<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 27, 1996
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
MARINE DRILLING COMPANIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
TEXAS 74-2558926
(State of other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
ONE SUGAR CREEK CENTER BLVD., SUITE 600
SUGAR LAND, TEXAS 77478-3556
(713) 243-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
WILLIAM H. FLORES
ONE SUGAR CREEK CENTER BLVD., SUITE 600
SUGAR LAND, TEXAS 77478-3556
(713) 243-3000
(Name, address, including zip code, and telephone number including area code, of
agent for service)
Copies to:
<TABLE>
<S> <C>
SCOTT N. WULFE ARTHUR H. ROGERS
VINSON & ELKINS L.L.P. FULBRIGHT & JAWORSKI L.L.P.
2300 FIRST CITY TOWER 1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77002-6760 HOUSTON, TEXAS 77010-3095
(713) 758-2750 (713) 651-5421
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================
TITLE OF EACH CLASS OF AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED(1)(2) PRICE(3)(4) REGISTRATION FEE
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------------
Debt Securities(5).............................................
- ------------------------------------------------------------------------------------------------------------------
Preferred Stock................................................
- ------------------------------------------------------------------------------------------------------------------
Common Stock...................................................
- ------------------------------------------------------------------------------------------------------------------
Warrants.......................................................
- ------------------------------------------------------------------------------------------------------------------
TOTAL................................................. $150,000,000 $51,725
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</TABLE>
(1) Certain information as to each class of securities to be registered is not
specified in accordance with General Instruction II.D. to Form S-3 under the
Securities Act of 1933, as amended.
(2) This registration statement also covers such indeterminate amount of
securities as may be issued in exchange for, or upon conversion or exercise
of, as the case may be, the Debt Securities or Preferred Stock registered
hereunder. Any securities registered hereunder may be sold separately or as
units with other securities registered hereunder.
(3) No separate consideration will be received for any securities registered
hereunder that are issued in exchange for, or upon conversion of, as the
case may be, the Debt Securities or Preferred Stock registered hereunder.
(4) The proposed maximum offering price per unit will be determined from time to
time by the registrant in connection with, and at the time of, the issuance
by the registrant of the securities registered hereunder.
(5) The aggregate principal amount of the Debt Securities may be increased if
any Debt Securities are issued at an original issue discount by an amount
such that the gross proceeds to be received by the registrant shall be equal
to the above amount to be registered. Any offering of Debt Securities
denominated other than in U. S. dollars will be treated as the equivalent of
U.S. dollars based on the exchange rate applicable to the purchase of such
Debt Securities at the time of initial offering. In no event will the
aggregate initial offering price of all securities issued from time to time
pursuant to this Registration Statement exceed $150,000,000, or the
equivalent thereof in foreign currencies or composite currencies.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
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* *
* INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A *
* REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED *
* WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT *
* BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE *
* REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT *
* CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY *
* NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH *
* SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO *
* REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH *
* STATE. *
* *
***************************************************************************
SUBJECT TO COMPLETION, DATED JUNE 27, 1996
PROSPECTUS
MARINE DRILLING COMPANIES, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
[MARINE DRILLING COMPANIES, INC. LOGO]
---------------------
Marine Drilling Companies, Inc. ("Marine" or the "Company") may offer and
sell from time to time, (i) unsecured debt securities, in one or more series,
consisting of notes, debentures or other evidences of indebtedness (the "Debt
Securities"), (ii) shares of preferred stock, par value $.01 per share of the
Company, in one or more series (the "Preferred Stock"), (iii) shares of common
stock of the Company, par value $.01 per share (the "Common Stock") and (iv)
warrants (the "Warrants") to purchase Common Stock. The Company may offer and
sell up to $150,000,000 aggregate public offering price of Debt Securities,
Preferred Stock, Common Stock and Warrants (collectively, the "Securities"). The
Securities may be offered in separate series in amounts, and prices, and on
terms to be determined at or prior to the time of sale.
The specific terms of the particular Securities to be issued will be set
forth in a supplement to this Prospectus (a "Prospectus Supplement"), which will
be delivered together with this Prospectus, including, where applicable, (i) in
the case of Debt Securities, the specific designation, aggregate principal
amount, ranking as senior or subordinated Debt Securities, maturity, rate or
rates (or method of determining the same) and time or times for the payment of
interest, if any, any exchangeability or conversion terms, any terms for
optional or mandatory redemption or repurchase, or payment of additional amounts
or any sinking fund provisions, the designation of the trustee acting under the
applicable indenture, and any other specific terms of such Debt Securities, (ii)
in the case of Preferred Stock, the specific designation, number of shares and
liquidation value thereof and the dividend, liquidation, redemption, voting and
other rights, including conversion or exchange rights, if any, and any other
special terms, (iii) in the case of Common Stock, the number of shares, and (iv)
in the case of Warrants, the number and terms thereof, the number of shares of
Common Stock issuable upon their exercise, the exercise price, the terms of the
offering and sale thereof and, where applicable, the duration and detachability
thereof. The Prospectus Supplement will also contain information regarding the
initial public offering price, the net proceeds to the Company and, where
applicable, the United States Federal income tax considerations relating to the
Securities covered by the Prospectus Supplement and a description of certain
factors that should be considered in connection with an investment in the
Securities covered by the Prospectus Supplement.
The Securities may be sold directly by the Company to investors, through
agents designated from time to time or to or through underwriters or dealers.
See "Plan of Distribution." If any agents of the Company or any underwriters are
involved in the sale of any Securities in respect of which the Prospectus is
being delivered, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in the Prospectus Supplement.
The Common Stock is listed on the Nasdaq Stock Market under the symbol
"MDCO." The Prospectus Supplement will contain information about any listing on
a securities exchange of the Securities covered by the Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
---------------------
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF THE SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
June , 1996
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational filing requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and the
Commission's Regional Offices located at Seven World Trade Center, New York, New
York 10048, and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can be obtained by mail from the Public
Reference Branch of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. Such material may also be inspected at the offices
of the Nasdaq National Market, 1735 K Street, N.W., Washington, D.C. 20006. The
Commission maintains a World Wide Website on the Internet at http://www.sec.gov
that contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all the information
contained in the Registration Statement, certain portions of which are omitted
as permitted by the rules and regulations of the Commission. For further
information with respect to the Company and the securities offered hereby,
reference is made to the Registration Statement, including the exhibits thereto,
which may be inspected at the Commission's offices, without charge or copies of
which may be obtained from the Commission upon payment of prescribed fees.
Statements contained in this Prospectus as to the contents of any contract or
other document filed as an exhibit to the Registration Statement are not
necessarily complete, and in each instance reference is hereby made to the copy
of such contract or other document filed as an exhibit to the Registration
Statement, each such statement being qualified in all respects by such
reference.
---------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File No.
0-18309) pursuant to the Exchange Act are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
2. The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 1996.
3. The Company's Reports on Form 8-K, dated March 18, 1996, April 26, 1996
and June 3, 1996.
4. The description of the Common Stock contained in the Registration
Statement on Form 8-B filed with the Commission on February 21, 1990, as
amended by Form 8 filed with the Commission on November 9, 1992, and any
subsequent amendment thereto filed for the purpose of updating such
description.
All other documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Securities pursuant hereto shall
be deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document all or a portion of which is incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified shall not be deemed to constitute a part of this Prospectus except as
so modified, and any statement so superseded shall not be deemed to constitute
part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any or all of the
2
<PAGE> 4
documents which are incorporated herein by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
into such documents). Requests should be directed to the Company, One Sugar
Creek Center Blvd., Suite 600, Sugar Land, Texas 77478-3556, Attention: Investor
Relations (telephone: 713/243-3000).
---------------------
IN CONNECTION WITH AN OFFERING OF OFFERED SECURITIES, THE UNDERWRITERS, IF
ANY, FOR SUCH OFFERING MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR
MAINTAIN THE MARKET PRICES OF THE OFFERED SECURITIES AT LEVELS ABOVE THOSE WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY
BE DISCONTINUED AT ANY TIME.
THE COMPANY
The Company is engaged in the offshore contract drilling of oil and gas
wells, primarily in the U.S. Gulf of Mexico, for independent and major oil and
gas companies. As of the date of this Prospectus, the Company owns and operates
a fleet of 13 mobile offshore jack-up drilling rigs, consisting of four
independent leg units, three of which have a cantilever feature that allows the
extension of the drilling equipment over a platform, and nine mat supported
units, four of which have a cantilever feature. The Company's rigs are currently
capable of drilling to depths of 20,000 to 30,000 feet in maximum water depths
ranging from 200 feet to 300 feet.
The Company conducts substantially all of its operations through
wholly-owned subsidiaries. The principal subsidiaries are Marine Drilling
Management Company, which owns ten rigs, and Keyes Holding Corporation, which
owns the remaining three rigs.
The Company was incorporated in Texas in January, 1990 but, through its
predecessors, has been engaged in offshore contract drilling since 1966. The
Company's principal executive offices are located at One Sugar Creek Center
Boulevard, Suite 600, Sugar Land, Texas 77478-3556 and the Company's telephone
number is (713) 243-3000. The "Company" or "Marine" refers to Marine Drilling
Companies, Inc. and its consolidated subsidiaries, unless otherwise indicated or
the context otherwise suggests.
USE OF PROCEEDS
Unless otherwise provided in the Prospectus Supplement, the net proceeds
from the sale of the Securities offered by this Prospectus and the Prospectus
Supplement (the "Offered Securities") will be used for general corporate
purposes, which may include repayment of indebtedness, acquisitions, additions
to working capital, and capital expenditures. Until so utilized, it is expected
that such net proceeds will be invested in interest bearing time deposits or
short-term marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of earnings to fixed charges and
combined ratio of earnings to fixed charges and preferred stock dividend
requirements for the Company for the periods indicated:
<TABLE>
<CAPTION>
THREE
YEAR ENDED DECEMBER 31, MONTHS ENDED
----------------------------------------- MARCH 31,
1991 1992 1993 1994 1995 1996
---- ---- ---- ----- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges......... -- -- 41.2 131.3 -- 16.7
Ratio of earnings to combined fixed charges
and preferred stock dividend
requirements............................. -- -- 41.2 131.3 -- 16.7
</TABLE>
3
<PAGE> 5
For purposes of computing the ratio of earnings to fixed charges: (i)
earnings consist of income before provision for income taxes plus fixed charges
as described below, excluding capitalized interest for the period and (ii) fixed
charges consist of interest expensed and capitalized, amortization of debt
discount and expense relating to indebtedness and the portion of rental expense
representative of the interest factor attributable to leases for rental
property. For purposes of computing the ratio of earnings to combined fixed
charges and preferred stock dividend requirements: (a) earnings consist of
income before provision for income taxes plus fixed charges and preferred stock
dividend requirements, excluding capitalized interest for the period and (b)
fixed charges and preferred stock dividend requirements consist of interest
expensed and capitalized, amortization of debt discount and expense relating to
indebtedness, the portion of rental expense representative of the interest
factor attributable to leases for rental property and preferred stock dividends.
