securities for payment or for
registration of transfer and exchange, such term shall also
mean the office of the Trustee or the Trustee's agent in the
Borough of Manhattan, the city and state of New York, at
which at any particular time its corporate agency business
shall be conducted.
"COUPON" means any interest coupon appertaining to any
Bearer Security.
"COUPON SECURITY" means any Bearer Security
authenticated and delivered with one or more Coupons
appertaining thereto.
"CURRENCY" means Dollars or Foreign Currency.
"DEBT SECURITY" or "DEBT SECURITIES" has the meaning
stated in the first recital of this Indenture and more
particularly means any debt security or debt securities, as
the case may be of any series authenticated and delivered
under this Indenture.
"DEBT SECURITY REGISTER" has the meaning specified in
Section 2.7(a).
"DEFAULT" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"DEPOSITARY" means, unless otherwise specified by the
Company pursuant to either Section 2.3 or 2.15, with respect
to registered Debt Securities of any series issuable or
issued in whole or in part in the form of one or more Global
Securities, The Depository Trust Company, New York, New
York, or any successor thereto registered as a clearing
agency under the Exchange Act or other applicable statute or
regulations.
"DOLLAR" or "$" means such currency of the United
States as at the time of payment is legal tender for the
payment of public and private debts.
"DOLLAR EQUIVALENT" means, with respect to Debt
Securities of any series, with respect to any monetary
amount in a Foreign Currency, at any time for the
determination thereof, the amount of Dollars obtained by
converting such Foreign Currency involved in such
computation into Dollars at the spot rate for the purchase
of Dollars with the applicable Foreign Currency (as quoted
by the financial institution designated by the Company
pursuant to Section 2.3 for that series for such purpose) in
New York, New York at approximately 11:00 am. (New York
time) on the date two Business Days prior to such
determination.
"EVENT OF DEFAULT" has the meaning specified in
Section 6.1.
"EXCHANGE ACT" means the Securities Exchange Act of
1934.
"FLOATING RATE SECURITY" means a Debt Security that
provides for the payment of interest at a variable rate
determined periodically by reference to an interest rate
index specified pursuant to Section 2.3.
"FOREIGN CURRENCY" means a currency issued by the
government of any country other than the United States or a
composite currency the value of which is determined by
reference to the values of the currencies of any group of
countries.
"GAAP" means generally accepted accounting principles
in the United States as in effect as of the date on which
the Debt Securities of the applicable series are issued,
including those set forth in the opinions and pronouncements
of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board
or in such other statements by such other entity as are
approved by a significant segment of the accounting
profession. All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity
with GAAP consistently applied.
"GLOBAL SECURITY" means with respect to any series of
Debt Securities issued hereunder, a Debt Security which is
executed by the Company and authenticated and delivered by
the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this
Indenture and any Indentures supplemental hereto, or
resolution of the Board of Directors and set forth in an
Officers' Certificate, which shall be registered in the name
of the Depositary or its nominee and which shall represent,
and shall be denominated in an amount equal to the aggregate
principal amount of, all the Outstanding Debt Securities of
such series or any portion thereof, in either case having
the same terms, including, without limitation, the same
original issue date, date or dates on which principal is due
and interest rate or method of determining interest.
"HOLDER," "HOLDER OF DEBT SECURITIES" or other similar
term means, with respect to a Registered Security, the
Registered Holder and, with respect to a Bearer Security or
a Coupon, the Bearer Holder.
"INDENTURE" means this instrument as originally
executed, or, if amended or supplemented as herein provided,
as so amended or supplemented and shall include the form and
terms of particular series of Debt Securities as
contemplated hereunder, whether or not a supplemental
indenture is entered into with respect thereto.
"INTEREST" includes, when used with respect to a
Bearer Security, any additional interest payable on such
Bearer Security pursuant to Section 3.2 or 4.6.
"OFFICERS' CERTIFICATE" means a certificate signed by
the Chairman of the Board, the Vice Chairman, the President
or any Vice President and by the Treasurer, the Secretary or
any Assistant Treasurer or Assistant Secretary of the
Company. Each such certificate shall include the statements
provided for in Section 12.5, if applicable.
"OPINION OF COUNSEL" means an opinion in writing
signed by legal counsel for the Company (which counsel may
be an employee of the Company), or outside counsel for the
Company who shall be reasonably satisfactory to the Trustee.
Each such opinion shall include the statements provided for
in Section 12.5, if applicable.
"ORIGINAL ISSUE DISCOUNT DEBT SECURITY" means any Debt
Security which 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 6.1.
"OUTSTANDING," when used with respect to any series of
Debt Securities, means, as of the date of determination, all
Debt Securities of that series theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities of that series theretofore
cancelled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Debt Securities of that series for whose payment
or redemption money in the necessary amount has been
theretofore 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 Debt
Securities; PROVIDED, that, if such Debt 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) Debt Securities of that series which have been
paid pursuant to Section 2.9 or in exchange for or in
lieu of which other Debt Securities have been
authenticated and delivered pursuant to this Indenture,
other than any such Debt Securities in respect of which
there shall have been presented to the Trustee proof
satisfactory to it that such Debt Securities are held by
a bona fide purchaser in whose hands such Debt Securities
are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders
of the requisite principal amount of the Outstanding Debt
Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver
hereunder, Debt Securities owned by the Company or any other
obligor upon the Debt 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, only Debt Securities which the Trustee
knows to be so owned shall be so disregarded. Debt
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 Debt Securities and that the
pledgee is not the Company or any other obligor upon the
Debt Securities or an Affiliate of the Company or of such
other obligor. In determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities
have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of
an Original Issue Discount Debt Security that shall be
deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and
payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant
to Section 6.1. In determining whether the Holders of the
requisite principal amount of the Outstanding Debt
Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver
hereunder, the principal amount of a Debt Security
denominated in one or more foreign currencies or currency
units that shall be deemed to be Outstanding for such
purposes shall be the Dollar Equivalent, determined in the
manner provided as contemplated by Section 2.3 on the date
of original issuance of such Debt Security, of the principal
amount (or, in the case of any such Original Issue Discount
Security, the Dollar Equivalent on the date of original
issuance of such Security of the amount determined as
provided in the preceding sentence) of such Debt Security.
"PERSON" means any individual, corporation,
partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, government or
any agency or political subdivision thereof or any other
entity.
"PLACE OF PAYMENT" means, when used with respect to
the Debt Securities of any series, the place or places where
the principal of, and premium, if any, and interest on, the
Debt Securities of that series are payable as specified
pursuant to Section 2.3.
"REGISTERED HOLDER" means the Person in whose name a
Registered Security is registered in the Debt Security
Register.
"REGISTERED SECURITY" means any Debt Security
registered as to principal and interest in the Debt Security
Register.
"REGISTRAR" has the meaning set forth in Section
2.7(a).
"REPRESENTATIVE" means the trustee, agent or
representative (if any) for an issue of Senior Indebtedness.
"RESPONSIBLE OFFICER," when used with respect to the
Trustee, means any Account Manager or any officer within the
Corporate Trust and Agency Group of the Trustee, including
any Vice President, any Assistant Vice President, any trust
officer or any other officer of the Trustee performing
functions similar to those performed by the persons who at
the time shall be such officers, and any other officer of
the Trustee to whom corporate trust matters are referred
because of his knowledge of and familiarity with the
particular subject.
"SECURITIES ACT" means the Securities Act of 1933, as
amended.
"SENIOR INDEBTEDNESS" means, as to any series of Debt
Securities subordinated to other indebtedness of the
Company, the indebtedness of the Company identified as
"Senior Indebtedness" in the resolution of the Board of
Directors and accompanying Officers' Certificate or
supplemental indenture setting forth the terms, including as
to subordination, of such series.
"SIGNIFICANT SUBSIDIARY" means a Subsidiary of any
Person that would be a "significant subsidiary" as defined
in Rule 405 under the Securities Act as in effect on the
date of this Indenture.
"STATED MATURITY" means, with respect to any security,
the date specified in such security as the fixed date on
which the payment of principal of such security is due and
payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the
repurchase of such security at the option of the holder
thereof upon the happening of any contingency beyond the
control of the issuer unless such contingency has occurred).
"SUBSIDIARY" of any Person means any corporation,
association, partnership or other business entity of which
more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person, (ii) such Person
and one or more Subsidiaries of such Person or (iii) one or
more Subsidiaries of such Person.
"TRUSTEE" initially means and any other
Person or Persons appointed as such from time to time
pursuant to Section 7.8, and, subject to the provisions of
Article VII, includes its successors and assigns. If at any
time there is more than one such Person, "Trustee" as used
with respect to the Debt Securities of any series shall mean
the Trustee with respect to the Debt Securities of that
series.
"TRUST INDENTURE ACT" (except as herein otherwise
expressly provided) means the Trust Indenture Act of 1939 as
in force at the date of this Indenture as originally
executed and, to the extent required by law, as amended.
"UNITED STATES" means the United States of America
(including the States and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction.
"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 fiduciary of a foreign estate or trust, or a Foreign
partnership one or more members of which is, for United
States Federal income tax purposes, a foreign corporation, a
nonresident alien individual or a nonresident alien
fiduciary of a foreign estate or trust.
"U.S. GOVERNMENT OBLIGATIONS" means securities that
are (x) direct obligations of the United States of America
for the payment of which its full faith and credit is
pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of
the United States of America, the payment of which is
unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the
issuer thereof.
"YIELD TO MATURITY" means the yield to maturity,
calculated at the time of issuance of a series of Debt
Securities, or, if applicable, at the most recent
redetermination of interest on such series and calculated in
accordance with accepted financial practice.
SECTION 1.2 INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT. This Indenture is subject to the mandatory
provisions of the Trust Indenture Act which are incorporated
by reference in and made a part of this Indenture. The
following Trust Indenture Act terms have the following
meanings:
"indenture securities" means the Debt Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the
Company and any other obligor on the Debt Securities.
All other Trust Indenture Act terms used in this
Indenture that are defined by the Trust Indenture Act,
reference to another statute or defined by rules of the
Securities and Exchange Commission have the meanings
assigned to them by such definitions.
SECTION 1.3 RULES OF CONSTRUCTION. Unless the
context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and
words in the plural include the singular; and
(6) the principal amount of any noninterest bearing
or other discount security at any date shall be the
principal amount thereof that would be shown on a balance
sheet of the issuer dated such date prepared in
accordance with GAAP.
ARTICLE II
DEBT SECURITIES
SECTION 2.1 FORMS GENERALLY. The Debt Securities and
Coupons, if any, of each series shall be in substantially
the form established without the approval of any Holder by
or pursuant to a resolution of the Board of Directors 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 the Company may deem appropriate (and, if not
contained in a supplemental indenture entered into in
accordance with Article IX, as are not prohibited by the
provisions of this Indenture) or as may be required or
appropriate to comply with any law or with any rules made
pursuant thereto or with any rules of any securities
exchange on which such series of Debt Securities may be
listed, or to conform to general usage, or as may,
consistently herewith, be determined by the officers
executing such Debt Securities and Coupons, as evidenced by
their execution of the Debt Securities and Coupons.
The definitive Debt Securities of each series and
Coupons, if any, 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
Debt Securities and Coupons, as evidenced by their execution
of such Debt Securities and Coupons.
Each Bearer Security and each Coupon shall bear a
legend substantially to the following effect: "Any United
States Person who holds this obligation will be subject to
limitations under the United States Federal income tax laws,
including the limitations provided in Sections 165(j) and
1287(a) of the Internal Revenue Code."
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Trustee's Certificate of Authentication
on all Debt Securities authenticated by the Trustee shall be
in substantially the following form:
"TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series
designated therein referred to in the within-mentioned
Indenture.
As Trustee
By
Authorized Signature"
SECTION 2.3 PRINCIPAL AMOUNT; ISSUABLE IN SERIES.
The aggregate principal amount of Debt Securities which may
be issued, executed, authenticated, delivered and
outstanding under this Indenture is unlimited.
The Debt Securities may be issued in one or more
series. There shall be established, without the approval of
any Holders, in or pursuant to a resolution of the Board of
Directors and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto,
prior to the issuance of Debt Securities of any series, any
or all of the following:
(1) the title of the Debt Securities of the
series (which shall distinguish the Debt Securities of
the series from all other Debt Securities);
(2) any limit upon the aggregate principal amount
of the Debt Securities of the series which may be
authenticated and delivered under this Indenture
(except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for,
or in lieu of, other Debt Securities of the series
pursuant to this Article II);
(3) the date or dates on which the principal and
premium, if any, of the Debt Securities of the series
are payable;
(4) the rate or rates (which may be fixed or
variable) at which the Debt Securities of the series
shall bear interest, if any, or the method of
determining such rate or rates, the date or dates from
which such interest shall accrue, the interest payment
dates on which such interest shall be payable or the
method by which such dates will be determined, in the
case of Registered Securities, the record dates for the
determination of Holders thereof to whom such interest
is payable, and the basis upon which interest will be
calculated if other than that of a 360-day year of
twelve 30-day months;
(5) the place or places, if any, in addition to
or instead of the corporate trust office of the Trustee
(in the case of Registered Securities) or the principal
London office of the Trustee (in the case of Bearer
Securities), where the principal of, and premium, if
any, and interest on, Debt Securities of the series
shall be payable;
(6) the price or prices at which, the period or
periods within which and the terms and conditions upon
which Debt Securities of the series may be redeemed, in
whole or in part, at the option of the Company or
otherwise;
(7) whether Debt Securities of the series are to
be issued as Registered Securities or Bearer Securities
or both, and, if Bearer Securities are to be issued,
whether Coupons will be attached thereto, whether
Bearer Securities of the series may be exchanged for
Registered Securities of the series and the
circumstances under which and the places at which any
such exchanges, if permitted, may be made;
(8) if any Debt Securities of the series are to
be issued as Bearer Securities or as one or more Global
Securities representing individual Bearer Securities of
the series, (x) whether the provisions of Sections 3.2
and 4.6 or other provisions for payment of additional
interest or tax redemptions shall apply and, if other
provisions shall apply, such other provisions; (y)
whether interest in respect of any portion of a
temporary Bearer Security of the series (delivered
pursuant to Section 2.8) payable in respect of any
interest payment date prior to the exchange of such
temporary Bearer Security for definitive Bearer
Securities of the series shall be paid to any clearing
organization with respect to the portion of such
temporary Bearer Security held for its account and, in
such event, the terms and conditions (including any
certification requirements) upon which any such
interest payment received by a clearing organization
will be credited to the Persons entitled to interest
payable on such interest payment date; and (z) the
terms upon which a temporary Bearer Security may be
exchanged for one or more definitive Bearer Securities
of the series;
(9) the obligation, if any, of the Company to
redeem, purchase or repay Debt Securities of the series
pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof, and the price or
prices at which and the period or periods within which
and the terms and conditions upon which Debt Securities
of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
(10) the terms, if any, upon which the Debt
Securities of the series may be convertible into or
exchanged for Capital Stock of the Company (which may
be represented by depositary shares), other Debt
Securities, warrants for Capital Stock of the Company,
indebtedness or other securities of any kind of the
Company or any other obligor and the terms and
conditions upon which such conversion or exchange shall
be effected, including the initial conversion or
exchange price or rate, the conversion or exchange
period and any other provision in addition to or in
lieu of those described herein;
(11) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Debt Securities of the series shall be issuable;
(12) if the amount of principal of, or premium, if
any, or interest on, the Debt Securities of the series
may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts
will be determined;
(13) if the principal amount payable at the Stated
Maturity of Debt Securities of the series will not be
determinable as of any one or more dates prior to such
Stated Maturity, the amount which will be deemed to be
such principal amount as of any such date for any
purpose, including the principal amount thereof which
will be due and payable upon any maturity other than
the Stated Maturity or which will be deemed to be
Outstanding as of any such date (or, in any such case,
the manner in which such deemed principal amount is to
be determined);
(14) any changes or additions to Article XI,
including the addition of additional covenants that may
be subject to the covenant defeasance option pursuant
to Section 11.2(b)(ii);
(15) if other than Dollars, the Foreign Currency
or Currencies or units of two or more Currencies in
which payment of the principal of, and premium, if any,
and interest on, Debt Securities of the series shall be
payable, and the manner of determining the equivalent
thereof in Dollars for purposes of the definition of
"Dollar Equivalent";
(16) if other than the principal amount thereof,
the portion of the principal amount of Debt Securities
of the series which shall be payable upon declaration
of acceleration of the maturity thereof pursuant to
Section 6.1 or provable in bankruptcy pursuant to
Section 6.2;
(17) the terms, if any, of the transfer, mortgage,
pledge or assignment as security for the Debt
Securities of the series of any properties, assets,
moneys, proceeds, securities or other collateral,
including whether certain provisions of the Trust
Indenture Act are applicable and any corresponding
changes to provisions of this Indenture as currently in
effect;
(18) any addition to or change in the Events of
Default with respect to the Debt Securities of the
series and any change in the right of the Trustee or
the Holders to declare the principal of, and premium,
if any, and interest on, such Debt Securities due and
payable;
(19) if the Debt Securities of the series shall be
issued in whole or in part in the form of a Global
Security or Securities, the terms and conditions, if
any, upon which such Global Security or Securities may
be exchanged in whole or in part for other individual
Debt Securities in definitive registered form, the
Depositary for such Global Security or Securities and
the form of any legend or legends to be borne by any
such Global Security or Securities in addition to or in
lieu of the legend referred to in Section 2.15;
(20) any trustees, authenticating or paying
agents, transfer agents or registrars;
(21) the applicability of, and any addition to or
change in the covenants and definitions currently set
forth in this Indenture or in the terms currently set
forth in Article X, including conditioning any merger,
conveyance, transfer or lease permitted by Article X
upon the satisfaction of a financial standard by the
Company or the Successor Company (as defined in
Article X);
(22) the terms, if any, of any guarantee of the
payment of principal of, and premium, if any, and
interest on, Debt Securities of the series and any
corresponding changes to the provisions of this
Indenture as currently in effect;
(23) the subordination, if any, of the Debt
Securities of the series to other indebtedness of the
Company;
(24) with regard to Debt Securities of the series
that do not bear interest, the dates for certain
required reports to the Trustee; and
(25) any other terms of the Debt Securities of the
series (which terms shall not be prohibited by the
provisions of this Indenture).
All Debt Securities of any one series and the
Coupons, if any, appertaining thereto shall be substantially
identical except as to denomination and except as may
otherwise be provided in or pursuant to such resolution of
the Board of Directors and as set forth in such Officers'
Certificate or in any such Indenture supplemental hereto.
SECTION 2.4 EXECUTION OF DEBT SECURITIES. The
Debt Securities and the Coupons, if any, shall be signed on
behalf of the Company by its Chairman of the Board, its Vice
Chairman, its President or a Vice President and by its
Secretary, an Assistant Secretary, a Treasurer or an
Assistant Treasurer. Such signatures upon the Debt
Securities and Coupons may be the manual or facsimile
signatures of the present or any future such authorized
officers and may be imprinted or otherwise reproduced on the
Debt Securities and Coupons. The seal of the Company, if
any, may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the
Debt Securities and Coupons.
Only such Debt Securities and Coupons as shall
bear thereon a certificate of authentication substantially
in the form hereinbefore recited, signed manually by the
Trustee, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate
by the Trustee upon any Debt Security or Coupon executed by
the Company shall be conclusive evidence that the Debt
Security or Coupon so authenticated has been duly
authenticated and delivered hereunder.
In case any officer of the Company who shall have
signed any of the Debt Securities or Coupons shall cease to
be such officer before the Debt Securities or Coupons so
signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Debt Securities
or Coupons nevertheless may be authenticated and delivered
or disposed of as though the Person who signed such Debt
Securities or Coupons had not ceased to be such officer of
the Company; and any Debt Security or Coupon may be signed
on behalf of the Company by such Persons as, at the actual
date of the execution of such Debt Security or Coupon, shall
be the proper officers of the Company, although at the date
of such Debt Security or Coupon or of the original execution
of this Indenture any such Person was not such officer.
SECTION 2.5 AUTHENTICATION AND DELIVERY OF DEBT
SECURITIES. At any time and from time to time after the
execution and delivery of this Indenture, the Company may
deliver Debt Securities, with appropriate Coupons, if any,
of any series executed by the Company to the Trustee for
authentication, and the Trustee shall thereupon authenticate
and deliver said Debt Securities and Coupons to or upon a
Company Order. In authenticating such Debt Securities and
Coupons, and accepting the additional responsibilities under
this Indenture in relation to such Debt Securities and
Coupons, the Trustee shall be entitled to receive, and
(subject to Section 7.1) shall be fully protected in relying
upon:
(1) a copy of any resolution or resolutions of
the Board of Directors, certified by the Secretary or
Assistant Secretary of the Company, authorizing the
terms of issuance of any series of Debt Securities and
Coupons;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate; and
(4) an Opinion of Counsel prepared in accordance
with Section 12.5 which shall also state:
(a) that the form of such Debt Securities
and Coupons has been established by or pursuant to
a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.1
in conformity with the provisions of this
Indenture;
(b) that the terms of such Debt Securities
and Coupons have been established by or pursuant
to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.3
in conformity with the provisions of this
Indenture;
(c) that such Debt Securities and Coupons,
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 against it in accordance with their
terms subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to
enforceability, to general principles of equity,
including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in
equity);
(d) that the Company has all requisite
corporate power to issue such Debt Securities and
Coupons and such Debt Securities and Coupons have
been duly authorized by all necessary corporate
action on the part of the Company;
(e) that the issuance of such Debt
Securities and Coupons will not conflict with,
constitute a default under or violate the charter
or by-laws of the Company or any of the terms or
provisions of any law or regulation or any
indenture, mortgage or other agreement known to
such counsel by which the Company is bound;
(f) that authentication and delivery of such
Debt Securities and Coupons and the execution and
delivery of any supplemental indenture will not
violate the terms of this Indenture; and
(g) such other matters as the Trustee may
reasonably request.
