<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 5, 1999
REGISTRATION NO. 333-25233
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
NABORS INDUSTRIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
---------------------
<TABLE>
<S> <C> <C>
515 WEST GREENS ROAD, SUITE 1200
HOUSTON, TEXAS 77067
DELAWARE (281) 874-0035 93-0711613
(State or Other Jurisdiction (Address, Including Zip Code, and Telephone Number, (I.R.S. Employer
of Including Area Code, of Registrant's Principal Executive Identification No.)
Incorporation or Offices)
Organization)
</TABLE>
---------------------
<TABLE>
<S> <C>
ANTHONY G. PETRELLO With a copy to:
PRESIDENT AND CHIEF OPERATING OFFICER
NABORS INDUSTRIES, INC. ANGELO P. LOPRESTI, ESQ.
515 WEST GREENS ROAD, SUITE 1200 WINSTON & STRAWN
HOUSTON, TEXAS 77067 200 PARK AVENUE
(281) 874-0035 NEW YORK, NEW YORK 10166
(Name, Address, Including Zip Code, and Telephone Number, (212) 294-6700
Including Area Code, of Agent for Service)
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
in light of market conditions and other factors.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following box. [
]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
- ------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
- ------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------------
The Prospectus contained in the Registration Statement on Form S-3 of the
Registrant originally filed on April 15, 1997 (No. 333-25233) relates to the
Registration Statement on Form S-3 (No. 333-02477) of the Registrant, and it is
intended to be the combined prospectus referred to in Rule 429 under the
Securities Act of 1933, as amended.
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<PAGE> 2
EXPLANATORY NOTE
The purpose of this Post-Effective Amendment No. 1 to Registration
Statement on Form S-3 (No. 333-25233) of Nabors Industries, Inc. is to file
exhibits in connection with its offer and sale of $325,000,000 aggregate
principal amount of its 6.80% Notes due 2004. This Post-Effective Amendment No.
1 consists solely of Part II, Information Not Required in Prospectus, and
exhibits.
II-1
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following sets forth the best estimate of the Company as to its
anticipated expenses and costs (other than underwriting discounts and
commissions) expected to be incurred in connection with the issuance and
distribution of the securities registered hereby (except for the Commission
registration fee, all amounts are estimates):
<TABLE>
<S> <C>
Commission registration fee................................. $ 82,575.76
American Stock Exchange listing fee......................... 17,500
Printing and engraving expenses............................. 90,000
Legal fees and expenses..................................... 175,00
Accounting fees and expenses................................ 70,000
Blue sky fees and expenses.................................. 10,000
Trustee's fees and expenses................................. 30,000
Miscellaneous............................................... 24,924.24
-----------
Total............................................. $500,000.00
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits the
indemnification of directors, employees and agents of Delaware corporations.
Consistent therewith, Article Seventh of the Certificate of Incorporation
states as follows:
(a) Each person who was or is made a party or is threatened to be made
a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter collectively
referred to as a "proceeding"), by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was a director
or officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis
of such proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of his or her heirs, executors and administrators.
(b) The right to indemnification conferred in this Section shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition;
provided, however, that if the Delaware General Corporation Law requires,
the payment of such expenses incurred by a director or officer in advance
of the final disposition of a proceeding, shall be made only upon delivery
to the Corporation of an undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified
under this Section or otherwise. The Corporation may, by action of its
Board of Directors, provide information to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification
of directors and officers.
II-2
<PAGE> 4
(c) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in
this Section shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate
of Incorporation, By-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
(e) Any repeal or modification of this Section directly or indirectly,
such as by adoption of an inconsistent provision of this Certificate of
Incorporation, shall not apply to or have any effect on the rights of any
officer and director to indemnification and advancement of expenses with
respect to any acts or omissions occurring prior to such repeal or
modification.
(f) If this Section or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director and officer of the Corporation as to
expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) with respect to any proceeding to the full extent permitted by
any applicable portion of this Section that shall not have been invalidated
and to the full extent permitted by applicable law.
The Company has entered into agreements with each of its directors and
officers indemnifying each of them against expenses, settlements, judgments and
fines in connection with any threatened, pending or completed action, suit,
arbitration or proceeding where the individual's involvement is by reason of the
fact that he is or was a director or officer or served at the Company's request
as a director or officer of another organization, except that indemnification is
not provided against judgments or fines in a derivative suit unless permitted by
Delaware law.
The form(s) of proposed Underwriting Agreement(s) to be filed as (an)
exhibit(s) hereto or incorporated by reference herein may include provisions
relating to indemnification and contribution for the benefit of the underwriters
for any offering made hereby and may also contain provisions relating to the
indemnification of directors and officers of the Company against certain
liabilities, including liabilities under the Securities Act.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1 -- Underwriting Agreement dated March 4, 1999 between the
Company and the underwriters named therein.
4.1 -- Indenture dated as of March 1, 1999 between the Company
and Norwest Bank Minnesota, National Association, as
Trustee.
4.2 -- Supplemental Indenture No. 1 dated as of March 1, 1999
between the Company and Norwest Bank Minnesota, National
Association, as Trustee.
5.1 -- Opinion of Winston & Strawn.
12.1(1) -- Statement of Computation of Ratios of Earnings to Fixed
Charges.
12.2 -- Statement of Computation of Pro Forma Ratio of Earnings
to Fixed Charges.
15.1 -- Letter from PricewaterhouseCoopers LLP re Unaudited
Interim Financial Information.
23.1 -- Consent of Winston & Strawn (included in Exhibit 5.1).
*23.2 -- Consent of Grant Thornton LLP regarding the financial
statements of Bayard Drilling Technologies, Inc.
*23.3 -- Consent of PricewaterhouseCoopers LLP regarding the
financial statements of Bayard Drilling Technologies,
Inc.
</TABLE>
II-3
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
*23.4 -- Consent of PricewaterhouseCoopers LLP regarding the
financial statements of Ward Drilling Company, Inc.
*23.5 -- Consent of PricewaterhouseCoopers LLP regarding the
financial statements of Trend Drilling Company, Inc.
*23.6 -- Consent of Ernst & Young LLP regarding the financial
statements of Bonray Drilling Corporation.
*23.7 -- Consent of PricewaterhouseCoopers LLP regarding the
financial statements of Nabors Industries, Inc.
*24.1 -- Powers of Attorney (included on signature page).
25.1 -- Statement of Eligibility of Trustee on Form T-1 of
Norwest Bank Minnesota, National Association.
</TABLE>
- ---------------
* Previously filed.
(1) Incorporated by reference to Current Report on Form 8-K of the Company filed
with the Commission on March 1, 1999.
ITEM 17. UNDERTAKINGS.
(a) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceedings) 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 indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed
to be part of this Registration Statement as of the time it was
declared effective.
(2) For the purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of
prospectus shall be determined to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(d) The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act;
II-4
<PAGE> 6
(ii) to reflect in the Prospectus any facts of events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the charges in volume and price represent
no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (1) (i) and (1) (ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the Registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act 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.
(e) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
II-5
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Post-Effective Amendment No. 1 to this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 5th day of March,
1999.
NABORS INDUSTRIES, INC.
By: /s/ ANTHONY G. PETRELLO
----------------------------------
Anthony G. Petrello,
President and Chief Operating
Officer
In accordance with the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to this Registration Statement has been signed by
the following persons in the capacities and on the dates stated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ EUGENE M. ISENBERG* Chairman, Chief Executive March 5, 1999
- ----------------------------------------------------- Officer and Director
Eugene M. Isenberg (principal executive officer)
/s/ ANTHONY G. PETRELLO President, Chief Operating March 5, 1999
- ----------------------------------------------------- Officer and Director
Anthony G. Petrello
/s/ RICHARD A. STRATTON* Vice Chairman and Director March 5, 1999
- -----------------------------------------------------
Richard A. Stratton
/s/ BRUCE P. KOCH* Vice President of Finance March 5, 1999
- ----------------------------------------------------- (principal financial and
Bruce P. Koch accounting officer)
/s/ GARY T. HURFORD* Director March 5, 1999
- -----------------------------------------------------
Gary T. Hurford
/s/ HANS W. SCHMIDT* Director March 5, 1999
- -----------------------------------------------------
Hans W. Schmidt
/s/ MYRON M. SHEINFELD* Director March 5, 1999
- -----------------------------------------------------
Myron M. Sheinfeld
/s/ JACK WEXLER* Director March 5, 1999
- -----------------------------------------------------
Jack Wexler
/s/ MARTIN J. WHITMAN* Director March 5, 1999
- -----------------------------------------------------
Martin J. Whitman
*By: /s/ ANTHONY G. PETRELLO
-------------------------------------------------
Anthony G. Petrello
Attorney-in-Fact
</TABLE>
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1 -- Underwriting Agreement dated March 4, 1999 between the
Company and the underwriters named therein.
4.1 -- Indenture dated as of March 1, 1999 between the Company
and Norwest Bank Minnesota, National Association, as
Trustee.
4.2 -- Supplemental Indenture No. 1 dated as of March 1, 1999
between the Company and Norwest Bank Minnesota, National
Association as Trustee.
5.1 -- Opinion of Winston & Strawn.
12.1(1) -- Statement of Computation of Ratios of Earnings to Fixed
Charges.
12.2 -- Statement of Computation of Pro Forma Ratio of Earnings
to Fixed Charges.
15.1 -- Letter from PricewaterhouseCoopers LLP re Unaudited
Interim Financial Information.
23.1 -- Consent of Winston & Strawn (included in Exhibit 5.1).
*23.2 -- Consent of Grant Thornton LLP regarding the financial
statements of Bayard Drilling Technologies, Inc.
*23.3 -- Consent of PricewaterhouseCoopers LLP regarding the
financial statements of Bayard Drilling Technologies,
Inc.
*23.4 -- Consent of PricewaterhouseCoopers LLP regarding the
financial statements of Ward Drilling Company, Inc.
*23.5 -- Consent of PricewaterhouseCoopers LLP regarding the
financial statements of Trend Drilling Company, Inc.
*23.6 -- Consent of Ernst & Young LLP regarding the financial
statements of Bonray Drilling Corporation.
*23.7 -- Consent of PricewaterhouseCoopers LLP regarding the
financial statements of Nabors Industries, Inc.
*24.1 -- Powers of Attorney (included on signature page).
25.1 -- Statement of Eligibility of Trustee on Form T-1 of
Norwest Bank Minnesota, National Association.
</TABLE>
- ---------------
* Previously filed.
(1) Incorporated by reference to Current Report on Form 8-K of the Company filed
with the Commission on March 1, 1999.
<PAGE> 1
EXHIBIT 1.1
NABORS INDUSTRIES, INC.
$325,000,000
6.80% Notes Due 2004
UNDERWRITING AGREEMENT
March 4, 1999
Morgan Stanley & Co. Incorporated
Lehman Brothers Inc.
Prudential Securities Incorporated
Donaldson, Lufkin & Jenrette Securities Corporation
Howard, Weil, Labouisse, Friedrichs Incorporated
Salomon Smith Barney Inc.
Schroder & Co. Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
Nabors Industries, Inc. (the "Company"), proposes to sell to the
underwriters named in Schedule I hereto (the "Underwriters"), $325,000,000
aggregate principal amount of 6.80% Notes Due 2004 of the Company, herein
called the "Securities", to be issued under an indenture (as supplemented by
Supplemental Indenture No. 1 thereto, dated as of March 1, 1999, the
"Indenture") to be dated as of March 1, 1999, between the Company and Norwest
Bank Minnesota, National Association, as trustee (the "Trustee").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(file number 333-25233) on such Form, including a related preliminary
prospectus, for the registration under the Act of the offering and sale of one
or more series of debt securities, preferred stock, warrants, common stock and
depositary shares having an aggregate initial offering price not in excess of
$350,000,000, including the Securities. The Company has filed one or more
amendments thereto, each of which has previously been furnished to you, and the
registration statement was declared effective by the Commission on May 2, 1997.
On March 1, 1999, the Company filed with the Commission under Rule 424(b)(3) a
preliminary prospectus relating to the offering of the Securities, copies of
which have previously been furnished
<PAGE> 2
to you. The Company will next file with the Commission a final prospectus in
accordance with Rules 415 and 424(b)(2) or (5). As filed, such final
prospectus, shall contain all Rule 430A Information, together with all other
such required information, with respect to the Securities and the offering
thereof and, except to the extent the Underwriters shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the requirement set forth
in Rule 415(a)(1)(x).
(b) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the Company's knowledge,
threatened by the Commission. On the Effective Date, the Registration Statement
did, and when the Prospectus is first filed in accordance with Rule 424(b)(2)
or (5), as the case may be, and on the Closing Date, the Prospectus (and any
supple ments thereto) will, comply in all material respects with the applicable
requirements of the Act and the Securities Exchange Act of 1934 (the "Exchange
Act") and the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
respective rules thereunder; on the Effective Date, the Registration Statement
did not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on the Closing
Date, the Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules thereunder;
and, on the Effective Date, the Prospectus did not, and on the date of any
filing pursuant to Rule 424(b)(2) or (5), as the case may be, and on the
Closing Date, the Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a material
fact neces sary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to (i) that part of
the Registration Statement relating to the Indenture which constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Prospectus (or
any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date that
the Registration Statement and any post-effective amendment or amendments
thereto became or become effective and each date after the date hereof on which
a document incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is executed
and delivered by the parties hereto. "Preliminary Prospectus" shall mean any
preliminary prospectus referred to in paragraph (a) above and any preliminary
prospectus included in the Registration Statement at the Effective Date.
"Prospectus" shall mean the prospectus relating to the Securities that is first
filed pursuant to Rule 424(b) after the Execution Time. "Registration
Statement" shall mean the registration statement referred to in paragraph (a)
above, including incorporated documents, exhibits and financial statements, as
amended at the Execution Time and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date (as hereinafter
-2-
<PAGE> 3
defined), shall also mean such registration statement as so amended. "Rule
415," "Rule 424," "Rule 430A" and "Regulation S-K" refer to such rules or
regulation under the Act. "Rule 430A Information" means information with
respect to the Securities and the offering thereof which would have been
permitted to be omitted from the Registration Statement if it had become
effective pursuant to Rule 430A. Any reference herein to the Registration
Statement, a Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of such
Preliminary Pro spectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, any Preliminary Pro spectus or the Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement, or the
issue date of any Preliminary Prospectus or the Prospectus, as the case may be,
that is incorporated therein by reference.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(e) Each Significant Subsidiary (as defined below) has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its Significant Subsidiaries, taken as a
whole; all of the issued shares of capital stock of each Significant Subsidiary
of the Company have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned directly by the Company, free and clear of all
liens, encumbrances, equities or claims. "Significant Subsidiaries" shall mean
Nabors International Inc., Sundowner Offshore Services, Inc., Nabors Drilling
USA, Inc., Nabors Alaska Drilling, Inc., Nabors Offshore Drilling Inc., Nabors
Drilling International Limited, a Delaware corporation, and Nabors Drilling
Limited.
(f) This Agreement has been duly authorized, executed and delivered by
the Company.
(g) The Indenture has been duly authorized, executed and delivered by
the Company.
(h) The Securities have been duly authorized by the Company.
-3-
<PAGE> 4
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture and the
Securities will not contravene any provision of the certificate of
incorporation or by-laws of the Company or any agreement or other instrument
binding upon the Company or any of its Significant Subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or, to the
knowledge of the Company, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any Significant
Subsidiary.
(j) There are no material legal or governmental proceedings pending
or, to the knowledge of the Company, threatened to which the Company or any of
its Significant Subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or any material contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that are
not described, filed or incorporated as required.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price equal to 99.31%
of the principal amount thereof, plus accrued interest, if any, from the
Closing Date (as hereinafter defined), the principal amount of the Securities
set forth opposite such Underwriter's name in Schedule I hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Securities
and shall be made at 10:00 AM, New York City time, on March 9, 1999, or such
later reasonable date as the Underwriters and the Company shall agree upon,
which date and time may be postponed by agreement among the Underwriters and
the Company or as provided in Section 9 hereof (such date and time of delivery
and payment for the Securities being herein called the "Closing Date").
Delivery of the Securities shall be made to the Underwriters for the respective
accounts of the several Underwriters against payment by the several
Underwriters of the aggregate purchase price thereof to or upon the order of
the Company by wire transfer of U.S. dollars in U.S. Federal (same day) funds
to an account specified in writing by the Company at least two business days
prior to the Closing Date. Delivery of a global certificate for the Securities
shall be made at such location as the Underwriters shall reasonably designate
at least one business day in advance of the Closing Date. The Securities shall
be registered in such names and in such denominations as the Underwriters may
request not less than two full business days in advance of the Closing Date.