Because of losses, fixed charges were not covered by $34,462,000,
$91,327,000 and $6,228,000 respectively, for December 31, 1991, 1992 and 1995.
As a result of a recapitalization effected in 1992, the Company eliminated
preferred stock obligations of approximately $64,000,000. There have been no
shares of Preferred Stock outstanding from the recapitalization to the date of
this Prospectus.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be unsecured senior or senior subordinated debt of
the Company and will be issued, in the case of Debt Securities that will be
senior debt ("Senior Debt Securities"), under a Senior Indenture (the "Senior
Debt Indenture") between the Company and Marine Midland Bank, as trustee, and,
in the case of Debt Securities that will be subordinated debt ("Subordinated
Debt Securities"), under a Senior Subordinated Indenture (the "Subordinated Debt
Indenture") between the Company and Bankers Trust Company, as trustee. The
Senior Debt Indenture and the Subordinated Debt Indenture are sometimes
hereinafter referred to individually as an "Indenture" and collectively as the
"Indentures." When used in this Prospectus, the term "Trustee" means, when used
with respect to the Senior Indenture, Marine Midland Bank and any successor
trustee under the Senior Debt Indenture and, when used with respect to the
Subordinated Debt Indenture, means Bankers Trust Company and any successor
thereto as trustee under the Subordinated Debt Indenture. The Indentures are
filed as exhibits to the Registration Statement of which this Prospectus is a
part. The following summaries of certain provisions of the Indentures and the
Debt Securities do not purport to be complete and such summaries are subject to
the detailed provisions of the applicable Indenture to which reference is hereby
made for a full description of such provisions, including the definition of
certain terms used herein. Section references in parentheses below are to
sections in both Indentures unless otherwise indicated. Wherever particular
sections or defined terms of the applicable Indenture are referred to, such
sections or defined terms are incorporated herein by reference as part of the
statement made, and the statement is qualified in its entirety by such
reference. The Indentures are substantially identical, except for provisions
relating to subordination.
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
General. The Debt Securities will be unsecured senior or subordinated
obligations of the Company and may be issued from time to time in one or more
series. Neither of the Indentures limits the amount of Debt Securities that may
be issued thereunder nor does either limit the aggregate indebtedness of the
Company, secured or unsecured, or any subsidiary thereof or, except to the
extent, if any, set forth in any Prospectus Supplement, limit the imposition of
liens on the Company's property, the payment of dividends or the acquisition of
stock of the Company. The Company currently conducts a substantial portion of
its operations through subsidiaries. Consequently, the rights of the Company to
receive assets of any subsidiary (and thus the ability of holders of Debt
Securities to benefit indirectly from such assets) are subject to the prior
claims of creditors of that subsidiary. Except to the extent set forth in any
Prospectus Supplement, the Indentures do not, and the Debt Securities will not,
contain any covenants or other provisions that are intended to afford holders of
the Debt Securities special protection in the event of either a change of
control of the Company or a highly leveraged transaction by the Company.
4
<PAGE> 6
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Debt Securities offered by such Prospectus
Supplement ("Offered Debt Securities") to the extent such terms are applicable
to such Offered Debt Securities:
(i) the title of the Offered Debt Securities;
(ii) the classification as Senior Debt Securities or Subordinated Debt
Securities, aggregate principal amount, purchase price and denomination;
(iii) the date or dates on which the Offered Debt Securities will
mature;
(iv) the method by which amounts payable in respect of principal of,
and premium, if any, or interest, if any, on or upon the redemption of such
Offered Debt Securities may be calculated;
(v) the interest rate or rates (or the method by which such will be
determined), and the date or dates from which such interest, if any, will
accrue;
(vi) the date or dates on which such interest, if any, will be
payable;
(vii) the place or places where and the manner in which the principal
of, premium, if any, and interest, if any, on the Offered Debt Securities
will be payable and the place or places where the Offered Debt Securities
may be presented for transfer;
(viii) the right, if any, or obligation, if any, of the Company to
redeem, repay or purchase the Offered Debt Securities pursuant to any
sinking fund or analogous provisions or at the option of a holder thereof
and the period or periods within which, the price or prices (or the method
by which such price or prices will be determined, or both) at which, the
form or method of payment therefor if other than in cash and the terms and
conditions upon which the Offered Debt Securities will be redeemed, repaid
or purchased pursuant to any such obligation;
(ix) any provision relating to the issuance of the Offered Debt
Securities at an original issue discount;
(x) if the amounts of payments of principal of, premium, if any, and
interest on the Offered Debt Securities are to be determined with reference
to an index, the manner in which such amounts shall be determined;
(xi) the terms and conditions, if any, upon which the Offered Debt
Securities may be convertible into or exchanged for Common Stock or other
securities;
(xii) any applicable United States federal income tax consequences;
(xiii) any deletions from, modification of or additions to the Events
of Default or covenants of the Company with respect to such Offered Debt
Securities; and
(xiv) any other specific terms of the Offered Debt Securities.
Unless otherwise specified in any Prospectus Supplement, the Debt
Securities will be issuable in registered form and in denominations of $1,000
and any integral multiple thereof (Section 2.7). No service charge will be made
for any transfer or exchange of any Debt Securities but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith (Section 2.8).
Debt Securities may bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate may be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par that are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
applicable Prospectus Supplement.
5
<PAGE> 7
In determining whether the holders of the requisite aggregate principal
amount of outstanding Debt Securities of any series have given any request,
demand, authorization, direction, notice, consent or waiver under the
Indentures, the principal amount of any series of Debt Securities originally
issued at a discount from their stated principal amount that will be deemed to
be outstanding for such purposes will be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof.
Conversion or Exchange Rights. The Prospectus Supplement for any Offered
Debt Securities offered thereby will state the terms, if any, on which shares of
such Offered Debt Securities are convertible into, or exchangeable for,
securities of the Company or another person.
Global Securities. The Debt Securities of a series may be issued in whole
or in part in the form of one or more global securities ("Global Securities")
that will be deposited with, or on behalf of, a depositary (the "Depositary")
identified in the Prospectus Supplement relating to such series. Global
Securities may be issued only in fully registered form and in either temporary
or permanent form. Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security (i) may not be
transferred except as a whole and (ii) may only be transferred (a) by the
Depositary for such Global Security to its nominee, (b) by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or (c) by
such Depositary or any such nominee to a successor Depositary or nominee of such
successor Depositary (Section 2.8).
The specific terms of the depositary arrangement with respect to a series
of Debt Securities will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will
generally apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit, on its book-entry registration and transfer
system, the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depositary. Such accounts shall be designated by the dealers,
underwriters or agents with respect to such Debt Securities or by the Company if
such Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in a Global Security will be limited to persons that have
accounts with the applicable Depositary ("participants") or persons that may
hold interests through participants. Ownership of beneficial interests in such
Global Security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the applicable Depositary or its
nominee (with respect to interests of participants) and the records of
participants (with respect to interests of persons other than participants). The
laws of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security or its nominee is the
registered owner of such Global Security, such Depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the Debt Securities
of the series represented by such Global Security for all purposes under the
Indenture governing such Debt Securities. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to have any of
the individual Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of any such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the Indenture governing such Debt
Securities.
Payment of principal of, and premium, if any, and interest, if any, on,
individual Debt Securities represented by a Global Security registered in the
name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. The Company expects that the Depositary for a
series of Debt Securities or its nominee, upon receipt of any payment of
principal of, and premium, if any, and interest, if any, in respect of a Global
Security representing any such Debt Securities, immediately will credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Security
for such Debt Securities as shown on the records of such Depositary or its
nominee. The Company
6
<PAGE> 8
also expects that payments by participants to owners of beneficial interests in
such Global Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name."
Such payments will be the responsibility of such participants. Neither the
Company, the Trustee for such Debt Securities, any paying agent nor the
registrar for such Debt Securities will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of the Global Security for such Debt Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
If the Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is not
appointed by the Company within 90 days, the Company will issue individual Debt
Securities of such series in exchange for the Global Security representing such
series of Debt Securities. In addition, the Company may at any time and in its
sole discretion, subject to any limitations described in the Prospectus
Supplement relating to such Debt Securities, determine not to have any Debt
Securities of a series represented by one or more Global Securities and, in such
event, will issue individual Debt Securities of such series in exchange for the
Global Security or Securities representing such series of Debt Securities.
Further, if the Company so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in a Global Security representing Debt
Securities of such series may, on terms acceptable to the Company, the Trustee
and the Depositary for such Global Security, receive individual Debt Securities
of such series in exchange for such beneficial interests, subject to any
limitations described in the Prospectus Supplement relating to such Debt
Securities. In any such instance, an owner of a beneficial interest in a Global
Security will be entitled to physical delivery of individual Debt Securities of
the series represented by such Global Security equal in principal amount to such
beneficial interest and to have such Debt Securities registered in its name.
Individual Debt Securities of such series so issued will be issued in registered
form and in denominations, unless otherwise specified by the Company, of $1,000
and integral multiples thereof.
Merger and Consolidation. Unless additional limitations are described in a
Prospectus Supplement with respect to a series of Debt Securities, the Company
may consolidate or merge with or into any other corporation or entity, and the
Company may sell, lease or convey all or substantially all of its assets to
another corporation or entity, provided that (a)(i) in the case of a merger, the
Company is the surviving company in the merger, or (ii) the entity surviving the
merger, formed by such consolidation or which acquires such assets shall be an
entity organized and existing under the laws of the United States of America or
a state thereof and shall expressly assume payment of the principal of and any
premium and interest on the Debt Securities and the performance and observance
of all of the covenants and conditions of the Indentures to be performed or
observed by the Company and (b) the Company or such successor entity, as the
case may be, shall not immediately thereafter be in default in the performance
of any such covenant or condition. (Section 9.1).
Events of Default. Unless otherwise specified in the Prospectus Supplement,
an Event of Default is defined under each Indenture with respect to the Debt
Securities of any series issued under such Indenture as being: (i) default in
the payment of any installment of interest upon any of the Debt Securities of
such series when due, continued for 30 days; (ii) default in the payment of
principal of or premium, if any, with respect to Debt Securities of such series
when due; (iii) default in the payment or satisfaction of any sinking fund or
other purchase obligation with respect to Debt Securities of such series when
due; (iv) default in the performance of any other covenant of the Company
applicable to Debt Securities of such series, continued for 60 days after
written notice to the Company by the Trustee or to the Company and the Trustee
by the holders of at least 25% in aggregate principal amount of the Debt
Securities of such series then outstanding; (v) certain events of bankruptcy,
insolvency or reorganization; (vi) default under any bond, debenture, note or
other evidence of indebtedness for money borrowed by the Company or under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed of the
Company resulting in the acceleration of such indebtedness, or any default in
payment of such indebtedness (after expiration of any applicable grace periods
and presentation of any debt instruments, if required), if the aggregate amount
of all such indebtedness that has been so accelerated and with respect to which
there has been such a default in payment shall exceed $5,000,000 and there shall
have been a failure to obtain rescission or annulment of all such accelerations
or to discharge all such defaulted
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Indebtedness within 10 days after written notice of the type specified in the
foregoing clause (vi); and (vii) any other Event of Default provided with
respect to the Debt Securities of such series (Section 5.1).