Such Opinion of Counsel need express no opinion as
to whether a court in the United States would render a money
judgment in a currency other than that of the United States.
The Trustee shall have the right to decline to
authenticate and deliver any Debt Securities or Coupons
under this Section 2.5 if the Trustee, being advised by
counsel, determines that such action may not lawfully be
taken or if the Trustee in good faith by its board of
directors or trustees, executive committee or a trust
committee of directors, trustees or vice presidents shall
determine that such action would expose the Trustee to
personal liability to existing Holders.
The Trustee may appoint an authenticating agent
reasonably acceptable to the Company to authenticate Debt
Securities and Coupons, if any, of any series. Unless
limited by the terms of such appointment, an authenticating
agent may authenticate Debt Securities whenever the Trustee
may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as
any Registrar, paying agent or agent for service of notices
and demands.
Unless otherwise provided in the form of Debt
Security for any series, each Debt Security shall be dated
the date of its authentication.
SECTION 2.6 DENOMINATION OF DEBT SECURITIES.
Unless otherwise provided in the form of Debt Security for
any series, the Debt Securities of each series shall be
issuable only as Registered Securities in such denominations
as shall be specified or contemplated by Section 2.3.
Unless otherwise specified with respect to the Debt
Securities of any series, the Debt Securities of such series
shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 2.7 REGISTRATION OF TRANSFER AND
EXCHANGE. (a) The Company shall keep or cause to be kept a
register for each series of Registered Securities issued
hereunder (hereinafter collectively referred to as the "Debt
Security Register"), in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and the
transfer of Registered Securities as in this Article II
provided. At all reasonable times the Debt Security
Register shall be open for inspection by the Trustee.
Subject to Section 2.15, upon due presentment for
registration of transfer of any Registered Security at any
office or agency to be maintained by the Company in
accordance with the provisions of Section 4.2, the Company
shall execute and the Trustee shall authenticate and deliver
in the name of the transferee or transferees a new
Registered Security or Registered Securities of authorized
denominations for a like tenor and aggregate principal
amount. In no event may Registered Securities, including
Registered Securities received in exchange for Bearer
Securities, be exchanged for Bearer Securities.
Unless and until otherwise determined by the
Company by resolution of the Board of Directors, the
register of the Company for the purpose of registration,
exchange or registration of transfer of the Registered
Securities shall be kept at the corporate trust office of
the Trustee and, for this purpose, the Trustee shall be
designated "Registrar".
Registered Securities of any series (other than a
Global Security, except as set forth below) may be exchanged
for a like tenor and aggregate principal amount of
Registered Securities of the same series of other authorized
denominations. Subject to Section 2.15, Registered
Securities to be exchanged shall be surrendered at the
office or agency to be maintained by the Company as provided
in Section 4.2, and the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor
the Registered Security or Registered Securities which the
Holder making the exchange shall be entitled to receive.
At the option of the Holder of Bearer Securities
of any series, except as otherwise specified as contemplated
by Section 2.3(8) or 2.3(19) with respect to a Global
Security representing Bearer Securities, Bearer Securities
of such series may be exchanged for Registered Securities
(if the Debt Securities of such series are issuable as
Registered Securities) or Bearer Securities of the same
series, of any authorized denomination or denominations, of
like tenor and aggregate principal amount, upon surrender of
the Bearer Securities to be exchanged at the office or
agency of the Company maintained for such purpose, with all
unmatured Coupons and all matured Coupons in Default thereto
appertaining; PROVIDED, HOWEVER, that delivery of a Bearer
Security shall occur only outside the United States. If
such Holder is unable to produce any such unmatured Coupon
or Coupons or matured Coupon or Coupons in Default, such
exchange may be effected if such Holder's Bearer Securities
are accompanied by payment in funds acceptable to the
Company and the Trustee in an amount equal to the face
amount of such missing Coupon or Coupons, or the surrender
of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of
them and any paying agent harmless. If thereafter such
Holder shall surrender to any paying agent any such missing
Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of
such payment; PROVIDED, HOWEVER, that, except as otherwise
provided in Section 2.12, interest represented by Coupons
shall be payable only upon presentation and surrender of
those Coupons at an office or agency located outside the
United States.
Whenever any Debt Securities are so surrendered
for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Debt Securities that the
Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of
Bearer Securities for Registered Securities will be subject
to the provisions of United States income tax laws and
regulations applicable to Debt Securities in effect at the
time of such exchange.
(b) All Registered Securities presented or
surrendered for registration of transfer, exchange or
payment shall (if so required by the Company, the Trustee or
the Registrar) be duly endorsed or be accompanied by a
written instrument or instruments of transfer, in form
satisfactory to the Company, the Trustee and the Registrar,
duly executed by the Registered Holder or his attorney duly
authorized in writing.
All Debt Securities issued in exchange for or upon
transfer of Debt Securities shall be the valid obligations
of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture as the Debt
Securities surrendered for such exchange or transfer.
No service charge shall be made for any exchange
or registration of transfer of Debt Securities (except as
provided by Section 2.9), but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto,
other than those expressly provided in this Indenture to be
made at the Company's own expense or without expense or
without charge to the Holders.
The Company shall not be required (a) to issue,
register the transfer of or exchange any Debt Securities for
a period of 15 days next preceding any mailing of notice of
redemption of Debt Securities of such series or (b) to
register the transfer of or exchange any Debt Securities
selected, called or being called for redemption; PROVIDED,
HOWEVER, that, if specified pursuant to Section 2.3, any
Bearer Securities of any series that are exchangeable for
Registered Securities and that are called for redemption
pursuant to Section 3.2 may, to the extent permitted by
applicable law, be exchanged for one or more Registered
Securities of such series during the period preceding the
redemption date therefor.
SECTION 2.8 TEMPORARY DEBT SECURITIES. Pending
the preparation of definitive Debt Securities of any series,
the Company may execute and the Trustee shall authenticate
and deliver temporary Debt Securities (printed,
lithographed, photocopied, typewritten or otherwise
produced) of any authorized denomination, and substantially
in the form of the definitive Debt Securities in lieu of
which they are issued, in registered form or, if authorized,
in bearer form with one or more Coupons or without Coupons,
and with such omissions, insertions and variations as may be
appropriate for temporary Debt Securities and Coupons, all
as may be determined by the Company with the concurrence of
the Trustee. Temporary Debt Securities and Coupons may
contain such reference to any provisions of this Indenture
as may be appropriate. Every temporary Debt Security shall
be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Debt
Securities.
If temporary Debt Securities of any series are
issued, the Company will cause definitive Debt Securities of
such series to be prepared without unreasonable delay.
Except as otherwise specified as contemplated by Section
2.3(8)(z) with respect to a series of Debt Securities
issuable as Bearer Securities or as one or more Global
Securities representing individual Bearer Securities of the
series, (a) after the preparation of definitive Debt
Securities of such series, the temporary Debt Securities of
such series shall be exchangeable for definitive Debt
Securities of such series upon surrender of the temporary
Debt Securities of such series at the office or agency of
the Company at a Place of Payment for such series, without
charge to the Holder thereof, except as provided in Section
2.7 in connection with a transfer and except that a Person
receiving definitive Bearer Securities shall bear the cost
of insurance, postage, transportation and the like unless
otherwise specified pursuant to Section 2.3, and (b) upon
surrender for cancellation of any one or more temporary Debt
Securities of any series (accompanied by any unmatured
Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Debt
Securities of the same series of authorized denominations
and of like tenor; PROVIDED, HOWEVER, that no definitive
Bearer Security shall be delivered in exchange for a
temporary Registered Security; and PROVIDED FURTHER,
HOWEVER, that delivery of a Global Security representing
individual Bearer Securities or of a Bearer Security shall
occur only outside the United States. Until so exchanged,
temporary Debt Securities of any series shall in all
respects be entitled to the same benefits under this
Indenture as definitive Debt Securities of such series,
except as otherwise specified as contemplated by Section
2.3(8)(y) with respect to the payment of interest on Global
Securities in temporary form.
Unless otherwise specified pursuant to Section
2.3, the Company will execute and deliver each definitive
Global Security representing individual Bearer Securities
and each Bearer Security to the Trustee at its principal
office in London or such other place outside the United
States specified pursuant to Section 2.3.
Upon any exchange of a portion of a temporary
Global Security for a definitive Global Security or for the
individual Debt Securities represented thereby pursuant to
Section 2.7 or this Section 2.8, the temporary Global
Security shall be endorsed by the Trustee to reflect the
reduction of the principal amount evidenced thereby,
whereupon the principal amount of such temporary Global
Security shall be reduced for all purposes by the amount to
exchanged and endorsed.
SECTION 2.9 MUTILATED, DESTROYED, LOST OR STOLEN
DEBT SECURITIES. If (i) any mutilated Debt Security or any
mutilated Coupon with the Coupon Security to which it
appertains (and all unmatured Coupons attached thereto) is
surrendered to the Trustee at its corporate trust office (in
the case of Registered Securities) or at its principal
London office (in the case of Bearer Securities) or (ii) the
Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt
Security or any Coupon, and there is delivered to the
Company and the Trustee such security or indemnity as may be
required by them to save each of them and any paying agent
harmless, and neither the Company nor the Trustee receives
notice that such Debt Security or Coupon has been acquired
by a bona fide purchaser, then the Company shall execute
and, upon a Company Order, the Trustee shall authenticate
and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Debt Security or in
exchange for the Coupon Security to which such mutilated,
destroyed, lost or stolen Coupon appertained, a new Debt
Security of the same series of like tenor, form, terms and
principal amount, bearing a number not contemporaneously
Outstanding, and, in the case of a Coupon Security, with
such Coupons attached thereto that neither gain nor loss in
interest shall result from such exchange or substitution.
Upon the issuance of any substituted Debt Security, 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 connected therewith.
In case any Debt Security or Coupon which has matured or is
about to mature or which has been called for redemption
shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substituted Debt Security
or Coupon, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debt
Security or Coupon) if the applicant for such payment shall
furnish the Company and the Trustee with such security or
indemnity as either may require to save it harmless from all
risk, however remote, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Debt
Security or Coupon and of the ownership thereof; PROVIDED,
HOWEVER, that payment of principal of, and premium, if any,
and interest on, Bearer Securities or Coupons shall, except
as otherwise provided in Section 2.12, be payable only at an
office or agency located outside the United States.
Every substituted Debt Security of any series,
with its Coupons, if any, issued pursuant to the provisions
of this Section 2.9 by virtue of the fact that any Debt
Security or Coupon is destroyed, lost or stolen shall
constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen
Debt Security or Coupon shall be found at any time, and
shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Debt
Securities of that series and Coupons, if any, duly issued
hereunder. All Debt Securities and Coupons, if any, shall
be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or
stolen Debt Securities or Coupons, and shall preclude any
and all other rights or remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.10 CANCELLATION OF SURRENDERED DEBT
SECURITIES. All Debt Securities surrendered for payment,
redemption, registration of transfer or exchange and all
Coupons surrendered for payment or exchange shall, if
surrendered to the Company or any paying agent or a
Registrar, be delivered to the Trustee for cancellation by
it, or if surrendered to the Trustee, shall be cancelled by
it, and no Debt Securities or Coupons shall be issued in
lieu thereof except as expressly permitted by any of the
provisions of this Indenture. All cancelled Debt Securities
and Coupons held by the Trustee shall be destroyed (subject
to the record retention requirements of the Exchange Act)
and certification of their destruction delivered to the
Company, unless otherwise directed. On request of the
Company, the Trustee shall deliver to the Company cancelled
Debt Securities and Coupons held by the Trustee. If the
Company shall acquire any of the Debt Securities or Coupons,
however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented thereby
unless and until the same are delivered or surrendered to
the Trustee for cancellation. The Company may not issue new
Debt Securities or Coupons to replace Debt Securities or
Coupons it has redeemed, paid or delivered to the Trustee
for cancellation.
SECTION 2.11 PROVISIONS OF THE INDENTURE AND DEBT
SECURITIES FOR THE SOLE BENEFIT OF THE PARTIES AND THE
HOLDERS. Nothing in this Indenture or in the Debt
Securities or Coupons, expressed or implied, shall give or
be construed to give to any Person, other than the parties
hereto, the Holders or any Registrar or paying agent, any
legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition
or provision herein contained; all its covenants, conditions
and provisions being for the sole benefit of the parties
hereto, the Holders and any Registrar and paying agents.
SECTION 2.12 PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED. (b) Interest on any Registered Security that is
payable and is punctually paid or duly provided for on any
interest payment date shall be paid to the Person in whose
name such Registered Security is registered at the close of
business on the regular record date for such interest
notwithstanding the cancellation of such Registered Security
upon any registration of transfer or exchange subsequent to
the regular record date. In case a Coupon Security of any
series is surrendered in exchange for a Registered Security
of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any regular
record date and before the opening of business (at such
office or agency) on the next succeeding interest payment
date, such Coupon Security shall be surrendered without the
Coupon relating to such interest payment date and interest
will not be payable on such interest payment date in respect
of the Registered Security issued in exchange for such
Coupon Security, but will be payable only to the Holder of
such Coupon when due in accordance with the provisions of
this Indenture. Payment of interest on Registered
Securities shall be made at the corporate trust office of
the Trustee (except as otherwise specified pursuant to
Section 2.3) or, at the option of the Company, by check
mailed to the address of the Person entitled thereto as such
address shall appear in the Debt Security Register or, if
provided pursuant to Section 2.3 and in accordance with
arrangements satisfactory to the Trustee, at the option of
the Registered Holder by wire transfer to an account
designated by the Registered Holder.
(b) No interest shall be payable with respect to
a Bearer Security or Coupon unless such certification
requirements as are specified pursuant to Section 2.3(8)(z)
are satisfied with respect to such Bearer Security or
Coupon. Interest on any Coupon Security that is payable and
is punctually paid or duly provided for on any interest
payment date shall be paid to the Holder of the Coupon that
has matured on such interest payment date upon surrender of
such Coupon on such interest payment date at the principal
London office of the Trustee or at such other Place of
Payment outside the United States specified pursuant to
Section 2.3.
Interest on any Bearer Security (other than a
Coupon Security) that is payable and is punctually paid or
duly provided for on any interest payment date shall be paid
to the Holder of the Bearer Security upon presentation of
such Bearer Security and notation thereon on such interest
payment date at the principal London office of the Trustee
or at such other Place of Payment outside the United States
specified pursuant to Section 2.3.
Unless otherwise specified pursuant to Section
2.3, at the direction of the Holder of any Bearer Security
or Coupon payable in Dollars, and subject to applicable laws
and regulations, payments in respect of such Bearer Security
or Coupon will be made by check drawn on a bank in New York,
New York or, in accordance with arrangements satisfactory to
the Trustee, by wire transfer to a Dollar account maintained
by such Holder with a bank outside the United States. If
such payment at the offices of all paying agents outside the
United States becomes illegal or is effectively precluded
because of the imposition of exchange controls or similar
restrictions on the full payment or receipt of such amounts
in Dollars, then, to the extent permitted by United States
tax law, the Company will appoint an office or agent in the
United States at which such payment may be made. Unless
otherwise specified pursuant to Section 2.3, at the
direction of the Holder of any Bearer Security or Coupon
payable in a Foreign Currency, payment on such Bearer
Security or Coupon will be made by a check drawn on a bank
outside the United States or, in accordance with
arrangements satisfactory to the Trustee, by wire transfer
to an appropriate account maintained by such Holder outside
the United States. Except as provided in this paragraph, no
payment on any Bearer Security or Coupon will be made by
mail to an address in the United States or by transfer to an
account in the United States.
(c) Subject to the foregoing provisions of this
Section 2.12 and Section 2.17, each Debt Security of a
particular series delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of
any other Debt Security of the same series shall carry the
rights to interest accrued and unpaid, and to accrue, which
were carried by such other Debt Security.
SECTION 2.13 SECURITIES DENOMINATED IN FOREIGN
CURRENCIES. (c) Except as otherwise specified pursuant to
Section 2.3 for Bearer Securities of any series, payment of
the principal of, and premium, if any, and interest on,
Bearer Securities of such series denominated in any Currency
will be made in such Currency.
(b) Except as otherwise specified pursuant to
Section 2.3 for Registered Securities of any series, payment
of the principal of, and premium, if any, and interest on,
Registered Securities of such series will be made in
Dollars.
(c) For the purposes of calculating the principal
amount of Debt Securities of any series denominated in a
Foreign Currency or in units of two or more Currencies for
any purpose under this Indenture, the principal amount of
such Debt Securities at any time Outstanding shall be deemed
to be the Dollar Equivalent of such principal amount as of
the date of any such calculation.
In the event any Foreign Currency or Currencies or
units of two or more Currencies in which any payment with
respect to any series of Debt Securities may be made ceases
to be a freely convertible Currency on United States
Currency markets, for any date thereafter on which payment
of principal of, or premium, if any, or interest on, the
Debt Securities of such series is due, the Company shall
select the Currency of payment for use on such date, all as
provided in the Debt Securities of such series. In such
event, the Company shall, as provided in the Debt Securities
of such series, notify the Trustee of the Currency which it
has selected to constitute the funds necessary to meet the
Company's obligations on such payment date and of the amount
of such Currency to be paid. Such amount shall be
determined as provided in the Debt Securities of such
series. The payment to the Trustee with respect to such
payment date shall be made by the Company solely in the
Currency so selected.
SECTION 2.14 WIRE TRANSFERS. Notwithstanding any
other provision to the contrary in this Indenture, the
Company may make any payment of monies required to be
deposited with the Trustee on account of principal of, or
premium, if any, or interest on, the Debt Securities
(whether pursuant to optional or mandatory redemption
payments, interest payments or otherwise) by wire transfer
in immediately available funds to an account designated by
the Trustee on or before the date such moneys are to be paid
to the Holders of the Debt Securities in accordance with the
terms hereof.
SECTION 2.15 SECURITIES ISSUABLE IN THE FORM OF A
GLOBAL SECURITY. (d) If the Company shall establish
pursuant to Sections 2.1 and 2.3 that the Debt Securities of
a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company
shall execute and the Trustee or its agent shall, in
accordance with Section 2.5, authenticate and deliver, such
Global Security or Securities, which (i) shall represent,
and shall be denominated in an amount equal to the aggregate
principal amount of, the Outstanding Debt Securities of such
series to be represented by such Global Security or
Securities or such portion thereof as the Company shall
specify in an Officers' Certificate, (ii) shall be
registered in the name of the Depositary for such Global
Security or Securities or its nominee, (iii) shall be
delivered by the Trustee or its agent to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear
a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for the individual
Debt Securities represented hereby, this Global Security may
not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary"; or such other
legend as may then be required by the Depositary for such
Global Security or Securities.
(b) Notwithstanding any other provision of this
Section 2.15 or of Section 2.7 to the contrary, and subject
to the provisions of paragraph (c) below, unless the terms
of a Global Security expressly permit such Global Security
to be exchanged in whole or in part for definitive Debt
Securities in registered form, a Global Security may be
transferred, and the transfer thereof may be registered, in
whole but not in part and in the manner provided in
Section 2.7, only by the Depositary to a nominee of the
Depositary for such Global Security or by a nominee of the
Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or a nominee of the
Depositary to a successor Depositary for such Global
Security selected or approved by the Company or to a nominee
of such successor Depositary.
(c) (i) If at any time the Depositary for a
Global Security or Securities notifies the Company that it
is unwilling or unable to continue as Depositary for such
Global Security or Securities or if at any time the
Depositary for the Debt Securities for such series shall no
longer be eligible or in good standing under the Exchange
Act or other applicable statute, rule or regulation, the
Company shall appoint a successor Depositary with respect to
such Global Security or Securities. If a successor
Depositary for such Global Security or Securities is not
appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility,
the Company shall execute, and the Trustee or its agent,
upon receipt of a Company Order for the authentication and
delivery of such individual Debt Securities of such series
in exchange for such Global Security, shall authenticate and
deliver, individual Debt Securities of such series of like
tenor in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security or
Securities in exchange for such Global Security or
Securities.
(ii) The Company may at any time and in its sole
discretion determine that the Debt Securities of any series
or portion thereof issued or issuable in the form of one or
more Global Securities shall no longer be represented by
such Global Security or Securities. In such event the
Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of
individual Debt Securities of such series in exchange in
whole or in part for such Global Security, shall
authenticate and deliver individual Debt Securities of such
series of like tenor in definitive form in an aggregate
principal amount equal to the principal amount of such
series or portion thereof in exchange for such Global
Security or Securities.