The Company agrees to have a global certificate for the Securities
available for inspection by the Underwriters in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
The Company will pay all applicable state transfer taxes, if any,
involved in the transfer to the several Underwriters of the Securities to be
purchased by them from the Company and the respective Underwriters will pay any
additional state transfer taxes involved in further transfers.
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<PAGE> 5
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set
forth in the Prospectus.
5. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or supplement
to the Prospectus unless the Company has furnished you a copy for your review
prior to filing and, except as set forth in subparagraph (b) hereof, will not
file any such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 424(b), the Company will cause the Prospectus,
properly completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period pre
scribed and will provide evidence satisfactory to the Underwriters of such
timely filing. The Company will promptly advise the Underwriters (i) when the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, shall have become effective, (ii) when the Prospectus, and
any supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (iii) when, prior to termination of the offering of
the Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Prospectus or for
any additional information, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi) of the
receipt by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company will
use all commercially reasonable efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) prepare and file
with the Commission, subject to the second sentence of subparagraph (a) of this
Section 5, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance and (ii) supply any
supplemented Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
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<PAGE> 6
(d) The Company will furnish to the Underwriters and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Underwriters may reasonably request. The Company will pay the
expenses of printing or other production of all docu ments relating to the
offering.
(e) The Company, at its expense, will arrange for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualifications in effect so
long as required for the distribution of the Securities, provided, that in
connection therewith the Company shall not be required to qualify as a foreign
corporation, file a general consent to service of process in any state other
than in Florida, or subject itself to taxation in any jurisdiction. The Company
will pay the fees and expenses of counsel to the Underwriters in connection
with such qualifications. The Company will pay the fee of the National
Association of Securities Dealers, Inc., in connection with its review of the
offering, if applicable.
(f) The Company will not, during the period beginning at the Execution
Time and continuing to and including the Closing Date, offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company or warrants to
purchase debt securities of the Company, in either case, substantially similar
to the Securities (other than (i) the Securities and (ii) commercial paper
issued in the ordinary course of business), without the prior written consent
of Morgan Stanley & Co. Incorporated.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Securities shall be subject to the accuracy
in all material respects of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy in all material respects of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company in all material respects of its obligations hereunder and to the
following additional conditions:
(a) The supplement to the Prospectus required pursuant to the
applicable paragraph of Rule 424(b) shall have been filed in the manner and
within the time period required by Rule 424(b); and no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Underwriters the opinion
of Katherine P. Ellis, Associate Counsel of Nabors Corporate Services, Inc.,
dated the Closing Date, to the effect that:
(i) each of the Company and Nabors International Inc., Nabors
Drilling USA, Inc., Nabors Offshore Drilling, Inc. and Nabors Drilling
International Limited, a Delaware corporation (collectively, the
"Material Subsidiaries"), has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and is duly qualified to do
business as
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<PAGE> 7
a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases properties or conducts business, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole;
(ii) all the outstanding shares of capital stock of the
Company and each Material Subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable. All
outstanding shares of capital stock of each of the Material
Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, any other security
interests, claims, liens or encumbrances;
(iii) to the knowledge of such counsel, there is no pending
or threatened material action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there is no franchise, contract or
other document of a character required to be described in the
Registration Statement or the Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(iv) such counsel has no reason to believe that at the
Effective Date the Registration Statement (other than the financial
statements and the other financial and statistical information
contained or incorporated by reference therein, as to which
information such counsel need express no comment) included any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (other than the
financial statements and the other financial and statistical
information contained or incorporated by reference therein, as to
which information such counsel need express no comment), as of its
date and as of the Closing Date, included or includes any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(v) no consent, approval, authorization or order of any court
or governmental agency or body is required of the consummation of the
transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters (as to which such counsel need
express no opinion) and such other approvals as have been obtained;
(vi) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation of, or constitute a default under the terms of (A)
any indenture or other agreement or instrument known to such counsel
and to which the Company or any of its Significant Subsidiaries is a
party or bound, or any judgment, order or decree known to such counsel
to be applicable to the Company or any of its Significant Subsidiaries
of any court, regulatory body, administrative agency, governmental
body or
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<PAGE> 8
arbitrator having jurisdiction over the Company or any of its
Significant Subsidiaries, except such as would not, either singly or
in the aggregate, have a material adverse effect upon the Company and
its subsidiaries, taken as a whole, or prevent the Company from
performing its obligations under the Underwriting Agreement, or (B)
the respective charters or bylaws of the Material Subsidiaries; and
(vii) no holders of securities of the Company have rights to
the registration of such securities under the Registration Statement.
In giving such opinion, such counsel may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible
officers of the Company and the Material Subsidiaries and of public officials.
Such opinion may be relied upon only by the Underwriters in connection with the
transactions contemplated by this Agreement, and may not be used or relied upon
by the Underwriters for any other purpose, or by any other person, firm,
corporation or entity for any purpose whatsoever, without the prior written
consent of such counsel. Such opinion may be limited to the laws of the State
of Texas and the General Corporation Law of the State of Delaware.
References in this Section 6(b) to the Prospectus include any
supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Underwriters the opinion
of Winston & Strawn, special counsel for the Company, dated the Closing Date,
to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus,
and is duly qualified to do business as a foreign corporation and is
in good standing under the laws of the State of Texas;
(ii) the statements in the Prospectus Supplement under
"Description of Notes" and in the Prospectus under "Description of
Debt Securities," insofar as such statements constitute a summary of
the documents referred to therein, fairly present in all material
respects the information called for with respect to such documents;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act (except that no opinion is expressed with respect to the
Statement of Eligibility and Qualification on Form T-1 of the Trustee
filed as an exhibit to the Registration Statement), and constitutes a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms (subject to bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally and to general principles of equity, from time to time in
effect); and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant
to this Agreement, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture;
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<PAGE> 9
(iv) any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been filed in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for
that purpose have been instituted or threatened and the Registration
Statement, as of its Effective Date, and the Prospectus as of its date
(other than (A) the financial statements, financial schedules and
other financial and statistical information contained therein or
excluded therefrom or (B) the part of the Registration Statement that
constitutes the Form T-1, as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act and the respective rules
thereunder;
(v) this Agreement has been duly authorized, executed and
delivered by the Company; and
(vi) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation of, or constitute a default under any provision of
(A) applicable law, except such as would not, either singly or in the
aggregate, have a material adverse effect upon the Company and its
subsidiaries, taken as a whole, or prevent the Company from performing
its obligations under the Underwriting Agreement, or (B) the Restated
Certificate of Incorporation or By-Laws of the Company.
In rendering their opinions set forth in Section 6(c) above, such
counsel may rely, to the extent deemed advisable by such counsel, (i) as to
factual matters on certificates of officers of the Company and (ii) upon
certificates of public officials. Such counsel shall also state that such
counsel has participated in conferences with officers and representatives of
the Company, the independent public accountants of the Company and the
Underwriters and their counsel, at which conferences such counsel made
inquiries of such officers, Underwriters and accountants, discussed in detail
the contents of the Registration Statement and Prospectus and (without taking
any further action to verify independently the statements made in the
Registration Statement and the Prospectus and, except as stated in Section
6(c)(ii) above, without assuming any responsibility for the accuracy,
completeness or fairness of such statements) that nothing has come to such
counsel's attention that would lead such counsel to believe that the
Registration Statement (other than the financial statements and other financial
and statistical information contained or incorporated by reference therein, as
to which such counsel need express no comment), at the Execution Time,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading (other than the information omitted therefrom in reliance upon
Section 430A), or that the Prospectus (other than the financial statements,
financial schedules and other financial and statistical information contained
or incorporated by reference therein, as to which such counsel need express no
comment), at the time it was filed pursuant to Rule 424(b) after the Execution
Time or at the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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<PAGE> 10
Such opinion shall be limited to the laws of the State of New York,
the Federal laws of the United States and the General Corporation Law of the
State of Delaware. Such opinion shall be rendered as of the Closing Date only
in connection with the Agreement and will be solely for the benefit of the
Underwriters, and may not be relied upon, nor shown to or quoted from, for any
other purpose, or to any other person, firm or corporation. References to the
Prospectus in this Section 6(c) include any supplements thereto at the Closing
Date.
(d) (i) The Company shall have furnished to the Underwriters the
opinion of Miller Thomson, special Canadian counsel to Nabors Drilling
Limited, a corporation formed under the Canada Business Corporation
Act ("Nabors Limited"), substantially to the effect set forth in
sections 6(b)(i), (ii) and (vi)(B), in each case solely as such
provisions relate to Nabors Limited. Such opinion shall be limited to
the laws of Canada and the Province of Alberta, and shall otherwise be
subject to the qualifications set forth in the concluding paragraph of
Section 6(b).
(ii) The Company shall have furnished to the Underwriters the
opinion of Hartig, Rhodes, Norman, Mahoney & Edwards, special Alaska
counsel to Nabors Alaska Drilling, Inc., an Alaska corporation
("Nabors Alaska"), substantially to the effect set forth in Sections
6(b)(i), (ii) and (vi)(B), in each case solely as such provisions
relate to Nabors Alaska. Such opinion shall be limited to the laws of
the State of Alaska and shall otherwise be subject to the
qualifications set forth in the concluding paragraph of Section 6(b).
(iii) The Company shall have furnished to the Underwriters
the opinion of Woodburn & Wedge, special Nevada counsel to Sundowner
Offshore Services, Inc., a Nevada corporation ("Sundowner"),
substantially to the effect set forth in Sections 6(b)(i), (ii) and
(vi)(B), in each case solely as such provisions relate to Sundowner.
Such opinion shall be limited to the laws of the State of Nevada and
shall otherwise be subject to the qualifications set forth in the
concluding paragraph of Section 6(b).
(e) The Underwriters shall have received from Vinson & Elkins L.L.P.,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Underwriters may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Underwriters a certificate
of the Company, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any supplement to the
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied in all material respects with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
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<PAGE> 11
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge, are
threatened;
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus, there has
been no material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its subsidiaries,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus;
and
(iv) the Company is not aware of any business acquisition
which is probable of being consummated by the Company as of the date
hereof which would be required under the Act to be disclosed in the
Prospectus and is not so disclosed.
(g) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Underwriters a letter or letters, dated as of the Closing
Date, in form and substance satisfactory to the Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into
the Prospectus.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (g) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment of the
Underwriters, so material and adverse as to make it impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Registration Statement (exclusive of any amendment thereof) and the
Prospectus.
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by a "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act) or any notice given of any intended or potential decrease
in any such rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(j) Prior to the Closing Date, the Company shall have furnished to the
Underwriters such further information, certificates and documents as the
Underwriters may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
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<PAGE> 12
The documents required to be delivered by this Section 6 shall be
delivered at the office of counsel for the Company on the Closing Date.
7. REIMBURSEMENT OF EXPENSES. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 10 hereof or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities, up to a maximum of $250,000. The
Underwriters shall provide the Company with invoices or other reasonable
evidence of such expenses at or prior to the time of reimbursement.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained
in the registration statement for the registration of the Securities as
originally filed or in any amendment thereof, or in any Preliminary Prospectus
or the Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Underwriters specifically for inclusion therein and
provided further, that the indemnity agreement contained in this Section 8(a)
with respect to any Preliminary Prospectus shall not inure to the benefit of
any Underwriter (or any directors, officers, employees or agent thereof or any
persons controlling such Underwriter) on account of any losses, claims,
damages, liabilities or litigation arising from the sale of Securities to any
person, if such Underwriter fails to send or give a copy of the Prospectus, as
the same may then be supplemented or amended, to such person, within the time
required by the Act, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in or omitted from
such Preliminary Prospectus was corrected in the Prospectus, as then amended or
supplemented, unless such failure is the result of noncompliance by the Company
with Section 5(b)(ii) hereof. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
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<PAGE> 13
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Underwriters
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page and under the
heading "Underwriters" in any Preliminary Prospectus and the Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus, and you, as the Underwriters, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ not more than one separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, which consent shall not be unreasonably withheld, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
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<PAGE> 14
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities); provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Under writer, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and provisions of this
paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule I hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be
-14-
<PAGE> 15
postponed for such period, not exceeding seven days, as the Underwriters and
the Company shall agree in order that the required changes in the Registration
Statement and the Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i)
trading in the Company's Common Stock shall have been suspended by the
Commission or the American Stock Exchange or trading in securities generally on
the New York Stock Exchange or the American Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on either of
such Exchanges, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war or any other calamity or crisis the effect of which
on financial markets is such as to make it, in the judgment of the
Underwriters, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Company or any
of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them, care of Morgan Stanley & Co.
Incorporated at 1585 Broadway, New York, New York, 10036; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at 515
West Greens Road, Suite 1200, Houston, Texas 77067, Attention of Eugene M.
Isenberg, Chairman and Chief Executive Officer.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder. No purchaser
of any of the Securities from any Underwriters shall be deemed a successor or
assign by reason merely of such purchase.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
15. COUNTERPARTS. This Agreement may be executed by one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
-15-
<PAGE> 16
16. CONSENT. The Company and the Underwriters acknowledge that Winston
& Strawn, which is acting as special counsel to the Company in connection with
the offer and sale of the Securities, may act as counsel from time to time to
one or more of the Underwriters in connection with unrelated matters. The
Company and the Underwriters consent to Winston & Strawn so acting as special
counsel to the Company. The Company and the Underwriters also acknowledge that
Vinson & Elkins L.L.P., which is acting as counsel to the Underwriters in
connection with the offer and sale of the Securities, also acts as counsel from
time to time to the Company and certain of its affiliates in connection with
unrelated matters. The Company and the Underwriters consent to Vinson & Elkins
L.L.P. so acting as counsel to the Underwriters.
-16-
<PAGE> 17
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
NABORS INDUSTRIES, INC.
By: /s/ ANTHONY G. PETRELLO
--------------------------
Name: Anthony G. Petrello
Title: President and Chief
Operating Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
MORGAN STANLEY & CO. INCORPORATED
LEHMAN BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
HOWARD, WEIL, LABOUISSE, FRIEDRICHS INCORPORATED
SALOMON SMITH BARNEY INC.
SCHRODER & CO. INC.
BY: MORGAN STANLEY & CO. INCORPORATED
By: /s/ HAROLD J. HENDERSHOT III
-------------------------------
Name: Harold J. Hendershot III
Title: Vice President
<PAGE> 18
SCHEDULE I
<TABLE>
<CAPTION>
UNDERWRITERS PRINCIPAL AMOUNT OF
------------ NOTES
-----
<S> <C>
Morgan Stanley & Co. Incorporated $ 65,000,000
Lehman Brothers Inc. 65,000,000
Prudential Securities Incorporated 65,000,000
Donaldson, Lufkin & Jenrette Securities 32,500,000
Corporation
Howard, Weil, Labouisse, Friedrichs 32,500,000
Incorporated
Salomon Smith Barney Inc. 32,500,000
Schroder & Co. Inc. 32,500,000
------------
Total $325,000,000
============
</TABLE>
<PAGE> 1
EXHIBIT 4.1
================================================================================
NABORS INDUSTRIES, INC.
TO
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
TRUSTEE
-------------------
INDENTURE
Dated as of March 1, 1999
-------------------
Senior Debt Securities
================================================================================
<PAGE> 2
NABORS INDUSTRIES, INC.