If any Event of Default with respect to any Debt Securities of any series
shall occur and be continuing, the Trustee or the holders of not less than 25%
in aggregate principal amount of the Debt Securities of such series then
outstanding, by notice in writing to the Company (and to the Trustee, if given
by the holders), may declare the principal (or, in the case of any series of
Debt Securities originally issued at a discount from their stated principal
amount, such portion of the principal amount as may be specified in the terms of
such series) of all of the Debt Securities of such series and the interest, if
any, accrued thereon to be due and payable immediately, but the holders of a
majority in aggregate principal amount of the Debt Securities of such series
then outstanding, by notice in writing to the Company and the Trustee, may
rescind and annul such declaration and its consequences if all defaults under
such Indenture are cured or waived (Section 5.1).
Each Indenture provides that no holder of any series of Debt Securities
then outstanding may institute any suit, action or proceeding with respect to,
or otherwise attempt to enforce, such Indenture, unless (i) such holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, (ii) the holders of not less than 25% in aggregate
principal amount of such series of Debt Securities then outstanding shall have
made written request to the Trustee to institute such suit, action or proceeding
and shall have offered to the Trustee such reasonable indemnity as it may
require with respect thereto and (iii) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding; provided that, subject to the
subordination provisions applicable to the Subordinated Debt Securities, the
right of any holder of any Debt Security to receive payment of the principal of,
premium, if any, or interest, if any, on such Debt Security, on or after the
respective due dates, or to institute suit for the enforcement of any such
payment shall not be impaired or affected without the consent of such holder
(Section 5.4). The holders of a majority in aggregate principal amount of the
Debt Securities of such series then outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided that the Trustee may decline to follow such
direction if the Trustee determines that such action or proceeding is unlawful
or would involve the Trustee in personal liability (Section 5.7).
The Company is required to furnish to the Trustee annually a certificate as
to the compliance by the Company with all conditions and covenants under each
Indenture (Section 4.3).
Discharge and Defeasance. Unless otherwise specified in the applicable
Prospectus Supplement, the Company can discharge or defease its obligations with
respect to each series of Debt Securities as set forth below (Article Ten).
The Company may discharge all of its obligations (except those set forth
below) to holders of any series of Debt Securities issued under either Indenture
that have not already been delivered to the Trustee for cancellation and that
have either become due and payable or are by their terms due and payable within
one year (or scheduled for redemption within one year) by irrevocably depositing
with the Trustee cash or U.S. Government Obligations (as defined in such
Indenture), or a combination thereof, as trust funds in an amount certified to
be sufficient to pay when due the principal of and interest, if any, on all
outstanding Debt Securities of such series and to make any mandatory sinking
fund payments thereon when due.
Unless otherwise provided in the applicable Prospectus Supplement, the
Company may also discharge at any time all of its obligations (except those set
forth below) to holders of any series of Debt Securities issued under either
Indenture ("defeasance") if, among other things: (i) the Company irrevocably
deposits with the Trustee cash or U.S. Government Obligations, or a combination
thereof, as trust funds in an amount certified to be sufficient to pay when due
the principal of and interest, if any, on all outstanding Debt Securities of
such series and to make any mandatory sinking fund payments thereon when due and
such funds have been so deposited for 91 days; (ii) such deposit will not result
in a breach or violation of, or cause a default under, any agreement or
instrument to which the Company is a party or by which it is bound involving
payment by the Company or a subsidiary of the Company of more than $1,000,000;
(iii) no Event of Default shall have occurred and be continuing on the date of
such deposit, (iv) no Event of Default resulting from certain events
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of bankruptcy, insolvency or reorganization shall have occurred during the
period ending on the 91st day after the date of such deposit; and (v) the
Company delivers to the Trustee an opinion of counsel to the effect that the
holders of such series of Debt Securities will not recognize income, gain or
loss for United States federal income tax purposes as a result of such deposit
and defeasance and that defeasance will not otherwise alter the United States
federal income tax treatment of such holders' principal and interest payments on
such series of Debt Securities. Such opinion must be based on a ruling of the
Internal Revenue Service or a change in United States federal income tax law
occurring after the date of the Indenture relating to the Debt Securities of
such series, since such a result would not occur under current tax law. In the
event of any such defeasance and discharge of Debt Securities of such series,
holders of such Debt Securities would be entitled to look only to such trust
fund for payment of principal of and premium, if any, and interest, if any, on
their Debt Securities. (Section 10.1)
Additionally, if provided in the applicable Prospectus Supplement, the
Company may omit to comply with any condition or covenant specified in the
applicable Prospectus Supplement if, among other things: (i) the Company
irrevocably deposits with the Trustee cash or U.S. Government Obligations, or a
combination thereof, in an amount sufficient to pay the principal of, and
premium, if any, and interest, if any, on all Outstanding Debt Securities,
including any sinking fund obligations, of such series when due; and (ii) the
Company delivers to the Trustee an opinion of counsel to the effect that the
holders of such series of Debt Securities will not recognize income, gain or
loss for United States federal income tax purposes as a result of such deposit
and defeasance and that such deposit and defeasance will not otherwise alter the
United States federal income tax treatment of such holders' principal and
interest payments on such series of Debt Securities
Notwithstanding the foregoing, no discharge or defeasance described above
shall affect the following obligations to or rights of the holders of any series
of Debt Securities: (i) rights of registration of transfer and exchange of Debt
Securities of such series, (ii) rights of substitution of mutilated, defaced,
destroyed, lost or stolen Debt Securities of such series, (iii) rights of
holders of Debt Securities of such series to receive payments of principal
thereof and premium, if any, and interest, if any, thereon, upon the original
due dates therefor (but not upon acceleration), and to receive mandatory sinking
fund payments thereon when due, if any, (iv) rights, obligations, duties and
immunities of the Trustee, (v) rights of holders of Debt Securities of such
series as beneficiaries with respect to property so deposited with the Trustee
payable to all or any of them and (vi) obligations of the Company to maintain an
office or agency in respect of Debt Securities of such series (Section 10.1).
Modification of the Indenture. Each Indenture provides that the Company and
the Trustee may enter into supplemental indentures without the consent of the
holders of the Debt Securities (i) to secure any series of Securities; (ii) to
evidence the assumption by a successor entity of the obligations of the Company
under such Indenture, (iii) to add covenants or new events of default for the
protection of the holders of such Debt Securities or a series thereof, (iv) to
establish the form and terms of Debt Securities of any series, (v) to modify the
provisions relating to global Debt Securities, or to permit the issuance of Debt
Securities in uncertificated form, provided any such action does not adversely
affect the interests of the Holders of the Debt Securities of any series in any
material respect, (vi) to add to, change or eliminate any provision of the
Indentures, provided that such amendment shall become effective only if there is
no Outstanding Debt Security of any series then entitled to the benefit of such
provision or such amendment does not apply to any then Outstanding Debt
Security, (vii) to evidence and provide for the acceptance of appointment by a
successor Trustee with respect to the Debt Securities of one or more series and
to add to or change any of the provisions as shall be necessary to provide for
or facilitate the administration of the trusts under the Indentures by more than
one Trustee, (viii) in the case of the Subordinated Indenture, to limit or
terminate the benefits to the holders of Senior Indebtedness of the
subordination provisions contained in the Subordinated Indenture, or (ix) to
cure any ambiguity, defect or inconsistency in the Indentures or to make any
other provisions with respect to matters or questions arising under the
Indentures, provided such action does not adversely affect the interests of the
holders of the Debt Securities of any series (Section 8.1).
Each Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of Debt Securities of each series then
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outstanding and affected, to add any provisions to, or change in any manner or
eliminate any of the provisions of, such Indenture or of any supplemental
indenture or modify in any manner the rights of the holders of the Debt
Securities of such series; provided that the Company and the Trustee may not,
without the consent of the holder of each outstanding Debt Security affected
thereby, (i) extend the stated final maturity of any Debt Security, reduce the
principal amount thereof, reduce the rate or extend the time of payment of
interest, if any, thereon, reduce or alter the method of computation of any
amount payable on redemption, repayment or purchase by the Company, change the
coin or currency in which principal, premium, if any, and interest, if any, are
payable, reduce the amount of the principal of any original issue discount
security payable upon acceleration or provable in bankruptcy, impair or affect
the right to institute suit for the enforcement of any payment or repayment
thereof or, if applicable, adversely affect any right of prepayment at the
option of the holder or (ii) reduce the aforesaid percentage in aggregate
principal amount of Debt Securities of any series issued under such Indenture,
the consent of the holders of which is required for any such modification
(Section 8.2).
The Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding Subordinated Debt Securities without the
written consent of each holder of Senior Indebtedness then outstanding that
would be adversely affected thereby (Section 8.6 of the Subordinated Debt
Indenture).
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
Subordination. The Subordinated Debt Securities will be subordinate and
junior in right of payment, to the extent set forth in the Subordinated Debt
Indenture, to all Senior Indebtedness of the Company. Senior Indebtedness is
defined in the Subordinated Indenture as the principal of, and premium, if any,
and interest on, and any other payment due pursuant to, any of the following,
whether outstanding at the date of execution of the Subordinated Indenture or
thereafter incurred, created or assumed:
(a) all obligations of the Company for money borrowed;
(b) all obligations of the Company evidenced by notes, debentures,
bonds or other securities, including obligations incurred, created or
assumed in connection with the acquisition of property, assets or
businesses;
(c) all obligations of the Company or a subsidiary of the Company
pursuant to the Loan Agreement, dated as of December 1, 1994, among the
Company, Keyes Holding Corporation, and CIT Group/Equipment Financing, Inc.
and the related guaranty, in each case as amended and as amended from time
to time;
(d) all capitalized lease obligations of the Company;
(e) all reimbursement obligations of the Company with respect to
letters of credit, bankers acceptance or similar facilities issued for the
account of the Company;
(f) all obligations of the Company issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business);
(g) all payment obligations of the Company under any interest rate,
currency or commodity swap agreement, option agreement, hedge agreement,
forward contract, or similar agreement designed to protect the Company or
another person against fluctuations in interest rates, exchange rates or
commodity prices;
(h) all obligations of the type referred to in clauses (a) through (g)
above, of another person and all dividends of another person, the payment
of which, in either case, the Company has assumed or guaranteed, or for
which the Company is responsible or liable, directly or indirectly, jointly
or severally, as obligor, guarantor or otherwise; and
(i) all amendments, modifications, renewals, extensions, refinancings,
replacements and refundings by the Company of any such indebtedness
referred to in clauses (a) through (h) above (and of any such
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amended, modified, renewed, extended, refinanced, refunded or replaced
indebtedness or obligations); other than (i) any indebtedness, renewal,
extension, refinancing, replacement, refunding, assumption, guarantee or
other obligation that expressly provides, or in the instrument creating or
evidencing the same or the assumption or guarantee of the same it is
expressly provided, that such indebtedness, renewal, extension,
refinancing, replacement, refunding, assumption, guarantee or other
obligation is junior in right of payment to or is pari passu with the
Subordinated Debt Securities or is subordinate in right of payment to all
other indebtedness of the Company not expressly subordinated to such
indebtedness or obligation; and (ii) any indebtedness or obligation of the
Company in respect of the Subordinated Debentures (Section 1.1 of the
Subordinated Debt Indenture).