(iii) If specified by the Company pursuant to
Sections 2.1 and 2.3 with respect to Debt Securities issued
or issuable in the form of a Global Security, the Depositary
for such Global Security may surrender such Global Security
in exchange in whole or in part for individual Debt
Securities of such series of like tenor in definitive form
on such terms as are acceptable to the Company, the Trustee
and such Depositary. Thereupon the Company shall execute,
and the Trustee or its agent upon receipt of a Company Order
for the authentication and delivery of definitive Debt
Securities of such series shall authenticate and deliver,
without service charge, (x) to each Person specified by such
Depositary a new Debt Security or Securities of the same
series of like tenor in any authorized denomination as
requested by such Person in aggregate principal amount equal
to and in exchange for such Person's beneficial interest in
the Global Security; and (y) to such Depositary a new Global
Security of like tenor and in an authorized denomination
equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate
principal amount of Debt Securities delivered pursuant to
clause (x) to such Persons so specified.
(iv) In the case of any exchange provided for in
any of subparagraphs (i), (ii) or (iii), the Company shall
execute and the Trustee or its agent shall authenticate and
deliver individual Debt Securities. In case a Coupon
Security of any series is surrendered in exchange for a
Registered Security of such series after the close of
business (at an office or agency in a Place of Payment for
such series) on any special record date and before the
opening of business (at such office or agency) on the
related proposed date of payment of Defaulted Interest, such
Coupon Security shall be surrendered without the Coupon
relating to such proposed date of payment and Defaulted
Interest will not be payable on such proposed date of
payment in respect of the Registered Security issued in
exchange for such Coupon Security, but will be payable only
to the Holder of such Coupon when due in accordance with the
provisions of this Indenture. Upon the exchange of the
entire principal amount of a Global Security for individual
Debt Securities, such Global Security shall be cancelled by
the Trustee or its agent. Except as provided in the
preceding paragraph, Registered Securities issued in
exchange for a Global Security pursuant to this Section 2.15
shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect
participants or otherwise, shall specify in instructions to
the Trustee or the Registrar. The Trustee or the Registrar
shall deliver such Registered Securities to the Persons in
whose names such Registered Securities are so registered.
(v) Payments in respect of the principal of and
premium, if any, and interest on, any Debt Securities
registered in the name of the Depositary or its nominee will
be payable to the Depositary or such nominee in its capacity
as the registered owner of such Global Security. The
Company and the Trustee may treat the person in whose names
the Debt Securities, including the Global Security, are
registered as the owner thereof for the purpose of receiving
such payments and for any and all other purposes whatsoever.
None of the Company, the Trustee, any Registrar, the paying
agent or any agent of the Company or the Trustee will have
any responsibility or liability for (a) any aspect of the
records relating to or payments made on account of the
beneficial ownership interests of the Global Security by the
Depositary or its nominee or any of the Depositary's direct
or indirect participants, or for maintaining, supervising or
reviewing any records of the Depositary, its nominee or any
of its direct or indirect participants relating to the
beneficial ownership interests of the Global Security, (b)
the payments to the beneficial owners of the Global Security
of amounts paid to the Depositary or its nominee, or (c) any
other matter relating to the actions and practices of the
Depositary, its nominee or any of its direct or indirect
participants. None of the Company, the Trustee or any such
agent will be liable for any delay by the Depositary, its
nominee, or any of its direct or indirect participants in
identifying the beneficial owners of the Debt Securities,
and the Company and the Trustee may conclusively rely on,
and will be protected in relying on, instructions from the
Depositary or its nominee for all purposes (including with
respect to the registration and delivery, and the respective
principal amounts, of the Debt Securities to be issued).
The Trustee shall deliver individual Bearer
Securities issued in exchange for a Global Security pursuant
to this Section 2.15 to the Persons and in such authorized
denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee;
PROVIDED, HOWEVER, that individual Bearer Securities shall
be delivered in exchange for a Global Security only in
accordance with the procedures as may be specified pursuant
to Section 2.3.
Notwithstanding the foregoing, the exchange of
Bearer Securities for Registered Securities will be subject
to the provisions of United States income tax laws and
regulations applicable to debt Securities in effect at the
time of such exchange.
SECTION 2.16 MEDIUM TERM SECURITIES.
Notwithstanding any contrary provision herein, if all Debt
Securities of a series are not to be originally issued at
one time, it shall not be necessary for the Company to
deliver to the Trustee an Officers' Certificate, resolutions
of the Board of Directors, supplemental indenture, Opinion
of Counsel or written order or any other document otherwise
required pursuant to Section 2.1, 2.3, 2.5 or 12.5 at or
prior to the time of authentication upon original issuance
of each Debt Security of such series if such documents are
delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first such Debt
Security of such series to be issued; PROVIDED, HOWEVER,
that any subsequent request by the Company to the Trustee to
authenticate Debt Securities of such series upon original
issuance shall constitute a representation and warranty by
the Company that, as of the date of such request, the
statements made in the Officers' Certificate delivered
pursuant to Section 2.5 or 12.5 shall be true and correct as
if made on such date and that the Opinion of Counsel
delivered at or prior to such time of authentication upon
original issuance of Debt Securities shall specifically
state that it shall relate to all subsequent issuances of
Debt Securities of such series that are identical to the
Debt Securities issued in the first issuance of Debt
Securities of such series.
A Company Order delivered by the Company to the
Trustee in the circumstances set forth in the preceding
paragraph, may provide that Debt Securities which are the
subject thereof will be authenticated and delivered by the
Trustee or its agent upon original issuance from time to
time upon the telephonic or written order of Persons
designated in such written order (any such telephonic
instructions to be promptly confirmed in writing by such
Person) and that such Persons are authorized to determine,
consistent with the Officers' Certificate, supplemental
indenture or resolution of the Board of Directors relating
to such written order, such terms and conditions of such
Debt Securities as are specified in such Officers'
Certificate, supplemental indenture or such resolution.
SECTION 2.17 DEFAULTED INTEREST. (a) Any
interest on any Debt Security of a particular series which
is payable, but is not punctually paid or duly provided for,
on the dates and in the manner provided in the Debt
Securities of such series and in this indenture (herein
called "Defaulted Interest") shall, if such Debt Security is
a Registered Security, forthwith cease to be payable to the
Registered Holder thereof on the relevant record date by
virtue of having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (i) or (ii)
below:
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Registered Securities of such series 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 such
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
pre-paid, to each Holder thereof at its address as it
appears in the Security Register, not less than 10 days
prior to 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
are registered at the close of business on such special
record date. In case a Coupon Security of any such
series is surrendered in exchange for a Registered
Security of such series after the close of business (at
an office or agency in a Place of Payment for such
series) on any special record date and before the
opening of business (at such office or agency) on the
related proposed date of payment of Defaulted Interest,
such Coupon Security shall be surrendered without the
Coupon relating to such proposed date of payment and
Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security
issued in exchange for such Coupon Security, but will
be payable only to the Holder of such Coupon when due
in accordance with the provisions of this indenture.
(ii) The Company may make payment of any
Defaulted Interest on the Registered Securities of such
series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which
the Registered Securities of such series 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.
(b) Any Defaulted Interest payable in respect of
Bearer Securities of any series shall be payable pursuant to
such procedures as may be satisfactory to the Trustee in
such manner that there is no discrimination between the
Holders of Registered Securities (if any) and Bearer
Securities of such series, and notice of the payment date
therefor shall be given by the Trustee, in the name and at
the expense of the Company, in the manner provided in
Section 12.3 not more than 25 days and not less than 20 days
prior to the date of the proposed payment.
SECTION 2.18 JUDGMENTS. The Company may provide
pursuant to Section 2.3 for Debt Securities of any series
that (a) the obligation, if any, of the Company to pay the
principal of, and premium, if any, and interest on, the Debt
Securities of any series in a Foreign Currency or Dollars
(the "Designated Currency") as may be specified pursuant to
Section 2.3 is of the essence and agrees that, to the
fullest extent possible under applicable law, judgments in
respect of Debt Securities of such series shall be given in
the Designated Currency; (b) the obligation of the Company
to make payments in the Designated Currency of the principal
of, and premium, if any, and interest on, such Debt
Securities shall, notwithstanding any payment in any other
Currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment
may, in accordance with normal banking procedures, purchase
with the sum paid in such other Currency (after any premium
and cost of exchange) on the Business Day in the country of
issue of the Designated Currency or in the international
banking community (in the case of a composite Currency)
immediately following the day on which such Holder receives
such payment; (c) if the amount in the Designated Currency
that may be so purchased for any reason falls short of the
amount originally due, the Company shall pay such additional
amounts as may be necessary to compensate for such
shortfall; and (d) any obligation of the Company not
discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided
herein, shall continue in full force and effect.
SECTION 2.19 COMPUTATION OF INTEREST. Unless
otherwise specified with respect to the Debt Securities of
any series, interest on such Debt Securities shall be
computed on the basis of a year of twelve 30-day months.
ARTICLE III
REDEMPTION OF DEBT SECURITIES
SECTION 3.1 APPLICABILITY OF ARTICLE. The
provisions of this Article shall be applicable to the Debt
Securities of any series which are redeemable before their
Stated Maturity except as otherwise specified as
contemplated by Section 2.3 for Debt Securities of such
series.
SECTION 3.2 TAX REDEMPTION: SPECIAL TAX
REDEMPTION. (a) Unless otherwise specified pursuant to
Section 2.3, Bearer Securities of any series may be redeemed
at the option of the Company in whole, but not in part, at
any time, on giving not less than 30 or more than 60 days'
notice in accordance with Section 3.3 (which notice shall be
irrevocable), at the redemption price thereof (calculated
without premium), if the Company has or will become
obligated to pay additional interest on such Bearer
Securities pursuant to Section 4.6 as a result of any change
in, or amendment to, the laws (or any regulations or rulings
promulgated thereunder) of the United States or any
political subdivision or taxing authority thereof or
therein, or any change in the application or official
interpretation of such laws, regulations or rulings, which
change or amendment becomes effective on or after the date
on which any Person (including any Person acting as
underwriter, broker or dealer) agrees to purchase any of
such Bearer Securities pursuant to their original issuance,
and such obligation cannot be avoided by the Company taking
reasonable measures available to it; PROVIDED, HOWEVER, that
no such notice of redemption shall be given earlier than
90 days prior to the earliest date on which the Company
would be obligated to pay such additional interest were a
payment in respect of the Bearer Securities of that series
then due. Prior to the publication of any notice of
redemption pursuant to this Section 3.2(a), the Company
shall deliver to the Trustee (i) an Officers' Certificate
stating that the Company is entitled to effect such
redemption and setting forth a statement of facts showing
that the conditions precedent to the right of the Company so
to redeem have occurred and (ii) an Opinion of Counsel to
the effect that the Company has or will become obligated to
pay such additional interest as a result of such change or
amendment.
(b) Unless otherwise specified pursuant to
Section 2.3, if the Company shall determine that any payment
made outside the United States by the Company or any of its
paying agents in respect of any Bearer Security or Coupon
would, under any present or future laws or regulations of
the United States, be subject to any certification,
documentation, information or other reporting requirement of
any kind, the effect of which requirement is the disclosure
to the Company, any paying agent or any governmental
authority of the nationality, residence or identity of a
beneficial owner of such Bearer Security or Coupon that is a
United States Alien (other than such a requirement (i) that
would not be applicable to a payment made by the Company or
any one of its paying agents (A) directly to the beneficial
owner or (B) to a custodian, nominee or other agent of the
beneficial owner, or (ii) that can be satisfied by such
custodian, nominee or other agent certifying to the effect
that the beneficial owner is a United States Alien;
PROVIDED, HOWEVER, that, in any case referred to in clause
(i)(B) or clause (ii), payment by the custodian, nominee or
agent to the beneficial owner is not otherwise subject to
any such requirement), then the Company shall elect either
(x) to redeem such Bearer Security or Coupon in whole, but
not in part, at the redemption price thereof (calculated
without premium) or (y) if the conditions of the next
succeeding paragraph are satisfied, to pay the additional
interest specified in such paragraph. The Company shall
make such determination as soon as practicable and publish
prompt notice thereof (the "Determination Notice"), stating
the effective date of such certification, documentation,
information or other reporting requirement, whether the
Company elects to redeem the Bearer Security or Coupon or to
pay the additional interest specified in the next succeeding
paragraph and (if applicable) the last date by which the
redemption of the Bearer Security or Coupon must take place,
as provided in the next succeeding sentence. If any Bearer
Security or Coupon is to be redeemed pursuant to this
paragraph, the redemption shall take place on such date, not
later than one year after the publication of the
Determination Notice, as the Company shall specify by notice
given to the Trustee at least 60 days before the redemption
date. Notice of such redemption shall be given to the
Holders of the Bearer Security or Coupon not more than 60
days or less than 30 days prior to the redemption date.
Notwithstanding the foregoing, the Company shall not so
redeem the Bearer Security or Coupon if the Company shall
subsequently determine, not less than 30 days prior to the
redemption date, that subsequent payments on the Bearer
Security or Coupon would not be subject to any such
certification, documentation, information or other reporting
requirement, in which case the Company shall publish prompt
notice of such subsequent determination, and any earlier
redemption notice given pursuant to this paragraph shall be
revoked and of no further effect. Prior to the publication
of any Determination Notice pursuant to this paragraph, the
Company shall deliver to the Trustee (i) an Officers'
Certificate stating that the Company is entitled to make
such determination and setting forth a statement of facts
showing that the conditions precedent to the obligation of
the Company to redeem the Bearer Security or Coupon or to
pay the additional interest specified in the next succeeding
paragraph have occurred and (ii) an Opinion of Counsel to
the effect that such conditions have occurred.
If and so long as the certification, documenta-
tion, information or other reporting requirement referred to
in the next preceding paragraph would be fully satisfied by
payment of a backup withholding tax or similar charge, the
Company may elect to pay as additional interest such amounts
as may be necessary so that every net payment made outside
the United States following the effective date of such
requirement by the Company or any of its paying agents in
respect of any Bearer Security or Coupon of which the
beneficial owner is a United States Alien (but without any
requirement that the nationality, residence or identity of
such beneficial owner be disclosed to the Company, any
paying agent or any governmental authority), after deduction
or withholding for or on account of such backup withholding
tax or similar charge that (i) would not be applicable in
the circumstances referred to in the parenthetical clause of
the first sentence of the next preceding paragraph or
(ii) is imposed as a result of presentation of any such
Bearer Security or Coupon for payment more than 15 days
after the date on which such payment became due and payable
or on which payment thereof was duly provided for, whichever
occurred later), will not be less than the amount provided
in any such Bearer Security or Coupon to be then due and
payable. If the Company elects to pay additional interest
pursuant to this paragraph, the Company shall have the right
to redeem the Bearer Security or Coupon at any time in
whole, but not in part, at the redemption price thereof
(calculated without premium), subject to the provisions of
the next preceding paragraph. If the Company elects to pay
additional interest pursuant to this paragraph and the
condition specified in the first sentence of this paragraph
should no longer be satisfied, then the Company shall redeem
the Bearer Security or Coupon in whole, but not in part, at
the redemption price thereof (calculated without premium),
subject to the provisions of the next preceding paragraph.
Any redemption payments made by the Company pursuant to the
two next preceding sentences shall be subject to the
continuing obligation of the Company to pay additional
interest pursuant to this paragraph. If the Company elects
to, or is required to, redeem the Bearer Security or Coupon
pursuant to this paragraph, it shall publish prompt notice
thereof. If the Bearer Security or Coupon is to be redeemed
pursuant to this paragraph, the redemption shall take place
on such date, not later than one year after publication of
the notice of redemption, as the Company shall specify by
notice to the Trustee at least 60 days prior to the
redemption date.
SECTION 3.3 NOTICE OF REDEMPTION; SELECTION OF
DEBT SECURITIES. In case the Company shall desire to
exercise the right to redeem all or, as the case may be, any
part of the Debt Securities of any series in accordance with
their terms, a resolution of the Board of Directors of the
Company or a supplemental indenture, the Company shall fix a
date for redemption and shall give notice of such redemption
at least 30 and not more than 60 days prior to the date
fixed for redemption to the Holders of Debt Securities of
such series so to be redeemed as a whole or in part, in the
manner provided in Section 12.3. The notice if given in the
manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Holder receives
such notice. In any case, failure to give such notice or
any defect in the notice to the Holder of any Debt Security
of a series designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the
redemption of any other Debt Security of such series.
Each such notice of redemption shall specify the
date fixed for redemption, the redemption price at which
Debt Securities of such series are to be redeemed, the Place
or Places of Payment that payment will be made upon
presentation and surrender of such Debt Securities, that any
interest accrued to the date fixed for redemption will be
paid as specified in said notice, that the redemption is for
a sinking fund payment (if applicable), that, unless
otherwise specified in such notice, Coupon Securities of any
series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date
fixed for redemption, failing which the amount of any such
missing Coupon or Coupons will be deducted from the
redemption price, if the Bearer Securities of any series are
to be redeemed and any Registered Securities of such series
are not to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to
redemption on the applicable redemption date pursuant to
Section 2.15(c) or otherwise, the last date on which such
exchanges may be made, that on and after said date any
interest thereon or on the portions thereof to be redeemed
will cease to accrue, that in the case of Original Issue
Discount Securities original issue discount accrued after
the date fixed for redemption will cease to accrue, the
terms of the Debt Securities of that series pursuant to
which the Debt Securities of that series are being redeemed
and that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice
or printed on the Debt Securities of that series. If less
than all the Debt Securities of a series are to be redeemed
the notice of redemption shall specify the CUSIP numbers of
the Debt Securities of that series to be redeemed. In case
any Debt Security of a series is to be redeemed in part
only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state
that on and after the date fixed for redemption, upon
surrender of such Debt Security, a new Debt Security or Debt
Securities of that series in principal amount equal to the
unredeemed portion thereof, and in the case of a Bearer
Security with appropriate Coupons, if any, will be issued.
At least 60 days before the redemption date unless
the Trustee consents to a shorter period, the Company shall
give notice to the Trustee of the redemption date, the
principal amount of Debt Securities to be redeemed and the
series and terms of the Debt Securities pursuant to which
such redemption will occur. Such notice shall be
accompanied by an Officers' Certificate and an Opinion of
Counsel from the Company to the effect that such redemption
will comply with the conditions herein. If fewer than all
the Debt Securities of a series are to be redeemed, the
record date relating to such redemption shall be selected by
the Company and given to the Trustee, which record date
shall be not less than 15 days after the date of notice to
the Trustee.
On or prior to the redemption date for any
Registered Securities, 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) an
amount of money in the Currency in which such Debt
Securities are denominated (except as provided pursuant to
Section 2.3) sufficient to pay the redemption price of such
Registered Securities or any portions thereof that are to be
redeemed on that date. In the case of any redemption
pertaining to Bearer Securities or Coupon Securities, the
Company shall, no later than the Business Day prior to such
redemption date, deposit with the Trustee or with a paying
agent (other than the Company) an amount of money in the
Currency in which such Debt Securities are denominated
(except as provided pursuant to Section 2.3) sufficient to
pay the redemption price of such Bearer or Coupon Securities
or any portion thereof that are to be redeemed on the
redemption date.
If less than all the Debt Securities of like tenor
of a series are to be redeemed (other than pursuant to
mandatory sinking fund redemptions) the Trustee shall
select, in such manner as in its sole discretion it shall
deem appropriate and fair, the Debt Securities of that
series or portions thereof (in multiples of $1,000) to be
redeemed. In any case where more than one Registered
Security of such series is registered in the same name, the
Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one
Registered Security of such series. The Trustee shall
promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any
Debt Securities selected for partial redemption, the
principal amount thereof to be redeemed. If any Debt
Security called for redemption shall not be so paid upon
surrender thereof on such redemption date, the principal,
premium, if any, and interest shall bear interest until paid
from the redemption date at the rate borne by the Debt
Securities of that series. If less than all the Debt
Securities of unlike tenor of a series are to be redeemed,
the particular Debt Securities to be redeemed shall be
selected by the Company. Provisions of this Indenture that
apply to Debt Securities called for redemption also apply to
portions of Debt Securities called for redemption.
SECTION 3.4 PAYMENT OF DEBT SECURITIES CALLED FOR
REDEMPTION. If notice of redemption has been given as
provided in Section 3.3, the Debt Securities or portions of
Debt Securities of the series with respect to which such
notice has been given shall become due and payable on the
date and at the Place or Places of Payment stated in such
notice at the applicable redemption price, together with any
interest accrued to the date fixed for redemption, and on
and after said date (unless the Company shall default in the
payment of such Debt Securities at the applicable redemption
price, together with any interest accrued to said date) any
interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall
cease to accrue, any original issue discount in the case of
Original Issue Discount Securities shall cease to accrue and
any Coupons for such interest appertaining to any Coupon
Securities to be redeemed, except to the extent described
below, shall be void. On presentation and surrender of such
Debt Securities at the Place or Places of Payment in said
notice specified, the said Debt Securities or the specified
portions thereof shall be paid and redeemed by the Company
at the applicable redemption price, together with any
interest accrued thereon to the date fixed for redemption.