Reconciliation and tie between certain Sections
of this Indenture, dated as of March 1, 1999 and
Sections 310 through 318, inclusive, of
the Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
<S> <C>
310 (a)(1) .............................................................................................609
(a)(2) .............................................................................................609
(a)(3) ..................................................................................Not Applicable
(a)(4) ..................................................................................Not Applicable
(b) .............................................................................................608
............................................................................................ 610
311 (a) ............................................................................................ 613
(b) ............................................................................................ 613
312 (a) ............................................................................................ 701
..........................................................................................702(a)
(b) ..........................................................................................702(b)
(c) ......................................................................................... 702(c)
313 (a) ..........................................................................................703(a)
(b) ..........................................................................................703(a)
(c) ......................................................................................... 703(a)
(d) ..........................................................................................703(b)
314 (a) ............................................................................................ 704
(a)(4) ............................................................................................ 101
........................................................................................... 1004
(b) ................................................................................. Not Applicable
(c)(1) ............................................................................................ 102
(c)(2) ............................................................................................ 102
(c)(3) ................................................................................. Not Applicable
(d) ................................................................................. Not Applicable
(e) ............................................................................................ 102
315 (a) ............................................................................................ 601
(b) ............................................................................................ 602
(C) ............................................................................................ 601
(d) ............................................................................................ 601
(e) ............................................................................................ 514
316 (a) ............................................................................................ 101
(a)(1)(A)........................................................................................... 502
............................................................................................ 512
(a)(1)(B) ...........................................................................................513
(a)(2) ................................................................................. Not Applicable
(b) .............................................................................................508
(c) ......................................................................................... 104(c)
317 (a)(1) ............................................................................................ 503
(a)(2) ............................................................................................ 504
(b) ........................................................................................... 1003
318 (a) ............................................................................................ 107
</TABLE>
- ------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
i
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
RECITALS OF THE COMPANY 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions 1
Section 102. Compliance Certificates and Opinions 7
Section 103. Form of Documents Delivered to Trustee 8
Section 104. Acts of Holders; Record Dates 8
Section 105. Notices, Etc. to Trustee and Company 9
Section 106. Notice to Holders; Waiver 10
Section 107. Conflict with Trust Indenture Act. 10
Section 108. Effect of Headings and Table of Contents 10
Section 109. Successors and Assigns 10
Section 110. Separability Clause 11
Section 111. Benefits of Indenture 11
Section 112. Governing Law 11
Section 113. Legal Holidays 11
Section 114. Personal Immunity from Liability for Incorporators, Stockholders, Etc. 11
ARTICLE TWO
Security Forms
Section 201. Forms Generally 11
Section 202. Form of Face of Security 12
Section 203. Form of Reverse of Security 14
Section 204. Form of Legend for Global Securities 18
Section 205. Form of Trustee's Certificate of Authentication 18
Section 206. Form of Conversion Notice 19
SECTION 207. Securities Issuable in Global Form 20
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series 21
Section 302. Denominations 23
Section 303. Execution, Authentication, Delivery and Dating 23
Section 304. Temporary Securities 25
Section 305. Registration, Registration of Transfer and Exchange 25
Section 306. Mutilated, Destroyed, Lost and Stolen Securities 26
Section 307. Payment of Interest; Interest Rights Preserved 27
Section 308. Persons Deemed Owners 28
Section 309. Cancellation 28
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
Section 310. Computation of Interest 29
Section 311. Designation as Senior Debt 29
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture 29
Section 402. Application of Trust Fund 30
ARTICLE FIVE
Remedies
Section 501. Events of Default 31
Section 502. Acceleration of Maturity; Rescission and Annulment 32
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee 33
Section 504. Trustee May File Proofs of Claim 34
Section 505. Trustee May Enforce Claims Without Possession of Securities 34
Section 506. Application of Money Collected 35
Section 507. Limitation on Suits 35
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest
and to Convert 35
Section 509. Restoration of Rights and Remedies 36
Section 510. Rights and Remedies Cumulative 36
Section 511. Delay or Omission Not Waiver 36
Section 512. Control by Holders 36
Section 513. Waiver of Past Defaults 36
Section 514. Undertaking for Costs 37
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities 37
Section 602. Notice of Defaults 38
Section 603. Certain Rights of Trustee 38
Section 604. Not Responsible for Recitals or Issuance of Securities 39
Section 605. May Hold Securities 40
Section 606. Money Held in Trust 40
Section 607. Compensation and Reimbursement 40
Section 608. Disqualification; Conflicting Interests 41
Section 609. Corporate Trustee Required; Eligibility 41
Section 610. Resignation and Removal; Appointment of Successor 41
Section 611. Acceptance of Appointment by Successor 42
Section 612. Merger, Conversion, Consolidation or Succession to Business 43
Section 613. Preferential Collection of Claims Against Company 44
Section 614. Appointment of Authenticating Agent 44
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders 45
Section 702. Preservation of Information; Communications to Holders 45
Section 703. Reports by Trustee 46
Section 704. Reports by Company 46
ARTICLE EIGHT
Consolidation, Merger, or Sale of Assets
Section 801. Company May Consolidate, Etc. 46
Section 802. Successor Substituted 47
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders 47
Section 902. Supplemental Indentures With Consent of Holders 48
Section 903. Execution of Supplemental Indentures 50
Section 904. Effect of Supplemental Indentures 50
Section 905. Revocation and Effect of Consents 50
Section 906. Conformity with Trust Indenture Act 50
Section 907. Reference in Securities to Supplemental Indentures 50
Section 908. Waiver of Compliance by Holders 50
Section 909. Notice of Supplemental Indenture 51
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest 51
Section 1002. Maintenance of Office or Agency 51
Section 1003. Money for Securities Payments to Be Held in Trust 51
Section 1004. Statement by Officers as to Compliance 52
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article 53
Section 1102. Election to Redeem; Notice to Trustee 53
Section 1103. Selection by Trustee of Securities to Be Redeemed. 53
Section 1104. Notice of Redemption 54
Section 1105. Deposit of Redemption Price 54
Section 1106. Securities Payable on Redemption Date 55
Section 1107. Securities Redeemed in Part 55
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C>
ARTICLE TWELVE
Conversion of Securities
Section 1201. Applicability of Article 55
Section 1202. Exercise of Conversion Privilege 55
Section 1203. No Fractional Shares 56
Section 1204. Adjustment of Conversion Price 57
Section 1205. Notice of Certain Corporate Actions 57
Section 1206. Reservation of Shares of Common Stock 58
Section 1207. Payment of Certain Taxes Upon Conversion 58
Section 1208. Nonassessability 58
Section 1209. Effect of Consolidation or Merger on Conversion Privilege 58
Section 1210. Duties of Trustee Regarding Conversion 59
Section 1211. Repayment of Certain Funds Upon Conversion 60
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance 60
Section 1302. Defeasance and Discharge 60
Section 1303. Covenant Defeasance 61
Section 1304. Conditions to Defeasance or Covenant Defeasance 61
Section 1305. Deposited Money and U.S. Government Obligations to be Held In Trust; Other
Miscellaneous Provisions 63
Section 1306. Reinstatement 63
ARTICLE FOURTEEN
Sinking Funds
Section 1401. Applicability of Article 63
Section 1402. Satisfaction of Sinking Fund Payments with Securities 64
Section 1403. Redemption of Securities for Sinking Fund 64
ARTICLE FIFTEEN
Repayment at Option of Holders
SECTION 1501. Applicability of Article 64
SECTION 1502. Repayment of Securities 65
SECTION 1503. Exercise of Option 65
SECTION 1504. When Securities Presented for Repayment Become Due and Payable 65
SECTION 1505. Securities Repaid in Part 66
</TABLE>
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
v
<PAGE> 7
INDENTURE, dated as of March 1, 1999 between NABORS
INDUSTRIES, INC., a Delaware corporation (herein called the "Company"), having
its principal office at 515 West Greens Road, Suite 1200, Houston Texas 77067,
and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association
duly organized and existing under the laws of the United States of America, as
Trustee (herein 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 or other evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be a part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or the Securities Act of 1933, as amended, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation;
1
<PAGE> 8
(4) the words "Article" and "Section" refer to an Article and Section,
respectively, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision unless context otherwise requires.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either (i) the board of directors of the
Company, the executive committee of such board of directors or any other duly
authorized committee of directors and/or officers appointed by such board of
directors or executive committee, or (ii) one or more duly authorized officers
of the Company to whom the board of directors of the Company or a committee
thereof has delegated the authority to act with respect to the matters
contemplated by this Indenture.
"Board Resolution" means (i) a copy of a resolution certified by the
Corporate Secretary or an Assistant Corporate Secretary of the Company to have
been duly adopted by the board of directors of the Company or a committee
thereof and to be in full force and effect on the date of such certification or
(ii) a certificate signed by the duly authorized officer or officers of the
Company to whom the board of directors of the Company or a duly authorized
committee thereof has delegated its authority (as described in the definition of
Board of Directors), and in each case, delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means, with respect to the Company, its common stock,
par value $.10 per share, and with respect to any Principal Subsidiary, stock of
any class, however designated, except stock which is non-participating beyond
fixed dividend and liquidation preferences and the holders of which have either
no voting rights or limited voting rights entitling them, only in the case of
certain contingencies, to elect less than a majority of the directors (or
persons performing similar functions) of such Principal Subsidiary, and shall
include securities of any class, however designated, which are convertible into
such Common Stock.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
2
<PAGE> 9
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by (i) any two of the following
individuals: the Chairman, a Vice Chairman, the President or a Vice President,
or (ii) by one of the foregoing individuals and by any other Vice President, the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Corporate Secretary or an Assistant Corporate Secretary or any other individual
authorized by the Board of Directors for such purpose (as set forth in a Board
Resolution), and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at Norwest Center,
Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479-0069.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section
1303.
"Days" mean calendar days.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Defeasible Series" has the meaning specified in Section 1304.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
depositary for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute thereto.
"Floating or Adjustable Rate Provision" means a formula or
provision, specified in or pursuant to a Board Resolution or an indenture
supplemental hereto, providing for the determination, whether pursuant to
objective factors or pursuant to the sole discretion of any Person (including
the Company), and periodic adjustment of the interest rate borne by a Floating
or Adjustable Rate Security.
"Floating or Adjustable Rate Security" means any Security
which provides for interest thereon at a periodic rate that may vary from time
to time over the term thereof in accordance with a Floating or Adjustable Rate
Provision.
3
<PAGE> 10
"Global Security" means a Security that evidences all or part
of the Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities or a nominee
thereof.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 501(4) and Section 501(5).
"Officers' Certificate" means a certificate signed by (i) any
two of the following individuals: the Chairman, a Vice Chairman, the President
or a Vice President, or (ii) by one of the foregoing individuals and by any
other Vice President, the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Corporate Secretary or an Assistant Corporate
Secretary, of the Company, or any other individual authorized by the Board of
Directors for such purpose (as specified in a Board Resolution), and delivered
to the Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel to the Company, or who may be other counsel
reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any 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 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
4
<PAGE> 11
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, and (B) Securities owned by (i) the Company or
any other obligor upon the Securities or (ii) any Subsidiary or of such other
obligor upon the Securities 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 Securities which a Responsible Officer of the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Subsidiary or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PIK Securities" means any series of Securities where interest
is payable, at the election of the Company or a holder of such Security, in
additional Securities.
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<PAGE> 12
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Subsidiary" means any Subsidiary which at the time
of determination has, (A) assets which, as of the date of the Company's most
recently prepared quarterly consolidated balance sheet, constituted at least 15%
of the Company's total assets on a consolidated basis as of such date, or (B)
revenues for the 12-month period ending on the date of the Company's most
recently prepared quarterly consolidated statement of income which constituted
at least 15% of the Company's total revenues on a consolidated basis for such
period or (C) net earnings for the 12-month period ending on the date of the
Company's most recently prepared quarterly consolidated statement of income
which constituted at least 15% of the Company's total net earnings on a
consolidated basis for such period.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee with responsibility for the administration of
this Indenture, and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
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<PAGE> 13
"Subordinated Indenture" means the indenture, dated May 15,
1996, between the Company and Marine Midland Bank, as trustee, and relating to
certain subordinated debt securities of the Company.
"Subsidiary" means a corporation more than 50% of the voting
power of which is controlled, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting power" means the
power to vote for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, if
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended, and except as provided
in Section 906.
"U.S. Government Obligations" has the meaning specified in
Section 1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (excluding certificates
provided for in Section 1004) shall include
(1) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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<PAGE> 14
(3) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which its certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate, opinion or representation by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate, opinion or representation with respect to such accounting matters
upon which its certificate, statement or opinion may be based is erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 104. Acts of Holders; Record Dates. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to
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<PAGE> 15
Section 601) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action, or to vote on any action, authorized or permitted to be given
or taken by Holders of Outstanding Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such series
made by any Person in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or vote shall be
the 30th day (or, if later, the date of the most recent list of Holders required
to be provided pursuant to Section 701) prior to such first solicitation or
vote, as the case may be. With regard to any record date for action to be taken
by the Holders of one or more series of Securities, only the Holders of
Securities of such series on such date (or their duly designated proxies) shall
be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register or by a certificate of the Security Registrar.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
Section 105. Notices, Etc. to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office;
provided, however, that the same shall be made, given, furnished
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<PAGE> 16
or filed only when received by a Responsible Officer of the Trustee at
its Corporate Trust Office, Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument; provided,
however, that the same shall be made, given, furnished or filed only
when received by the Company, Attention: President, or at any other
address previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at its
address as it appears in the Security Register, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice; provided, however, that the Company or the Trustee, upon
a good faith determination that mailing is in the circumstances impractical, may
give such notice by any other method which, in the reasonable belief of the
Company or, in the case of the Trustee, of the Company and the Trustee, is
likely to be received by the Holders. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the required provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
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<PAGE> 17
Section 110. Separability Clause. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 111. Benefits of Indenture. Nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, BUT WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 113. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any Security or the last day
on which a Holder has the right to convert a Security at a particular conversion
price shall not be a Business Day at any Place of Payment, then (notwithstanding
any other provision of this Indenture or of the Securities (other than a
provision of the Securities of any series which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) or conversion need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section 114. Personal Immunity from Liability for
Incorporators, Stockholders, Etc. No recourse shall be had for the payment of
the principal of or premium, if any, or interest, if any, on any Security, or
for any claim based thereon, or otherwise in respect of any Security, or based
on or in respect of this Indenture or any indenture supplemental hereto, against
any incorporator, or against any past, present or future stockholder, director
or officer, as such, of the Company or of any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being expressly waived
and released as a condition of, and as consideration for, the execution of this
Indenture and the issue of the Securities.
ARTICLE TWO
Security Forms
Section 201. Forms Generally. The Securities of each series
shall be in substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistent herewith, be determined by the officers executing
such Securities, as evidenced by their execution of the Securities. If the form
of
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<PAGE> 18
Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Corporate Secretary or an Assistant Corporate Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code of
1986, as amended and the regulations thereunder.]
NABORS INDUSTRIES, INC.
No.____ [$]____
NABORS INDUSTRIES, INC., a Delaware corporation (herein called
the "Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________________, or registered assigns, the principal sum of
[$]______________ [__________ Dollars] [if applicable insert one or more foreign
currencies, currency units or composite currencies] [if the Security is to bear
interest prior to Maturity, insert -- and to pay interest thereon from _________
or from the most recent interest Payment Date to which interest has been paid or
duly provided for, [semi-annually on __________ and __________ in each year] [if
other than semi-annual payments, insert frequency of payments and payment
dates], commencing ________________, at [if the Security is to bear interest at
a fixed rate, insert -- the rate of ______% per annum][if the Security is a
Floating or Adjustable Rate Security, insert -- a rate per annum
[computed-determined] in accordance with the [insert defined name of Floating or
Adjustable Rate Provision] set forth below], [if the Security is to bear
interest at a rate determined with reference to an index, refer to description
of index below] until the principal hereof is paid or made available for payment
[if applicable, insert -- and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of ____% per annum on any overdue
principal and premium and on any overdue installment of interest]. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, which shall be the
___________ or ____________ (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture).
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<PAGE> 19
[If the Securities are Floating or Adjustable Rate Securities
with respect to which the principal of or any premium or interest may be
determined with reference to an index, insert the text of the Floating or
Adjustable Rate Provision.]
[If the Security is not to bear interest prior to Maturity,
insert -- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of __% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ______% per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in ___________, in
such coin or currency of [if applicable, insert -- the United States of America]
[if applicable, insert another currency, currency unit or composite currency] as
at the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register).
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
NABORS INDUSTRIES, INC.
By________________________________
Attest:
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<PAGE> 20
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of _______________ (herein called
the "Indenture"), between the Company and ________________, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [, limited in aggregate principal amount to [[$]___________][if
applicable, insert -- relevant amount in applicable foreign currency, currency
unit or composite currency]].
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' nor more than 60 days' notice
by mail, [if applicable, insert -- (1) on __________ in any year commencing with
the year ____ and ending with the year ____ through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [on or after ________________], as a whole or in
part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [on or before
_________, ___% and if redeemed] during the 12-month period beginning of the
years indicated,
<TABLE>
<CAPTION>
Redemption Redemption Year Price Year Price
---------- --------------- ---------- -----
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to __________% of the principal
amount, together in the case of any such redemption [if applicable, insert
- --(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest installments whose stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' nor more than 60 days' notice
by mail, (1) on ________ in any year commencing with the year __________ and
ending with the year __________ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after _________], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-month
period beginning __________ of the years indicated,
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<PAGE> 21
<TABLE>
<CAPTION>
Redemption Price For Redemption Price For Redemption
Redemption Through Operation Otherwise
of the Than Through Operation of the
Year Sinking Fund Sinking Fund
- ---- ----------------------------- --------------------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity in on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[The sinking fund for this series provides for the redemption
on __________ in each year beginning with the year _____ and ending with the
year ____ of [not less than [$]__________ ("mandatory sinking fund") and not
more than] [$]__________ aggregate principal amount of Securities of this
series. Securities of this series acquired or redeemed by the Company otherwise
than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made [in
the inverse order in which they become due).]
[If the Security is subject to redemption, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance at any time
of (1) the entire indebtedness of this Security or (2) certain restrictive
covenants and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth in the Indenture.