If (i) the Company should default in the payment of any principal of,
premium, if any, or interest, if any, on any Senior Indebtedness when the same
becomes due and payable, whether at maturity or at a date fixed for prepayment
or by declaration of acceleration or otherwise or (ii) any other default with
respect to Senior Indebtedness shall occur and the maturity of such Senior
Indebtedness has been accelerated in accordance with its terms, then, upon
written notice of such default to the Company by the holders of such Senior
Indebtedness or any trustee therefor, unless and until such default shall have
been cured or waived or shall have ceased to exist or such acceleration shall
have been rescinded, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) will be made or agreed to be made for
principal of, premium, if any, or interest, if any, on any of the Subordinated
Debt Securities, or in respect of any redemption, retirement, purchase or other
acquisition of the Subordinated Debt Securities other than those made in capital
stock of the Company (or cash in lieu of fractional shares thereof) (Section
12.1(b) of the Subordinated Debt Indenture).
If any default (other than a default described in the preceding paragraph)
under the Senior Indebtedness, pursuant to which the maturity thereof may be
accelerated immediately or the expiration of any applicable grace periods occurs
(a "Senior Nonmonetary Default"), then, upon the receipt by the Company and the
Trustee under the Subordinated Debt Indenture of written notice thereof (a
"Payment Notice") from or on behalf of holders of such Senior Indebtedness
specifying an election to prohibit such payment and other action by the Company
in accordance with the following provisions of this paragraph, the Company may
not make any payment or take any other action that would be prohibited by the
immediately preceding paragraph during the period (the "Payment Blockage
Period") commencing on the date of receipt of such Payment Notice and ending on
the earlier of (i) the date, if any, on which the holders of such Senior
Indebtedness or their representative notify the Trustee that such Senior
Nonmonetary Default is cured or waived or ceases to exist or the Senior
Indebtedness to which such Senior Nonmonetary Default relates is discharged or
(ii) the 179th day after the date of receipt of such Payment Notice.
Notwithstanding the provisions described in the immediately preceding sentence,
the Company may resume payments on the Debt Securities after such Payment
Blockage Period (Section 12.1(c) of the Subordinated Debt Indenture).
If (i)(a) without the consent of the Company, a receiver, conservator,
liquidator or trustee of the Company or of any of its property is appointed by
the order or decree of any court or agency or supervisory authority having
jurisdiction, and such decree or order remains in effect for more than 60 days
or (b) the Company is adjudicated bankrupt or insolvent or (c) any of its
property is sequestered by court order and such order remains in effect for more
than 60 days or a petition is filed against the Company under any state or
federal bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution, liquidation or receivership law of any jurisdiction whether
now or hereafter in effect, and is not dismissed within 60 days after such
filing; or (ii) the Company (a) commences a voluntary case or other proceeding
seeking liquidation, reorganization, arrangement, insolvency, readjustment of
debt, dissolution, liquidation or other relief with respect to itself or its
debt or other liabilities under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or (b) consents to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or (c) fails generally to, or cannot, pay its
debts generally as they become due or (d) takes any corporate action to
authorize or effect any of the foregoing; or (iii) any subsidiary of the Company
takes, suffers or permits to exist any of the events or conditions referred to
in the foregoing clause
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(i) or (ii), then all Senior Indebtedness (including any interest thereon
accruing after the commencement of any such proceedings) will first be paid in
full before any payment or distribution, whether in cash, securities or other
property, is made to any holder of Subordinated Debt Securities on account of
the principal of, premium, if any, or interest, if any, on such Subordinated
Debt Securities. Any payment or distribution, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in the subordination provisions
with respect to the indebtedness evidenced by the Subordinated Debt Securities,
to the payment of all Senior Indebtedness then outstanding and to any securities
issued in respect thereof under any such plan of reorganization or readjustment)
that would otherwise (but for the subordination provisions) be payable or
deliverable in respect of the Subordinated Debt Securities of any series will be
paid or delivered directly to the holders of Senior Indebtedness in accordance
with the priorities then existing among such holders until all Senior
Indebtedness (including any interest thereon accruing after the commencement of
any such proceedings) has been paid in full. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness, the holders of Subordinated Debt Securities, together with the
holders of any obligations of the Company ranking on a parity with the
Subordinated Debt Securities, will be entitled to be repaid from the remaining
assets of the Company the amounts at that time due and owing on account of
unpaid principal of, premium, if any, or interest, if any, on the Subordinated
Debt Securities and such other obligations before any payment or other
distribution, whether in cash, property or otherwise, shall be made on account
of any capital stock or obligations of the Company ranking junior to the
Subordinated Debt Securities and such other obligations (Section 12.1(d) of the
Subordinated Debt Indenture).
If any payment or distribution of any character, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in the subordination
provisions with respect to the Subordinated Debt Securities, to the payment of
all Senior Indebtedness then outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), shall be
received by the Trustee or any holder of any Subordinated Debt Securities in
contravention of any of the terms of the Subordinated Debt Indenture, such
payment or distribution of securities will be received in trust for the benefit
of, and will be paid over or delivered and transferred to, the holders of the
Senior Indebtedness then outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness in full (Section 12.1(e) of the Subordinated Debt Indenture).
By reason of such subordination, in the event of the insolvency of the
Company, holders of Senior Indebtedness may receive more, ratably, than holders
of the Subordinated Debt Securities. Such subordination will not prevent the
occurrence of any Event of Default (as defined in the Indentures) or limit the
right of acceleration in respect of the Subordinated Debt Securities, but the
payment of any amount due upon such acceleration shall be limited in accordance
with the foregoing provisions. Payment from money or the proceeds of U.S.
Government Obligations deposited to defease the Subordinated Debt Indenture
shall not be subordinated to the prior payment of any Senior Indebtedness
(Section 12.11 of the Subordinated Debt Indenture).
CONCERNING THE TRUSTEES
The Company, its officers and directors, and certain of its or their
affiliates may maintain banking, borrowing, consulting and other relations with
Bankers Trust Company, Marine Midland Bank and certain of their respective
affiliates.
The Indentures provide that an alternative Trustee may be appointed by the
Company with respect to any particular series of Debt Securities. Any such
appointment will be described in the Prospectus Supplement relating to such
series of Debt Securities.
The Trustee under an Indenture, prior to default, undertakes to perform
only such duties as are specifically set forth in the Indenture and, after
default, is required to exercise the same degree of care as a
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prudent individual would exercise in the conduct of his or her own affairs
(Section 6.1). Subject to such provision, the Trustee under an Indenture is
under no obligation to exercise any of the powers vested in it by an Indenture
at the request of any holder of Debt Securities, unless offered reasonable
indemnity by such holder against the costs, expenses and liabilities which might
be incurred thereby. The Trustee under an Indenture is not required to expend or
risk its own funds or otherwise incur personal financial liability in the
performance of its duties if the Trustee reasonably believes that repayment or
adequate indemnity is not reasonably assured to it. Each Indenture contains
other provisions limiting the responsibilities and liabilities of the Trustee
thereunder.
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
The Company's authorized capital stock consists of 200,000,000 shares of
Common Stock, par value $.01 per share, and 20,000,000 shares of Preferred
Stock, par value $.01 per share, each of which is described below. The summary
description of the capital stock of the Company contained herein is necessarily
general and reference should be made in each case to the Company's Restated
Articles of Incorporation and Bylaws, which are exhibits to the Registration
Statement of which this Prospectus is a part.
COMMON STOCK
Each share of Common Stock is subject to all rights, privileges,
preferences and priorities of any class of preferred stock of the Company. Each
share of Common Stock has an equal and ratable right to receive dividends as and
when declared by the Board of Directors out of any funds of the corporation
legally available for the payment thereof. The Company currently has no
intention to pay dividends on the shares of Common Stock in the foreseeable
future.
In the event of a liquidation, dissolution or winding up of the Company,
the holders of Common Stock are entitled to share equally and ratably in the
assets available for distribution after payment of all liabilities, including
any liquidation preferences payable to the holders of Preferred Stock that may
at the time be outstanding.
Each share of Common Stock is entitled to one vote in the election of
directors and on all other matters submitted to a vote of shareholders. Holders
of Common Stock have no right to cumulate their vote in the election of
directors.
American Stock Transfer & Trust Company, 40 Wall Street, New York, New York
10005, acts as the transfer agent and registrar of the Common Stock.
PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which an
applicable Prospectus Supplement may relate. Certain other terms of any series
of Preferred Stock offered by an applicable Prospectus Supplement will be
specified in such Prospectus Supplement. If so specified in the applicable
Prospectus Supplement, the terms of any series of Preferred Stock may differ
from the terms set forth below. The description of the terms of the Preferred
Stock
set forth below and in an applicable Prospectus Supplement does not purport to
be complete and is subject to and qualified in its entirety by reference to the
Statement of Resolution relating to the applicable series of Preferred Stock,
which will be filed as an exhibit to, or incorporated by reference in, the
Registration Statement of which this Prospectus forms a part.
General. The Preferred Stock may be divided into and issued in one or more
series, each series to be so designated as to distinguish the shares thereof
from the shares of all other series and classes. The Board of Directors is
vested with the authority to establish and designate such series from time to
time, and within the limitations prescribed by law or set forth in the Company's
Restated Articles of Incorporation, to fix and determine the number,
preferences, limitations and relative rights, including voting rights, of the
authorized shares within each such series; provided, however, that the Board of
Directors may not decrease the number of
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shares within a series below the number of shares within such series that is
then issued. The Board of Directors shall exercise such authority by the
adoption of a resolution or resolutions as prescribed by law.
The terms of any series of Preferred Stock may be amended without the
consent of the holders of any other series of Preferred Stock or of any class of
junior stock, provided such amendment does not adversely affect the holders of
such other series of Preferred Stock or class of junior stock. Shares of any
class of Preferred Stock which have been issued and reacquired in any manner and
are not held as treasury shares, including shares redeemed by purchase (whether
through the operation of a retirement or sinking fund or otherwise), will have
the status of authorized and unissued Preferred Stock and may be reissued as a
part of the series of which they were originally a part or may be reclassified
into and reissued as part of a new series.
No shares of Preferred Stock are, as of the date of this Prospectus,
issued, outstanding or designated as to series. It is not possible to state the
actual effect of the authorization and issuance of a new series of Preferred
Stock upon the rights of holders of the Common Stock and other series of
Preferred Stock unless and until the Board of Directors determines the
attributes of such new series of Preferred Stock and the specific rights of its
holders. Such effects might include, however, (i) restrictions on dividends on
Common Stock and other series of Preferred Stock if dividends on such new series
of Preferred Stock have not been paid; (ii) dilution of the voting power of
Common Stock and other series of Preferred Stock to the extent that such new
series of Preferred Stock has voting rights, or to the extent that any such new
series of Preferred Stock is convertible into Common Stock; (iii) dilution of
the equity interest of Common Stock and other series of Preferred Stock; and
(iv) limitation on the right of holders of Common Stock and other series of
Preferred Stock to share in the Company's assets upon liquidation until
satisfaction of any liquidation preference attributable to such new series of
Preferred Stock. While the ability of the Company to issue Preferred Stock
provides flexibility in connection with possible acquisitions and other
corporate purposes, its issuance could be used to impede an attempt by a third
party to acquire a majority of the outstanding voting stock of the Company.