If any Coupon Security surrendered for redemption
shall not be accompanied by all Coupons appertaining thereto
maturing on or after the applicable redemption date, the
redemption price for such Coupon Security may be reduced by
an amount equal to the face amount of all such missing
Coupons. If thereafter the Holder of such Coupon shall
surrender to any paying agent outside the United States any
such missing Coupon in respect of which a deduction shall
have been made from the redemption price, such Holder shall
be entitled to receive the amount so deducted. The
surrender of such missing Coupon or Coupons may be waived by
the Company and the Trustee, if there be furnished to them
such security or indemnity as they may require to save each
of them and any paying agent harmless.
Any Debt Security that is to be redeemed only in
part shall be surrendered at the corporate trust office or
such other office or agency of the Company as is specified
pursuant to Section 2.3 (in the case of Registered
Securities) and at the principal London office of the
Trustee or such other office or agency of the Company
outside the United States as is specified pursuant to
Section 2.3 (in the case of Bearer Securities) with, if the
Company, the Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Registrar 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 Debt Security without service charge, a new Debt
Security or Debt Securities of the same series of like tenor
in 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 Debt Security
so surrendered, and, in the case of a Coupon Security, with
appropriate Coupons attached; except that if a Global
Security is so surrendered, the Company shall execute, and
the Trustee shall authenticate and deliver to the Depositary
for such Global Security, without service charge, a new
Global Security in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Global
Security so surrendered. In the case of a Debt Security
providing appropriate space for such notation, at the option
of the Holder thereof, the Trustee, in lieu of delivering a
new Debt Security or Debt Securities as aforesaid, may make
a notation on such Debt Security of the payment of the
redeemed portion thereof.
SECTION 3.5 MANDATORY AND OPTIONAL SINKING FUNDS.
The minimum amount of any sinking fund payment provided for
by the terms of Debt Securities of any series, resolution of
the Board of Directors or a supplemental indenture 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 Debt Securities of any series, resolution of the
Board of Directors or a supplemental indenture is herein
referred to as an "optional sinking fund payment".
In lieu of making all or any part of any mandatory
sinking fund payment with respect to any Debt Securities of
a series in cash, the Company may at its option (a) deliver
to the Trustee Debt Securities of that series (together with
the unmatured Coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company
or (b) receive credit for the principal amount of Debt
Securities of that series which have been redeemed either at
the election of the Company pursuant to the terms of such
Debt Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Debt Securities, resolution or supplemental indenture;
PROVIDED, that such Debt Securities have not been previously
so credited. Such Debt Securities shall be received and
credited for such purpose by the Trustee at the redemption
price specified in such Debt Securities, resolution or
supplemental indenture for redemption through operation of
the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
SECTION 3.6 REDEMPTION OF DEBT SECURITIES FOR
SINKING FUND. Not less than 60 days prior to each sinking
fund payment date for any series of Debt 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, any resolution or supplemental indenture, the
portion thereof, if any, which is to be satisfied by payment
of cash in the Currency in which the Debt Securities of such
series are denominated (except as provided pursuant to
Section 2.3) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Debt Securities of
that series pursuant to this Section 3.6 (which Debt
Securities, if not previously redeemed, will accompany such
certificate) and whether the Company intends to exercise its
right to make any permitted optional sinking fund payment
with respect to such series. Such certificate shall also
state that no Event of Default has occurred and is
continuing with respect to such series. Such certificate
shall be irrevocable and upon its delivery the Company shall
be obligated to make the cash payment or payments therein
referred to, if any, on or before the next succeeding
sinking fund payment date. Failure of the Company to
deliver such certificate (or to deliver the Debt Securities
and Coupons, if any, specified in this paragraph) shall not
constitute a Default, but such failure shall require that
the sinking fund payment due on the next succeeding sinking
fund payment date for that series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount
of such Debt Securities subject to a mandatory sinking fund
payment without the option to deliver or credit Debt
Securities as provided in this Section 3.6 and without the
right to make any optional sinking fund payment, if any,
with respect to such series.
Any sinking fund payment or payments (mandatory or
optional) made in cash plus any unused balance of any
preceding sinking fund payments made in cash which shall
equal or exceed $100,000 (or a lesser sum if the Company
shall so request) with respect to the Debt Securities of any
particular series shall be applied by the Trustee on the
sinking fund payment date on which such payment is made (or,
if such payment is made before a sinking fund payment date,
on the sinking fund payment date following the date of such
payment) to the redemption of such Debt Securities at the
redemption price specified pursuant to Section 2.3 for such
Debt Securities, resolution or supplemental indenture for
operation of the sinking fund together with any accrued
interest to the date fixed for redemption. Any sinking fund
moneys not so applied or allocated by the Trustee to the
redemption of Debt Securities shall be added to the next
cash sinking fund payment received by the Trustee for such
series and, together with such payment, shall be applied in
accordance with the provisions of this Section 3.6. Any and
all sinking fund moneys with respect to the Debt Securities
of any particular series held by the Trustee on the last
sinking fund payment date with respect to Debt Securities of
such series and not held for the payment or redemption of
particular Debt Securities shall be applied by the Trustee,
together with other moneys, if necessary, to be deposited
sufficient for the purpose, to the payment of the principal
of the Debt Securities of that series at its Stated
Maturity.
The Trustee shall select the Debt Securities to be
redeemed upon such sinking fund payment date in the manner
specified in the last paragraph of Section 3.3 and the
Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 3.3 except that the
notice of redemption shall also state that the Debt
Securities are being redeemed by operation of the sinking
fund. Such notice having been duly given, the redemption of
such Debt Securities shall be made upon the terms and in the
manner stated in Section 3.4.
At least one Business Day before each sinking fund
payment date, the Company shall pay to the Trustee (or, if
the Company is acting as its own paying agent, the Company
shall segregate and hold in trust) in cash a sum in the
Currency in which the Debt Securities of such series are
denominated (except as provided pursuant to Section 2.3)
equal to any interest accrued to the date fixed for
redemption of Debt Securities or portions thereof to be
redeemed on such sinking fund payment date pursuant to this
Section 3.6.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.1 PAYMENT OF PRINCIPAL OF, AND PREMIUM,
IF ANY, AND INTEREST ON, DEBT SECURITIES. The Company, for
the benefit of each series of Debt Securities, shall duly
and punctually pay or cause to be paid the principal of, and
premium, if any, and interest on, each of the Debt
Securities and pay any Coupons at the place, at the
respective times and in the manner provided herein, in the
Debt Securities and in the Coupons. Each installment of
interest on the Debt Securities may at the Company's option
be paid by mailing checks for such interest payable to the
Person entitled thereto pursuant to Section 2.7(a) to the
address of such Person as it appears on the Debt Security
Register. Any interest due on Coupon Securities on or
before the Stated Maturity of the related Debt Security,
other than additional interest, if any, payable as provided
in Section 4.6 in respect of principal of, or premium, if
any, on such a Debt Security, shall be payable only upon
presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they
severally mature.
Principal of, and premium, if any, and interest
on, the Debt Securities of any series shall be considered
paid on the date due if on such date the Trustee or any
paying agent holds in accordance with this Indenture money
sufficient to pay in the Currency in which the Debt
Securities of such series are denominated (except as
provided pursuant to Section 2.3) all principal, premium, if
any, and interest then due and, in the case of Debt
Securities subordinated pursuant to the terms thereof, the
Trustee or such paying agent, as the case may be, is not
prohibited from paying such money to the Holders on that
date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue
principal at the rate specified therefor in the Debt
Securities and it shall pay interest on overdue installments
of interest at the same rates to the extent lawful.
SECTION 4.2 MAINTENANCE OF OFFICES OR AGENCIES
FOR REGISTRATION OF TRANSFER, EXCHANGE AND PAYMENT OF DEBT
SECURITIES. The Company will maintain in each Place of
Payment for any series of Debt Securities and Coupons, if
any, an office or agency where Debt Securities and Coupons
of such series (but, except as otherwise provided in Section
2.12, unless such Place of Payment is located outside the
United States, not Bearer Securities or Coupons) may be
presented or surrendered for payment, where Debt Securities
of such series may be surrendered for registration of
transfer or exchange and where notices and demands to or
upon the Company in respect of the Debt Securities and
Coupons of such series and this Indenture may be served. So
long as any Bearer Securities of any series remain
outstanding, the Company will maintain for such purposes one
or more offices or agencies outside the United States in
such city or cities specified pursuant to Section 2.3 and,
if any Bearer Securities are listed on a securities exchange
that requires an office or agency for the payment of
principal of, and premium, if any, or interest on, such
Bearer Securities in a location other than the location of
an office or agency specified pursuant to Section 2.3, the
Company will maintain for such purposes an office or agency
in such location so long as any Bearer Securities are listed
on such securities exchange and such exchange so requires.
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 (in
the case of Registered Securities) and at the principal
London office of the Trustee (in the case of Bearer
Securities), and the Company hereby appoints the Trustees as
its agent to receive all presentations, surrenders, notices
and demands.
The Company may also from time to time designate
different or additional offices or agencies to be maintained
for such purposes (in or outside of such Place of Payment),
and may from time to time rescind any such designation;
PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligations
described in the preceding paragraph. The Company will give
prompt written notice to the Trustee of any such additional
designation or rescission of designation and any change in
the location of any such different or additional office or
agency.
SECTION 4.3 APPOINTMENT TO FILL A VACANCY IN THE
OFFICE OF TRUSTEE. The Company, whenever necessary to avoid
or fill a vacancy in the office of Trustee, shall appoint,
in the manner provided in Section 7.10, a Trustee, so that
there shall at all times be a Trustee hereunder with respect
to each series of Debt Securities.
SECTION 4.4 DUTIES OF PAYING AGENTS, ETC. (a)
The Company shall cause each paying agent, if any, other
than the Trustee, to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section 4.4,
(i) that it will hold all sums held by it as such
agent for the payment of the principal of, and premium,
if any, or interest on, the Debt Securities of any
series and the payment of any related Coupons (whether
such sums have been paid to it by the Company or by any
other obligor on the Debt Securities or Coupons of such
series) in trust for the benefit of the Holders of the
Debt Securities and Coupons of such series;
(ii) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on the
Debt Securities or Coupons of such series) to make any
payment of the principal of, and premium, if any, or
interest on, the Debt Securities of such series or any
payment on any related Coupons when the same shall be
due and payable; and
(iii) that it will at any time during the
continuance of an Event of Default, upon the written
request of the Trustee, forthwith pay to the Trustee
all sums so held by it as such agent.
(b) If the Company shall act as its own paying
agent, it will, on or before each due date of the principal
of, and premium, if any, or interest on, the Debt Securities
and Coupons, if any, of any series, set aside, segregate
hold in trust for the benefit of the Holders of the Debt
Securities and Coupons of such series a sum sufficient to
pay such principal, premium, if any, or interest so becoming
due. The Company will promptly notify the Trustee of any
failure by the Company to take such action or the failure by
any other obligor on such Debt Securities or Coupons to make
any payment of the principal of, and premium, if any, or
interest on, such Debt Securities or Coupons when the same
shall be due and payable.
(c) Anything in this Section 4.4 to the contrary
notwithstanding, the Company may, at any time, for the
purpose of obtaining a satisfaction and discharge of this
Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it or any paying
agent, as required by this Section 4.4, such sums to be held
by the Trustee upon the same trusts as those upon which such
sums were held by the Company or such paying agent.
(d) Whenever the Company shall have one or more
paying agents with respect to any series of Debt Securities
and Coupons, it will, prior to each due date of the
principal of, and premium, if any, or interest on, any Debt
Securities of such series, deposit with any such paying
agent a sum sufficient to pay the principal of, and premium,
if any, and interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled thereto, and
(unless any such paying agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so
to act.
(e) Anything in this Section 4.4 to the contrary
notwithstanding, the agreement to hold sums in trust as
provided in this Section 4.4 is subject to the provisions of
Section 11.5.
SECTION 4.5 STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, on or before a date
not more than four months after the end of each fiscal year
of the Company (currently on a calendar year basis) ending
after the date hereof, an Officers' Certificate stating, as
to each officer signing such certificate, that (i) in the
course of his performance of his duties as an officer of the
Company he would normally have knowledge of any Default,
(ii) whether or not to the best of his knowledge any Default
occurrence during such year and (iii) if to the best of his
knowledge the Company is in Default, specifying all such
Defaults and what action the Company is taking or proposes
to take with respect thereto. The Company also shall comply
with Section 314(a)(4) of the Trust Indenture Act.
SECTION 4.6 PAYMENT OF ADDITIONAL INTEREST.
Unless otherwise provided pursuant to Section 2.3, the
provisions of this Section 4.6 shall be applicable to Bearer
Securities of any series.
The Company will, subject to the exceptions and
limitations set forth below, pay as additional interest to
the Holder of any Bearer Security or Coupon that is a United
States Alien such amounts as may be necessary so that every
net payment on such Bearer Security or Coupon, after
deduction or withholding for or on account of any present or
future tax, assessment or other governmental charge imposed
upon or as a result of such payment by the United States (or
any political subdivision or taxing authority thereof or
therein), will not be less than the amount provided in such
Bearer Security or Coupon to be then due and payable.
However, the Company will not be required to make any such
payment of additional interest for or on account of:
(a) any tax, assessment or other governmental
charge that would not have been imposed but for (i) the
existence of any present or former connection between
such Holder (or between a fiduciary, settlor or
beneficiary of, or a Person holding a power over, such
Holder, if such Holder is an estate or a trust, or a
member or shareholder of such Holder, if such Holder is
a partnership or corporation) and the United States,
including such Holder (or such fiduciary, settlor,
beneficiary, Person holding a power, member or
shareholder) being or having been a citizen or resident
thereof or being or having been engaged in trade or
business or present therein or having or having had a
permanent establishment therein or (ii) such Holder's
past or present status for United States Federal income
tax purposes as a personal holding company, foreign
personal holding company or private foundation or other
tax-exempt organization with respect to the United
States or as a corporation that accumulates earnings to
avoid United States Federal income tax;
(b) any estate, inheritance, gift, sales,
transfer or personal property tax or any similar tax,
assessment or other governmental charge;
(c) any tax, assessment or other governmental
charge that would not have been imposed but for the
presentation by the Holder of a Bearer Security or
Coupon for payment more than 15 days after the date on
which such payment became due and payable or on which
payment thereof was duly provided for, whichever occurs
later;
(d) any tax, assessment or other governmental
charge that is payable otherwise than by deduction or
withholding from a payment on a Bearer Security or
Coupon;
(e) any tax, assessment or other governmental
charge that would not have been imposed but for a
failure to comply with applicable certification,
documentation, information or other reporting
requirement concerning the nationality, residence,
identity or connection with the United States of the
Holder or beneficial owner of a Bearer Security or
Coupon if, without regard to any tax treaty, such
compliance is required by statute or regulation of the
United States as a precondition to relief or exemption
from such tax, assessment or other governmental charge;
or
(f) any tax, assessment or other governmental
charge imposed on a Holder that actually or
constructively owns ten percent or more of the combined
voting power of all classes of stock of the Company or
that is a controlled foreign corporation related to the
Company through stock ownership;
nor shall additional interest be paid with respect to a
payment on a Bearer Security or Coupon to a Holder that is a
fiduciary or partnership or other than the sole beneficial
owner of such payment to the extent a beneficiary or settlor
with respect to such fiduciary or a member of such
partnership or a beneficial owner would not have been
entitled to the additional interest had such beneficiary,
settlor, member or beneficial owner been the Holder of such
Bearer Security or Coupon.
Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of, or premium, if
any, or interest on, any Debt Security or payment with
respect to any Coupon of any series, such mention shall be
deemed to include mention of the payment of additional
interest provided for in the terms of such Debt Securities
and this Section 4.6 to the extent that, in such context,
additional interest is, was or would be payable in respect
thereof pursuant to the provisions of this Section 4.6 and
express mention of the payment of additional interest (if
applicable) in any provisions hereof shall not be construed
as excluding additional interest in those provisions hereof
where such express mention is not made.
If the payment of additional interest becomes
required in respect of the Debt Securities or Coupons of a
series, at least ten days prior to the first interest
payment date with respect to which such additional interest
will be payable (or if the Debt Securities of that series
will not bear interest prior to its Stated Maturity, the
first day on which a payment of principal of, and premium,
if any, is made and on which such additional interest will
be payable), and at least ten days prior to each date of
payment of principal, and premium, if any, or interest if
there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and each paying agent with
an Officers' Certificate that shall specify by country the
amount, if any, required to be withheld on such payments to
Holders of Debt Securities or Coupons that are United State
Aliens, and the Company will pay to the Trustee or such
paying agent the additional interest, if any, required by
the terms of such Debt Securities and this Section 4.6. 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 4.6.
SECTION 4.7 FURTHER INSTRUMENTS AND ACTS. The
Company shall, upon request of the Trustee, execute and
deliver such further instruments and do such further acts as
may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture.
SECTION 4.8 EXISTENCE. Subject to Article X, the
Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its existence,
rights (charter and statutory), and franchises; PROVIDED,
HOWEVER, that the Company shall not be required to preserve
any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 4.9 MAINTENANCE OF PROPERTIES. The
Company shall cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to
be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as
in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly
and advantageously conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section shall prevent the
Company from discontinuing the operation or maintenance of
any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 4.10 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the
income, profits or property of the Company or any
Subsidiary, and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary PROVIDED,
HOWEVER, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax,
assessment, charge or claim (x) whose amount, applicability
or validity is being contested in good faith by appropriate
proceedings or (y) the non-payment of which is, in the
judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
ARTICLE V
HOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.1 COMPANY TO FURNISH TRUSTEE
INFORMATION AS TO NAMES AND ADDRESSES OF HOLDERS;
PRESERVATION OF INFORMATION. The Company shall furnish or
cause to be furnished to the Trustee with respect to the
Registered Securities of each series:
(a) not more than 15 days after each record date
with respect to the payment of interest, if any, a
list, in such form as the Trustee may reasonably
require, of the names and addresses of the Registered
Holders as of such record date, 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 contents as of a date not more than 15 days prior
to the time such list is furnished;
PROVIDED, HOWEVER, that so long as the Trustee shall be the
Registrar, such lists shall not be required to be furnished.
The Company shall also furnish to the Trustee at
all such times set forth above all information in the
possession or control of the Company or any of its paying
agents other than the Trustee as to the names and addresses
of the Bearer Holders of all series; PROVIDED, HOWEVER, that
the Company shall have no obligation to investigate any
matter relating to any Bearer Holders.
The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to the
names and addresses of the Holders (1) contained in the most
recent list furnished to it as provided in this Section 5.1
or (2) received by it in the capacity of paying agent or
Registrar (if so acting) hereunder.
The Trustee may destroy any list furnished to it
as provided in this Section 5.1 upon receipt of a new list
so furnished.
SECTION 5.2 COMMUNICATIONS TO HOLDERS. Holders
may communicate pursuant to Section 312(b) of the Trust
Indenture Act with other Holders with respect to their
rights under this Indenture or the Debt Securities. The
Company, the Trustee, the Registrar and anyone else shall
have the protection of Section 312(c) of the Trust Indenture
Act.
SECTION 5.3 REPORTS BY COMPANY. (a) The Company
shall file with the Trustee within 15 days after the Company
is required to file the same with the Securities and
Exchange 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 said Commission may from
time to time by rules and regulations prescribe) which the
Company may be required to file with said Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act;
or, if the Company or such obligor, as the case may be, is
not required to file information, documents or reports
pursuant to either of such Sections, then to file with the
Trustee and said Commission, in accordance with rules and
regulations prescribed from time to time by said Commission,
such of the supplementary and periodic information,
documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and
regulations.
(b) The Company shall file with the Trustee and
the Securities and Exchange Commission, in accordance with
the rules and regulations prescribed from time to time by
said Commission, such additional information, documents and
reports with respect to compliance by the Company or such
obligor, as the case may be, with the conditions and
covenants provided for in this Indenture as may be required
from time to time by such ruled and regulations.
SECTION 5.4 REPORTS BY TRUSTEE. As promptly as
practicable after each beginning with the
following the date of this Indenture, and in
any event prior to in each year, the Trustee
shall mail to each Holder a brief report dated as of
that complies with Section 313(a) of the
Trust Indenture Act. The Trustee also shall comply with
Section 313(b) of the Trust Indenture Act.
Reports pursuant to this Section 5.4 shall be
transmitted by mail:
(1) to all Registered Holders, as the names and
addresses of such Holders appear in the Debt Security
Register;
(2) to such Bearer Holders of any series as have,
within two years preceding such transmission, filed
their names and addresses with the Trustee for such
series for that purpose; and
(3) except in the cases of reports under Section
313(b)(2) of the Trust Indenture Act, to each Holder of
a Debt Security of any series whose name and address
appears in the information preserved at the time by the
Trustee in accordance with Section 5.2.