[If the Security is convertible into Common Stock of the
Company, insert -- Subject to the provisions of the Indenture, the Holder of
this Security is entitled, at its option, at any time on or before [insert
date](except that, in case this Security or any portion hereof shall be called
for redemption, such right shall terminate with respect to this Security or
portion hereof, as the case may be, so called for redemption at the close of
business on the date fixed for redemption as provided in the Indenture unless
the Company defaults in making the payment due upon redemption), to convert the
principal amount of this Security (or any portion hereof which is $1,000 or an
integral multiple thereof [if applicable, insert the equivalent thereof in one
or more foreign currencies, currency units or composite currencies]), into fully
paid and non-assessable shares (calculated as to each conversion to the nearest
1/100th of a share) of the Common Stock of the Company, as said shares shall be
constituted at the date of conversion, at the conversion price of [$]________
principal amount of Securities for each share of Common Stock, or at the
adjusted conversion price in effect at the date of conversion determined as
provided in the Indenture, upon surrender of this Security, together with the
conversion notice hereon duly executed, to the Company at the designated office
or agency of the Company in ________, accompanied (if so required by the
Company) by instruments of transfer, in form satisfactory to the Company and to
the Trustee, duly executed by the Holder or by its duly authorized attorney in
writing. Such surrendering shall, if made during any period beginning at the
close of business on a Regular Record Date and ending at the opening of business
on the Interest Payment Date next following
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<PAGE> 22
such Regular Record Date (unless this Security or the portion being converted
shall have been called for redemption on a Redemption Date during such period),
also be accompanied by payment of an amount equal to the Interest payable on
such Interest Payment Date on the principal amount of this Security then being
converted. Subject to the aforesaid requirement for payment and, in the case of
a conversion after the Regular Record Date next preceding any Interest Payment
Date and on or before such Interest Payment Date, to the right of the Holder of
this Security (or any Predecessor Security) of record at such Regular Record
Date to receive an installment of interest (with certain exceptions provided in
the Indenture), no adjustment is to be made on conversion for interest accrued
hereon or for dividends on shares of Common Stock issued on conversion. The
Company is not required to issue fractional shares upon any such conversion, but
shall make adjustment therefor in cash on the basis of the current market value
of such fractional interest as provided in the Indenture. The conversion price
is subject to adjustment as provided in the Indenture. In addition, the
Indenture provides that in case of certain consolidations or mergers to which
the Company is a party or the sale of substantially all of the assets of the
Company, the Indenture shall be amended, without the consent of any Holders of
Securities, so that this Security, if then outstanding, will be convertible
thereafter, during the period this Security shall be convertible as specified
above, only into the kind and amount of securities, cash and other property
receivable upon the consolidation, merger or sale by a holder of the number of
shares of Common Stock into which this Security might have been converted
immediately prior to such consolidation, merger or sale (assuming such holder of
Common Stock failed to exercise any rights of election and received per share
the kind and amount received per share by a plurality of non-electing shares) [,
assuming if such consolidation, merger or sale is prior to [date], that this
Security were convertible at the time of such consolidation, merger or sale at
the initial conversion price specified above as adjusted from to such time
pursuant to the Indenture]. In the event of conversion of this Security in part
only, a new Security or Securities for the unconverted portion hereof shall be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is convertible into other securities or
property, specify the conversion features and the form of conversion notice
pursuant to Section 206 hereof.]
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to [Insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the Indenture at
any time by the Company and the Trustee with the consent of the
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<PAGE> 23
Holders of a majority in principal amount of the Securities at the time
outstanding of each series to be affected, with certain exceptions as therein
provided with respect to certain modifications or amendments which may not be
made without the consent of each Holder of such Security affected thereby. The
Indenture also permits certain amendments and modifications thereto from time to
time by the Company and the Trustee without the consent of the Holders of any
series of the Securities to be affected thereby for certain specified purposes,
including curing ambiguities, defects or inconsistencies and making any such
change that does not adversely affect the rights of any Holder of such series of
the Securities, as provided therein.
The Indenture contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and Interest on this Security at the times, place and [rate(s)], and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and any premium and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof [if applicable, insert the equivalent thereof in one or more foreign
currencies, currency units or composite currencies]. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
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<PAGE> 24
No recourse shall be had for the payment of the principal of
(and premium, if any) or interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities. Every
Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form or such other legends as may be required:
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every Security
authenticated and delivered upon registration of transfer of, or in exchange for
or in lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
------------------------------------
as Trustee
By
---------------------------------
Authorized Signatory
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<PAGE> 25
Section 206. Form of Conversion Notice.
To Nabors Industries, Inc.
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof (which is
$1,000 or an integral multiple thereof) below designated, into shares of Common
Stock of the Company in accordance with the terms of the Indenture referred to
in this Security, and directs that the shares issuable and deliverable upon the
conversion, together with any check in payment for fractional shares and any
Securities representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below. If this Notice is being delivered on a date after the close of
business on a Regular Record Date and prior to the opening of business on the
related Interest Payment Date (unless this Security or the portion thereof being
converted has been called for redemption on a Redemption Date within such
period), this Notice is accompanied by payment of an amount equal to the
interest payable on such Interest Payment Date of the principal of this Security
to be converted. If shares are to be issued in the name of a Person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect hereto. Any amount required to be paid by the undersigned on account of
interest accompanies this Security.
Principal Amount to be Converted (in an integral multiple of
$1,000, if less than all [if applicable, insert
the equivalent thereof in one or more foreign
currencies, currency units or composite currencies]):
[$]
-------------------
Dated
------------------
--------------------------------
Signature
Signature(s) must be guaranteed
by an institution which is a
member of one of the following
recognized signature Guarantee
Programs: (i) The Securities
Transfer Agent Medallion Program
(STAMP); (ii) The New York Stock
Exchange Medallion Program
(MNSP); (iii) The Stock Exchange
Medallion Program (SEMP) or (iv)
another guarantee program
acceptable to the Trustee.
--------------------------------
Signature Guarantee
Fill in for registration of shares of Common Stock and
Security if to be issued otherwise than to the registered holder.
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<PAGE> 26
- ----------------------------
(Name)
- ----------------------------
(Address)
Please print Name and Address
(including zip code number)
Social Security or other Taxpayer
Identifying Number_________________
Section 207. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (11) of
Section 301, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time by increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 303
or Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or Section 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security the Holder of
such permanent global Security in registered form.
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<PAGE> 27
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in one
or more series. There shall be established in or pursuant to a Board Resolution
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 304, 305, 306, 907, 1107
or 1202 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates, or the method or methods (and related
procedures) by which such date or dates will be determined or extended,
on which the principal of the Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the Floating or Adjustable Rate
Provision pursuant to which such rates shall be determined, the date or
dates from which such interest shall accrue, the Interest Payment Dates
on which any such interest shall be payable and the Regular Record Date
for any interest payable on any Interest Payment Date;
(6) whether the Securities of the series would be secured
pursuant to Section 901(7);
(7) the place or places where the principal of (and premium,
if any) and interest, if any, on Securities of the series shall be
payable;
(8) if applicable, the period or periods within which, the
price or prices at which (including premium, if any) and the terms and
conditions upon which Securities of the series shall be redeemed, in
whole or in part, at the option of the Company pursuant to a sinking
fund or otherwise;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which and the
terms
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<PAGE> 28
and conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(10) if applicable, the terms of any right to convert or
exchange Securities of the series into shares of Common Stock of the
Company or other securities or property of the Company or other
issuers;
(11) if other than denominations of $1,000 and any integral
multiple thereof (or the equivalent thereof in one or more foreign
currencies, currency units or composite currencies), the denominations
in which Securities of the series shall be issuable;
(12) if the amount of payments of principal of (or premium, if
any) or interest, if any, on any Securities of the series may be
determined with reference to one or more indices, the manner in which
such amounts shall be determined;
(13) if other than currency of the United States, one or more
foreign currencies, currency units or composite currencies in which the
Securities of the series are to be denominated;
(14) if other than the coin or currency in which the
Securities of the series are denominated, the coin or currency in which
payment of the principal of (and premium, if any) and interest on the
Securities of the series shall be payable;
(15) the price or prices (expressed as a percentage of the
principal amount thereof) at which the Securities will be issued and,
if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or provable under any applicable federal or state
bankruptcy or similar law pursuant to Section 503;
(16) if applicable, that the Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such
Global Security or Global Securities and any circumstance other than
those set forth in Section 305 in which any such Global Security may be
transferred to, and registered and exchanged for Securities registered
in the name of, a Person other than the Depositary for such Global
Security or a nominee thereof and in which any such transfer may be
registered;
(17) whether the Securities are to be issued as Original Issue
Discount Securities;
(18) whether the interest, if any, on the Securities is to be
payable, at the election of the Company or a holder thereof, in cash or
in PIK Securities and the period or periods within which, and the terms
and conditions upon which, such election may be made;
(19) any deletions from, modifications of or additions to the
events of default with respect to the Securities of the series, whether
or not such events of default are consistent with the events of default
described herein;
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<PAGE> 29
(20) any other covenant or warranty included for the benefit
of Securities of the series in addition to (and not inconsistent with)
those included in this Indenture for the benefit of Securities of all
series, or any other covenant or warranty included for the benefit of
Securities of the series in lieu of any covenant or warranty included
in this Indenture for the benefit of Securities of all series, or any
provision that any covenant or warranty included in this Indenture for
the benefit of Securities of all series shall not be for the benefit of
Securities of the series, or any combination of such covenants,
warranties or provisions;
(21) any restriction or condition on the transferability of
the Securities of the series;
(22) any authenticating or paying agents, registrars,
conversion agents or any other agents with respect to the Securities of
the series; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(6)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of such action shall be delivered
to the Trustee.
Section 302. Denominations. The Securities of each series
shall be issuable in registered form without coupons in such denominations as
shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such
series shall be issuable in denominations of $1,000 and any integral multiple
thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman, a
Vice Chairman, its President, any Vice President, its Treasurer or Assistant
Treasurer, its Controller or Assistant Controller under its corporate seal
reproduced thereon attested by its Corporate Secretary or one of its Assistant
Corporate Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities. Minor typographical and other
minor errors in the text of any Security or minor defects in the seal or
facsimile signature on any Security shall not affect the validity or
enforceability of such Security if it has been duly authenticated and delivered
by the Trustee.
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<PAGE> 30
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions or indentures
supplemental hereto as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolutions or indentures supplemental hereto as
permitted by Section 201, that such form has been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolutions or indentures supplemental hereto as
permitted by Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
generally and to general equity principles.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section 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, executive committee, or a trust
committee of directors or committee of Responsible Officers of the Trustee shall
determine that such action would expose the Trustee to personal liability to
existing Holders of Securities.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution
otherwise required pursuant to Section 301 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraph at or prior to
the time of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
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<PAGE> 31
309, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to
the benefits of this Indenture.
Section 304. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers of the Company
executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable procedures as it or the Trustee may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
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<PAGE> 32
Every Security presented or surrendered for registration of
transfer, exchange, redemption or payment shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company or the Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 907, 1107 or 1202 not
involving any transfer.
Neither the Company nor the Trustee shall be required (i) to
issue, register the transfer of or exchange Securities of any series during a
period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series selected for
redemption under Section 1103 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Notwithstanding any other provision in this Indenture, no
Global Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depositary for such Global
Security or any nominee thereof, and no such transfer may be registered, unless
(1) such Depositary (A) notifies the Company and the Trustee that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
ceases to be a clearing agency registered under the Exchange Act, (2) the
Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so transferable, registrable and exchangeable, and such
transfers shall be registrable, (3) there shall have occurred and be continuing
an Event of Default with respect to the Securities evidenced by such Global
Security or (4) there shall exist such other circumstances, if any, as have been
specified for this purpose as contemplated by Section 301. Notwithstanding any
other provision in this Indenture, a Global Security to which the restriction
set forth in the preceding sentence shall have ceased to apply may be
transferred only to, and may be registered and exchanged for Securities
registered only in the name or names of, such Person or Persons as the
Depositary for such Global Security shall have directed and no transfer thereof
other than such a transfer may be registered.
Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security to which the
restriction set forth in the first sentence of the preceding paragraph shall
apply, whether pursuant to this Section, Section 304, 306, 907, 1107 or 1202 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If there shall be delivered to the Company and the Trustee (i) a mutilated
Security, or (ii) evidence to their satisfaction of the destruction, loss or
theft of any Security and in either case such security or indemnity as may be
required by either of them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and
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<PAGE> 33
deliver, in lieu of any such mutilated, destroyed, lost or stolen Security, a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company or the Trustee may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any
series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements reasonably 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
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not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 15 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 given to each Holder of Securities of such series, in
the manner set forth in Section 106, 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
given, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Subject to the provisions of Section 1202, in the case of any
Security which is converted after any Regular Record Date and on or prior to the
next succeeding Interest Payment Date (other than any Security the principal of
(or premium, if any, on)) which shall become due and payable, whether at a
Stated Maturity or by declaration of acceleration, call for redemption, or
otherwise, prior to such Interest Payment Date), interest whose Stated Maturity
is on such Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Security (or any one or more Predecessor Securities) is registered at the close
of business on such Regular Record Date. Except as otherwise expressly provided
in the immediately preceding sentence, in the case of any Security which is
converted, interest whose Stated Maturity is after the date of conversion of
such Security shall not be payable.
Section 308. Persons Deemed Owners. Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 307)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation. All Securities surrendered for
payment, redemption, registration of transfer or exchange or for credit against
any sinking fund payment or for conversion shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be
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promptly canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of as directed by a Company Order or, in the absence
of such Company Order, in accordance with the Trustee's customary practices.
Acquisition by the Company of any Security shall not operate as a redemption or
satisfaction of the indebtedness represented by such Security unless and until
the same is delivered to the Trustee for cancellation.
Section 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 for Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
Section 311. Designation as Senior Debt. The Company hereby
confirms the designation of the Securities as "Senior Debt" for the purposes of
any securities of the Company that may be issued pursuant to the Subordinated
Indenture.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect (except as to
any surviving rights of conversion, registration of transfer or exchange of
Securities of a series herein expressly provided for) with respect to Securities
of any series, and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to a series, when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities of such series for whose payment money
has theretofore been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
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(iii) are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of
the Company, and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee in trust
irrevocably (A) money (in United States dollars) in an amount, or (B)
U.S. Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge the entire indebtedness on such
Securities of such series not theretofore delivered to the Trustee for
cancellation, for principal of (and premium, if any) and interest to
the date of such deposit (in the case of Securities of such series
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series have been
complied with.
In the event there are Securities of two or more series
outstanding hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested to
do so with respect to Securities of a particular series as to which it is
Trustee and if the other conditions thereto are met. In the event that there are
two or more Trustees hereunder, then the effectiveness of any such instrument
shall be conditioned upon receipt of such instruments from all Trustees
hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to a particular series, the obligations of the Company to
the Trustee under Section 607, the obligations of the Company to any
Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive until there are no Securities Outstanding with respect to a
particular series and the obligations of the Company and the Trustee with
respect to all other series of Securities shall survive.
Section 402. Application of Trust Fund. Subject to provisions
of the last paragraph of Section 1003, all amounts deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and any premium and interest for whose payment such funds have
been deposited with the Trustee.
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ARTICLE FIVE
Remedies
Section 501. Events of Default. "Event of Default" whenever
used with respect to Securities of a series means any one of the following
events and such other events as may be established with respect to the
Securities of such series as contemplated by Section 301 hereof:
(1) Default in the payment of any installment of interest upon
any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30
days; or
(2) Default in the payment of the principal of or premium, if
any, on any of the Securities of such series as and when the same shall
become due and payable either at maturity, upon redemption, by
declaration of acceleration or otherwise and continuance of such
default for a period of ten days; or
(3) Default in the making of any sinking fund payment, whether
mandatory or optional, as and when the same shall become due and
payable by the terms of the Securities of such series and continuance
of such default for a period of ten days; or
(4) 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 contained in this Indenture (other than those set forth
exclusively in the terms of any other particular series of Securities
established as contemplated by this Indenture for the benefit of such
other series) and written notice of such failure, stating that such
notice is a "Notice of Default" hereunder, and requiring the Company to
remedy the same, shall have been given by registered or certified mail,
return receipt requested, 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 Outstanding Securities of that series, and such
failure shall have continued unremedied for a period of 90 days after
the date of the Company's receipt of such Notice of Default; or
(5)(i) An event of default, as defined in any indenture or
instrument evidencing or under which the Company or any Principal
Subsidiary shall have outstanding indebtedness for borrowed money in a
principal amount in excess of $25,000,000, shall happen and be
continuing and such indebtedness shall have been accelerated so that
the same shall be or become due and payable prior to the date on which
the same would otherwise have become due and payable or (ii) the
Company or any Principal Subsidiary shall default in the payment at
final maturity of outstanding indebtedness for borrowed money in a
principal amount in excess of $25,000,000, and such acceleration or
default at maturity shall not be waived, rescinded or annulled within
30 days after written notice thereof, stating that such notice is a
"Notice of Default" hereunder, shall have been given to the Company by
the Trustee (if such event be known to it), or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series; provided, however, that if
such acceleration under such indenture or instrument or default at
maturity shall be remedied or cured by the Company or Principal
Subsidiary, or waived, rescinded or annulled by the requisite holders
of such indebtedness, then the Event of
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Default hereunder by reason thereof shall be deemed likewise to have
been thereupon remedied, cured or waived without further action upon
the part of either the Trustee or any of the Holders; or
(6) A decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of the Company
under any applicable Federal or State bankruptcy or similar law, and
such decree or order shall have continued undischarged and unstayed for
a period of 90 days; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver,
liquidator, trustee, assignee, sequestrator or similar official in
bankruptcy or insolvency of the Company or of all or substantially all
of its property, or for the winding up or liquidation of its affairs,
shall have been entered, and such decree or order shall have continued
undischarged and unstayed for a period of 90 days; or
(7) The Company shall institute proceedings to be adjudicated
a voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization, arrangement, adjustment or composition under
any applicable Federal or State bankruptcy or similar law, or shall
consent to the filing of any such petition, or shall consent to the
appointment of a receiver, liquidator, trustee, assignee, sequestrator
or similar official in bankruptcy or insolvency of the Company or of
all or substantially all of its property, or shall make an assignment
for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due and its willingness to be
adjudged a bankrupt, or corporate action shall be taken by the Company
in furtherance of any of the aforesaid purposes; or
(8) Any other Event of Default provided with respect to
Securities of that series.