The Preferred Stock will have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in the Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference is
made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms, including: (i) the
designation of such Preferred Stock, the number of shares offered and the
liquidation value thereof; (ii) the price at which such Preferred Stock will be
issued; (iii) the dividend rate (or method of calculation), the dates on which
dividends shall be payable, whether such dividends shall be cumulative or
noncumulative and, if cumulative, the dates from which dividends shall commence
to accumulate; (iv) the liquidation preference thereof; (v) any redemption or
sinking fund provisions; (vi) any conversion or exchange provisions of such
Preferred Stock; and (vii) any additional dividend, liquidation, redemption,
sinking fund and other rights, preferences, limitations and restrictions of such
Preferred Stock.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a particular
series of the Preferred Stock, each series of the Preferred Stock will rank on a
parity as to dividends and distributions in the event of a liquidation with each
other series of the Preferred Stock, if any. Holders of Preferred Stock will
have no preemptive rights to subscribe for or purchase shares of capital stock.
Dividend Rights. Holders of the Preferred Stock of each series will be
entitled to receive, when, as and if declared by the Board of Directors, out of
assets of the Company legally available therefor, cash dividends at such rates
and on such dates as are set forth in the Prospectus Supplement relating to such
series of the Preferred Stock. Such rate may be fixed or variable or both. Each
such dividend will be payable to the holders of record as they appear on the
stock books of the Company on such record dates as will be fixed by the Board of
Directors or a duly authorized committee thereof. Dividends on any series of the
Preferred Stock may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating thereto. If the Board of Directors fails to
declare a dividend payable on a dividend payment date on any series of Preferred
Stock for which dividends are noncumulative, then the right to receive a
dividend in respect of the dividend period ending on such dividend payment date
will be lost, and the Company shall have no obligation to pay the dividend
accrued for that period, whether or not dividends are declared for any future
period.
14
<PAGE> 16
Unless otherwise indicated in an applicable Prospectus Supplement, all
series of Preferred Stock will be senior in right as to dividends and in
liquidation to the Common Stock and any other class of stock of the Company
ranking junior to the Preferred Stock.
Rights Upon Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of each
series of Preferred Stock will be entitled to receive out of assets of the
Company available for distribution to stockholders, before any distribution of
assets is made to holders of Common Stock or any other class of stock ranking
junior to such series of the Preferred Stock upon liquidation, liquidating
distributions in the amount set forth in the Prospectus Supplement relating to
such series of the Preferred Stock plus an amount equal to accrued and unpaid
dividends for the then-current dividend period and, if such series of the
Preferred Stock is cumulative, for all dividend periods prior thereto. If, upon
any voluntary or involuntary liquidation, dissolution or winding up of the
Company, the amounts payable with respect to the Preferred Stock of any series
and any other shares of stock of the Company ranking as to any such distribution
on a parity with such series of the Preferred Stock are not paid in full, the
holders of the Preferred Stock of such series and of such other shares will
share ratably in any such distribution of assets of the Company in proportion to
the full respective preferential amounts to which they are entitled. After
payment of the full amount of the liquidating distribution to which they are
entitled, the holders of such series of Preferred Stock will have no right or
claim to any of the remaining assets of the Company. Neither the sale of all or
substantially all the property or business of the Company nor the merger or
consolidation of the Company into or with any other corporation shall be deemed
to be a dissolution, liquidation or winding up, voluntary or involuntary, of the
Company.
Redemption. A series of the Preferred Stock may be redeemable, in whole or
in part, at the option of the Company, and may be subject to mandatory
redemption pursuant to a sinking fund, in each case upon terms, at the times and
at the redemption prices set forth in the Prospectus Supplement relating to such
series.
The Prospectus Supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of shares of such series
of Preferred Stock that will be redeemed by the Company in each year commencing
after a date to be specified, at a redemption price per share to be specified,
together with an amount equal to any accrued and unpaid dividends thereon to the
date of redemption. The redemption price may be payable in cash, capital stock
or in cash received from the net proceeds of the issuance of capital stock of
the Company, as specified in the Prospectus Supplement relating to such series
of Preferred Stock.
If fewer than all the outstanding shares of any series of the Preferred
Stock are to be redeemed, whether by mandatory or optional redemption, the
selection of the shares to be redeemed will be determined by lot or pro rata as
may be determined by the Board of Directors or a duly authorized committee
thereof, or by any other method which may be determined by the Board of
Directors or such committee to be equitable. From and after the date of
redemption (unless default shall be made by the Company in providing for the
payment of the redemption price), dividends shall cease to accrue on the shares
of Preferred Stock called for redemption and all rights of the holders thereof
(except the right to receive the redemption price) shall cease.
In the event that full dividends, including accumulations in the case of
cumulative Preferred Stock, on any series of the Preferred Stock have not been
paid, such series of the Preferred Stock may not be redeemed in part and the
Company may not purchase or acquire any shares of such series of the Preferred
Stock otherwise than pursuant to a purchase or exchange offer made on the same
terms to all holders of such series of the Preferred Stock.
Conversion or Exchange Rights. The Prospectus Supplement for any series of
the Preferred Stock will state the terms, if any, on which shares of such series
are convertible into, or exchangeable for, securities of the Company or another
person.
Voting Rights. Unless otherwise determined by the Board of Directors and
indicated in the Prospectus Supplement relating to a particular series of
Preferred Stock, the holders of the Preferred Stock will not be entitled to
vote, except as expressly required by applicable law. In the event the Company
issues share of any series of Preferred Stock with voting rights, including any
voting rights in the case of dividend arrearages,
15
<PAGE> 17
unless otherwise specified in the Prospectus Supplement relating to a particular
series of Preferred Stock, each such share will be entitled to one vote on
matters on which holders of such series of the Preferred Stock are entitled to
vote. In the case of any series of Preferred Stock having one vote per share on
matters on which holders of such series are entitled to vote, the voting power
of such series, on matters on which holders of such series and holders of other
series of preferred stock are entitled to vote as a single class, will depend on
the number of shares in such series, not on the aggregate liquidation preference
or initial offering price of the shares of such series of Preferred Stock.
Conditions and Restrictions Upon the Company. The Prospectus Supplement
relating to a series of the Preferred Stock will describe any conditions or
restrictions upon the Company which are for the benefit of such series,
including restrictions upon the creation of debt or other series of Preferred
Stock; payment of dividends; or distributions, acquisitions or redemptions of
shares ranking junior to such series.
VOTING
The Company's Restated Articles of Incorporation provide that (a) action
may be taken without a meeting, without prior notice, and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall have
been signed by the holder or holders of shares having not less than the minimum
number of votes that would be necessary to take such action at a meeting of the
shareholders, and (b) the vote required to approve a merger, share exchange,
certain sales of assets, charter amendment or dissolution involving the Company
shall be a majority of each outstanding class of capital stock entitled to vote
thereon.
NO PREEMPTIVE RIGHTS
No holder of shares of the Company, including shares of Common Stock or
Preferred Stock, shall have any preemptive right or other right to purchase or
subscribe for or receive any shares of any class, or series thereof, of stock of
the Company, whether now or hereafter authorized, or any warrants, options,
bonds, debentures or other securities convertible into, exchangeable for or
carrying any right to purchase any shares of any class, or series thereof, of
stock.
FOREIGN OWNERSHIP
The Restated Articles of Incorporation of the Company contain provisions
limiting foreign ownership of the capital stock of the Company. These provisions
were originally intended to, among other things, protect the Company's ability
to be deemed a U.S. citizen under Section 2 ("Section 2 citizen") of the
Shipping Act, 1916, as amended (the "Shipping Act") which allowed the Company to
avail itself of certain types of U.S. government guaranteed financings
previously available only for U.S. flag vessels owned by Section 2 citizens.
Although being a Section 2 citizen is not currently necessary to obtain such
financings, the ability to be a Section 2 citizen may be beneficial in the
future should the Company desire to obtain certain types of U.S. flag vessels. A
corporation is not considered to be a Section 2 citizen unless, among other
things, the controlling interest therein is owned by citizens of the United
States. Thus, a transfer of Common Stock which would result in more than 50% of
the outstanding Common Stock being held by non-U.S. citizens would cause the
Company to then be ineligible to be a Section 2 citizen. Under the provisions of
the Company's Restated Articles of Incorporation, (i) shares of any class of
capital stock of the Company are not issuable to and are not registrable upon
transfer in the name of any person who cannot demonstrate to the satisfaction of
the Company that such person is a United States citizen (as defined for purposes
of the Shipping Act and hereinafter referred to as "U.S. citizens") and is not
holding such shares for the account of any non-U.S. citizen, if as a result of
such issuance or registration of transfer the percentage of such class owned by
non-U.S. citizens would exceed a fixed percentage (the "Permitted Percentage"),
which is equal to 2% less than the percentage that would prevent the Company
from being a Section 2 citizen (currently 50%, thus resulting in a Permitted
Percentage of 48%), and any such transfer shall be void and ineffective as
against the Company, and (ii) if at any time non-U.S. ownership of any such
class (either record or beneficial) exceeds the Permitted Percentage, the
Company may withhold payment of dividends on such shares deemed to be in excess
of the Permitted Percentage and may suspend the voting rights of such shares.
16
<PAGE> 18
In addition to the foregoing, Section 9 of the Shipping Act provides that a
controlling interest in the Company may not be acquired by a non-U.S. citizen
without the consent of the U.S. Secretary of Transportation, acting through the
United States Maritime Administration ("MARAD"). Notwithstanding the provisions
of Section 9, current MARAD regulations authorize the transfer of a controlling
interest in a company as long as the United States is not at war, the transferee
is not a national of a country to which the transfer would be contrary to the
foreign policy of the United States and the Company's U.S. flag vessels remain
documented under the U.S. flag after the transfer. In the absence of MARAD
consent (either by the current regulations or otherwise) the transfer of a
controlling interest in the Company to non-U.S. citizens would enable MARAD to
exercise various remedies under the Shipping Act including seizure of vessels,
civil penalties and, in certain cases, criminal penalties.
Certificates representing the capital stock of the Company bear legends
concerning the restrictions on non-U.S. ownership. In addition, the Board of
Directors is authorized to adopt a bylaw provision for the establishment of a
dual stock certificate systems under which different forms of certificates may
be used to indicate whether or not the owner thereof is a U.S. citizen. To date,
the Board of Directors has not deemed it necessary to adopt such a system.