A copy of each report at the time of its mailing
to Holders shall be filed with the Securities and Exchange
Commission and each stock exchange (if any) on which the
Debt Securities of any series are listed. The Company
agrees to notify promptly the Trustee whenever the Debt
Securities of any series become listed on any stock exchange
and of any delisting thereof.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
SECTION 6.1 EVENTS OF DEFAULT. If any one or
more of the following shall have occurred and be continuing
with respect to Debt Securities or any series (each of the
following, an "Event of Default"):
(a) default in the payment of any installment of
interest upon any Debt Securities of that series or any
payment with respect to the related Coupons, if any, as
and when the same shall become due and payable, whether
or not such payment shall be prohibited by the terms of
any subordination established therefor pursuant to
Section 2.3, and continuance of such default for a
period of 30 days; or
(b) default in the payment of the principal of or
premium, if any, on any Debt Securities of that series
as and when the same shall become due and payable,
whether at maturity, upon redemption, by declaration,
upon required repurchase or otherwise, whether or not
such payment shall be prohibited by the terms of any
subordination established therefor pursuant to Section
2.3; or
(c) default in the payment of any sinking fund
payment with respect to any Debt Securities of that
series as and when the same shall become due and
payable; or
(d) failure on the part of the Company to comply
with Article X; or
(e) failure on the part of the Company duly to
observe or perform any other of the covenants or
agreements on the part of the Company in the Debt
Securities of that series, in any resolution of the
Board of Directors authorizing the issuance of that
series of Debt Securities, in this Indenture with
respect to such series or in any supplemental indenture
with respect to such series (other than a covenant a
default in the performance of which is elsewhere in
this Section specifically dealt with), continuing for a
period of 60 days after the date on which written
notice specifying such failure and requiring the
Company to remedy the same shall have 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 aggregate principal amount
of the Debt Securities of that series at the time
Outstanding; or
(f) any bond, debenture, note or other evidence
of indebtedness for money borrowed of the Company or
any Subsidiary of the Company is not paid within any
applicable grace period after final maturity or is
accelerated by the holders thereof because of a
default, the total amount of such indebtedness unpaid
or accelerated exceeds $20,000,000 or its Dollar
Equivalent at the time and such default remains uncured
or such acceleration is not rescinded for 10 days after
the date on which written notice specifying such
failure and requiring the Company to remedy the same
shall have 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 aggregate
principal amount of the Debt Securities of that series
at the time Outstanding; or
(g) the Company or any of its Significant
Subsidiaries shall (i) voluntarily commence any
proceeding or file any petition seeking relief under
Title 11 of the United States Code or any other Federal
or State bankruptcy, insolvency or similar law, (ii)
consent to the institution of, or fail to controvert
within the time and in the manner prescribed by law,
any such proceeding or the filing of any such petition,
(iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator or similar
official for the Company or any such Significant
Subsidiary or for a substantial part of its property,
(iv) file an answer admitting the material allegations
of a petition file against it in any such proceeding,
(v) make a general assignment for the benefit of
creditors, (vi) admit in writing its inability or fail
generally to pay its debts as they become due, (vii)
take corporate action for the purpose of effecting any
of the foregoing, or (viii) take any comparable action
under any foreign laws relating to insolvency; or
(h) the entry of an order or decree by a court
having competent jurisdiction in the premises for (i)
relief in respect of the Company or any of its
Significant Subsidiaries or a substantial part of any
of their property under Title 11 of the United States
Code or any other Federal or State bankruptcy,
insolvency or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator or similar
official for the Company or any such Significant
Subsidiary or for a substantial part of any of their
property (except any decree or order appointing such
official of any Significant Subsidiary pursuant to a
plan under which the assets and operations of such
Significant Subsidiary are transferred to or combined
with another Subsidiary or Subsidiaries of the Company
or to the Company) or (iii) the winding-up or
liquidation of the Company or any such Significant
Subsidiary (except any decree or order approving or
ordering the winding up or liquidation of the affairs
of a Significant Subsidiary pursuant to a plan under
which the assets and operations of such Significant
subsidiary are transferred to or combined with another
subsidiary or Subsidiaries of the Company or to the
Company), and such order or decree shall continue
unstayed and in effect for 60 consecutive days; or any
similar relief is granted under any foreign laws and
the order or decree stays in effect for 60 consecutive
days; or
(i) any judgment or decree for the payment of
money in excess of $20,000,000 or its Dollar Equivalent
at the time is entered against the Company or any
Subsidiary of the Company by a court or courts of
competent jurisdiction, which judgment is not covered
by insurance, and is not discharged and either (A) an
enforcement proceeding has been commenced by any
creditor upon such judgment or decree or (B) there is a
period of 60 days following the entry of such judgment
or decree during which such judgment or decree is not
discharged, waived or the execution thereof stayed and,
in the case of (A) or (B), such default continues for
10 days after the date on which written notice
specifying such failure and requiring the Company to
remedy the same shall have 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 aggregate principal amount of the Debt Securities of
that series at the time Outstanding; or
(j) any other Event of Default provided with
respect to Debt Securities of that series;
then and in each and every case that an Event of Default
described in clause (a), (b), (c), (d), (e), (f), (i) or (j)
with respect to Debt Securities of that series at the time
Outstanding occurs and is continuing, unless the principal
of and interest on all the Debt Securities of that series
shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate
principal amount of the Debt Securities of that series then
Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by Holders), may declare the
principal of (or, if the Debt Securities of that series are
Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of that
series) and interest on all the Debt Securities of that
series to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately
due and payable, anything in this Indenture or in the Debt
Securities or Coupons appertaining thereto of that series
contained to the contrary notwithstanding. If an Event of
Default described in clause (g) or (h) occurs, then and in
each and every such case, unless the principal of and
interest on all the Debt Securities shall have become due
and payable, the principal of (or, if any Debt Securities
are Original Issue Discount Debt Securities, such portion of
the principal amount as may be specified in the terms
thereto) and interest on all the Debt Securities then
Outstanding hereunder shall IPSO FACTO become and be
immediately due and payable without any declaration or other
act on the part of the Trustee or any Holders, anything in
this Indenture or in the Debt Securities contained to the
contrary notwithstanding.
At any time after such a declaration of
acceleration with respect to Debt Securities of any series
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 Debt
Securities of that series, 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 all Debt
Securities of that series,
(B) the principal of (and premium, if any,
on) any Debt Securities of that series which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or
rates prescribed therefor in such Debt Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue interest
at the rate or rates prescribed therefor in such
Debt Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation,
expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Debt
Securities of that series, other than the non-payment
of the principal of Debt Securities of that series
which have become due solely by such declaration of
acceleration, have been cured or waived as provided in
Section 6.6.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
The foregoing Events of Default shall constitute
"Events of Default" whatever the reason for any such Event
of Default and whether it is voluntary or involuntary or is
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.
The Company shall deliver to the Trustee, within
30 days after the occurrence thereof, written notice in the
form of an Officers' Certificate of any event which with the
giving of notice and the lapse of time would become an Event
of Default under clause (c), (d), (e), (f), (i) or (j), its
status and what action the Company is taking or proposes to
take with respect thereto.
SECTION 6.2 COLLECTION OF INDEBTEDNESS BY
TRUSTEE, ETC. If an Event of Default occurs and is
continuing, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for
the collection of the sums so due and unpaid or enforce the
performance of any provision of the Debt Securities of the
affected series or this Indenture, and may prosecute any
such action or proceedings to judgment or final decree, and
may enforce any such judgment or final decree against the
Company or any other obligor upon the Debt Securities, and
the Coupons, if any, appertaining thereto, of such series
(and collect in the manner provided by law out of the
property of the Company or any other obligor upon the Debt
Securities and Coupons of such series wherever situated the
moneys adjudged or decreed to be payable).
In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company or any
other obligor upon the Debt Securities and Coupons, if any,
of any series under Title 11 of the United States Code or
any other Federal or State bankruptcy, insolvency or similar
law, or in case a receiver, trustee or other similar
official shall have been appointed for its property, or in
case of any other similar judicial proceedings relative to
the Company or any other obligor upon the Debt Securities of
any series, its creditors or its property, the Trustee,
irrespective of whether the principal of Debt Securities and
Coupons, if any, of any series 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 pursuant to the provisions of this Section 6.2, shall
be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal, premium, if any,
and interest (or, if the Debt Securities of such series are
Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of such
series) owing and unpaid in respect of the Debt Securities
and Coupons of such series, and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for
reasonable compensation to the Trustee, its agents,
attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith)
and of the Holders thereof allowed in any such judicial
proceedings relative to the Company, or any other obligor
upon the Debt Securities and Coupons of such series, its
creditors or its property, and to collect and receive any
moneys or other property payable or deliverable on any such
claims, and to distribute all amounts received with respect
to the claims of such Holders and of the Trustee on their
behalf, and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized by each of such
Holders to make payments to the Trustee, and, in the event
that the Trustee shall consent to the making of payments
directly to such Holders, to pay to the Trustee such amount
as shall be sufficient to cover reasonable compensation to
the Trustee, its agents, attorneys and counsel, and all
other reasonable expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its
negligence or bad faith.
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 Debt
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 proceeding.
All rights of action and of asserting claims under
this Indenture, or under any of the Debt Securities and the
Coupons, if any, appertaining thereto, of any series, may be
enforced by the Trustee without the possession of any such
Debt Securities or Coupons, or the production thereof in any
trial or other proceedings relative thereto, and any such
action or proceedings instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and
any recovery of judgment (except for any amounts payable to
the Trustee pursuant to Section 7.6) shall be for the
ratable benefit of the Holders of all the Debt Securities or
Coupons in respect of which such action was taken.
In case of an Event of Default hereunder the
Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to
enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
SECTION 6.3 APPLICATION OF MONEYS COLLECTED BY
TRUSTEE. Any moneys collected by the Trustee pursuant to
Section 6.2 with respect to Debt Securities and Coupons, if
any, of any series shall be applied, after giving effect to
the provisions of the terms of any subordination established
therefor pursuant to Section 2.3, in the order following, at
the date or dates fixed by the Trustee for the distribution
of such moneys, upon presentation of the several Debt
Securities or Coupons of such series in respect of which
moneys have been collected, and the notation thereon of the
payment, if only partially paid, and upon surrender thereof
if fully paid:
FIRST: To the payment of all money due the
Trustee pursuant to Section 7.6;
SECOND: In case the principal of the Outstanding
Debt Securities in respect of which such moneys have
been collected shall not have become due, to the
payment of interest on the Debt Securities or Coupons
of such series in the order of the maturity of the
installments of such interest, with interest (to the
extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at
the rate or Yield to Maturity (in the case of Original
Issue Discount Debt Securities) borne by the Debt
Securities or Coupons of such series, such payments to
be made ratably to the Persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Outstanding
Debt Securities in respect of which such moneys have
been collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then
owing and unpaid upon the Debt Securities or Coupons of
such series for principal and premium, if any, and
interest, with interest on the overdue principal and
premium, if any, and (to the extent that such interest
has been collected by the Trustee) upon overdue
installments of interest at the rate or Yield to
Maturity (in the case of Original Issue Discount Debt
Securities) borne by the Debt Securities or Coupons of
such series; and, in case such moneys shall be
insufficient to pay in full the whole amount so due and
unpaid upon the Debt Securities and Coupons of such
series, then to the payment of such principal and
premium, if any, and interest, without preference or
priority of principal and premium, if any, over
interest, or of interest over principal and premium, if
any, or of any installment of interest over any other
installment of interest, or of any Debt Security or
Coupon of such series over any Debt Security or Coupon
of such series, ratably to the aggregate of such
principal and premium, if any, and interest; and
FOURTH: The remainder, if any, shall be paid to
the Company, its successors or assigns, or to
whomsoever may be lawfully entitled to receive the
same, or as a court of competent jurisdiction may
direct.
The Trustee may fix a record date and payment date
for any payment to Holders pursuant to this Section 6.3. At
least 15 days before such record date, the Company shall
mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
SECTION 6.4 LIMITATION ON SUITS BY HOLDERS. No
Holder of any Debt Security or Coupon of any series shall
have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law
or in equity or in bankruptcy or otherwise, upon or under or
with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder,
unless (i) such Holder previously shall have given to the
Trustee written notice of an Event of Default with respect
to Debt Securities of that same series and of the
continuance thereof, (ii) the Holders of not less than 25%
in aggregate principal amount of the Outstanding Debt
Securities of that series shall have made written request
upon the Trustee to institute such action or proceedings in
respect of such Event of Default in its own name as Trustee
hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby,
(iii) the Trustee, for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such action or proceedings and (iv) no
direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 6.6; it being
understood and intended, and being expressly covenanted by
the Holder of every Debt Security or Coupon with every other
Holder and the Trustee, that no one or more Holders shall
have any right in any manner whatever by virtue or by
availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any Holders, or to obtain
or seek to obtain priority over or preference to any other
such Holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal,
ratable and common benefit of all such Holders. For the
protection and enforcement of the provisions of this Section
6.4, each and every, Holder and the Trustee shall be
entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provision in this
Indenture, however, the Holder of any Debt Security or
Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, and
premium, if any, and (subject to Section 2.12) interest on,
such Debt Security or Coupon, on or after the respective due
dates expressed in such Debt Security, and to institute suit
for the enforcement of any such payment on or after such
respective dates, and such right shall not be impaired or
affected without the consent of such Holder.
SECTION 6.5 REMEDIES CUMULATIVE; DELAY OR
OMISSION IN EXERCISE OF RIGHTS NOT A WAIVER OF DEFAULT. All
powers and remedies given by this Article VI to the Trustee
or to the Holders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any
other powers and remedies available to the Trustee or the
Holders, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or
omission of the Trustee or of any Holder to exercise any
right or power accruing upon any Default occurring and
continuing as aforesaid, shall impair any such right or
power, or shall be construed to be a waiver of any such
Default or an acquiescence therein; and, subject to the
provisions of Section 6.4, every power and remedy given by
this Article VI or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Holders.
SECTION 6.6 RIGHTS OF HOLDERS OF MAJORITY IN
PRINCIPAL AMOUNT OF DEBT SECURITIES TO DIRECT TRUSTEE AND TO
WAIVE DEFAULT. The Holders of a majority in aggregate
principal amount of the Debt Securities of any series at the
time Outstanding 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, with respect to the Debt
Securities of such series; PROVIDED, HOWEVER, that such
direction shall not be otherwise than in accordance with law
and the provisions of this Indenture, and that subject to
the provisions of Section 7.1, the Trustee shall have the
right to decline to follow any such direction if the Trustee
being advised by counsel shall determine that the action so
directed may not lawfully be taken, or if the Trustee shall
by a responsible officer or officers determine that the
action so directed would involve it in personal liability or
would be unjustly prejudicial to Holders of Debt Securities
of such series not taking part in such direction; and
PROVIDED, FURTHER, HOWEVER, that nothing in this Indenture
contained shall impair the right of the Trustee to take any
action deemed proper by the Trustee and which is not
inconsistent with such direction by such Holders.
The Holders of a majority in aggregate principal
amount of the Debt Securities of that series at the time
Outstanding may on behalf of the Holders of all the Debt
Securities and any related Coupons of that series waive any
past Default or Event of Default and its consequences for
that series specified in the terms thereof as contemplated
by Section 2.3, except (i) a Default in the payment of the
principal of, or premium, if any, or interest on, any of the
Debt Securities or in the payment of any related Coupon and
(ii) a Default in respect of a provision that under
Section 9.2 cannot be amended without the consent of each
Holder affected thereby. In case of 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 6.7 TRUSTEE TO GIVE NOTICE OF DEFAULTS
KNOWN TO IT, BUT MAY WITHHOLD SUCH NOTICE IN CERTAIN
CIRCUMSTANCES. The Trustee shall, within 90 days after the
occurrence of a Default known to it with respect to a series
of Debt Securities or Coupons, if any, give to the Holders
thereof, in the manner provided in Section 12.3, notice of
all Defaults with respect to such series known to the
Trustee, unless such Defaults shall have been cured or
waived before the giving of such notice; PROVIDED, that,
except in the case of Default in the payment of the
principal of, or premium, if any, or interest on, any of the
Debt Securities or Coupons of such series or in the making
of any sinking fund payment with respect to the Debt
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 committee of
directors or responsible officers of the Trustee in good
faith determine that the withholding of such notice is in
the interests of the Holders thereof.
SECTION 6.8 REQUIREMENT OF AN UNDERTAKING TO PAY
COSTS IN CERTAIN SUITS UNDER THE INDENTURE OR AGAINST THE
TRUSTEE. All parties to this Indenture agree, and each
Holder of any Debt Security or Coupon 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 in the manner and
to the extent provided in the Trust Indenture Act, and that
such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 6.8 shall not
apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of that series or to any suit
instituted by any Holder for the enforcement of the payment
of the principal of, or premium, if any, or interest on, any
Debt Security or Coupon on or after the due date for such
payment expressed in such Debt Security or Coupon.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.1 CERTAIN DUTIES AND RESPONSIBILITIES
(a) Except during the continuance of an Event of
Default with respect to the Debt Securities of a 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
with respect to such series shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture;
(b) In case an Event of Default has occurred (which has
not been cured or waived), 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 wilful
misconduct, except that:
(1) this subsection shall not be construed to
limit the effect of Section 7.1(a);
(2) the Trustee shall not be liable for an 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; and
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it with
respect to Debt Securities of any series in good faith
in accordance with the direction of the Holders of not
less than a majority in aggregate principal amount of
the Outstanding Debt Securities of that series 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 Debt
Securities of such series.
(4) None of the provisions of this Indenture
shall require the Trustee to expend or risk its own
funds or otherwise incur any Personal financial
liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for
believing that repayment of such funds or adequate
indemnity against such risk or liability is not
reasonably 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 7.2 CERTAIN RIGHTS OF TRUSTEE. Except as
otherwise provided in Section 7.1:
(a) the Trustee may rely and shall be protected
in acting or refraining from acting upon any
resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note 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, direction, order or demand of
the Company mentioned herein shall be sufficiently
evidenced by a Company Order (unless other evidence in
respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by
the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel, and the
advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in
respect of any action taken or suffered or omitted by
it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of
any of the Holders of Debt Securities or Coupons of any
series pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein
or thereby;
(e) 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, approval or other paper or document, but the
Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of
the Company, personally or by agent or attorney; and
(f) 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 the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney
appointed by it with due care hereunder.
SECTION 7.3 TRUSTEE NOT LIABLE FOR RECITALS IN
INDENTURE OR IN DEBT SECURITIES. The recitals contained
herein, in the Debt Securities (except the Trustee's
certificate of authentication) and in any Coupons shall be
taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same.
The Trustee makes no representations as to the validity or
sufficiency of this Indenture or the Debt Securities or
Coupons, if any, of any series, except that the Trustee
represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Debt Securities and perform
its obligations hereunder, and that the statements made by
it or to be made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true
and accurate. The Trustee shall not be accountable for the
use or application by the Company of any of the Debt
Securities or of the proceeds thereof.
SECTION 7.4 TRUSTEE, PAYING AGENT OR REGISTRAR
MAY OWN DEBT SECURITIES. The Trustee or any paying agent or
Registrar, in its individual or any other capacity, may
become the owner or pledgee of Debt Securities or Coupons
and subject to the provisions of the Trust Indenture Act
relating to conflicts of interest and preferential claims
may otherwise deal with the Company with the same rights it
would have if it were not Trustee, paying agent or
Registrar.
SUBJECT 7.5 MONEYS RECEIVED BY TRUSTEE TO BE HELD
IN TRUST. Subject to the provisions of Section 11.5, all
moneys received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for
which they were received, but 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
moneys received by it hereunder. So long as no Event of
Default shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time
to the Company upon a Company Order.
SECTION 7.6 COMPENSATION AND REIMBURSEMENT. The
Company covenants and agrees to pay in Dollars to the
Trustee from time to time, and the Trustee shall be entitled
to, reasonable compensation for all services rendered by it
hereunder (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust), and, except as otherwise expressly provided herein,
the Company will pay or reimburse in Dollars the Trustee
upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance
with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements
of its agents, attorneys and counsel and of all Persons not
regularly in its employ) except any such expense,
disbursement or advances as may arise from its negligence or
bad faith. The Company also covenants to indemnify in
Dollars the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence,
wilful misconduct or bad faith on the part of the Trustee,
arising out of or in connection with the acceptance or
administration of this trust or trusts hereunder, including
the reasonable costs and expenses of defending itself
against any claim of liability in connection with the
exercise or performance of any of its powers or duties
hereunder. The obligations of the Company under this
Section 7.6 to compensate and indemnify the Trustee and to
pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be secured by
a lien prior to that of the Debt Securities and Coupons, if
any, upon all property and funds held or collected by the
Trustee, as such, except funds held in trust for the payment
of principal of, and premium, if any, or interest on,
particular Debt Securities and Coupons.
When the Trustee incurs expenses or renders
services after an Event of Default specified in Section
6.1(g) or (h) occurs, the expenses and the compensation for
the services are intended to constitute expenses of
administration under any bankruptcy, insolvency,
reorganization or other similar law.
SECTION 7.7 RIGHT OF TRUSTEE TO RELY ON AN
OFFICERS' CERTIFICATE WHERE NO OTHER EVIDENCE SPECIFICALLY
PRESCRIBED. Except as otherwise provided in Section 7.1,
whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence
or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate,
in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of
this Indenture upon the faith thereof.