The Company shall deliver to the Trustee written notice of any
Event of Default or event which with the giving of notice or lapse of time or
both would become an Event of Default under clauses (4), (5), (6) and (7) hereof
within 30 days of the knowledge thereof by the Company; provided that in the
case of clause (4) no such notice will be required to be given by the Company if
such default shall be cured by the Company within such 30 day period.
The Trustee shall not be charged with knowledge of any default
(as defined in Section 602) or Event of Default unless written notice thereof
shall have been given to the Trustee by the Company, the Paying Agent of that
series (provided that no such notice shall be required to be given if the
Trustee acts as Paying Agent of such series), or with respect to a default or an
Event of Default under clause (5) of this Section by the holder of any such
indebtedness or an agent of the holder of any such indebtedness or by the
trustee then acting under any such indenture or other instrument under which
such default shall have occurred, or by Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series.
Section 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case either
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the
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Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to 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 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 Securities of that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such 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 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 any other amounts due the Trustee
under Section 607, except such costs and expenses as are a result of
negligence or bad faith on the part of the Trustee; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of and interest, if
any, on the Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof and
continuance of such default for a period of ten days, the Company will,
upon written demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on
such Securities for principal and any premium and interest and, to the
extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue
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interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and other amounts due the Trustee under Section
607, except such costs and expenses as are a result of negligence or
bad faith on the part of the Trustee. Until such demand is made by the
Trustee, the Company may pay the principal of and premium, if any, and
interest, if any, on the Securities of any series to the registered
Holders, whether or not the Securities of such series are overdue.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607, except such costs and expenses as are
a result of negligence or bad faith on the part of the Trustee.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel except such
costs and expenses, as are a result of negligence or bad faith on the part of
the Trustee, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
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Section 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or any premium or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company
or any other Person lawfully entitled thereto.
Section 507. Limitation on Suits. No Holder of any Security of
any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory in form and substance to the Trustee
against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to Convert. Notwithstanding any other
provision in this Indenture, the Holder of any
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Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307) any
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to convert
such Securities in accordance with the terms thereof and to institute suit for
the enforcement of any such payment or such right of conversion, and such rights
shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Subject to Section 507, every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
Section 512. Control by Holders. With respect to the
Securities of any series, the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part
in such direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the
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Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs. 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, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, however,
that neither this Section 514 nor the Trust Indenture Act will be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company or the Trustee.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities. The duties
and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act.
(a) If an Event of Default with respect to Securities of any
series at the time Outstanding has occurred and is continuing, 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 its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, in
the absence of bad faith on its part, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. The Trustee, however, shall examine such certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture but need not verify the accuracy of the contents
thereof.
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(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 512.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity reasonably satisfactory to it
against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds,
except to the extent required by law.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults. If a default or an Event of
Default occurs and is continuing hereunder with respect to Securities of any
series, and if such default or Event of Default is known to a Responsible
Officer of the Trustee, the Trustee shall mail the Holders of Securities of such
series notice of such default within 90 days after it occurs; provided, however,
that in the case of any default of the character specified in Section 501(4)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. Except in the case of
a default in payment on any Security of any series or in the payment of any
sinking fund installment, the Trustee may withhold notice if and so long as a
trust committee of directors or Responsible Officers of the Trustee in good
faith determines that withholding the notice is in the interest of Holders of
Securities of such series. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee. Subject to the
provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
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consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such Counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity reasonably satisfactory
in form and substance to the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall upon
reasonable notice to the Company be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at a time and place
acceptable to the Company;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the permissive right of the Trustee to take or refrain
from taking any actions enumerated in this Indenture shall not be construed as a
duty and the Trustee shall not be answerable for taking or refraining from
taking such actions other than for its own negligence or willful misconduct; and
(i) the Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers conferred upon it by this Indenture.
Section 604. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be
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taken as the statements of the Company, and the Trustee or any Authenticating
Agent assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee or any Authenticating Agent shall not be accountable for
the use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
Section 606. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
Section 607. Compensation and Reimbursement. The Company
agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its written request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation, and reasonable expenses and disbursements of
its agents and outside counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense (including the reasonable fees
and expenses of legal counsel) incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts and the performance of its duties
hereunder, including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
To secure the Company's payment obligations under this
Section, the Trustee shall have a lien prior to the Securities on all money or
property of the Company held or collected by the Trustee in its capacity as
Trustee or as Paying Agent hereunder (but not in any other capacity), except
that held in trust to pay principal of (and premium, if any) or interest on
particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 501(6) or (7) occurs with respect to any
series of Securities, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Federal or State
bankruptcy law or similar law.
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The Company's obligations under this Section 607 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article Four or Article
Thirteen hereof and the termination of this Indenture.
Section 608. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire any conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture. To the extent permitted by such Act,
the Trustee shall not be deemed to have a conflicting interest by virtue of
being a trustee under this Indenture with respect to Securities of more than one
series.
Section 609. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000 or is a subsidiary of a corporation
which shall be a Person that has a combined capital and surplus of at least
$50,000,000 and which unconditionally and irrevocably guarantees the obligations
of the Trustee hereunder upon terms satisfactory to the Company. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of itself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or be incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any Series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
106. Each notice shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts
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and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject to its lien, if any, provided for in
Section 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of such series shall execute and deliver an indenture supple- mental
hereto wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to transfer
the rights, powers, trust and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustee
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraphs (a) and (b) of this Section, as the case may be.
(d) No successor shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication
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and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent. The Trustee
may with the consent of the Company appoint an Authenticating Agent or Agents
with respect to one or more series of Securities which shall be authorized to
act on behalf of the Trustee to authenticate Securities of such series issued
upon original issue and upon exchange, registration of transfer, partial
conversion or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee or the
Company may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company or
the Trustee, as the case may be. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Company and shall mail written notice of such appointment by first-class
mail, postage prepaid, to all Holders of Securities of the series with respect
to which such Authenticating Agent will serve, as their names and addresses
appear in the
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Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By
------------------------------------
as Authenticating Agent
By
------------------------------------
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 10 days after each Regular
Record Date in each year, a list for each series of Securities, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Securities of such series as of the preceding Regular 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 content as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for the Securities of a series, no such list need be furnished with
respect to such series of Securities.
Section 702. Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and
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the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided
in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act or other applicable law.
Section 703. Reports by Trustee. (a) The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. To the extent that any such
report is required by the Trust Indenture Act with respect to any 12 month
period, such report shall cover the 12 month period ending July 15 and shall be
transmitted by the next succeeding September 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704. Reports by Company. The Company shall file with
the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act. Any information, documents or reports required to be filed
by the Company with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, or Sale of Assets
Section 801. Company May Consolidate, Etc. Only on Certain
Terms. The Company shall not consolidate with or merge into any other Person or
sell its properties and assets as, or substantially as, an entirety to any
Person, and the Company shall not permit any Person to consolidate with or merge
into the Company, unless:
(1) the Company will be the surviving or resulting entity or,
in case the Company shall consolidate with or merge into another Person
or sell its properties and assets as, or substantially as, an entirety
to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which purchases the properties and
assets of the Company as, or substantially as, an entirety shall be a
corporation, partnership or trust,
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shall be organized and validly existing under the laws of the United
States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form reasonably satisfactory to the
Trustee, all of the obligations of the Company under the Securities and
the Indenture and the conversion rights, if any, shall be provided for
in accordance with Article Twelve, by supplemental indenture reasonably
satisfactory in form to the Trustee, executed and delivered to the
Trustee, by the Person (if other than the Company) formed by such
consolidation or into which the Company shall have been merged or by
the Person which shall have acquired the Company's assets;
(2) immediately after giving effect to such transaction, no
Event of Default shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or sale and, if a supplemental indenture is
required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
Section 802. Successor Substituted. Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any sale of
the properties and assets of the Company as, or substantially as, an entirety in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or to which such sale is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form reasonably satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of
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less than all series of Securities, stating that such additional Events
of Default are expressly being included solely for the benefit of such
series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities of any series denominated in one or more
foreign currencies, currency units or composite currencies;
(6) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities; provided
that any such addition, change or elimination (i) shall neither (A)
apply to any 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 Security
with respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding; or
(7) to secure the Securities of any series; or
(8) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action
pursuant to this clause shall not adversely affect the interests of the
Holders of Securities of any series in any material respect; or
(11) to make provision with respect to the conversion rights
of Holders pursuant to the requirements of Article Twelve, including
providing for the conversion of the Securities into any security (other
than the Common Stock of the Company) or property of the Company; or
(12) to conform to any mandatory provisions of law.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority of principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter
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into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon (including any
change in the Floating or Adjustable Rate Provision pursuant to which
such rate is determined that would reduce such rate for any period) or
any premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of Payment where,
or the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date); provided, however, that with the consent of the Holders of not
less than 75% of the Outstanding Securities of any series affected, the
Company may postpone any interest payment in respect of such series for
a period not to exceed three years, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) if applicable, make any change that adversely affects the
right to convert any Security to which the provisions of Article Twelve
are applicable or, except as provided in this Indenture, decrease the
conversion rate or increase the conversion price of any Security, or
(4) modify any of the provisions of this Section, Section 513
or Section 908, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 908, or the deletion of this proviso, in accordance with
the requirements of Sections 611(b) and 901(9).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, in addition
to the documents required by Section 102, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture and, with respect to supplemental indentures under Section 902 hereof,
evidence of the consents of Holders required in connection therewith. The
Trustee may, but 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.
Section 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section 905. Revocation and Effect of Consents. Until an
amendment or supplement under this Article or a waiver under this Article
becomes effective, a consent to it by a Holder of a Security is a continuing
consent by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security, even
if notation of the consent is not made on any Security. However, any such Holder
or subsequent Holder may revoke the consent as to his Security or portion of a
Security if the Trustee receives the notice of revocation before the date the
amendment, supplement or waiver becomes effective.
After an amendment or supplement becomes effective, it shall
bind every Holder.
Section 906. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
Section 907. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 908. Waiver of Compliance by Holders. Anything in this
Indenture to the contrary notwithstanding, any of the acts which the Company is
required to do, or is prohibited from doing, by any of the provisions of this
Indenture may, to the extent that such provisions might be changed or eliminated
by a supplemental indenture pursuant to Section 902 upon consent of
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Holders of not less than a majority in aggregate principal amount of the then
Outstanding Securities of the series affected, be omitted or done by the
Company, if there is obtained the prior consent or waiver of the Holders of at
least a majority in aggregate principal amount of the then Outstanding
Securities of such series.
Section 909. Notice of Supplemental Indenture. Promptly after
the execution by Company and the Trustees of any supplemental indenture pursuant
to the provisions of Section 902, the Company shall give notice thereof to the
Holders of each Outstanding Security affected, in the manner provided for in the
Section 106, setting forth in general terms the substance of such supplemental
indenture.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest. The
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay or cause to be paid the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency. So long as any
Securities are Outstanding, the Company will maintain in each Place of Payment
for any series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange, where Securities of
that series may be surrendered for conversion and where notices and demands to
or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 1003. Money for Securities Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to
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such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal of or
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
request and expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, the City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 1004. Statement by Officers as to Compliance. The
Company will deliver to the Trustee within 120 days after the end of each fiscal
year of the Company ending after the date hereof, a certificate signed by the
Company's principal executive officer, principal financial officer or principal
accounting officer stating to the best knowledge of the signer thereof whether
or not the Company has complied during such immediately preceding fiscal year
with and is in compliance with all terms, conditions and covenants of this
Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and if the signer has obtained knowledge of
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any continuing default by the Company in the performance, observation or
fulfillment of any such term, condition or covenant, specifying each such
default and the nature thereof.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee. In case
of any redemption at the election of the Company of less than all the Securities
of any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be reasonably satisfactory
to the Trustee), notify the Trustee of such Redemption Date, of the principal
amount of Securities of such series to be redeemed, the specific provision of
the Securities of such series pursuant to which such Securities being called for
redemption are being redeemed and, if applicable, of the tenor of the Securities
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 45 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 45 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Securities
which have been converted during a selection of Securities to be redeemed shall
be treated by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 1104. Notice of Redemption. Notice of redemption shall
be given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at its address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount, if any, of any
accrued and unpaid interest payable on the Redemption Date,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) if applicable, the conversion price, and that the date on
which the right to convert the principal of the Securities or the
portions thereof to be redeemed will terminate will be the Redemption
Date and the place or places where such Securities may be surrendered
for conversion,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price. Prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date, other than any Securities called for redemption on that date which
have been converted prior to the date of such deposit.
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If any Security or portion thereof called for redemption is
converted, any money deposited with the Trustee or with any Paying Agent or so
segregated and held in trust for the redemption of such Security or portion
thereof shall (subject to any right of the Holder of such Security or any
Predecessor Security to receive interest as provided in the last paragraph of
Section 307) be paid to the Company upon Company Request or, if then held by the
Company, shall be discharged from such trust.
Section 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. Securities Redeemed in Part. Any Security which
is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or
Securities of the same series and of like tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
Conversion of Securities
Section 1201. Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
convertible into shares of Common Stock of the Company, and the issuance of such
shares of Common Stock upon the conversion of such Securities, except as
otherwise specified as contemplated by Section 301 for the Securities of such
series.
Section 1202. Exercise of Conversion Privilege. In order to
exercise a conversion privilege, the Holder of a Security of a series with such
a privilege shall surrender such Security to the Company at the office or agency
maintained for that purpose pursuant to Section 1002, accompanied by written
notice to the Company that the Holder elects to convert such Security or
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a specified portion thereof. Such notice shall also state, if different from the
name and address of such Holder, the name or names (with address) in which the
certificate or certificates for shares of Common Stock which shall be issuable
on such conversion shall be issued. Securities surrendered for conversion shall
(if so required by the Company or the Trustee) be duly endorsed by or
accompanied by instruments of transfer in forms satisfactory to the Company and
the Trustee duly executed by the registered Holder or its attorney duly
authorized in writing; and Securities so surrendered for conversion during the
period from the close of business on any Regular Record Date to the opening of
business on the next succeeding Interest Payment Date (excluding Securities or
portions thereof called for redemption during such period) shall also be
accompanied by payment of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of such Security then being
converted, and such interest shall be payable to such registered Holder
notwithstanding the conversion of such Security, subject to the provisions of
Section 307 relating to the payment of Defaulted Interest by the Company. As
promptly as practicable after the receipt of such notice and of any payment
required pursuant to a Board Resolution and, subject to Section 303, set forth,
or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto setting forth the
terms of such series of Security, and the surrender of such Security in
accordance with such reasonable procedures as the Company may prescribe, the
Company shall issue and shall deliver, at the office or agency at which such
Security is surrendered, to such Holder or on its written order, a certificate
or certificates for the number of full shares of Common Stock issuable upon the
conversion of such Security (or specified portion thereof), in accordance with
the provisions of such Board Resolution, Officers' Certificate or supplemental
indenture, and cash as provided therein in respect of any fractional share of
such Common Stock otherwise issuable upon such conversion. Such conversion shall
be deemed to have been effected immediately prior to the close of business on
the date on which such notice and such payment, if required, shall have been
received in proper order for conversion by the Company and such Security shall
have been surrendered as aforesaid (unless such Holder shall have so surrendered
such Security and shall have instructed the Company to effect the conversion on
a particular date following such surrender and such Holder shall be entitled to
convert such Security on such date, in which case such conversion shall be
deemed to be effected immediately prior to the close of business on such date)
and at such time the rights of the Holder of such Security as such Security
Holder shall cease and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock of the Company shall be
issuable upon such conversion shall be deemed to have become the Holder or
Holders of record of the shares represented thereby. Except as set forth above
and subject to the final paragraph of Section 307, no payment or adjustment
shall be made upon any conversion on account of any interest accrued on the
Securities surrendered for conversion or on account of any dividends on the
Common Stock of the Company issued upon such conversion.