The restrictions imposed by the Company's Restated Articles of
Incorporation may at times preclude U.S. citizens from transferring their shares
of Common Stock to non-U.S. citizens. This may restrict the available market for
resales of shares of Common Stock and for the issuance of shares by the Company.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Common Stock. Warrants
may be issued independently or together with Debt Securities, Preferred Stock or
Common Stock offered by any Prospectus Supplement and may be attached to or
separate from any such offered Securities. Each series of Warrants will be
issued under a separate warrant agreement (a "Warrant Agreement") to be entered
into between the Company and a bank or trust company, as warrant agent (the
"Warrant Agent"), all as set forth in the Prospectus Supplement relating to the
particular issue of Warrants. The Warrant Agent will act solely as an agent of
the Company in connection with the Warrants and will not assume any obligation
or relationship of agency or trust for or with any holders of Warrants or
beneficial owners of Warrants. The following summary of certain provisions of
the Warrants does not purport to be complete and is subject to, and is qualified
in its entirety by reference to, all provisions of the Warrant Agreements.
Reference is made to the Prospectus Supplement relating to the particular
issue of Warrants offered thereby for the terms of such Warrants, including,
where applicable: (i) the number of shares of Common Stock purchasable upon the
exercise of Warrants and the price at which such number of shares of Common
Stock may be purchased upon such exercise; (ii) the date on which the right to
exercise such Warrants shall commence and the date on which such right shall
expire (the "Expiration Date"); (iii) United States Federal income tax
consequences applicable to such Warrants; and (iv) any other terms of such
Warrants. Warrants will be offered and exercisable for U.S. dollars only.
Warrants will be issued in registered form only. The exercise price for Warrants
will be subject to adjustment in accordance with the applicable Prospectus
Supplement.
Each Warrant will entitle the holder thereof to purchase such number of
shares of Common Stock at such exercise price as shall in each case be set forth
in, or calculable from, the Prospectus Supplement relating to the Warrants,
which exercise price may be subject to adjustment upon the occurrence of certain
events as set forth in such Prospectus Supplement. After the close of business
on the Expiration Date (or such later date to which such Expiration Date may be
extended by the Company), unexercised Warrants will become void. The place or
places where, and the manner in which, Warrants may be exercised shall be
specified in the Prospectus Supplement relating to such Warrants.
Prior to the exercise of any Warrants, holders of such Warrants will not
have any of the rights of holders of Common Stock purchasable upon such
exercise, including the right to receive payments of dividends, if any, on the
Common Stock purchasable upon such exercise, or to exercise any applicable right
to vote.
17
<PAGE> 19
PLAN OF DISTRIBUTION
GENERAL
The Company may sell Securities to or through underwriters or dealers, and
also may sell Securities directly to one or more other purchasers or through
agents. The Prospectus Supplement sets forth the names of any underwriters or
agents involved in the sale of the Offered Securities and any applicable
commissions or discounts.
Underwriters, dealers or agents may offer and sell the Offered Securities
at a fixed price or prices, which may be changed, or from time to time at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. In connection with the sale of the
Securities, underwriters or agents may be deemed to have received compensation
from the Company in the form of underwriting discounts or commissions and may
also receive commissions from purchasers of the Securities for whom they may act
as agent. Underwriters or agents may sell the Securities to or through dealers,
and such dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters or commissions from the purchasers for whom
they may act as agent.
The Securities (other than the Common Stock), when first issued, will have
no established trading market. Any underwriters or agents to or through whom
Securities are sold by the Company for public offering and sale may make a
market in such Securities, but such underwriters or agents will not be obligated
to do so and may discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of the trading market for any such
Securities.
Any underwriters, dealers or agents participating in the distribution of
the Securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of the
Securities may be deemed to be underwriting discounts and commissions under the
Securities Act of 1933, as amended (the "1933 Act"). Underwriters, dealers or
agents may be entitled, under agreements entered into with the Company, to
indemnification against or contribution toward certain civil liabilities,
including liabilities under the 1933 Act.
LEGAL MATTERS
Unless otherwise specified in a Prospectus Supplement relating to
particular Securities, certain legal matters with respect to the validity of the
Securities will be passed upon for the Company by Vinson & Elkins L.L.P.,
Houston, Texas, and for the underwriters, dealers or agents, if any, of a
particular issue of Securities, by Fulbright & Jaworski L.L.P., Houston, Texas.
18
<PAGE> 20
EXPERTS
The financial statements of the Company as of December 31, 1995 and 1994,
and for each of the years in the three-year period ended December 31, 1995, have
been incorporated by reference herein and in the Registration Statement in
reliance upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of such
firm as experts in accounting and auditing.
With respect to the unaudited interim financial information for the periods
ended March 31, 1996 and 1995, incorporated by reference herein, the independent
certified public accountants have reported that they applied limited procedures
in accordance with professional standards for a review of such information.
However, their separate reports included in the Company's quarterly reports on
Form 10-Q for the quarter ended March 31, 1996, and included and/or incorporated
herein, state that they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their reports on such
information should be restricted in light of the limited nature of the review
procedures applied. The accountants are not subject to the liability provisions
of Section 11 of the Securities Act for their report on the unaudited interim
financial information because that report is not a "report" or a "part" of the
registration statement prepared or certified by the accountants within the
meaning of Sections 7 and 11 of the Securities Act.
19
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the distribution of the securities covered by this Registration Statement. All
of the expenses will be borne by the Company except as otherwise indicated.
<TABLE>
<S> <C>
Registration fee under the Securities Act.................................. $51,725
NASD filing fee............................................................ *
Printing and engraving expenses............................................ *
Blue Sky filing fees and expenses.......................................... *
Legal and accounting fees.................................................. *
Trustee, transfer agent and registrar fees................................. *
Miscellaneous.............................................................. *
-------
Total............................................................ $ *
=======
</TABLE>
* To be filed by amendment
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02-1 of the Texas Business Corporation Act provides that any
director or officer of a Texas corporation may be indemnified against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by him
in connection with or in defending any action, suit or proceeding in which he is
a party by reason of his position. A director or officer may be indemnified only
if it is determined that the person (a) conducted himself in good faith; (b)
reasonably believed (i) in the case of conduct in his official capacity, that
his conduct was in the corporation's best interests; and (ii) in all other
cases, that his conduct was at least not opposed to the corporation's best
interests; and (c) in the case of any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. If a director or officer is wholly
successful, on the merits or otherwise, in connection with such a proceeding,
such indemnification is mandatory.
The Company's Restated Articles of Incorporation contain provisions
eliminating or limiting liabilities of directors for breaches of their duty of
care. The Company's Bylaws provide for indemnification of officers and directors
of the Company and persons serving at the request of the Company in such
capacities for other business organizations against certain losses, costs,
liabilities and expenses incurred by reason of their positions with the Company
or such other business organizations. The Company also has policies insuring its
officers and directors against certain liabilities for actions taken in such
capacities, including liabilities under the Securities Act.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- -------------------- ------------------------------------------------------------------------
<C> <S>
1.1** -- Form of Underwriting Agreement (Debt Securities)
1.2** -- Form of Underwriting Agreement (Common Stock, Preferred Stock and/or
Warrants)
4.1 -- Restated Articles of Incorporation of Marine Drilling Companies, Inc.
(Incorporated by reference to Exhibit 28.17 to the Current Report on
Form 8-K of the Registrant dated October 30, 1992.)
4.2 -- Amended and Restated Bylaws of Marine Drilling Companies, Inc.
(Incorporated by reference to Exhibit 28.18 to the Current Report on
Form 8-K of the Registrant dated October 30, 1992.)
4.3* -- Form of Senior Indenture between the Company and Marine Midland Bank,
as Trustee.
</TABLE>
II-1
<PAGE> 22
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- -------------------- ------------------------------------------------------------------------
<C> <S>
4.4* -- Form of Subordinated Indenture between the Company and Bankers Trust
Company, as Trustee.
4.5** -- Form of Debt Securities.
4.6** -- Form of Warrants
5.1* -- Opinion of Vinson & Elkins L.L.P. as to the legality of the
securities being registered.
12.1* -- Computation of Ratio of Earnings to Fixed Charges.
15.1* -- Letter regarding unaudited interim financial information.
23.1* -- Consent of KPMG Peat Marwick LLP
23.2* -- Consent of Vinson & Elkins L.L.P. (see Exhibit 5.1).
24.1* -- Powers of attorney.
25.1* -- Form T-1 Statement of Eligibility of Marine Midland Bank, as Trustee
under the Senior Indenture.
25.2* -- Form T-1 Statement of Eligibility of Bankers Trust Company, as
Trustee under the Subordinated Indenture.
99.1 -- Loan Agreement, dated as of December 1, 1994, among the CIT
Group/Equipment Financing, Inc., the Company and Keyes Holding
Corporation. (Incorporated by reference to Exhibit 10.23 to the
Annual Report on Form 10-K of the Company for the fiscal year ended
December 31, 1994.)
99.2 -- Guaranty, dated as of December 1, 1994, of the Company for the
benefit of the CIT Group/Equipment Financing, Inc. (Incorporated by
reference to Exhibit 10.23 to the Annual Report on Form 10-K of the
Company for the fiscal year ended December 31, 1994.)
99.3 -- Amendment No. 1 dated as of May 31, 1996 to the Loan Agreement among
Keyes Holding Corporation, as Borrower, Marine Drilling Companies,
Inc., as Guarantor, and The CIT Group/Equipment Financing, Inc.
(Incorporated by reference to Exhibit 99.12 to the Current Report on
Form 8-K of the Company dated June 3, 1996.)
99.4 -- Amendment No. 1 dated as of May 31, 1996 to the Guaranty made by
Marine Drilling Companies, Inc. in favor of The CIT Group/Equipment
Financing, Inc. (Incorporated by reference to Exhibit 99.13 to the
Current Report on Form 8-K of the Company dated June 3, 1996.)
</TABLE>
- ---------------
* Filed herewith.
** To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
ITEM 17. UNDERTAKINGS
The registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; 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;
II-2
<PAGE> 23
provided, however, that the undertakings set forth in clauses (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports
filed with or furnished to the Securities and Exchange Commission by the
Company pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Company's annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) That for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of a registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrants pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed
to be part of this registration statement as of the time it was declared
effective.
(6) That, for purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions set forth in Item 15, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Marine Drilling
Companies, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Sugar Land, State of
Texas, on June 26, 1996.
MARINE DRILLING COMPANIES, INC.
By: /s/ WILLIAM H. FLORES
-------------------------------
William H. Flores
Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities on June 26, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- ---------------------------------------
<S> <C>
/s/ WILLIAM H. FLORES Senior Vice President,
- --------------------------------------------- Chief Operating Officer, Chief
William H. Flores Financial Officer and Director
(Principal Executive Officer and
Principal Financial Officer)
/s/ JOAN R. SMITH Vice President, Controller
- --------------------------------------------- and Secretary
Joan R. Smith (Principal Accounting Officer)
/s/ ROBERT L. BARBANELL* Chairman of the Board
- --------------------------------------------- and Director
Robert L. Barbanell
/s/ DAVID A.B. BROWN* Director
- ---------------------------------------------
David A.B. Brown
/s/ HOWARD I. BULL* Director
- ---------------------------------------------
Howard I. Bull
/s/ NATHANIEL A. GREGORY* Director
- ---------------------------------------------
Nathaniel A. Gregory
/s/ CHRISTOPHER M. LINNEMAN* Director
- ---------------------------------------------
Christopher M. Linneman
/s/ JAN RASK Director
- ---------------------------------------------
Jan Rask
*By: /s/ WILLIAM H. FLORES
- ---------------------------------------------
(William H. Flores)
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 25
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGE
- ---------- ------------------------------------------------------------------------ ------------
<C> <S> <C>
1.1** -- Form of Underwriting Agreement (Debt Securities)
1.2** -- Form of Underwriting Agreement (Common Stock, Preferred Stock and/or
Warrants)
4.1 -- Restated Articles of Incorporation of Marine Drilling Companies, Inc.