SECTION 7.8 SEPARATE TRUSTEE; REPLACEMENT OF
TRUSTEE. The Company may, but need not, appoint a separate
Trustee for any one or more series of Debt Securities. The
Trustee may resign with respect to one or more or all series
of Debt Securities at any time by giving notice to the
Company. The Holders of a majority in principal amount of
the Debt Securities of a particular series may remove the
Trustee for such series and only such series by so notifying
the Trustee and may appoint a successor Trustee. The
Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section
7.10;
(2) the Trustee is adjudged bankrupt or
insolvent;
(3) a receiver or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of
acting.
If the Trustee resigns, is removed by the Company
or by the Holders of a majority in principal amount of the
Debt Securities of a particular series and such Holders do
not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the
retiring Trustee), the Company shall promptly appoint a
successor Trustee. No resignation or removal of the Trustee
and no appointment of a successor Trustee shall become
effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable
requirements of this Section 7.8.
A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to
the Company. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall
mail a notice of its succession to Holders of Debt
Securities of each applicable series. The retiring Trustee
shall promptly transfer all property held by it as Trustee
to the successor Trustee, subject to the lien provided for
in Section 7.6.
If a successor Trustee does not take office within
60 days after the retiring Trustee gives notice of
resignation or is removed, the retiring Trustee or the
Holders of 25% in principal amount of the Debt Securities of
any applicable series may petition any court of competent
jurisdiction for the appointment of a successor Trustee for
the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10,
any Holder of Debt Securities of any applicable series may
petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee
for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee
pursuant to this Section 7.8, the Company's obligations
under Section 7.6 shall continue for the benefit of the
retiring Trustee.
In the case of the appointment hereunder of a
separate or successor trustee with respect to the Debt
Securities of one or more series, the Company, any retiring
Trustee and each successor or separate Trustee with respect
to the Debt Securities of any applicable series shall
execute and deliver an indenture supplemental hereto (1)
which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights,
powers, trusts and duties of any retiring Trustee with
respect to the Debt Securities of any series as to which any
such retiring Trustee is not retiring shall continue to be
vested in such retiring Trustee and (2) that 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 separate, retiring or
successor 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.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER. If the
Trustee consolidates with, or merges or converts into,
another corporation or banking association, the resulting
corporation or banking association without any further act
shall be the successor Trustee provided such corporation or
banking association shall be otherwise qualified and
eligible under this Article VII.
In case at the time such successor by merger,
conversion or consolidation to the Trustee shall succeed to
the trusts created by this Indenture any of the Debt
Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver
such Debt Securities so authenticated; and in case at that
time any of the Debt Securities shall not have been
authenticated, any successor to the Trustee may authenticate
such Debt Securities either in the name of any predecessor
hereunder or in the name of the successor to the Trustee;
and in all such cases such certificates shall have the full
force which it is anywhere in the Debt Securities or this
Indenture provided that the certificate of the Trustee shall
have.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. The
Trustee shall at all times satisfy the requirements of
Section 310(a) of the Trust Indenture Act. The Trustee
shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual
report of condition. No obligor upon the Debt Securities or
Coupons, if any, of a particular series or Person directly
or indirectly controlling, controlled by or under common
control with such obligor shall serve as Trustee upon the
Debt Securities and Coupons of such series. The Trustee
shall comply with Section 310(b) of the Trust Indenture Act;
PROVIDED, HOWEVER, that there shall be excluded from the
operation of Section 310(b)(1) of the Trust Indenture Act
this Indenture or any indenture or indentures under which
other securities or certificates of interest or
participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth
in Section 310(b)(1) of the Trust Indenture Act are met.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS
AGAINST COMPANY. The Trustee shall comply with Section
311(a) of the Trust Indenture Act, excluding any creditor
relationship listed 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 7.12 COMPLIANCE WITH TAX LAWS. The
Trustee hereby agrees to comply with all United States
Federal income tax information reporting and withholding
requirements applicable to it with respect to payments of
premium, if any, and interest on the Debt Securities,
whether acting as Trustee, Security Registrar, paying agent
or otherwise with respect to the Debt Securities.
ARTICLE VIII
CONCERNING THE HOLDERS
SECTION 8.1 EVIDENCE OF ACTION BY HOLDERS.
Whenever in this Indenture it is provided that the Holders
of a specified percentage in aggregate principal amount of
the Debt Securities of any or all series may take action
including the making of any demand or request, the giving of
any direction, notice, consent or waiver or the taking of
any other action) the fact that at the time of taking any
such action the Holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by Holders
in Person or by agent or proxy appointed in writing, (b) by
the record of the Holders voting in favor thereof at any
meeting of Holders duly called and held in accordance with
the provisions of Section 5.2 or (c) by a combination of
such instrument or instruments and any such record of such a
meeting of Holders.
SECTION 8.2 PROOF OF EXECUTION OF INSTRUMENTS AND
OF HOLDINGS OF DEBT SECURITIES. Subject to the provisions
of Sections 7.1 and 7.2, proof of the execution of any
instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee.
The ownership of Registered Securities of any
series shall be proved by the Debt Security Register or by a
certificate of the Registrar for such series.
The ownership of Bearer Securities shall be proved
by production of such Bearer Securities or by a certificate
executed by any bank or trust company, which certificate
shall be dated and shall state on the date thereof a Bearer
Security bearing a specified identifying number or other
mark was deposited with or exhibited to the Person executing
such certificate by the Person named in such certificate, or
by any other proof of possession reasonably satisfactory to
the Trustee. The holding by the Person named in any such
certificate of any Bearer Security specified therein shall
be presumed to continue for a period of one year unless at
the time of determination of such holding (1) another
certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer
Security shall be produced by some other Person, (3) such
Bearer Security shall have been registered on the Debt
Security Register, if, pursuant to Section 2.3, such Bearer
Security can be so registered, or (4) such Bearer Security
shall have been cancelled or paid.
The Trustee may require such additional proof of
any matter referred to in this Section 8.2 as it shall deem
necessary.
SECTION 8.3 WHO MAY BE DEEMED OWNER OF DEBT
SECURITIES. Prior to due presentment for registration of
transfer of any Registered Security, the Company, the
Trustee, any paying agent and any Registrar may deem and
treat the Person in whose name any Registered Security shall
be registered upon the books of the Company as the absolute
owner of such Registered Security (whether or not such
Registered Security shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the
principal of, and premium, if any, and (subject to Section
2.3) interest on, such Registered Security and for all other
purposes whatsoever, and neither the Company nor the Trustee
nor any paying agent nor any Registrar shall be affected by
any notice to the contrary; and all such payments so made to
any such Holder for the time being, or upon his order, shall
be valid and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys
payable upon any such Registered Security.
The Company, the Trustee and any paying agent may
deem and treat the Holder of any Bearer Security or Coupon
as the absolute owner of such Bearer Security or Coupon
(whether or not such Debt Security shall be overdue and
notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on
account of the principal of and premium, if any, and
(subject to Section 2.3) interest on such Bearer Security or
Coupon and for all other purposes, and neither the Company
nor the Trustee nor any paying agent shall be affected by
any notice to the contrary; and all such payments so made to
any such Holder for the time being, or upon his order, shall
be valid and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys
payable upon any such Bearer Security or Coupon.
None of the Company, the Trustee, any paying agent
or the Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made
on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 8.4 INSTRUMENTS EXECUTED BY HOLDERS BIND
FUTURE HOLDERS. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.1, of
the taking of any action by the Holders of the percentage in
aggregate principal amount of the Debt Securities of any
series specified in this Indenture in connection with such
action and subject to the following paragraph, any Holder of
a Debt Security which is shown by the evidence to be
included in the Debt Securities the Holders of which have
consented to such action may, by filing written notice with
the Trustee at its corporate trust office and upon proof of
holding as provided in Section 8.2, revoke such action so
far as concerns such Debt Security. Except as aforesaid any
such action taken by the Holder of any Debt Security shall
be conclusive and binding upon such Holder and upon all
future Holders and owners of such Debt Security and all
past, present and future Holders of Coupons, if any,
appertaining thereto, and of any Debt Security issued upon
registration of transfer thereof or in exchange or
substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon such Debt Security
or such other Debt Securities or Coupons. Any action taken
by the Holders of the percentage in aggregate principal
amount of the Debt Securities of any series specified in
this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the
Holders of all the Securities and Coupons of such series.
The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the Holders
of Registered Securities entitled to give their consent or
take any other action required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those
Persons who were Holders of Registered Securities at such
record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or
take such action or to revoke any consent previously given
or action previously taken, whether or not such Persons
continue to be Holders of Registered Securities after such
record date. No such consent or action shall be valid or
effective for more than 120 days after such record date
unless the consent or action of the Holders of the
percentage in aggregate principal amount of the Debt
Securities of such series specified in this Indenture shall
have been given or taken, as the case may be, within such
120-day period.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURE WITHOUT
CONSENT OF HOLDERS. The Company, when authorized by a
resolution of the Board of Directors, and the Trustee may
from time to time and at any time, without the consent of
Holders, enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution
thereof) for one or more of the following purposes:
(a) to evidence the succession pursuant to
Article X of another Person to the Company, or
successive successions, and the assumption by the
Successor Company (as defined in Section 10.01) of the
covenants, agreements and obligations of the Company in
this Indenture and in the Debt Securities;
(b) to surrender any right or power herein
conferred upon the Company, to add to the covenants of
the Company such further covenants, restrictions,
conditions or provisions for the protection of the
Holders of all or any series of Debt Securities and the
Coupons, if any, appertaining thereto (and if such
covenants are to be for the benefit of less than all
series of Debt Securities, stating that such covenants
are expressly being included solely for the benefit of
such series) as the Board of Directors shall consider
to be for the protection of the Holders of such Debt
Securities, and to make the occurrence, or the
occurrence and continuance, of a Default in any of such
additional covenants, restrictions, conditions or
provisions a Default or an Event of Default permitting
the enforcement of all or any of the several remedies
provided in this Indenture; PROVIDED, HOWEVER, that in
respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may
provide for a particular period of grace after Default
(which period may be shorter or longer than that
allowed in the case of other Defaults) or may provide
for an immediate enforcement upon such Default or may
limit the remedies available to the Trustee upon such
Default or may limit the right of the Holders of a
majority in aggregate principal amount of any or all
series of Debt Securities to waive such default;
(c) to cure any ambiguity or to correct or
supplement any provision contained herein, in any
supplemental indenture or in any Debt Securities of any
series that may be defective or inconsistent with any
other provision contained herein, in any supplemental
indenture or in the Debt Securities of such series, to
convey, transfer, assign, mortgage or pledge any
property to or with the Trustee, or to make such other
provisions in regard to matters or questions arising
under this Indenture as shall not adversely affect the
interests of any Holders of Debt Securities of any
series;
(d) to modify or amend this Indenture in such a
manner as to permit the qualification of this Indenture
or any indenture supplemental hereto under the Trust
Indenture Act as then in effect, except that nothing
herein contained shall permit or authorize the
inclusion in any indenture supplemental hereto of the
provisions referred to in Section 316(a)(2) of the
Trust Indenture Act;
(e) to add to or change any of the provisions of
this Indenture to provide that Bearer Securities may be
registerable as to principal, to change or eliminate
any restrictions on the payment of principal of, or
premium, if any, on, Registered Securities or of
principal of, or premium, if any, or interest on,
Bearer Securities or to permit Registered Securities to
be exchanged for Bearer Securities; PROVIDED, HOWEVER,
that any such action shall not adversely affect the
interests of the Holders of Debt Securities or any
Coupons of any series in any material respect, or to
permit or facilitate the issuance of Debt Securities of
any series in uncertificated form;
(f) to comply with Article X;
(g) in the case of any Debt Securities and
Coupons, if any, appertaining thereto subordinated
pursuant to the terms thereof specified pursuant to
Section 2.3, to make any change in such terms that
would limit or terminate the benefits available to any
holder of Senior Indebtedness (or Representatives
therefor) under such terms;
(h) to add guarantees with respect to the Debt
Securities or to secure the Debt Securities;
(i) to make any change that does not adversely
affect the rights of any Holder;
(j) to add to, change or eliminate any or the
provisions of this Indenture in respect of one or more
series of Debt Securities; PROVIDED, HOWEVER, that any
such addition, change or elimination not otherwise
permitted under this Section 9.1 shall (i) neither (A)
apply to any Debt Security of any series created prior
to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B)
modify the rights of the Holder of any such Debt
Security with respect to such provision or (ii) become
effective only when there is no such Debt Security
Outstanding;
(k) to evidence and provide for the acceptance of
appointment hereunder by a successor or separate
Trustee with respect to the Debt 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; or
(1) to establish the form or terms of Debt
Securities and Coupons, if any, of any series as
permitted by Sections 2.1 and 2.3.
The Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture,
to make any further appropriate agreements and stipulations
which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter
into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the
provisions of this Section 9.1 may be executed by the
Company and the Trustee without the consent of the Holders
of any of the Debt Securities or Coupons, if any,
appertaining thereto at the time Outstanding,
notwithstanding any of the provisions of Section 9.2.
In the case of Debt Securities or Coupons, if any,
appertaining thereto subordinated pursuant to the terms
thereof specified pursuant to Section 2.3, a supplemental
indenture under this Section 9.1 may not make any change
that adversely affects the rights under such terms of any
holder of Senior Indebtedness then outstanding unless the
holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent
to such supplemental indenture.
After a supplemental indenture under this Section
9.1 becomes effective, the Company shall mail to Holders of
Debt Securities of each series affected thereby a notice
briefly describing such supplemental indenture. The failure
to give such notice to all such Holders, or any defect
therein, shall not impair or affect the validity of a
supplemental indenture under this Section 9.1.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT
OF HOLDERS. Without notice to any Holder but with the
consent (evidenced as provided in Section 8.1) of the
Holders of not less than a majority in aggregate principal
amount of the Outstanding Debt Securities of each series
affected by such supplemental indenture, the Company, when
authorized by a resolution of the Board of Directors, and
the Trustee may from time to time and at any time enter into
an Indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as in
force at the date of execution thereof) for the purpose of
adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of
any supplemental indenture or of modifying in any manner the
rights of the Holders of the Debt Securities of such series;
PROVIDED, that no such supplemental indenture, without the
consent of the Holders of each Debt Security so affected,
shall (i) reduce the percentage in principal amount of Debt
Securities of any series whose Holders must consent to a
supplemental indenture; (ii) reduce the rate of or extend
the time for payment of interest on any Debt Security or
Coupon or reduce the amount of any payment to be made with
respect to any Coupon; (iii) reduce the principal of or
extend the Stated Maturity of any Debt Security; (iv) reduce
the premium, if any, payable upon the redemption of any Debt
Security or change the time at which any Debt Security may
or shall be redeemed in accordance with Article III; (v)
make any Debt Security or Coupon payable in Currency other
than that stated in the Debt Security; (vi) in the case of
any Debt Security or Coupons, if any, appertaining thereto
subordinated pursuant to the terms thereof specified
pursuant to Section 2.3, make any change in such terms that
adversely affects the rights of any Holder under such terms;
(vii) release any security that may have been granted in
respect of the Debt Securities; (viii) make any change in
Section 6.6 or this Section 9.2; (ix) change any obligation
of the Company to pay additional interest pursuant to
Section 4.6; or (x) limit the obligation of the Company to
maintain a paying agency outside the United States for
payment on Bearer Securities as provided in Section 4.2 or
limit the obligation of the Company to redeem a Bearer
Security as provided in Section 3.2(b).
A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture
which has been expressly included solely for the benefit of
one or more particular series of Debt Securities and
Coupons, if any, or which modifies the rights of the Holders
of Debt Securities and Coupons 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
Debt Securities and Coupons, if any, of any other series.
Upon the request of the Company, accompanied by a
copy of a resolution of the Board of Directors authorizing
the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own
rights, duties or immunities under this indenture or
otherwise, in which case the Trustee may in its discretion
but shall not be obligated to enter into such supplemental
indenture.
It shall not be necessary for the consent of the
Holders under this Section 9.2 to approve the particular
form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance
thereof.
In the case of any Debt Securities or Coupons, if
any, appertaining thereto, subordinated pursuant to the
terms thereof specified pursuant to Section 2.3, a
supplemental indenture under this Section 9.2 may not make
any change that adversely affects the rights under such
terms of any holder of Senior Indebtedness then outstanding
unless the holders of such Senior Indebtedness (or any group
or representative thereof authorized to give a consent)
consent to such supplemental indenture.
After a supplemental indenture under this Section
9.2 becomes effective, the Company shall mail to Holders of
Debt Securities of each series affected thereby a notice
briefly describing such supplemental indenture. The failure
to give such notice to all such Holders, or any defect
therein, shall not impair or affect the validity of a
supplemental indenture under this Section 9.2.
SECTION 9.3 EFFECT OF SUPPLEMENTAL INDENTURE.
Upon the execution of any supplemental indenture pursuant to
the provisions of this Article IX, this Indenture shall be
and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of
the Trustee, the Company and the Holders shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections
7.1 and 7.2, may receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any such
supplemental indenture complies with the provisions of this
Article IX.
SECTION 9.4 DEBT SECURITIES MAY BEAR NOTATION OF
CHANGES BY SUPPLEMENTAL INDENTURES. Debt Securities and
Coupons, if any, of any series authenticated and delivered
after the execution of any supplemental indenture pursuant
to the provisions of this Article IX 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. New Debt Securities and Coupons of
any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture
may be prepared and executed by the Company, authenticated
by the Trustee and delivered in exchange for the Debt
Securities and Coupons of such series then Outstanding.
Failure to make the appropriate notation or to issue a new
Debt Security or Coupon of such series shall not affect the
validity of such supplemental indenture.
ARTICLE X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.1 CONSOLIDATIONS AND MERGERS OF THE
COMPANY. The Company shall not consolidate with or merge
with or into, or convey, transfer or lease its assets
substantially as an entirety to any Person unless: (i)
either (a) the Company shall be the continuing Person in the
case of a merger or (b) the resulting, surviving or
transferee Person if other than the Company (the "Successor
Company") shall be a corporation organized and existing
under the laws of the United States, any State thereof or
the District of Columbia and the Successor Company shall
expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of the Company under the
Debt Securities and Coupons, if any, according to their
tenor and this Indenture; (ii) immediately after giving
effect to such transaction (and treating any indebtedness
which becomes an obligation of the Successor Company or any
Subsidiary of the Company as a result of such transaction as
having been incurred by the Successor Company or such
Subsidiary at the time of such transaction), no Default or
Event of Default would occur or be continuing; (iii) the
Successor Company waives any right to redeem any Bearer
Security under circumstances in which the Successor Company
would be entitled to redeem such Bearer Security but the
Company would not have been so entitled to redeem if such
transaction had not occurred; and (iv) the Company shall
have delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such transaction
and such supplemental indenture (if any) comply with this
Indenture.
SECTION 10.2 RIGHTS AND DUTIES OF SUCCESSOR
CORPORATION. In case of any consolidation of the Company
with, or merger of the Company into, any other Person or
conveyance, transfer or lease of the assets of the Company
substantially as an entirety in accordance with Section
10.1, the Successor Company shall succeed to and be
substituted for the Company, with the same effect as if it
had been named herein as the party of the first part, and
the predecessor corporation shall be relieved of any further
obligation under the Indenture and the Securities. The
Successor Company thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company,
any or all the Debt Securities issuable hereunder which
theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of the
Successor Company, instead of the Company, and subject to
all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and deliver any
Debt Securities and Coupons, if any, appertaining thereto,
which previously shall have been executed and delivered by
the officers of the Company to the Trustee for
authentication, and any Debt Securities and Coupons, if any,
appertaining thereto, which the Successor Company thereafter
shall cause to be executed and delivered to the Trustee for
that purpose. All the Debt Securities and Coupons, if any,
appertaining thereto so issued shall in all respects have
the same legal rank and benefit under this Indenture as the
Debt Securities and Coupons, if any, as pertaining thereto
theretofore or thereafter issued in accordance with the
terms of this Indenture as though all such Debt Securities
and Coupons had been issued at the date of the execution
hereof.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE; UNCLAIMED MONEYS
SECTION 11.1 APPLICABILITY OF ARTICLE. If,
pursuant to Section 2.3, provision is made for the
defeasance of Debt Securities of a series and if the Debt
Securities of such series are Registered Securities and
denominated and payable only in Dollars (except as provided
pursuant to Section 2.3), then the provisions of this
Article XI relating to defeasance of Debt Securities shall
be applicable except as otherwise specified pursuant to
Section 2.3 for Debt Securities of such series. Defeasance
provisions, if any, for Debt Securities denominated in a
Foreign Currency or for Bearer Securities may be specified
pursuant to Section 2.3.