In the case of any Security which is converted in part only,
upon such conversion the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the unconverted
portion of such Security.
Section 1203. No Fractional Shares. No fractional share of
Common Stock of the Company shall be issued upon conversions of Securities of
any series. If more than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares which
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shall be issuable upon conversion shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof to
the extent permitted hereby) so surrendered. If, except for the provisions of
this Section 1203, any Holder of a Security or Securities would be entitled to a
fractional share of Common Stock of the Company upon the conversion of such
Security or Securities, or specified portions thereof, the Company shall pay to
such Holder an amount in cash equal to the current market value of such
fractional share computed, (i) if such Common Stock is listed or admitted to
unlisted trading privileges on a national securities exchange, on the basis of
the last reported sale price regular way on such exchange on the last trading
day prior to the date of conversion upon which such a sale shall have been
effected, or (ii) if such Common Stock is not at the time so listed or admitted
to unlisted trading privileges on a national securities exchange, on the basis
of the average of the bid and asked prices of such Common Stock in the
over-the-counter market, on the last trading day prior to the date of
conversion, as reported by the National Quotation Bureau, Incorporated or
similar organization if the National Quotation Bureau, Incorporated is no longer
reporting such information, or if not so available, the fair market price as
determined by the Board of Directors. For purposes of this Section, "trading
day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday other than
any day an which the Common Stock is not traded on the New York Stock Exchange,
or if the Common Stock is not traded on the New York Stock Exchange, on the
principal exchange or market on which the Common Stock is traded or quoted.
Section 1204. Adjustment of Conversion Price. The conversion
price of Securities of any series that is convertible into Common Stock of the
Company shall be adjusted for any stock dividends, stock splits,
reclassification, combinations or similar transactions in accordance with the
term of the supplemental indenture or Board Resolutions setting forth the terms
of the Securities of such series.
Whenever the conversion price is adjusted, the Company shall
compute the adjusted conversion price in accordance with terms of the applicable
Board Resolution or supplemental indenture and shall prepare an Officers'
Certificate setting forth the adjusted conversion price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 1002 and, if different,
with the Trustee. The Company shall forthwith cause a notice setting forth the
adjusted conversion price to be mailed, first class postage prepaid, to each
Holder of Securities of such series at its address appearing on the Security
Register and to any conversion agent other than the Trustee.
Section 1205. Notice of Certain Corporate Actions. In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of its
retained earnings (other than a dividend for which approval of any stockholders
of the Company is required); or
(b) the Company shall authorize the granting to the holders of
its Common Stock of rights, options or warrants to subscribe for or purchase any
shares of capital stock of any class or of any other rights (other than any such
grant for which approval of any stockholders of the Company is required); or
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(c) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding shares of Common
Stock, or of any consolidation, merger or share exchange to which the Company is
a party and for which approval of any stockholders of the Company is required),
or of the sale of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall cause to be filed with the Trustee, and shall cause to be
mailed to all Holders at their last addresses as they shall appear in the
Securities Register, at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record date hereinafter
specified, a notice stating (i) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights, options or warrants, or, if
a record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights, options or
warrants are to be determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or winding
up is expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up. If at any time the Trustee shall not be the
conversion agent, a copy of such notice shall also forthwith be filed by the
Company with the Trustee.
Section 1206. Reservation of Shares of Common Stock. The
Company shall at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, for the purpose of
effecting the conversion of Securities, the full number of shares of Common
Stock of the Company then issuable upon the conversion of all outstanding
Securities of any series that has conversion rights.
Section 1207. Payment of Certain Taxes Upon Conversion. The
Company will pay any and all taxes that may be payable in respect of the issue
or delivery of shares of its Common Stock on conversion of Securities pursuant
hereto. The Company shall not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issue and delivery of shares
of its Common Stock in a name other than that of the Holder of the Security or
Securities to be converted, and no such issue or delivery shall be made unless
and until the Person requesting such issue has paid to the Company the amount of
any such tax, or has established, to the satisfaction of the Company, that such
tax has been paid.
Section 1208. Nonassessability. The Company covenants that all
shares of its Common Stock which may be issued upon conversion of Securities
will upon issue in accordance with the terms hereof be duly and validly issued
and fully paid and nonassessable.
Section 1209. Effect of Consolidation or Merger on Conversion
Privilege. In case of any consolidation of the Company with, or merger of the
Company into or with any other Person, or in case of any sale of all or
substantially all of the assets of the Company, the Company or the Person formed
by such consolidation or the Person into which the Company shall have been
merged or the Person which shall have acquired such assets, as the case may be,
shall execute and deliver
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to the Trustee a supplemental indenture in accordance with Section 801 providing
that the Holder of each Security then outstanding of any series that is
convertible into Common Stock of the Company shall have the right, which right
shall be the exclusive conversion right thereafter available to said Holder
(until the expiration of the conversion right of such Security), to convert such
Security into the kind and amount of shares of stock or other securities or
property (including cash) receivable upon such consolidation, merger or sale by
a holder of the number of shares of Common Stock of the Company into which such
Security might have been converted immediately prior to such consolidation,
merger or sale, subject to compliance with the other provisions of this
Indenture, such Security and such supplemental indenture. Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in such Security. The above
provisions of this Section shall similarly apply to successive consolidations,
mergers or sales. It is expressly agreed and understood that anything in this
Indenture to the contrary notwithstanding, if, pursuant to such merger,
consolidation or sale, holders of outstanding shares of Common Stock of the
Company do not receive shares of common stock of the surviving corporation but
receive other securities, cash or other property or any combination thereof,
Holders of Securities shall not have the right to thereafter convert their
Securities into common stock of the surviving corporation or the corporation
which shall have acquired such assets, but rather, shall have the right upon
such conversion to receive the other securities, cash or other property
receivable by a holder of the number of shares of Common Stock of the Company
into which the Securities held by such holder might have been converted
immediately prior to such consolidation, merger or sale, all as more fully
provided in the first sentence of this Section 1209. Anything in this Section
1209 to the contrary notwithstanding, the provisions of this Section 1209 shall
not apply to a merger or consolidation of another corporation with or into the
Company pursuant to which both of the following conditions are applicable: (i)
the Company is the surviving corporation and (ii) the outstanding shares of
Common Stock of the Company are not changed or converted into any other
securities or property (including cash) or changed in number or character or
reclassified pursuant to the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly be
convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate or
opinion of an independent certified public accountant with respect thereto; and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or accountable to any
Holder of Securities for any provision in conformity therewith or approved by
such independent certified accountant which may be contained in said
supplemental indenture.
Section 1210. Duties of Trustee Regarding Conversion. Neither
the Trustee nor any conversion agent shall at any time be under any duty or
responsibility to any Holder of Securities of any series that is convertible
into Common Stock of the Company to determine whether any facts exist which may
require any adjustment of the conversion price, or with respect to the nature or
extent of any such adjustment when made, or with respect to the method employed,
whether herein or in any supplemental indenture, any resolutions of the Board of
Directors or written instrument executed by one or more officers of the Company
provided to be employed in making the same. Neither the Trustee nor any
conversion agent shall be accountable with respect to the validity or value (or
the kind or amount) of any shares of Common Stock of the Company,
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or of any securities or property, which may at any time be issued or delivered
upon the conversion of any Securities and neither the Trustee nor any conversion
agent makes any representation with respect thereto. Subject to the provisions
of Section 601, neither the Trustee nor any conversion agent shall be
responsible for any failure of the Company to issue, transfer or deliver any
shares of its Common Stock or stock certificates or other securities or property
upon the surrender of any Security for the purpose of conversion or to comply
with any of the covenants of the Company contained in this Article Twelve or in
the applicable supplemental indenture, resolutions of the Board of Directors or
written instrument executed by one or more duly authorized officers of the
Company.
Section 1211. Repayment of Certain Funds Upon Conversion. Any
funds which at any time shall have been deposited by the Company or on its
behalf with the Trustee or any other paying agent for the purpose of paying the
principal of, and premium, if any, and interest, if any, on any of the
Securities (including funds deposited for the sinking fund referred to in
Article Three hereof) and which shall not be required for such purposes because
of the conversion of such Securities as provided in this Article Twelve shall
after such conversion be repaid to the Company by the Trustee upon the Company's
written request by Company Request.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance. The Company may elect, at any time, to have either Section
1302 or Section 1303 applied to the Outstanding Securities of any series, upon
compliance with the conditions set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge. Upon the Company's
exercise of the option provided in Section 1301 to have this Section 1302
applied to the Outstanding Securities of any series, the Company shall be deemed
to have been discharged from its obligations, with respect to the Outstanding
Securities of such series as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities of such series and to have satisfied all its other
obligations under the Securities of such series and this Indenture insofar as
the Securities of such series are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), subject
to the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of Securities of such series to receive,
solely from the trust fund described in Section 1304 and as more fully set forth
in such Section, payments in respect of the principal of and any premium and
interest on such Securities of such series when payments are due, (2) the
Company's obligations with respect to the Securities of such series under
Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder, including, without limitation, its
rights under Section 607 and (4) this Article Thirteen. Subject to compliance
with this Article Thirteen, the Company may exercise its option provided in
Section 1301 to have this Section 1302 applied to the Outstanding Securities of
any series notwithstanding the prior exercise of its option provided in Section
1301 to have Section 1303 applied to the Outstanding Securities of such series.
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Section 1303. Covenant Defeasance. Upon the Company's exercise
of the option provided in Section 1301 to have this Section 1303 applied to the
Outstanding Securities of any series, (1) the Company shall be released from its
obligations under Section 801 and (2) the occurrence of any event specified in
Sections 501(3), 501(4) (with respect to Section 801) and 501(5) shall be deemed
not to be or result in an Event of Default, in each case with respect to the
Outstanding Securities of such series as provided in this Section on and after
the date the conditions set forth in Section 1304 are satisfied (hereinafter
called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means
that the Company may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 501(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and the Securities of
such series shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 1302 or
Section 1303 to the Outstanding Securities of any series:
(1) The Company shall elect by Board Resolution to effect a
Defeasance pursuant to Section 1302 or a Covenant Defeasance pursuant
to Section 1303 with respect to the Outstanding Securities of any
series specified in such Board Resolution (the "Defeasible Series").
(2) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of Outstanding Securities of such series, (i) money in an
amount, or (ii) U.S. Government Obligations that through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (iii) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and any premium and interest on the
Securities of such series on the respective Stated Maturities, in
accordance with the terms of this Indenture and the Securities of such
series. As used herein, "U.S. Government Obligation" means (x) any
security that is (i) a direct obligation of the United States of
America for the payment of which full faith and credit of the United
States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality
for 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 (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to
any specific payment of principal of or interest on any such U.S.
Government Obligation specified in
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Clause (x) and held by such custodian for the account of the holder of
such depositary receipt, or with respect to any specific payment of
principal of or interest on any such U.S. Government Obligation;
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the Holder
of such depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.
(3) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service, a ruling or (ii) since the date hereof, there
has been a change in the applicable Federal income tax law, in case of
either (i) or (ii) to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Securities will not recognize
gain or loss for Federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with respect to the
Securities of such series and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.
(4) In the case of an election under Section 1303, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holder of the Outstanding Securities of such series will not
recognize gain or loss for Federal income tax purposes as result of the
deposit and Covenant Defeasance to be effected with respect to the
Securities of such series and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.
(5) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such series,
if then listed on any securities exchange, will not be delisted as a
result of such deposit.
(6) No Event of Default or event that (after notice or lapse
of time or both) would become an Event of Default shall have occurred
and be continuing at the time of such deposit or, with regard to any
Event of Default or any such event specified in Sections 501(6) and
501(7), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(7) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
(8) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be qualified under such Act or exempt from
regulation thereunder.
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Section 1305. Deposited Money and U.S. Government Obligations
to be Held In Trust; Other Miscellaneous Provisions. Subject to the provisions
of the last paragraph of Section 1003, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section and Section 1306, the Trustee and
any such other trustee are referred to collectively as the "Trustee") pursuant
to Section 1304 in respect of the Securities of any Defeasible Series shall be
held in trust and applied by the Trustee, in accordance with the provisions of
the Securities of such series and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of Securities of
such series, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge that by
law is for the account of the Holders of Outstanding Securities.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it as
provided in Section 1304 with respect to Securities of any Defeasible Series
that, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Defeasance or Covenant Defeasance with respect
to the Securities of such series.
Section 1306. Reinstatement. If the Trustee or the Paying
Agent is unable to apply any money in accordance with this Article Thirteen with
respect to the Securities of any series by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Securities of such series shall be revived and reinstated as
though no deposit had occurred pursuant to this Article Thirteen with respect to
Securities of such series until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with respect
to Securities of such series in accordance with this Article Thirteen; provided,
however, that if the Company makes any payment of principal of or any premium or
interest on any Security of such series following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
Securities of such series to receive such payment from the money so held in
trust.
ARTICLE FOURTEEN
Sinking Funds
Section 1401. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
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The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1211. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1402. Satisfaction of Sinking Fund Payments with
Securities. The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been converted pursuant to Article Twelve or
Securities of a series which have been acquired or redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities or otherwise, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 1403. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company shall deliver to the Trustee an Officers Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 nor more than 60 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104 and provide a copy thereof
to the Company five (5) days in advance of the mailing thereof. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE FIFTEEN
Repayment at Option of Holders
Section 1501. Applicability of Article.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
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Section 1502. Repayment of Securities.
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price equal to the principal amount
thereof, together with interest, if any, thereon accrued to the Repayment Date
specified in or pursuant to the terms of such Securities. The Company covenants
that on or before the Repayment Date it will deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money in the
Currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series) sufficient
to pay the principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of, and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
Section 1503. Exercise of Option.
Securities of any series subject to repayment at the option of
the Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect Repayment"
form on the reverse of such Security duly completed by the Holder (or by the
Holder's attorney duly authorized in writing), must be received by the Company
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places or which the Company shall from time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
Section 1504. When Securities Presented for Repayment Become
Due and Payable.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest.
Upon surrender of any such Security for repayment in accordance with such
provisions, the principal amount of such Security so to be repaid shall be paid
by the Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that installments of interest, if any, whose Stated Maturity
is on or prior to the Repayment Date shall be payable to
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the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
Section 1505. Securities Repaid in Part.
Upon surrender of any Security which is to be repaid in part
only, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such security, without service charge and at the expense of the
Company, a new Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
NABORS INDUSTRIES, INC.
By /s/ ANTHONY G. PETRELLO
------------------------------------
Anthony G. Petrello
President and Chief
Attest: Operating Officer
/s/ DANIEL MCLACHLIN
- -------------------------
Daniel McLachlin
Secretary
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By /s/ RAYMOND S. HAVERSTOCK
-------------------------------------
Raymond S. Haverstock
Vice President
Attest:
/s/ CURTIS D. SCHWEGMAN
- -------------------------
Curtis D. Schwegman
Assistant Secretary
<PAGE> 1
EXHIBIT 4.2
NABORS INDUSTRIES, INC.,
Issuer
To
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee
------------------------------------
Supplemental Indenture No. 1
Dated as of March 1, 1999
-------------------
6.80% Notes due 2004
<PAGE> 2
SUPPLEMENTAL INDENTURE NO. 1, dated as of March 1, 1999, between NABORS
INDUSTRIES, INC., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, a national banking association organized under the laws of
the United States of America, as Trustee (herein called the "Trustee") (this
"Supplemental Indenture").
RECITALS OF THE COMPANY
The Company has heretofore executed and delivered to the Trustee an
Indenture dated as of March 1, 1999 (the "Senior Indenture"), a form of which
will be filed with the Securities and Exchange Commission as an exhibit to the
Company's Post-Effective Amendment No. 1 to Registration Statement on Form S-3
(Registration No. 333-25233), providing for the issuance from time to time of
Securities of the Company in series.
Section 301 of the Senior Indenture provides for various matters with
respect to any series of Securities issued under the Senior Indenture to be
established in an indenture supplemental to the Senior Indenture.
Section 901(8) of the Senior Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Senior Indenture to
establish the form or terms of Securities of any series as provided by Sections
201 and 301 of the Senior Indenture.