(Incorporated by reference to Exhibit 28.17 to the Current Report on
Form 8-K of the Registrant dated October 30, 1992.)
4.2 -- Amended and Restated Bylaws of Marine Drilling Companies, Inc.
(Incorporated by reference to Exhibit 28.18 to the Current Report on
Form 8-K of the Registrant dated October 30, 1992.)
4.3* -- Form of Senior Indenture between the Company and Marine Midland Bank,
as Trustee.
4.4* -- Form of Subordinated Indenture between the Company and Bankers Trust
Company, as Trustee.
4.5** -- Form of Debt Securities.
4.6** -- Form of Warrants
5.1* -- Opinion of Vinson & Elkins L.L.P. as to the legality of the
securities being registered.
12.1* -- Computation of Ratio of Earnings to Fixed Charges.
15.1* -- Letter regarding unaudited interim financial information.
23.1* -- Consent of KPMG Peat Marwick LLP
23.2* -- Consent of Vinson & Elkins L.L.P. (see Exhibit 5.1).
24.1* -- Powers of attorney.
25.1* -- Form T-1 Statement of Eligibility of Marine Midland Bank, as Trustee
under the Senior Indenture.
25.2* -- Form T-1 Statement of Eligibility of Bankers Trust Company, as
Trustee under the Subordinated Indenture.
99.1 -- Loan Agreement, dated as of December 1, 1994, among the CIT
Group/Equipment Financing, Inc., the Company and Keyes Holding
Corporation. (Incorporated by reference to Exhibit 10.23 to the
Annual Report on Form 10-K of the Company for the fiscal year ended
December 31, 1994.)
99.2 -- Guaranty, dated as of December 1, 1994, of the Company for the
benefit of the CIT Group/Equipment Financing, Inc. (Incorporated by
reference to Exhibit 10.23 to the Annual Report on Form 10-K of the
Company for the fiscal year ended December 31, 1994.)
99.3 -- Amendment No. 1 dated as of May 31, 1996 to the Loan Agreement among
Keyes Holding Corporation, as Borrower, Marine Drilling Companies,
Inc., as Guarantor, and The CIT Group/Equipment Financing, Inc.
(Incorporated by reference to Exhibit 99.12 to the Current Report on
Form 8-K of the Company dated June 3, 1996.)
99.4 -- Amendment No. 1 dated as of May 31, 1996 to the Guaranty made by
Marine Drilling Companies, Inc. in favor of The CIT Group/Equipment
Financing, Inc. (Incorporated by reference to Exhibit 99.13 to the
Current Report on Form 8-K of the Company dated June 3, 1996.)
</TABLE>
- ---------------
* Filed herewith.
** To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
<PAGE> 1
EXHIBIT 4.3
Draft of June 26, 1996
================================================================================
MARINE DRILLING COMPANIES, INC.
AND
MARINE MIDLAND BANK
______________
Senior Indenture
Dated as of _____________, 1996
================================================================================
<PAGE> 2
CROSS REFERENCE SHEET*
_________________
Reconciliation and tie between certain provisions of the Trust
Indenture Act of 1939 and the Senior Indenture, to be dated as of June 1, 1996,
between Marine Drilling Companies, Inc. and Marine Midland Bank, Trustee:
<TABLE>
<CAPTION>
Section of the Act Section of Indenture
- ------------------ --------------------
<S> <C>
310(a)(1), (2) and (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
310(a)(3) and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8 and 6.10(a), (b) and (d)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(a) and (c)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(b) and (c)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 and 4.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2(a) and (b)(i) and (ii)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(a)(i), (ii), (iii), (iv),
(v), (vi) and (vii)
313(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(d)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
314(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a), (c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.9
</TABLE>
__________________________________
*This Cross Reference Sheet is not part of the Indenture.
<PAGE> 3
<TABLE>
<S> <C>
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not required
316(a) (last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5(a)
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7
</TABLE>
__________
-2-
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE ONE
DEFINITIONS
<S> <C>
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Securityholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
original issue date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
original issue discount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
principal amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
record date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
-i-
<PAGE> 5
<TABLE>
<S> <C>
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
vice president . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE TWO
SECURITIES
Section 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.2 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.3 Amount Unlimited, Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.4 Authentication and Delivery of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.5 Execution of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.6 Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.7 Denomination and Date of Securities; Payments of Interest . . . . . . . . . . . . . . . . . . . . . 14
Section 2.8 Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . 17
Section 2.10 Cancellation of Securities; Disposition Thereof. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.11 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE THREE
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.2 Offices for Notices and Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.3 No Interest Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.4 Appointments to Fill Vacancies in Trustee's Office . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.5 Provision as to Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
-ii-
<PAGE> 6
<TABLE>
<S> <C> <C>
ARTICLE FOUR
SECURITY HOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders . . . . . . . . . 21
Section 4.2 Preservation and Disclosure of Securityholders Lists . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.3 Reports by the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 4.4 Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.2 Payment of Securities on Default; Suit Therefor . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 5.3 Application of Moneys Collected by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.4 Proceedings by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.5 Proceedings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.6 Remedies Cumulative and Continuing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.7 Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.8 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.9 Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE SIX
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default . . . . . . . . . . . . 30
Section 6.2 Certain Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of
Proceeds Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 6.4 Trustee and Agents May Hold Securities; Collections, etc. . . . . . . . . . . . . . . . . . . . . . 33
Section 6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 6.6 Compensation and Indemnification of Trustee and Its Prior Claim . . . . . . . . . . . . . . . . . . 33
</TABLE>
-iii-
<PAGE> 7
<TABLE>
<S> <C> <C>
Section 6.7 Right of Trustee to Rely on Officers' Certificate, etc. . . . . . . . . . . . . . . . . . . . . . . 34
Section 6.8 Qualification of Trustee; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 6.9 Persons Eligible for Appointment as Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 6.10 Resignation and Removal; Appointment of Successor Trustee . . . . . . . . . . . . . . . . . . . . . 35
Section 6.11 Acceptance of Appointment by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee . . . . . . . . . . . . . . . 37
Section 6.13 Preferential Collection of Claims Against the Issuer . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 6.14 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 7.2 Proof of Execution of Instruments and of Holding of Securities . . . . . . . . . . . . . . . . . . . 39
Section 7.3 Holders to be Treated as Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 7.5 Right of Revocation of Action Taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 7.6 Record Date for Consents and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . 41
Section 8.2 Supplemental Indentures with Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . . 43
Section 8.3 Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 8.4 Documents to Be Given to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 8.5 Notation on Securities in Respect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 44
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR DISPOSITION
Section 9.1 Issuer May Consolidate, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.2 Successor Corporation to be Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.3 Opinion of Counsel to be Given Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
</TABLE>
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<TABLE>
<S> <C> <C>
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 10.2 Defeasance of Certain Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 10.3 Application by Trustee of Funds Deposited for Payment of Securities . . . . . . . . . . . . . . . . 51
Section 10.4 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 10.5 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years . . . . . . . . . . . . . 51
Section 10.6 Indemnity for U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 11.2 Notice of Redemption; Partial Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 11.3 Payment of Securities Called for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 11.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption . . . . . . . . . . . 54
Section 11.5 Mandatory and Optional Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE TWELVE
MISCELLANEOUS PROVISIONS
Section 12.1 Partners, Incorporators, Stockholders, Officers and Directors of Issuer Exempt from
Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 12.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities . . . . . . . . . 56
Section 12.3 Successors and Assigns of Issuer Bound by Indenture . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 12.4 Notices and Demands on Issuer, Trustee and Holders of Securities . . . . . . . . . . . . . . . . . . 57
Section 12.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein . . . . . . . . . 57
Section 12.6 Payments Due on Saturdays, Sundays and Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 12.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939 . . . . . . . . . . . . . . 59
</TABLE>
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<PAGE> 9
<TABLE>
<S> <C> <C>
Section 12.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 12.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 12.10 Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
</TABLE>
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<PAGE> 10
THIS SENIOR INDENTURE, dated as of _____________, 1996 between MARINE
DRILLING COMPANIES, INC., a Texas corporation (the "Issuer"), and MARINE
MIDLAND BANK, a New York banking corporation and trust company, as trustee (the
"Trustee"),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issuance from time to time
of its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been undertaken and completed;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the Holders (as hereinafter defined) thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 For all purposes of this Indenture and of any
indenture supplemental hereto the following terms shall have the respective
meanings specified in this Section 1.1 (except as otherwise expressly provided
or unless the context otherwise clearly requires). All other terms used in
this Indenture that are defined in the Trust Indenture Act of 1939, including
terms defined therein by reference to the Securities Act of 1933, as amended,
shall have the meanings assigned to such terms in such Trust Indenture Act and
in such Securities Act as in force at the date of this Indenture (except as
herein otherwise expressly provided or unless the context otherwise clearly
requires).
All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation.
1
<PAGE> 11
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. The expressions "date of this
Indenture", "date hereof", "date as of which this Indenture is dated" and "date
of execution and delivery of this Indenture" and other expressions of similar
import refer to ____________, 199__, the effective date of the original
execution and delivery of this Indenture.
The terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" shall have the meaning set forth in Section
6.14.
"BANKRUPTCY CODE" means the United States Bankruptcy Code, 11 United
States Code Sections 101 et seq., or any successor statute thereto.
"BOARD OF DIRECTORS" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"BOARD RESOLUTION" means one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day, other than
a Saturday or a Sunday, that (a) in the Place of Payment (or in any of the
Places of Payment, if more than one) in which amounts are payable, as specified
in the form of such Security, and (b) in the city in which the Corporate Trust
Office is located, is not a day on which banking institutions are authorized or
required by law or regulation to close.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act of 1939, then the body performing such duties on
such date.
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<PAGE> 12
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 140 Broadway, New York, New York 10005-1180.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and, if at any time there is
more than one such Person, "Depositary" as used with respect to the Securities
of any such series shall mean the Depositary with respect to the Global
Securities of such series.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 5.1.
"GLOBAL SECURITY" means a Security evidencing all or a part of a
series of Securities issued to the Depositary for such series in accordance
with Section 2.3 and bearing the legend prescribed in Section 2.4.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other similar
terms mean, in the case of any Security, the Person in whose name such Security
is registered in the security register kept by the Issuer for that purpose in
accordance with the terms hereof.