SECTION 11.2 SATISFACTION AND DISCHARGE OF
INDENTURE; DEFEASANCE. (a) If at any time (i) the Company
shall have delivered to the Trustee for cancellation all
Debt Securities of any series theretofore authenticated and
delivered (other than (1) Coupons appertaining to Bearer
Securities of such series called for redemption and maturing
after the relevant redemption date, surrender of which has
been waived, (2) any Debt Securities and Coupons of such
series which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in
Section 2.9 and (3) Debt Securities and Coupons for whose
payment money has theretofore been deposited in trust and
thereafter repaid to the Company as provided in Section
11.5) or (ii) all Debt Securities and the Coupons, if any,
of such series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are
to be called for redemption under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and
the Company shall deposit with the Trustee as trust funds
the entire amount in the Currency in which such Debt
Securities are denominated (except as otherwise provided
pursuant to Section 2.3) sufficient to pay at maturity or
upon redemption all Debt Securities of such series not
theretofore delivered to the Trustee for cancellation,
including principal and premium, if any, and interest due or
to become due on such date of maturity or redemption date,
as the case may be, and if in either case the Company shall
also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to
be of further effect (except as to any surviving rights of
registration of transfer or exchange of such Debt Securities
herein expressly provided for and rights to receive payments
of principal of, and premium, if any, and interest on, such
Debt Securities and any right to receive additional interest
as provided in Section 4.6) with respect to the Debt
Securities of such series, and the Trustee, on demand of the
Company accompanied by an Officers' Certificate and an
Opinion of Counsel and at the cost and expense of the
Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture.
(b) Subject to Sections 11.2(c), 11.3 and 11.7,
the Company at any time may terminate, with respect to Debt
Securities of a particular series, (i) all its obligations
under the Debt Securities of such series and this Indenture
with respect to the Debt Securities of such series ("legal
defeasance option") or (ii) its obligations with respect to
the Debt Securities of such series under Sections 4.8, 4.9,
and 4.10 and any other covenants specified for such series
pursuant to Section 2.3(14) and the related operation of
Section 6.1(e), clause (ii) of Section 10.1 and the related
operation of Section 6.1(d) and the operation of Sections
6.1(f), (i) and (j) ("covenant defeasance option"). The
Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant
defeasance option.
If the Company exercises its legal defeasance
option, payment of the Debt Securities of the defeased
series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance
option, payment of the Debt Securities of the defeased
series may not be accelerated because of an Event of Default
specified in Sections 6.1(d), (e), (f), (i) and (j) (except
to the extent covenants or agreements referenced in such
Sections remain applicable).
Upon satisfaction of the conditions set forth
herein and upon request of the Company, the Trustee shall
acknowledge in writing the discharge of those obligations
that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above,
the Company's obligations in Sections 2.7, 2.9, 4.2, 4.4,
5.1, 7.6, 7.10, 11.5, 11.6 and 11.7 shall survive until the
Debt Securities of the defeased series have been paid in
full. Thereafter, the Company's obligations in Sections
7.6, 11.5 and 11.6 shall survive.
SECTION 11.3 CONDITIONS OF DEFEASANCE. The
Company may exercise its legal defeasance option or its
covenant defeasance option with respect to Debt Securities
of a particular series only if:
(1) the Company irrevocably deposits in trust
with the Trustee money or U.S. Government Obligations
for the payment of principal of, and premium, if any,
and interest on, the Debt Securities of such series to
maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a
certificate from a nationally recognized firm of
independent accountants expressing their opinion that
the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment
will provide cash at such times and in such amounts as
will be sufficient to pay the principal, premium, if
any, and interest when due on all the Debt Securities
of such series to maturity or redemption, as the case
may be;
(3) 123 days pass after the deposit is made and
during the 123-day period no Default specified in
Section 6.1(g) or (h) with respect to the Company
occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on
the date of such deposit and after giving effect
thereto;
(5) the deposit does not constitute a default
under any other agreement binding on the Company and,
if the Debt Securities of such series are subordinated
pursuant to the terms thereof specified pursuant to
Section 2.3, is not prohibited by such terms;
(6) the Company delivers to the Trustee an
Opinion of Counsel to the effect that the trust
resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the
Investment Company Act of 1940;
(7) in the event of the legal defeasance option,
the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of
Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as
a result of such defeasance and will be subject to
Federal income tax on the same amounts, in the same
manner and at the same times as would have been the
case if such defeasance had not occurred;
(8) in the event of the covenant defeasance
option, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Holders of
Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as
a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have
been the case if such covenant defeasance had not
occurred; and
(9) the Company delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance
and discharge of the Debt Securities of such series as
contemplated by this Article XI have been complied
with.
Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption
of Debt Securities of such series at a future date in
accordance with Article III.
SECTION 11.4 APPLICATION OF TRUST MONEY. The
Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to this Article XI.
It shall apply the deposited money and the money from U.S.
Government Obligations through any paying agent and in
accordance with this Indenture to the payment of principal
of, and premium, if any, and interest on, the Debt
Securities and Coupons, if any, of the defeased series. In
the event the Debt Securities and Coupons, if any, of the
defeased series are subordinated pursuant to the terms
thereof specified pursuant to Section 2.3, money and
securities so held in trust are not subject to such terms.
SECTION 11.5 REPAYMENT TO COMPANY. The Trustee
and any paying agent shall promptly turn over to the Company
upon request any excess money or securities held by them at
any time.
Subject to any applicable abandoned property law,
the Trustee and any paying agent shall pay to the Company
upon request any money held by them for the payment of
principal, premium, if any, or interest that remains
unclaimed for two years, and, thereafter, Holders entitled
to such money must look to the Company for payment as
general creditors.
SECTION 11.6 INDEMNITY FOR U.S. GOVERNMENT
OBLIGATIONS. The Company shall pay and shall indemnify the
Trustee and the Holders against any tax, fee or other change
imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such
U.S. Government Obligations.
SECTION 11.7 REINSTATEMENT. If the Trustee or
any paying agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article XI by
reason of any legal proceeding or by reason of any order or
judgment of any court or government authority enjoining,
restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Debt
Securities of the defeased series shall be revived and
reinstated as though no deposit had occurred, pursuant to
this Article XI until such time as the Trustee or any paying
agent is permitted to apply all such money or U.S.
Government Obligations in accordance with this Article XI.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1 SUCCESSORS AND ASSIGNS OF COMPANY
BOUND BY INDENTURE. All the covenants, stipulations,
promises and agreements in this Indenture contained by or in
behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 12.2 ACTS OF BOARD, COMMITTEE OR OFFICER
OF SUCCESSOR COMPANY VALID. Any act or proceeding by any
provision of this Indenture authorized or required to be
done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force
and effect by the like board, committee or officer of any
Successor Company.
SECTION 12.3 REQUIRED NOTICES OR DEMANDS. Except
as otherwise expressly provided in this Indenture, any
notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee
or by the Holders to or on the Company may be given or
served by being deposited postage prepaid in a post office
letter box in the United States addressed (until another
address is filed by the Company with the Trustee) as
follows: Global Marine Inc., 777 N. Eldridge Road, Houston,
Texas 77079, Attention: General Counsel. Except as
otherwise expressly provided in this Indenture, any notice,
direction, request or demand by the Company or by any Holder
to or upon the Trustee may be given or made, for all
purposes, by being deposited postage prepaid in a post
office letter box in the United States addressed to the
corporate trust office of the Trustee initially at
. The Company or the Trustee by notice to the
other may designate additional or different addresses for
subsequent notices or communications.
Any notice required or permitted to a Registered
Holder by the Company or the Trustee pursuant to the
provisions of this Indenture shall be deemed to be properly
mailed by being deposited postage prepaid in a post office
letter box in the United States addressed to such Holder at
the address of such Holder as shown on the Debt Security
Register. Any report pursuant to Section 313 of the Trust
Indenture Act shall be transmitted in compliance with
subsection (c) therein.
Any notice required or permitted to a Bearer
Holder by the Company or the Trustee pursuant to this
Indenture shall be deemed to be properly given if published
on two separate Business Days in an Authorized Newspaper or
Newspapers in such Place or Places of Payment specified
pursuant to Section 2.3, the first such publication to be
not earlier than the earliest date and not later than two
Business Days prior to the latest date prescribed for the
giving of such notice. Notwithstanding the foregoing, any
notice to Holders of Floating Rate Debt Securities regarding
the determination of a periodic rate of interest, if such
notice is required pursuant to Section 2.3, shall be
sufficiently given if given in the manner specified pursuant
to Section 2.3. In the event of suspension of regular mail
service or by reason of any other cause it shall be
impracticable to give notice by mail, then such notification
as shall be given with the approval of the Trustee shall
constitute sufficient notice for every purpose hereunder.
In the event of suspension of publication of any
Authorized Newspaper or by reason of any other cause it
shall be impracticable to give notice by publication, then
such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose
hereunder.
Failure to mail a notice or communication to a
Holder or any defect in it or any defect in any notice by
publication as to a Holder shall not affect the sufficiency
of such notice with respect to other Holders. If a notice
or communication is mailed or published in the manner
provided above, it is conclusively presumed duly given.
SECTION 12.4 GOVERNING LAW. This Indenture, each
Debt Security and each Coupon shall be governed by and
construed in accordance with the laws of the State of New
York.
SECTION 12.5 OFFICERS' CERTIFICATE AND OPINION OF
COUNSEL TO BE FURNISHED UPON APPLICATION OR DEMAND BY THE
COMPANY. Upon any application or demand by the Company to
the Trustee to take any action under any of the provisions
of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions
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 have been complied with, except
that in the case of any such application or demand as to
which the furnishing of such document is specifically
required by any provision of this Indenture relating to such
particular application or demand, no additional certificate
or opinion need be furnished.
Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in this
Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or
condition, (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
such Person, he has made such examination or investigation
as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been
complied with and (4) a statement as to whether or not, in
the opinion of such Person, such condition or covenant has
been complied with.
SECTION 12.6 PAYMENTS DUE ON LEGAL HOLIDAYS. In
any case where the date of maturity of an installment of
interest on or the principal of and premium, if any, on the
Debt Securities of a series or the date fixed for redemption
or repayment of any Debt Security shall not be a Business
Day at any Place of Payment for the Debt Securities of such
series, then payment of interest or principal and premium,
if any, or the making of such sinking fund payment need not
be made on such date at such Place of Payment, 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
date of maturity or the date fixed for redemption or
repayment, and no interest shall accrue for the period after
such date.
SECTION 12.7 PROVISIONS REQUIRED BY TRUST
INDENTURE ACT TO CONTROL. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts
with another provision included in this Indenture which is
required to be included in this Indenture by any of Sections
310 to 318, inclusive, of the Trust Indenture Act, such
required provision shall control.
SECTION 12.8 RULES BY TRUSTEE, PAYING AGENT AND
REGISTRAR. The Trustee may make reasonable rules for action
by or a meeting of Holders. The Registrar and any paying
agent may make reasonable rules for their functions.
SECTION 12.9 NO RECOURSE AGAINST OTHERS. An
incorporator or any past, present or future director,
officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the
Company under the Debt Securities, the Coupons or this
Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting
a Debt Security or Coupon, each Holder shall waive and
release all such liability. The waiver and release shall be
part of the consideration for the issue of the Debt
Securities and Coupons.
SECTION 12.10 SEVERABILITY. In case any
provision in this Indenture, the Debt Securities or the
Coupons 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 12.11 EFFECT OF HEADINGS. The article
and section headings herein and in the Table of Contents and
for convenience only and shall not affect the construction
hereof.
SECTION 12.12 INDENTURE MAY BE EXECUTED IN
COUNTERPARTS. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly signed as of the date first
written above.
GLOBAL MARINE INC.
By
Name:
Title:
[NAME OF TRUSTEE]
By
Name:
Title:
EXHIBIT 5.1
GLOBAL MARINE INC.
777 N. Eldridge Road
Houston, Texas 77079
April 12, 1995
Global Marine Inc.
777 N. Eldridge Road
Houston, Texas 77079
Gentlemen:
This opinion is rendered in connection with the Registration
Statement on Form S-3 (the "Registration Statement") being filed
by Global Marine Inc., a Delaware corporation (the "Company"),
with the Securities and Exchange Commission under the Securities
Act of 1933, as amended ("Securities Act"), covering the offer
and sale from time to time pursuant to Rule 415 under the
Securities Act of the following securities for an aggregate
initial offering price not to exceed $75,000,000: (i) unsecured
debt securities of the company ("Debt Securities"); (ii) shares
of preferred stock, $.01 par value per share, of the Company
("Preferred Stock"); and (iii) shares of Common Stock, $.10 par
value per share, of the Company ("Common Stock") (the Debt
Securities, Preferred Stock and Common Stock are collectively
referred to as the "Securities").
I have acted as counsel for the Company in connection with
the Registration Statement. In so acting, I have examined
originals or copies, authenticated to my satisfaction, of such
corporate records, agreements, documents (including the Indenture
in the form of Exhibit 4.31 to the Registration Statement) and
other instruments, and such certificates of public officials and
of officers and representatives of the Company, and have made
such inquiries of such officers and representatives, as I have
deemed relevant and necessary as a basis for the opinion
hereinafter set forth. In such examination, I have assumed the
genuineness of all signatures and the authenticity of all
documents submitted to me as originals and the conformity to the
original documents of documents submitted to me as certified or
photostatic copies.
Based upon the foregoing and the other qualifications and
limitations expressed in this opinion, I am of the opinion that:
1. With respect to shares of Common Stock, when both (A)
the Board of Directors of the Company or, to the extent permitted
by Section 141(c) of the General Corporation Law of the State of
Delaware, a duly constituted and acting committee thereof (such
Board of Directors or committee being hereinafter referred to as
the "Board") has taken all necessary corporate action to approve
the issuance of and the terms of the offering of the shares of
Common Stock and related matters and (B) certificates
representing the shares of Common Stock have been duly executed,
countersigned, registered and delivered either (i) in accordance
with the applicable definitive purchase, underwriting or similar
agreement approved by the Board upon payment of the consideration
therefor (not less than the par value of the Common Stock)
provided for therein or (ii) upon conversion or exercise of any
other Security, in accordance with the terms of such Security or
the instrument governing such Security providing for such
conversion or exercise as approved by the Board, for the
consideration approved by the Board (not less than the par value
of the Common Stock), then the shares of Common Stock will be
legally issued, fully paid and nonassessable.
2. With respect to shares of Preferred Stock, when both
(A) the Board has taken all necessary corporate action to approve
the issuance and terms of the shares of Preferred Stock, the
terms of the offering thereof and related matters, including the
adoption of a Certificate of Designation relating to such
Preferred Stock (a "Certificate") and the filing of the
Certificate with the Secretary of State of the State of Delaware,
and (B) certificates representing the shares of Preferred Stock
have been duly executed, countersigned, registered and delivered
either (i) in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon
payment of the consideration therefor (not less than the par
value of the Preferred Stock) provided for therein or (ii) upon
conversion or exercise of any other Security, in accordance with
the terms of such Security or the instrument governing such
Security providing for such conversion or exercise as approved by
the Board, for the consideration approved by the Board (not less
than the par value of the Preferred Stock), then the shares of
Preferred Stock will be legally issued, fully paid and
nonassessable.
3. With respect to Debt Securities to be issued under the
Indenture, when (A) the Indenture has been duly authorized and
validly executed and delivered by the Company to the trustee, (B)
the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended, (C) the Board has taken all necessary
corporate action to approve the issuance and terms of such Debt
Securities, the terms of the offering thereof and related
matters, and (D) such Debt Securities have been duly executed,
authenticated, issued and delivered in accordance with the
provisions of the Indenture and the applicable definitive
purchase, underwriting or similar agreement approved by the Board
upon payment of the consideration therefor provided for therein,
such Debt Securities will be legally issued and will constitute
valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as such
enforcement is subject to (i) any applicable bankruptcy,
insolvency, reorganization or other law relating to or affecting
creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
The opinion expressed above is subject in all respects to
the following assumptions, exceptions and qualifications.
a. I have assumed that (i) the Registration Statement and
any amendments thereto (including post-effective amendments) will
have become effective and comply with all applicable laws; (ii)
the Registration Statement will be effective and will comply with
all applicable laws at the time the Securities are offered or
issued as contemplated by the Registration Statement (if such
offering or issuance requires the delivery of a prospectus under
the Securities Act or pursuant to any other law); (iii) a
Prospectus Supplement will have been prepared and filed with the
Securities and Exchange Commission describing the Securities
offered thereby and will comply with all applicable laws; (iv)
all Securities will be issued and sold in compliance with
applicable federal and state securities laws and in the manner
stated in the Registration Statement and the appropriate
Prospectus Supplement; (v) a definitive purchase, underwriting or
similar agreement with respect to any Securities offered or
issued will have been duly authorized and validly executed and
delivered by the Company and the other parties thereto and (vi)
any Securities issuable upon conversion, exchange or exercise of
any Security being offered or issued will be duly authorized,
created and, if appropriate, reserved for issuance upon such
conversion, exchange or exercise.
b. In rendering the opinion in paragraph 3, I have assumed
that the trustee is or, at the time the Indenture is signed, will
be qualified to act as trustee under the Indenture and that the
Trustee has or will have duly executed and delivered the
Indenture.
c. I express no opinion with respect to (i) the
enforceability of provisions in the Indenture or any other
agreement or instrument with respect to delay or omission of
enforcement of rights or remedies, or waivers of defenses, or
waivers of benefits of stay, extension, moratorium, redemption,
statutes of limitation, or other nonwaivable benefits bestowed by
operation of law; or (ii) the enforceability of indemnification
provisions to the extent they purport to relate to liabilities
resulting from or based upon negligence or any violation of
federal or state securities or blue sky laws.
d. I express no opinion as to the requirements of or
compliance with state securities laws or regulations.
This opinion is governed by, and shall be interpreted in
accordance with, the Legal Opinion Accord (the "Accord") of the
ABA Section of Business Law (1991). As a consequence, it is
subject to a number of qualifications, exceptions, definitions,
limitations in coverage and other limitations, all as more
particularly described in the Accord, and this opinion should be
read in conjunction therewith. This opinion is limited in all
respects to the federal law of the United States, the substantive
law of the State of Texas and the corporate law of the State of
Delaware and I assume no responsibility as to the applicability
thereto, or the effect thereon, of the laws of any other
jurisdiction.
I hereby consent to the use of this opinion as an exhibit to
the Registration Statement and to all reference to me under the
heading "Legal Matters" in the prospectus forming a part of the
Registration Statement.
Very truly yours,
/s/ James L. McCulloch
James L. McCulloch
EXHIBIT 12.1
<TABLE>
CALCULATION OF RATIO OF EARNINGS BEFORE FIXED CHARGES
TO FIXED CHARGES
<CAPTION>
Year Ended December 31,
1994 1993 1992 1991 1990
(dollars in millions)
<S> <C> <C> <C> <C> <C>
Income (loss) before taxes $ 5.4 $(26.2) $30.6 $ 3.5 $(34.5)
Less interest capitalized (3.7) - - - -
Adjusted earnings (loss) 1.7 (26.2) 30.6 3.5 (34.5)
Add fixed charges:
Interest expense 30.2 32.1 43.6 49.9 53.9
Portion of rental expense
representative of an
interest factor 2.3 2.0 2.3 2.0 5.2
A Total fixed charges 32.5 34.1 45.9 51.9 59.1
B Earnings (loss) before
fixed charges $34.2 $ 7.9 $76.5 $55.4 $24.6
Ratio earnings before
fixed charges to fixed
charges (B/A) 1.05 .23 1.67 1.07 .42
</TABLE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent (i) to the incorporation by reference into the
Prospectus pertaining to an aggregate initial offering price not
to exceed $75,000,000 of Debt Securities, Preferred Stock or
Common Stock of Global Marine Inc. that constitutes part of this
Registration Statement on Form S-3, being filed by Global Marine
Inc. with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, of our report, which includes
an explanatory paragraph that describes the Company's adoption of
the method of accounting for income taxes, the method of
accounting for postretirement benefits other than pensions and
the method of accounting for postemployment benefits, as
prescribed by applicable statements of the Financial Accounting
Standards Board, dated February 10, 1995, on our audits of the
consolidated financial statements and financial statement
schedule of Global Marine Inc. and subsidiaries, as of December
31, 1994 and 1993, and for each of the three years in the period
ended December 31, 1994, and (ii) to the reference to our firm
under the heading "Independent Public Accountants" in said
Prospectus.
/s/ Coopers & Lybrand L.L.P.
Houston, Texas
April 12, 1995
EXHIBIT 23.3
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
We consent to the inclusion herein and incorporation by
reference in the Prospectus constituting part of the Registration
Statement on Form S-3, being filed by Global Marine Inc. with the
Securities and Exchange Commission under the Securities Act of
1933, as amended, of our report on our estimates of proved oil
and gas reserves of the Company for each of the three years ended
December 31, 1994, 1993 and 1992 and to the reference to our firm
under the heading "Experts" in said Prospectus.
/s/ Ryder Scott Company
Petroleum Engineers
Houston, Texas
April 11, 1995
EXHIBIT 99.1
SALE AND PURCHASE AGREEMENT
THIS AGREEMENT is made this 10 day of April 1995
BETWEEN
GLOBAL MARINE AUSTRALIA INC., a company organized and
existing under the laws of the State of Delaware, United
States of America, with its offices at 777 N. Eldridge Road,
Houston, Texas (hereinafter referred to as "Seller");
AND
DUAL DRILLING COMPANY, a company organized and existing
under the laws of Delaware and having its registered office
at 5956 Sherry Lane, Suite 1500, Dallas, Texas, or its
nominee (hereinafter referred to as "Buyer")
Seller and Buyer are sometimes referred to herein collectively as
"Parties" and individually as "Party". This Agreement amends,
restates and replaces that certain Sale and Purchase Agreement
dated 15 February 1995 between the Parties.