The Board of Directors of the Company (or a duly authorized committee
thereof) has duly adopted resolutions authorizing the Company to execute and
deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this Supplemental
Indenture, when duly executed and delivered, a valid and binding agreement in
accordance with its terms and for the purposes herein expressed, have been
performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the series
of Securities provided for herein by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities of the series, as follows:
ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS
SECTION 1.1 RELATION TO SENIOR INDENTURE.
This Supplemental Indenture constitutes an integral part of the Senior
Indenture.
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SECTION 1.2 DEFINITIONS.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined in this Supplemental
Indenture shall have the respective meanings assigned to them in the Senior
Indenture; and
(2) All references in this Supplemental Indenture to Articles and
Sections, unless otherwise specified, refer to the corresponding Articles and
Sections of this Supplemental Indenture.
"Attributable Debt" means, with respect to any Sale and Lease-Back
Transaction as of any particular time, the present value discounted at the rate
of interest implicit in the terms of the lease of the obligations of the lessee
under such lease for net rental payments during the remaining term of the lease.
"Business Day" means any calendar day that is not a Saturday, Sunday or
legal holiday in New York, New York and on which commercial banks are open for
business in New York, New York.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term ("Remaining Life") of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
"Comparable Treasury Price" means (1) the average of five Reference
Treasury Dealer Quotations for the applicable Redemption Date, after excluding
the highest and lowest Reference Treasury Dealer Quotations, or (2) if the
Independent Investment Banker obtains fewer than five such Reference Treasury
Dealer Quotations, the average of all such quotations.
"Consolidated Net Worth" means the amount of total stockholders' equity
shown in the most recent consolidated statement of financial position of the
Company.
"Debt" has the meaning specified in Section 2.5.
"Funded Debt" means indebtedness for money borrowed which by its terms
matures at, or is extendible or renewable at the option of the obligor to, a
date more than twelve months after the date of the creation of such
indebtedness.
"Independent Investment Banker" means Morgan Stanley & Co. Incorporated
or, if such firm is unwilling or unable to select the Comparable Treasury Issue,
an independent investment banking institution of national standing appointed by
the Trustee.
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"Interest Payment Date" has the meaning specified in Section 2.3.
"mortgage" or "mortgages" has the meaning specified in Section 2.5.
"Notes" has the meaning specified in Section 2.1.
"Reference Treasury Dealer" means (1) Morgan Stanley & Co.
Incorporated, Lehman Brothers Inc. and Prudential Securities Incorporated and
their respective successors, provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer in New York City
(a "Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer and (2) any other Primary Treasury Dealer selected by
the Independent Investment Banker after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker at 5:00
p.m., New York City time, on the third Business Day preceding such Redemption
Date.
"Regular Record Date" has the meaning specified in Section 2.3.
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Subsidiary of any property,
whereby such property had been sold or transferred by the Company or any
Subsidiary to such Person.
"Subsidiary" means a corporation, partnership or other entity more than
50% of the outstanding voting securities of which is owned, directly or
indirectly, by the Company or one or more other Subsidiaries, or by the Company
and one or more other Subsidiaries. For purposes of this definition, "voting
securities" means securities which ordinarily have voting power for the election
of a governing board, whether at all times or only so long as no senior class of
securities has such voting power by reason of any contingency.
"Treasury Rate" means, with respect to any Redemption Date, (1) the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated "H.15 (519)" or any successor publication which is published weekly
by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue shall be
determined and the Treasury Rate shall be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month) or (2) if such
release (or any successor release) is not published during the week preceding
the calculation date or does not contain such yields, the rate
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<PAGE> 5
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be
calculated on the third Business Day preceding the Redemption Date.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1 TITLE OF SECURITIES; STATED MATURITY.
There shall be a series of Securities designated the "6.80% Notes due
2004 " (the "Notes"). Unless earlier redeemed, as herein provided, the Stated
Maturity of the principal of the Notes shall be April 15, 2004.
SECTION 2.2 LIMITATION ON AGGREGATE PRINCIPAL AMOUNT.
The aggregate principal amount of the Notes shall be limited to
$325,000,000, and, except as provided in this Section and in Section 306 of the
Senior Indenture, the Company shall not execute and the Trustee shall not
authenticate or deliver Notes in excess of such aggregate principal amount.
Nothing contained in this Section 2.2 or elsewhere in this Supplemental
Indenture, or in the Notes, is intended to or shall limit execution by the
Company or authentication or delivery by the Trustee of Notes under the
circumstances contemplated by Sections 304, 305, 306, 907, 1107 and 1505 of the
Senior Indenture, or any Notes which, pursuant to Section 303 of the Senior
Indenture, are deemed never to have been authenticated and delivered under the
Senior Indenture.
SECTION 2.3 INTEREST AND INTEREST RATES.
The Notes will bear interest at an annual rate of 6.80% from March 9,
1999 or from the most recent Interest Payment Date to which interest has been
paid or provided for, payable semiannually on April 15 and October 15 of each
year, commencing October 15, 1999 (each, an "Interest Payment Date"), to the
Person in whose name such Note is registered at the close of business on April 1
or October 1 next preceding such Interest Payment Date (each a "Regular Record
Date"). Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months. The interest so payable on any Note which is not
punctually paid or duly provided for on any Interest Payment Date shall
forthwith cease to be payable to the Person in whose name such Note is
registered on the relevant Regular Record Date, and such Defaulted Interest
shall be payable to the Person in whose name such Note is registered on the
Special Record Date or other specified date determined in accordance with the
Senior Indenture.
5
<PAGE> 6
SECTION 2.4 REDEMPTION.
(a) The Notes may be redeemed at the option of the Company, in whole or
in part, at any time on not less than 30 nor more than 60 days' prior notice by
the Company to the Trustee at a redemption price equal to the greater of (1)
100% of their principal amount or (2) the sum of the present values of the
remaining scheduled payments of principal and interest thereon discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 25 basis points, plus, in either
case, accrued and unpaid interest on the principal amount being redeemed to such
Redemption Date.
(b) If less than all of the Notes are to be redeemed, the Trustee shall
select the Notes or portions thereof to be redeemed by such method as the
Trustee deems fair and appropriate. Upon surrender of a Note that is to be
redeemed in part, the Trustee shall authenticate for the Holder a new Note equal
in principal amount to the unredeemed portion of the Note surrendered.
(c) The Company is not required to make mandatory redemption or sinking
fund payments with respect to the Notes.
SECTION 2.5 LIMITATION ON LIENS.
So long as any Notes are Outstanding, the Company will not, nor will it
permit any Subsidiary to, issue, assume, guarantee or suffer to exist any debt
for money borrowed ("Debt") if such Debt is secured by a mortgage, pledge,
security interest or lien (a "mortgage" or "mortgages") upon any properties of
the Company or any Subsidiary or upon any securities or indebtedness of any
Subsidiary (whether such properties, securities or indebtedness is now owned or
hereafter acquired) without in any such case effectively providing that the
Notes (and all other series of Securities under the Senior Indenture) shall be
secured equally and ratably with (or prior to) such Debt, except that the
foregoing restrictions shall not apply to:
(a) mortgages on any property acquired, constructed or
improved by the Company or any Subsidiary (or mortgages on the
securities of a special purpose Subsidiary which holds no material
assets other than the property being acquired, constructed or improved)
after the date of the Senior Indenture which are created within 180
days after such acquisition (or in the case of property constructed or
improved, after the completion and commencement of commercial operation
of such property, whichever is later) to secure or provide for the
payment of the purchase price or cost thereof; provided that in the
case of such construction or improvement the mortgages shall not apply
to any property owned by the Company or any Subsidiary before such
construction or improvement other than (1) unimproved real property on
which the property so constructed, or the improvement, is located or
(2) personal property which is so improved;
6
<PAGE> 7
(b) mortgages existing on the date of issuance of the Notes,
existing mortgages on property acquired (including mortgages on any
property acquired from a Person which is consolidated with or merged
with or into the Company or a Subsidiary) or mortgages outstanding at
the time any corporation, partnership or other entity becomes a
Subsidiary; provided that such mortgages shall only apply to property
owned by such corporation, partnership or other entity at the time it
becomes a Subsidiary or that is acquired thereafter other than from the
Company or another Subsidiary;
(c) mortgages in favor of the Company or any Subsidiary;
(d) mortgages in favor of domestic or foreign governmental
bodies to secure advances or other payments pursuant to any contract or
statute or to secure indebtedness incurred to finance the purchase
price or cost of constructing or improving the property subject to such
mortgages, including mortgages to secure Debt of the pollution control
or industrial revenue bond type; or
(e) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
mortgage referred to in the foregoing clauses (a), (b), (c) or (d),
inclusive; provided that the principal amount of Debt secured thereby
shall not exceed the principal amount of Debt so secured at the time of
such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the
property which secured the mortgage so extended, renewed or replaced
(plus improvements in such property).
In addition to the foregoing, the Company and any Subsidiary may,
without securing the Notes, issue, assume or guarantee secured Debt that, with
certain other Debt described in the following sentence, does not exceed 15% of
Consolidated Net Worth, as shown on a consolidated balance sheet of the Company
as of a date not more than 90 days prior to the proposed transaction, prepared
by the Company in accordance with generally accepted accounting principles. The
other Debt to be aggregated for purposes of this exception is all Attributable
Debt in respect of Sale and Lease-Back Transactions of the Company and its
Subsidiaries under the exception in clause (e)(2) of Section 2.6 existing at
such time.
SECTION 2.6 LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS.
So long as any Notes are Outstanding, the Company will not, nor will it
permit any Subsidiary to, enter into any Sale and Lease-Back Transaction, other
than any Sale and Lease-Back Transaction:
(a) entered into within 180 days of the later of the
acquisition or placing into service of the property subject thereto by
the Company or Subsidiary;
7
<PAGE> 8
(b) involving a lease of less than five years;
(c) entered into in connection with an industrial revenue bond
or pollution control financing;
(d) between the Company and/or one or more Subsidiaries;
(e) as to which the Company or such Subsidiary would be
entitled to incur Debt secured by a mortgage on the property to be
leased in an amount equal to the Attributable Debt with respect to such
Sale and Lease-Back Transaction without equally and ratably securing
the Notes (1) under clauses (a) through (e) of Section 2.5 or (2) under
the last paragraph of Section 2.5; or
(f) as to which the Company will apply an amount equal to the
net proceeds from the sale of the property so leased to (1) the
retirement (other than any mandatory retirement), within 180 days of
the effective date of any such Sale and Lease-Back Transaction, of
Notes, of other debt securities issued under the Senior Indenture or of
Funded Debt of the Company or a Subsidiary or (2) the purchase or
construction of other property, provided that such property is owned by
the Company or a Subsidiary free and clear of all mortgages.
SECTION 2.7 EVENTS OF DEFAULT.
All Events of Default specified in Section 501 of the Senior Indenture
shall apply to the Notes except for the Events of Defaults specified in clause
(5) of Section 501 of the Senior Indenture.
SECTION 2.8 PLACE OF PAYMENT.
The Place of Payment where the Notes may be presented or surrendered
for payment, where the Notes may be surrendered for registration of transfer or
exchange and where notices and demands to and upon the Company in respect of the
Notes and the Senior Indenture may be served in the Borough of Manhattan, The
City of New York, New York and the offices or agency maintained by the Company
for such purpose shall initially be c/o Norwest Corporate Trust, c/o Depository
Trust Company, 55 Water Street, 1st Floor, TADS Department, New York, New York
10041.
SECTION 2.9 METHOD OF PAYMENT.
Payment of the principal of and interest on the Notes will be made at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York, New York (which shall initially be an office
or agency of the Trustee), in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company, payments of
principal, premium, if any, and interest on the Notes may be made (i) by check
mailed to the address of the Person entitled
8
<PAGE> 9
thereto as such address shall appear in the Security Register of Holders of the
Notes or (ii) by wire transfer to an account maintained by the Person entitled
thereto as specified in the Security Register of Holders of the Notes.
SECTION 2.10 DENOMINATION.
The Notes will be issued in denominations of $1,000 and integral
multiples thereof.
SECTION 2.11 CURRENCY.
Principal and interest on the Notes shall be payable in United States
Dollars.
SECTION 2.12 REGISTERED SECURITIES.
The Notes shall be issuable and transferable in fully registered form,
without coupons.
SECTION 2.13 FORM OF NOTES.
Notwithstanding Section 201 of the Senior Indenture, the Notes shall be
substantially in the form attached as Exhibit A hereto. If specified in the
Company Order delivered in connection with the issuance of the Notes pursuant to
Section 303 of the Senior Indenture, some or all of the Notes may be issued in
the form of Global Securities.
SECTION 2.14 SECURITY REGISTRAR AND PAYING AGENT.
The Trustee shall initially serve as the Security Registrar and Paying
Agent for the Notes.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 RATIFICATION OF SENIOR INDENTURE.
Except as expressly modified or amended hereby, the Senior Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
SECTION 3.2 DEFEASANCE.
The Senior Indenture contains provisions for defeasance at any time of
(a) the entire indebtedness of the Company on the Notes and (b) certain
restrictive covenants including for the Notes those covenants set forth in
Sections 2.5 and 2.6 and the related Defaults and Events of
9
<PAGE> 10
Defaults, upon compliance by the Company with certain conditions set forth
therein, which provisions apply to the Notes.
SECTION 3.3 GOVERNING LAW.
THIS SUPPLEMENTAL INDENTURE AND EACH NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS. This Supplemental Indenture is subject to
the provisions of the Trust Indenture Act and shall, to the extent applicable,
be governed by such provisions.
SECTION 3.4 COUNTERPARTS.
This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 3.5 CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Supplemental Indenture. This
Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions set forth in the Senior Indenture with the same force
and effect as if those terms and conditions were repeated at length herein and
made applicable to the Trustee with respect hereto.
SECTION 3.6 TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The Trustee shall not be responsible in any manner for or in respect of
the validity or sufficiency of this Supplemental Indenture, or for or in respect
of the recitals contained herein, all of which recitals are made by the Company.
10
<PAGE> 11
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first written above.
NABORS INDUSTRIES, INC.
By: /s/ ANTHONY G. PETRELLO
------------------------------
Anthony G. Petrello
President and Chief
Operating Officer
[Corporate Seal]
Attest:
/s/ DANIEL MCLACHLIN
- -------------------------
Daniel McLachlin
Secretary
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, Trustee
By: /s/ RAYMOND S. HAVERSTOCK
------------------------------
Raymond S. Haverstock
Vice President
[Corporate Seal]
Attest:
/s/ CURTIS D. SCHWEGMAN
- -------------------------
Curtis D. Schwegman
Assistant Secretary
11
<PAGE> 12
Exhibit A to
Supplemental Indenture
[FORM OF FACE OF NOTE]
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]*
[This Security is a Global Security within the meaning of the Senior Indenture
hereinafter referred to and is registered in the name of the Depositary or a
nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof and no such transfer may be registered, except
in the limited circumstances described in the Senior Indenture. Every Security
authenticated and delivered upon registration of transfer of, or in exchange for
or in lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances.]*
- ---------------
*Delete brackets and insert legends if Global Securities.
12
<PAGE> 13
NO. CUSIP
----- --------------
NABORS INDUSTRIES, INC.
6.80% Note due 2004
NABORS INDUSTRIES, INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein referred to as the "Company"),
for value received, hereby promises to pay to ____________________ or registered
assigns, the principal sum of _________________ DOLLARS ($__________) on April
15, 2004, at the agency of the Company in the Borough of Manhattan, The City of
New York, New York, or at such other office or agency of the Company as may be
maintained for such purpose, in such coin or currency of The United States of
America as at the time of payment is legal tender for the payment of public and
private debts, and to pay to the registered Holder hereof, as hereinafter
provided, interest on said principal sum at the rate per annum specified in the
title of this Note, in like coin or currency, semiannually on April 15 and
October 15 in each year, commencing October 15, 1999. Interest shall accrue from
the most recent date to which interest has been paid or duly provided for, or if
no interest has been paid or duly provided for, from March 9, 1999. The
interest so payable on any April 15 or October 15 will, subject to certain
exceptions provided in the Supplemental Indenture hereinafter referred to, be
paid to the Person in whose name this Note is registered at the close of
business on the April 1 or October 1, as the case may be, next proceeding such
April 15 or October 15 whether or not such April 1 or October 1 is a Business
Day. Interest shall be computed on the basis of a 360-day year or twelve 30-day
months. Payment of principal, premium, if any, and interest may be made at the
option of the Company either (1) by check mailed by first-class mail to the
address of the Person entitled thereto at such address as shall appear on the
Security Register of Holders of Notes or (ii) by wire transfer to an account
maintained by the Person entitled thereto as specified in the Security Register
of Holders of Notes. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes of this series not less than
10 days prior to such Special Record Date, or be paid in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes of this series may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Senior Indenture.