WITNESSETH:
WHEREAS:
(A) Seller is the owner of the jackup drilling unit known as the
GLOMAR MAIN PASS III, together with all her equipment, spare
parts and inventory as described in Exhibit A attached
hereto and made a part hereof and desires to sell the Rig to
Buyer, and Buyer desires to purchase the Rig from Seller
through the purchase of all of the outstanding stock of the
corporation owning the Rig on the Closing Date, in
accordance with the terms and conditions of this Agreement
("Agreement");
(B) The Rig is subject to a First Preferred Ship Mortgage dated
23 December 1992 and recorded in the Vessel Documentation
Office of the U.S. Coast Guard in Houston, Texas on 23
December 1992 (hereinafter referred to as the "Mortgage") in
favor of Wilmington Trust Company (hereinafter referred to
as the "Mortgagee") as Trustee for certain beneficiaries
named therein;
(C) Buyer has entered into an agreement to sell DUAL RIG 97 (the
"Rig 97 Agreement");
NOW THEREFORE, in consideration of the mutual covenants in this
Agreement and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties
hereto agree as follows:
ARTICLE 1 - SALE
1.1 Seller agrees to form a wholly owned Delaware corporate
subsidiary with the name "Seadrill 88, Inc." or such other
name as is acceptable to Buyer (hereinafter referred to as
the "Company") and to transfer the Glomar Main Pass III to
the Company as a capital contribution on the Closing Date
(as hereinafter defined), free and clear of all liens and
encumbrances (except as may be imposed by MARAD) but
specifically excluding any liens and encumbrances incurred
on the Rig by virtue of its operation under the Bareboat
Charter. Seller agrees to immediately thereafter sell,
assign and transfer on the Closing Date, all of the issued
and outstanding shares of capital stock in the Company (the
"Shares") to Buyer and Buyer agrees to purchase the Shares,
as hereinafter provided. Buyer agrees to reimburse Seller
for all reasonable expenses incurred in forming the
"Company".
1.2 The transfer of the Glomar Main Pass III to the Company
shall include all of the Seller's right, title and interest
in the Glomar Main Pass III in her entirety, with everything
belonging to said Glomar Main Pass III, whether onboard,
ashore or on order including all broached or unbroached
provisions, stores, spare parts, spare equipment, rig site
inventory, shore base spare parts, drawings and
specifications, operating manuals and all other documents
pertaining to said Glomar Main Pass III (herein called the
"Rig").
1.3 Seller agrees to assign to the Company all of its respective
right, title and interest in any drawings, records, manuals,
plans, designs and other documents pertaining specifically
to the Rig or relating to its construction, and warranties
or guarantees relating to the Rig (if any) (hereinafter
collectively referred to as "Other Property and
Warranties"), such assignment to be effective upon the
Closing Date hereof.
1.4 Seller agrees to deliver to Buyer on the Closing Date all of
the corporate books of the Company together with
resignations of all officers and directors of the Company.
1.5 Prior to the transfer of Shares, the Company will not
conduct any operations or business of any kind or character.
ARTICLE 2 - PURCHASE PRICE
2.1 In consideration of the due performance of Article 1 above,
Buyer shall pay to the Seller the sum of United States
Dollars Twenty-Two Million Five Hundred Thousand and no/100
(U.S.$22,500,000.00) (hereinafter referred to as "Purchase
Price") which payment shall be made in the manner set forth
below and which shall be net of any withholding, sales or
other taxes payable in India. The Purchase Price will be
paid in exchange for delivery of a certificate or
certificates representing the Shares duly endorsed for
transfer or accompanied by appropriate stock powers duly
executed and the prior transfer to the Company of the Rig.
2.2 As security for the correct fulfillment of the terms of this
Agreement, Buyer shall within five (5) business days from
the date of execution of this Agreement by Seller and Buyer,
lodge a deposit of five percent (5%) of the Purchase
Price into an interest bearing account at Nations Bank of
Texas in Houston, Texas, in the joint names of the Seller
and Buyer. Such bank shall hold the deposit in escrow on
such terms as shall be consistent with the terms of this
Agreement. Except as provided in Section 9.1, any interest
earned shall accrue for the benefit of the Buyer. Any fee
charged for holding such deposit in escrow shall be borne
equally by the Seller and Buyer. At the time of payment of
the balance of the Purchase Price pursuant to Section 2.3,
the deposit, net of interest, shall be paid over to Seller
to the account and in the manner set forth in said Section
2.3 and such interest shall be paid over to Buyer. Should
the conditions precedent set forth in Section 3.1 below not
be lifted by close of business on 30 June 1995, either party
may terminate this Agreement and the deposit shall
immediately be released to Buyer. In such event, this
Agreement shall be null and void and neither party shall
have any further obligation or liability to the other
hereunder.
2.3 The balance of the Purchase Price shall be paid by the Buyer
on the Closing Date by wire transfer in immediately
available funds to the following bank account or such other
account as Seller may designate in writing at least five (5)
working days prior to Closing Date:
Nations Bank of Texas
Dallas, Texas
ABA No. 111000025
For the Account of
Global Marine Inc.
Acct. No. 41402-43957
Sale of Glomar Main Pass III
2.4 All payments under this Agreement shall be made in U.S.
Dollars.
ARTICLE 3 - CONDITIONS PRECEDENT
3.1 The performance of Articles 1 and 2 above is subject to
fulfillment of the following conditions precedent within the
time stated herein:
(a) The performance by the purchaser of DUAL RIG 97 under
the Rig 97 Agreement. This condition is only valid due
to non-performance by the purchaser of DUAL RIG 97.
Buyer shall have the unilateral right, but not the
obligation, to waive at any time prior to 30 June 1995
this 3.1(a) condition in the event the DUAL RIG 97 sale
is not consummated.
(b) All regulatory approvals required (if any), which both
Seller and Buyer shall expeditiously pursue.
(c) The approval by the Mortgagee.
3.2 Seller and Buyer shall each use all reasonable good faith
efforts to procure the fulfillment of the conditions
precedent under Article 3.1 above.
3.3 Buyer agrees to do all things required on its part to obtain
MARAD approval, if required, including providing any
information, making any certifications and complying with
any requirements, restrictions, covenants or conditions
imposed by MARAD in conjunction with such approval. Any
delay in receiving MARAD's approval, unless such delay is
caused by reasons within control of Sellers, shall not
enable the Buyers to cancel this Agreement in accordance
with Section 9.3.
ARTICLE 4 - CLOSING DATE
4.1 The transactions described in this Article 4 shall take
place on a mutually agreeable date as soon after the
closing on the Rig 97 Agreement as is reasonably possible
but in any event no later than 30 June 1995 (hereinafter
referred to as "Closing Date") at Houston, Texas.
4.2 Subject to the due performance of the other provisions of
this Agreement, Seller and Buyer hereby agree that the
following transactions shall be performed simultaneously on
the Closing Date:
(a) Buyer shall transfer the balance of the Purchase Price
to Seller by wire transfer, and cooperate in the wire
transfer of the deposit provided for under Section 2.2
above, to the bank account indicated in Section 2.3
above.
(b) Seller shall deliver to Buyer the certificates
representing the Shares, duly endorsed or accompanied
by stock powers, as contemplated in Section 2.1, and
Buyer shall sign and deliver to Seller a receipt in the
form of Exhibit B.
(c) Immediately prior to the transfer of the Shares to
Buyer, Seller shall transfer title to the Rig to the
Company by signing and delivering the Bill of Sale and
the Company shall sign and deliver to Seller a Protocol
of Delivery and Acceptance in the form of Exhibits C
and D respectively attached to and made a part of this
Agreement.
(d) Seller shall hand over to Buyer original Powers of
Attorney, duly notarized authorizing the signatory to
sign the closing documents to bind the Seller;
(e) Buyer shall hand over to Seller original Powers of
Attorney, duly notarized authorizing the signatory to
sign the closing documents to bind the Buyer;
(f) Seller shall deliver to Buyer a certificate issued by
the United States Coast Guard, dated no earlier than
fifteen (15) days before the Closing Date, stating that
the Rig is free and clear from all recorded
encumbrances or liens, save for the endorsements of the
First Mortgagee's interests;
(g) Seller shall deliver to Buyer a copy of the
Satisfaction and Discharge of Mortgage with respect to
the mortgage on the Rig releasing and terminating all
of such Mortgagee's interest in the Rig. The
Satisfaction and Discharge of Mortgage shall have been
duly executed by the Mortgagee, notarized and filed
immediately upon the Closing Date, with the U.S. Coast
Guard Vessel Documentation Office in Houston, Texas,
for recordation in accordance with the laws of the
United State of America;
(h) On the Closing Date, Seller shall cause the Rig to be
deleted from the roll of actively documented U.S.
vessels. Upon receipt of such Letter of Deletion
Seller shall promptly deliver same to the Buyer.
Within a reasonable time after the Closing Date, Buyer
shall change the name and the flag of the Rig and
remove therefrom all insignias and logos and other
reference to Seller.
(i) At the time of transfer of the Shares, the existing
Bareboat Charter Agreement dated 27 July 1988 between
Seller and Buyer (hereinafter "Bareboat Charter") will
terminate and all letters of credit issued thereunder
shall be returned to Buyer.
(j) Seller and the Company shall deliver a certificate to
Buyer confirming the truth and accuracy of the
representations and warranties set forth in Section
8.1.
(k) Buyer shall deliver a certificate to Seller confirming
the truth and accuracy of the representations and
warranties set forth in Section 8.2.
ARTICLE 5 - DELIVERY, RISK, TITLE, BUNKERS, STORES AND SPARES
5.1 Upon the delivery of the Shares to Buyer, all risk, rights,
title and interest in the Rig shall be transferred to the
Company. Until the delivery of the Shares the risk of
damage to or loss of the Rig with everything belonging
thereto shall remain under the terms of said Bareboat
Charter.
5.2 Acquisition of the Rig by the Company is on an "as is,
where is" basis, in international waters offshore India, on
the Closing Date.
5.3 Seller is not required to replace spare parts which are
taken out of spares and used as replacements prior to
delivery.
ARTICLE 6 - LIABILITIES
6.1 Seller shall be responsible for and shall release, defend,
indemnify and hold harmless the Buyer and the Company
against all liability, expenses and costs (i) for any cause
of action accrued prior to delivery of the Rig by Seller to
Buyer under the terms of that certain Bareboat Charter
Agreement dated 27 July 1988, (including by way of
illustration and not by way of limitation, personal injury,
property damage, contractual disputes, and claims by any
governmental or regulatory body) arising solely out of or
relating to Seller's business activities with respect to the
operation or ownership of the Rig, or (ii) arising due to or
in connection with any representation or warranty made or
deemed made by Seller or the Company proving to have been
false or misleading when made or deemed to have been made.
6.2 Buyer shall be responsible for and shall defend, indemnify
and hold harmless the Seller against all liability, expenses
and costs (i) for any cause of action accrued subsequent to
delivery of the Rig by Seller to Buyer under the terms of
said Bareboat Charter (including by way of illustration and
not by way of limitation, personal injury, property damage,
contractual disputes and claims by any governmental or
regulatory body) arising solely out of or relating to
Buyer's business activities with respect to the operation or
ownership of the Rig, or (ii) arising due to or in
connection with any representation or warranty made or
deemed made by Buyer proving to have been false or
misleading when made or deemed to have been made.
6.3 The Buyer and Company shall be responsible for and shall
defend, indemnify and hold harmless the Seller against all
liability, expenses and costs for any cause of action
accrued subsequent to the Closing Date (including by way of
illustration and not by way of limitation, personal injury,
property damage, contractual disputes and claims by any
governmental or regulatory body) arising solely out of or
relating to the Company's business activities with respect
to the operation or ownership of the Rig.
ARTICLE 7 - TOTAL/CONSTRUCTIVE TOTAL/PARTIAL LOSS
7.1 If the Rig becomes a total or constructive total loss (as
determined by a surveyor to be mutually agreed, or in the
event of failure to agree, appointed by the underwriters of
the Rig) before Closing Date, this Agreement shall
immediately become null and void and neither Seller nor
Buyer shall have any further obligation or liability under
this Agreement with respect to the other.
7.2 If the Rig suffers partial loss before the Closing Date
neither Seller nor Buyer may terminate this Agreement and
the sale and closing shall proceed as provided in this
Agreement.
ARTICLE 8 - WARRANTIES
8.1 Seller represents and warrants as of the date hereof and as
of the Closing Date that:
(a) On the Closing Date Seller is or will be the legal and
beneficial owner of all of the Shares and has the
right, power and authority to transfer the Shares
pursuant to this Agreement free and clear of all liens
and encumbrances (except as may be imposed by MARAD),
but specifically excluding any liens and encumbrances
incurred on the Rig or the Company by virtue of its
operation under the Bareboat Charter. The Shares are
validly issued, fully paid and nonassessable and
represent all of the authorized capital stock of the
Company. The Company shall be the legal and beneficial
owner of the Rig on the Closing Date.
(b) Seller will convey to Buyer good title to the Shares on
the Closing Date, and at the time of such delivery to
Buyer, the Shares will be free from all liens and
encumbrances, including but not limited to pledges,
mortgages or other debt or security interest or
restrictions on transfer (except as may be imposed by
MARAD), but specifically excluding any liens and
encumbrances incurred on the Rig or the Company by
virtue of its operation under the Bareboat Charter.
(c) Seller will convey to the Company good title to the Rig
on the Closing Date. On delivery of the Rig to the
Company, and at the time of delivery of the Shares by
Seller to Buyer, the Rig will be free and clear from
all liens and encumbrances, including but not limited
to pledges, mortgages or other debt or security
interest or restrictions on transfer (except as may be
imposed by MARAD), but specifically excluding any liens
and encumbrances incurred on the Rig by virtue of its
operation under the Bareboat Charter.
(d) The Rig shall be delivered on an "as is, where is"
basis.
(e) Seller is duly incorporated and validly existing under
the laws of its state of incorporation and has taken
all necessary corporate action to and has full legal
right, power and authority to enter into this Agreement
and to perform the obligations herein contained.
(f) Seller makes no representation or warranty whatsoever,
express or implied, as to the condition of the Rig, or
as to its seaworthiness, merchantability or its fitness
for any particular purpose.
(g) Prior to the transfer of the Shares to Buyer, the
Company has not conducted and will not conduct any
operations or business of any kind or character other
than those by virtue of the ownership of the Rig. At
the time of the transfer of the Shares to Buyer, the
Company will have no indebtedness, liabilities or
obligations of any kind or character (including, but
not limited to, contingent obligations), no liens or
encumbrances on any of its assets, and no contractual
obligations of any kind or character to any person or
entity (except as may be imposed by MARAD), but
specifically excluding any liens and encumbrances
incurred on the Rig or Company by virtue of its
operation under the Bareboat Charter. The Company has
not sold, assigned, transferred or otherwise disposed
of any of its assets, and will not sell, assign,
transfer or otherwise dispose of any of its assets
prior to the transfer of the Shares to Buyer.
8.2 Buyer represents and warrants as of the date hereof and on
the Closing Date that it is duly incorporated and validly
existing under the laws of its country of incorporation and
has taken all necessary corporate action to and has full
legal right, power and authority to enter into this
Agreement and to perform the obligations herein contained.
ARTICLE 9 - DEFAULTS
9.1 If default is made by Buyer in payment of the balance of the
Purchase Price, Seller shall have the right to terminate
this Agreement, in which case the Deposit together with the
interest earned thereon shall be forfeited to Seller.
9.2 If the Seller fails to execute a legal transfer in the
manner and within the time herein specified and in
compliance with and in satisfaction of the requirements of
Section 4.2 of this Agreement, the Buyer shall, as its sole
and exclusive remedy, have the right to terminate this
Agreement, in which case the Deposit in full shall be
returned to the Buyer together with interest earned thereon.
9.3 Except as provided in Section 3.3 above, in the event any of
the Conditions Precedent have not been satisfied within the
time specified in this Agreement, either party shall have
the right to terminate this Agreement, in which event
neither party shall have any further obligation or liability
to the other and the Deposit shall be returned to Buyer.
ARTICLE 10 - BROKER COMMISSION
The brokerage fee of US$225,000.00 shall be paid one-half by
Seller and one-half by Buyer to Normarine Offshore Consultants AS
to a bank account to be nominated by Normarine immediately upon
the delivery and acceptance of the Rig and receipt by Seller of
payment of the Purchase Price pursuant to the terms of this
Agreement.
ARTICLE 11 - TAXES
11.1 All fees, dues, notarial and/or consular and/or other
charges or expenses connected with the registration of the
Rig under Buyer's flag shall be for Buyer's account.
11.2 All taxes, fees, dues, notarial and/or consular and/or other
charges or expenses connected with the sale of the Rig
(other than withholding, sales or other taxes payable in
India), and closing of Seller's register shall be for
Seller's account.
ARTICLE 12 - CONFIDENTIALITY
12.1 Each of the Parties agrees that it will, and will cause its
employees, counsel and agents to, keep the terms of this
Agreement, and in particular the Purchase Price strictly
confidential, other than as required by law or any stock
exchange or regulatory body or as is necessary for the
performance of the Party's obligations under this Agreement,
in either case after the exercise of reasonable protection
measures having been taken by the disclosing party.
12.2 Each Party shall consult with the other prior to making any
public announcement.
ARTICLE 13 - FURTHER ASSURANCE
Each of the Parties shall do and execute or procure to be done
and executed all further necessary acts, deeds, documents and
things within their power to give effect to this Agreement.
ARTICLE 14 - AMENDMENTS, VARIATIONS AND WAIVER
14.1 No amendment or variation of this Agreement shall be valid
unless it is in writing and signed by or on behalf of each
of the Parties.
14.2 No failure to exercise or delay in exercising or enforcing
any right or remedy under this Agreement shall constitute a
waiver thereof and no single or partial exercise or
enforcement of any right or remedy under this Agreement
shall preclude or restrict the further exercise or
enforcement of any such right or remedy.
ARTICLE 15 - ARBITRATION
15.1 If any dispute should arise in connection with the
interpretation and fulfillment of this Agreement, the same
shall be decided by arbitration in the city of Houston,
Texas, pursuant to the UNCITRAL Rules of Commercial
Arbitration and shall be referred to a single arbitrator to
be appointed by the Parties hereto. If the Parties cannot
agree upon the appointment of the single arbitrator, the
dispute shall be settled by three arbitrators, each Party
appointing one arbitrator, the third being appointed by the
two so appointed. If either of the appointed arbitrators
refuses or is incapable of acting, the Party who appointed
him shall appoint a new arbitrator in his place.
15.2 If one Party fails to appoint an arbitrator, either
originally or by way of substitution, within two weeks after
the other Party having appointed his arbitrator, and has
sent the Party making default notice by telex or telefax to
make the appointment, the American Arbitration Association,
after application from the Party having appointed his
arbitrator shall appoint an arbitrator on behalf of the
Party making default.
15.3 The award rendered by the arbitrators shall be final and
binding upon the Parties and may if necessary be enforced by
a court or other competent authority in the same manner as a
judgment of a court of law.
15.4 Arbitration shall be in the English language.
15.5 This Agreement shall be governed and interpreted in
accordance with the General Maritime Laws of the United
States.
ARTICLE 16 - NOTICES
16.1 Unless otherwise specifically stated herein, any notices
required or permitted to be given herein shall be given in
writing, delivered personally or sent by mail postage
prepaid or by telex or facsimile to the Party to receive
such notice at:
To Seller: Global Marine Australia Inc.
777 N. Eldridge Road
Houston, Texas 77079, U.S.A.
Attention: Mr. J. G. Ryan
Telex: 77-5415
Facsimile: (713) 496-0895
To Buyer: Dual Drilling Company
5956 Sherry Lane, Suite 1500
Dallas, Texas 75225
Attention: Mr. L.H. Robertson
Telex: 758-822
Facsimile: (214) 373-0558
16.2 Any notice shall be effective upon receipt and shall be
given in the English language.
16.3 A Party may change its notice information by giving notice
of the change to the other Party in writing.
ARTICLE 17 - GENERAL
17.1 Neither Party shall be liable to the other in respect of
indirect or consequential damages, including but without
limitation, loss of profit, loss of use or loss of business
opportunity, regardless of the cause.
17.2 This Agreement represents the only Agreement between the
Parties and supersedes any prior correspondence,
representation or statements, whether written or oral on
this subject, including, but not limited to, that certain
Sale and Purchase Agreement dated 15 February 1995 between
the Parties.
IN WITNESS WHEREOF the Parties have executed this Agreement by
their duly authorized representatives on the day and year first
above written.
SELLER: BUYER:
GLOBAL MARINE AUSTRALIA INC. DUAL DRILLING COMPANY
/s/ John G. Ryan /s/ L. H. Robertson
By: John G. Ryan By: L. H. Robertson
President President
(EXHIBITS NOT INCLUDED)