As provided in the Supplemental Indenture, this Note shall be deemed to
be a contract made under the laws of the State of New York, and for all purposes
shall be governed by and construed in accordance with the laws of such State.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as though fully set forth at this place.
13
<PAGE> 14
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Senior Indenture or be valid or
obligatory for any purpose.
14
<PAGE> 15
IN WITNESS WHEREOF, NABORS INDUSTRIES, INC. has caused this instrument
to be duly executed under its corporate seal.
Dated:
NABORS INDUSTRIES, INC.
By:
--------------------------
Name:
Title:
[Corporate Seal]
Attest:
------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Supplemental
Indenture.
Norwest Bank Minnesota,
National Association,
as Trustee
By:
--------------------------
Authorized Signatory
15
<PAGE> 16
[FORM OF REVERSE OF NOTE]
NABORS INDUSTRIES, INC.
6.80% Note due 2004
(1) Indenture. This Note is one of a duly authorized issue of
Securities of the Company known as its 6.80% Notes due 2004 (herein
referred to as the "Notes"), limited to the aggregate principal amount of
$325,000,000, all issued or to be issued in one or more series under and
pursuant to an indenture, dated as of March 1, 1999 (herein referred as the
"Senior Indenture"), between the Company and Norwest Bank Minnesota, National
Association, as trustee (herein referred to as the "Trustee"), to which Senior
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the respective rights, limitations of rights, obligations, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Notes. This Note is one of the series designated on the face hereof, and is
issued pursuant to an indenture supplemental to the Senior Indenture, dated as
of March 1, 1999, from the Company to the Trustee, relating to the Notes of this
series (the "Supplemental Indenture").
(2) Redemption. The Notes may be redeemed at the option of the Company,
in whole or in part, at any time, on not less than 30 nor more than 60 days'
prior notice by the Company to the Trustee at a redemption price equal to the
greater of (1) 100% of their principal amount or (2) the sum of the present
values of the remaining scheduled payments of principal and interest thereof
discounted to the Redemption Date on a semi-annual basis (assuming a 360-day
year consulting of twelve 30-day months) at the Treasury Rate plus 25 basis
points, plus, in either case, accrued and unpaid interest on the principal
amount being redeemed to such Redemption Date.
If less than all of the Notes are to be redeemed, the Trustee shall
select the Notes or portions thereof to be redeemed by such method as the
Trustee deems fair and appropriate in accordance with Section 1103 of the Senior
Indenture. Notice of such redemption shall be mailed to the Holders of Notes to
be redeemed in whole or in part by first-class mail at their addresses as they
shall appear upon the registry books of the Company, all as provided in the
Senior Indenture. Any such notice which is mailed in the manner hereinabove
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice.
In the event of redemption of the Notes in part only, a new Note or
Notes of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder upon the surrender hereof.
(3) No Mandatory Redemption. The Company is not required to make
mandatory redemption or sinking fund payments with respect to the Notes.
16
<PAGE> 17
(4) Defeasance. The Senior Indenture and the Supplemental Indenture
contain provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this Note and (b) certain restrictive covenants and the related
Defaults and Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions shall apply to this Note.
(5) Defaults and Remedies. If an Event of Default (as defined in
Section 501 of the Senior Indenture as amended by Section 2.7 of the
Supplemental Indenture) with respect to the Notes shall have occurred and be
continuing, the principal amount of this Note plus any accrued interest to the
date of acceleration may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect and subject to the conditions
provided in the Senior Indenture.
(6) Amendments and Waivers. The Senior Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holder under the
Senior Indenture at any time by the Company and the Trustee with the consent of
the Holders of a majority in aggregate principal amount of the Notes at the time
outstanding. The Senior Indenture also contains provisions permitting the
Holders of a specified percentage in aggregate principal amount of the Notes at
the time outstanding, on behalf of the Holders of all the Notes, to waive
compliance by the Company with certain provisions of the Senior Indenture and
certain past defaults under the Senior Indenture and their consequences. Any
such consent or waiver by or on behalf of the Holder of the Note (unless
effectively revoked as provided in the Senior Indenture) shall be conclusive and
binding upon such Holder, upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange here for whether
or not notation of such consent or waiver is made upon this Note or such other
Note.
(7) Denominations, Transfer and Exchange. The Notes are issuable as
fully registered Notes without coupons in denominations of $1,000 and any
integral multiple of $1,000. Upon surrender of this Note, the transfer of this
Note is registrable by the registered Holder hereof in person or by his attorney
duly authorized in writing on the Security Register of Holders of Notes at the
office or agency to be maintained by the Company referred to on the face hereof,
subject to the terms of the Senior Indenture but without payment of any charge
other than a sum sufficient to reimburse the Company for any tax or other
governmental charge incident thereto. Upon any such registration or transfer, a
new Note or Notes of authorized denomination or denominations, for the same
aggregate principal amount, will be issued to the transferee in exchange hereof.
Principal of, premium, if any, and interest on this Note are payable at the
office of the Company referred to on the face hereof, except that, at the option
of the Company, payment of principal, premium, if any, and interest hereon may
be made either (a) by check mailed to the address of the Person entitled thereto
as such address shall appear on the Security Register of Holders of Notes or (b)
by transfer to an account maintained by the Person entitled thereto as specified
in the Security Register of Holders of Notes.
Prior to the presentation for registration of transfer, the Company,
the Trustee, any paying agent, and any Security Registrar may deem and treat the
person in whose name this Note shall be
17
<PAGE> 18
registered upon the Security Register of Holders of Notes as the absolute owner
of this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of or on account of the principal hereof, premium, if any and interest
due hereon, and for all other purposes, and neither the Company nor the Trustee
nor any paying agent nor any Security Registrar shall be affected by any notice
to the contrary. All such payments shall be valid and effectual to satisfy and
discharge the liability on this Note to the extent of the sum or sums so paid.
(8) Obligations and Recourse. No reference herein to the Senior
Indenture or the Supplemental Indenture and no provision of this Note or of the
Senior Indenture or the Supplemental Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the place, at the
respective times, at the rate and in the currency herein prescribed. No recourse
shall be had for the payment of the principal of, premium, if any, or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Senior Indenture or the Supplemental
Indenture or any other indenture supplemental thereto against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
Terms used in this Note and defined in the Senior Indenture or the
Supplemental Indenture, as the case may be, are used herein as therein defined.
18
<PAGE> 19
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
and irrevocably appoint ____________________________________________ agent to
transfer this Note on the Books of the Company. The agent may substitute another
to act for him.
Date: Your Signature:
------------------ --------------------
(Sign exactly as your name appears on the other side of this Note)
Signature(s) must be guaranteed by an
institution which is a member of one
of the following recognized signature
Guarantee Programs: (i) The
Securities Transfer Agent Medallion
Program (STAMP); (ii) The New York
Stock Exchange Medallion Program
(MNSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv)
another guarantee program acceptable
to the Trustee.
------------------------------------
Signature Guarantee
19
<PAGE> 1
EXHIBIT 5.1
March 5, 1999
Nabors Industries, Inc.
515 West Greens Road
Suite 1200
Houston, Texas 77067
Ladies and Gentlemen:
We have acted as special counsel to Nabors Industries, Inc., a
Delaware corporation (the "Company"), in connection with matters relating to the
proposed issuance and sale by the Company of $325,000,000 aggregate principal
amount of its 6.80% Notes due 2004 (the "Notes"). The Notes are to be issued
pursuant to the Senior Indenture, as defined below. This opinion letter is
furnished in accordance with the requirements of Item 601(b)(5) of Regulation
S-K under the Act.
In connection with this opinion letter, we have examined
originals or copies, certified or otherwise identified to our satisfaction, of:
(i) the Registration Statement of the Company on Form S-3 (the "Registration
Statement") filed with the Securities and Exchange Commission (the "Commission")
on April 15, 1997 under the Securities Act of 1933, as amended (the "Act"); (ii)
Amendment No. 1 to the Registration Statement on Form S-3 filed with the
Commission on April 29, 1997; (iii) Post-Effective Amendment No. 1 to the
Registration Statement on Form S-3 to be filed on March 5, 1999; (iv) the
Indenture and Supplemental Indenture No. 1 each dated as of March 1, 1999
(collectively, the "Senior Indenture"), entered into by the Company with Norwest
Bank Minnesota, National Association, as Trustee, relating to the Notes; (v) the
Restated Certificate of Incorporation of the Company as in effect on the date
hereof; (vi) the Restated By-laws of the Company as in effect on the date
hereof; and (vii) resolutions adopted by the Board of Directors of the Company
and the Executive Committee thereof authorizing, among other things, the
issuance and sale of the Notes. We have also examined originals or copies,
certified or otherwise identified to our
<PAGE> 2
Nabors Industries, Inc.
March 5, 1999
Page 2
satisfaction, of such records of the Company and such agreements, certificates
of public officials, certificates of officers or other representatives of the
Company and others, and such other documents, certificates and records as we
have deemed necessary or appropriate as a basis for the opinions set forth
herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. In making our
examination of documents executed or to be executed by parties other than the
Company, we have assumed that such parties have the power, corporate or other,
to enter into and perform all obligations thereunder and have also assumed the
due authorization by all requisite action, corporate or other, and execution
and delivery by such parties of such documents and the validity and binding
effect thereof. As to any facts material to the opinions expressed herein that
were not independently established or verified, we have relied upon statements
and representations of officers and other representatives of the Company and
others.
Members of our firm are admitted to the bar in the State of New
York, and we do not express any opinion as to the laws of any other jurisdiction
other than the General Corporation Law of the State of Delaware and the federal
laws of the United States of America to the extent referred to specifically
herein. This opinion letter is limited to such laws, including the rules and
regulations, as in effect on the date hereof.
Based upon and subject to the foregoing, we are of the opinion
that when (i) the Blue Sky or securities laws of certain states shall have been
complied with, (ii) the underwriting agreement with respect to the Notes has
been duly executed and delivered by the Company and the other parties thereto,
(iii) the Senior Indenture relating to the Notes shall have been executed and
delivered by the Company and the Trustee and duly qualified under the Trust
Indenture Act of 1939, as amended, (iv) the terms of the Notes and of their
issuance shall have been duly established in conformity with the Senior
Indenture relating to the Notes so as not to violate any applicable law or the
Restated Certificate of Incorporation or Restated By-laws of the Company or
result in default under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement
2
<PAGE> 3
Nabors Industries, Inc.
March 5, 1999
Page 3
or restriction imposed by any court or governmental body having jurisdiction
over the Company and (v) the Notes shall have been duly executed, authenticated
and delivered against payment therefor in accordance with the Senior Indenture
and the underwriting agreement, the Notes shall constitute valid and legally
binding obligations of the Company enforceable in accordance with their terms,
except as enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and (b)
general principles of equity (regardless of whether enforcement is considered in
a proceeding at law or in equity).
We hereby consent to the filing of this opinion letter with
the Commission as an exhibit to the Registration Statement. We also consent to
the reference to our firm under the caption "Legal Matters" in the Prospectus
Supplement relating to the Notes and constituting a part of the Registration
Statement. In giving this consent, we do not thereby admit that we are
included in the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Commission or that this consent
is required by Section 7 of the Act.
Very truly yours,
/s/ WINSTON & STRAWN
Winston & Strawn
3
<PAGE> 1
EXHIBIT 12.2
NABORS INDUSTRIES, INC. AND SUBSIDIARIES
COMPUTATION OF PRO FORMA RATIOS OF EARNINGS TO FIXED CHARGES
(In thousands, except ratio amounts)
Pro Forma
----------------------------
Twelve Nine
Months Months
Ended Ended
December 31, September 30,
1997 1998
------------ -------------
Pretax income $220,001 $172,632
Add fixed charges as adjusted (from below) 19,115 14,440
-------- --------
Earnings $239,116 $187,072
-------- --------
Fixed charges:
Interest expense:
Interest on indebtedness $ 17,722 $ 13,582
Capitalized 2,000 3,225
Amortization of debt costs 865 367
Interest portion of rental expense 528 491
-------- --------
Fixed charges before adjustments 21,115 17,665
Less capitalized interest (2,000) (3,225)
-------- --------
Fixed charges as adjusted $ 19,115 $ 14,440
-------- --------
Ratio (earnings divided by fixed charges
before adjustments) 11.32 10.59
-------- --------
<PAGE> 1
EXHIBIT 15.1
PricewaterhouseCoopers LLP Awareness Letter
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Nabors Industries, Inc.
Registration Statement on Form S-3 (File No. 333-25233)
We are aware that our reports on our reviews of interim financial information
of Nabors Industries, Inc. dated i) October 30, 1998 for the nine months ended
September 30, 1998, ii) July 17, 1998 for the six months ended June 30, 1998,
iii) April 15, 1998 for the three months ended March 31, 1998, and iv) January
16, 1998 for the three months ended December 31, 1998 and are included in the
Company's quarterly reports on Form 10-Q are incorporated by reference in this
registration statement. Pursuant to Rule 436(c) under the Securities Act of
1933, this report should not be considered a part of the registration statement
prepared or certified by us within the meaning of Sections 7 and 11 of the Act.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Houston, Texas
March 1, 1999
<PAGE> 1
EXHIBIT 25.1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
-----------------------------
[X] CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A U.S. NATIONAL BANKING ASSOCIATION 41-1592157
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national Identification No.)
bank)
SIXTH STREET AND MARQUETTE AVENUE
Minneapolis, Minnesota 55479
(Address of principal executive offices) (Zip code)
Stanley S. Stroup, General Counsel
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
(612) 667-1234
(Agent for Service)
-----------------------------
NABORS INDUSTRIES, INC.
(Exact name of obligor as specified in its charter)
DELAWARE 93-0711613
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
515 WEST GREEN ROAD, SUITE 1200
HOUSTON, TEXAS 77067
(Address of principal executive offices) (Zip code)
-----------------------------
SENIOR NOTES
(Title of the indenture securities)
================================================================================
<PAGE> 2
Item 1. General Information. Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency
Treasury Department
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
The Board of Governors of the Federal Reserve System
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust
powers.
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is
not in default as provided under Item 13.
Item 15. Foreign Trustee. Not applicable.
Item 16. List of Exhibits. List below all exhibits filed as a part of
this Statement of Eligibility. Norwest Bank
incorporates by reference into this Form
T-1 the exhibits attached hereto.
Exhibit 1. a. A copy of the Articles of Association of the
trustee now in effect.*
Exhibit 2. a. A copy of the certificate of authority of
the trustee to commence business issued June
28, 1872, by the Comptroller of the Currency
to The Northwestern National Bank of
Minneapolis.*
b. A copy of the certificate of the Comptroller
of the Currency dated January 2, 1934,
approving the consolidation of The
Northwestern National Bank of Minneapolis
and The Minnesota Loan and Trust Company of
Minneapolis, with the surviving entity being
titled Northwestern National Bank and Trust
Company of Minneapolis.*
c. A copy of the certificate of the Acting
Comptroller of the Currency dated January
12, 1943, as to change of corporate title of
Northwestern National Bank and Trust Company
of Minneapolis to Northwestern National Bank
of Minneapolis.*
<PAGE> 3
d. A copy of the letter dated May 12, 1983 from
the Regional Counsel, Comptroller of the
Currency, acknowledging receipt of notice of
name change effective May 1, 1983 from
Northwestern National Bank of Minneapolis to
Norwest Bank Minneapolis, National
Association.*
e. A copy of the letter dated January 4, 1988
from the Administrator of National Banks for
the Comptroller of the Currency certifying
approval of consolidation and merger
effective January 1, 1988 of Norwest Bank
Minneapolis, National Association with
various other banks under the title of
"Norwest Bank Minnesota, National
Association."*
Exhibit 3. A copy of the authorization of the trustee to
exercise corporate trust powers issued January 2,
1934, by the Federal Reserve Board.*
Exhibit 4. Copy of By-laws of the trustee as now in effect.*
Exhibit 5. Not applicable.
Exhibit 6. The consent of the trustee required by Section 321(b)
of the Act.
Exhibit 7. A copy of the latest report of condition of the
trustee published pursuant to law or the requirements
of its supervising or examining authority is filed in
paper format pursuant to Form SE.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
* Incorporated by reference to exhibit number 25 filed with
registration statement number 33-66026.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, Norwest Bank Minnesota, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Minneapolis and State of Minnesota on the 26th day of February 1999.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ CURTIS D. SCHWEGMAN
------------------------
Curtis D. Schwegman
Assistant Vice President
<PAGE> 5
EXHIBIT 6
February 26, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, the undersigned hereby consents that reports of examination of the
undersigned made by Federal, State, Territorial, or District authorities
authorized to make such examination may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ CURTIS D. SCHWEGMAN
------------------------
Curtis D. Schwegman
Assistant Vice President