"INDEBTEDNESS" means, with respect to any Person,
(a) (i) the principal of and premium, if any, and interest, if
any, on indebtedness for money borrowed of such Person, indebtedness of such
Person evidenced by bonds, notes, debentures or similar obligations, and any
guaranty by such Person of any indebtedness for money borrowed or indebtedness
evidenced by bonds, notes, debentures or similar obligations of any other
Person, whether any such indebtedness or guaranty is outstanding on the date of
this Indenture or is thereafter created, assumed or incurred, (ii) the
principal of and premium, if any, and interest, if any, on indebtedness
incurred, assumed or guaranteed by such Person in connection with the
acquisition by it or any of its subsidiaries of any other businesses,
properties or other assets and (iii) lease obligations which such Person
capitalizes in accordance with Statement of Financial Accounting Standards No.
13 promulgated by the Financial Accounting Standards Board or such other
generally accepted accounting principles as may be from time to time in effect;
(b) any indebtedness representing the balance deferred and unpaid
of the purchase price of any property or interest therein (other than trade
payables) that is outstanding on the date of this Indenture or is thereafter
created, assumed or incurred by such Person;
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<PAGE> 13
(c) obligations of such Person under interest rate, commodity or
currency swaps, caps, collars, options and similar arrangements;
(d) obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction; and
(e) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as Indebtedness in
clauses (a) through (d) above.
"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented or both, including, for all purposes of this instrument and any
such supplement, the provisions of the Trust Indenture Act of 1939 that are
deemed to be a part of and govern this instrument and any such supplement,
respectively, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
The term "INTEREST" means, when used with respect to non-interest
bearing Securities (including, without limitation, any Original Issue Discount
Security that by its terms bears interest only after maturity or upon default
in any other payment due on such Security), interest payable after maturity
(whether at stated maturity, upon acceleration or redemption or otherwise) or
after the date, if any, on which the Issuer becomes obligated to acquire a
Security, whether upon conversion, by purchase or otherwise.
"ISSUER" means (except as otherwise provided in Section 6.8) Marine
Drilling Companies, Inc., a Texas corporation, and, subject to Article Nine,
its successors and assigns.
"ISSUER ORDER" means a written statement, request or order of the
Issuer which is signed in its name by the chairman of the Board of Directors,
the president or any vice president of the Issuer.
"OFFICERS' CERTIFICATE", when used with respect to the Issuer, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the statements provided for
in Section 12.5 if and to the extent required by the provisions of such Section
12.5. One of the officers signing an Officers' Certificate given pursuant to
Section 4.3 shall be the principal executive, financial or accounting officer
of the Issuer.
"OPINION OF COUNSEL" means an opinion in writing signed by the chief
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be satisfactory to the Trustee. Each
such opinion shall include the statements provided for in Section 12.5, if and
to the extent required by the provisions of such Section 12.5.
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<PAGE> 14
The term "ORIGINAL ISSUE DATE" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
The term "ORIGINAL ISSUE DISCOUNT" of any debt security, including any
Original Issue Discount Security, means the difference between the principal
amount of such debt security and the initial issue price of such debt security
(as set forth in the case of an Original Issue Discount Security on the face of
such Security).
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"OUTSTANDING" when used with reference to Securities, shall, subject
to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except:
(a) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities (other than Securities of any series as to which
the provisions of Article Ten hereof shall not be applicable), or portions
thereof, for the payment or redemption of which moneys or U.S. Government
Obligations (as provided for in Section 10.1 and 10.2) in the necessary amount
shall have been deposited in trust with the Trustee or with any paying agent
(other than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer for the Holders of such Securities (if the Issuer shall act
as its own paying agent), provided that, if such Securities, or portions
thereof, are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as herein provided, or provision satisfactory
to the Trustee shall have been made for giving such notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.9 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is held by a
Person in whose hands such Security is a legal, valid and binding obligation of
the Issuer).
In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding for such purposes shall be the portion of the
principal amount thereof that would be due and payable as of the date of such
determination (as certified by the Issuer to the Trustee) upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.1.
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<PAGE> 15
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political
subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of any
series, means the place or places where the principal of and interest, if any,
on the Securities of such series are payable as determined in accordance with
Section 2.3.
The term "PRINCIPAL" of a debt security, including any Security, means
the amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect
to such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, upon any redemption at the
option of the Issuer, upon any purchase or exchange at the option of the Issuer
or the Holder of such debt security and upon any acceleration of the maturity
of such debt security).
The term "PRINCIPAL AMOUNT" of a debt security, including any
Security, means the principal amount as set forth on the face of such debt
security.
The term "RECORD DATE" shall have the meaning set forth in Section
2.7.
"RESPONSIBLE OFFICER" means, with respect to the Trustee, any officer
within the Corporate Trust Office including any Vice President, Assistant Vice
President, Corporate Trust Officer, Assistant Corporate Trust Officer or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
"SECURITY" or "SECURITIES" has the meaning stated in the first recital
of this Indenture or, as the case may be, Securities that have been
authenticated and delivered pursuant to this Indenture.
"SUBSIDIARY" means any corporation of which the Issuer, or the Issuer
and one or more Subsidiaries, or any one or more Subsidiaries, directly or
indirectly own voting securities entitling any one or more of the Issuer and
its Subsidiaries to elect a majority of the directors, either at all times or,
so long as there is no default or contingency which permits the holders of any
other class or classes of securities to vote for the election of one or more
directors.
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<PAGE> 16
"TRUST INDENTURE ACT OF 1939" OR "TRUST INDENTURE ACT" (except as
otherwise provided in Sections 8.1 and 8.2) means the Trust Indenture Act of
1939, as amended, as in force at the date as of which this Indenture is
originally executed; provided, however, that in the event the Trust Indenture
Act of 1939, as amended, is amended after such date, "Trust Indenture Act of
1939" or "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"TRUSTEE" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and, if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such series.
"U.S. GOVERNMENT OBLIGATIONS" shall have the meaning set forth in
Section 10.1(B).
The term "VICE PRESIDENT," when used with respect to the Issuer or the
Trustee, means any vice president, regardless of whether designated by a number
or a word or words added before or after the title "vice president."
"YIELD TO MATURITY" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with generally accepted financial practice or as
otherwise provided in the terms of such series of Securities.
ARTICLE TWO
SECURITIES
SECTION 2.1 FORMS GENERALLY. The Securities of each series shall
be substantially in such form (not inconsistent with this Indenture) as shall
be established by or pursuant to one or more Board Resolutions (as set forth in
a Board Resolution or, to the extent established pursuant to rather than set
forth in a Board Resolution, an Officers' Certificate detailing such
establishment) 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 imprinted or
otherwise reproduced thereon such legend or legends or endorsements, not
inconsistent with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant thereto, or with
any rules of any securities exchange or to conform to general usage, all as may
be determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
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<PAGE> 17
The definitive Securities shall be printed, lithographed, typewritten
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 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Securities shall be
substantially as follows:
This is one of the Securities of the series designated herein referred
to in the within mentioned Indenture.
MARINE MIDLAND BANK, as Trustee
By
-------------------------------------
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Securities of such series shall
bear, in addition to the Trustee's certificate of authentication, an alternate
Certificate of Authentication which shall be substantially as follows:
This is one of the Securities of the series designated herein referred
to in the within mentioned Indenture.
MARINE MIDLAND BANK, as Trustee
By
-------------------------------------
as Authenticating Agent
By
-------------------------------------
Authorized Signatory
SECTION 2.3 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 and the Securities
of each such series shall rank equally and pari passu with the Securities of
each other series and with all other unsecured and unsubordinated debt of the
Issuer. There shall be established in or pursuant to one or more Board
Resolutions (and, to the extent established pursuant to, rather than set forth
in, a Board Resolution, in an Officers' Certificate detailing such
establishment) or established in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series:
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<PAGE> 18
(1) the designation of the Securities of the series,
which shall distinguish the Securities of such series from the
Securities of all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or
11.3);
(3) the date or dates on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from which any
such interest shall accrue, on which any such interest shall be
payable and on which a record shall be taken for the determination of
Holders to whom any such interest is payable or the method by which
such rate or rates or date or dates shall be determined or both;
(5) the place or places where and the manner in which the
principal of and interest, if any, on Securities of the series shall
be payable (if other than as provided in Section 3.2) and the office
or agency for the Securities of the series maintained by the Issuer
pursuant to Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase
or repay Securities of the series, in whole or in part, at its option
and the period or periods within which, the price or prices (or the
method by which such price or prices shall be determined or both) at
which, the form or method of payment therefor if other than in cash
and any terms and conditions upon which and the manner in which (if
different from the provisions of Article Eleven) Securities of the
series may be so redeemed, purchased or repaid, in whole or in part,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series in whole or in part
pursuant to any mandatory redemption, sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which the price or prices (or the method by which such
price or prices shall be determined or both) at which, the form or
method of payment therefor if other than in cash and any terms and
conditions upon which and the manner in which (if different from the
provisions of Article Eleven) Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) the terms and conditions, if any, upon which such
Securities may be convertible into or exchangeable for Common Stock of
the Issuer, or other securities of any
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<PAGE> 19
kind, including the initial conversion or exchange price or rate, the
conversion or exchange period, the circumstances under which any such
conversion or exchange right may expire, and any other conversion
related provision;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of
the series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon acceleration of the maturity thereof;
(11) whether Securities of the series will be issuable as
Global Securities;
(12) if the Securities of such series are to be issuable
in definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(13) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Securities of such series, and any additions to the definitions
currently set forth in this Indenture;
(14) any deleted, modified or additional events of default
or remedies or any additional covenants with respect to the Securities
of such series, and any additions to the definitions currently set
forth in this Indenture;
(15) whether the provisions of Section 10.1(C) or 10.2
will be applicable to Securities of such series;
(16) any provision relating to the issuance of Securities
of such series at an original issue discount (including, without
limitation, the issue price thereof, the rate or rates at which such
original issue discount shall accrue, if any, and the date or dates
from or to which or period or periods during which such original issue
discount shall accrue at such rate or rates);
(17) if the amounts of payments of principal of and
interest on the Securities of such series are to be determined with
reference to an index, the manner in which such amounts shall be
determined; and
(18) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
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<PAGE> 20
Any Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officers' Certificate referred to above or
as set forth in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution, such Officers' Certificate or in any such
indenture supplemental hereto.
Any such Board Resolution or Officers' Certificate referred to above
with respect to Securities of any series filed with the Trustee on or before
the initial issuance of the Securities of such series shall be incorporated
herein by reference with respect to Securities of such series and shall
thereafter be deemed to be a part of the Indenture for all purposes relating to
Securities of such series as fully as if such Board Resolution or Officers'
Certificate were set forth herein in full.
SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES. The
Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication together with the applicable documents referred to
below in this Section 2.4, and the Trustee shall thereupon authenticate and
deliver such Securities to, or upon the order of, the Issuer (contained in the
Issuer Order referred to below in this Section 2.4) or pursuant to such
procedures acceptable to the Trustee and to such recipients as may be specified
from time to time by an Issuer Order. The maturity date, original issue date,
interest rate, if any, and any other terms of the Securities of such series
shall be determined by or pursuant to such Issuer Order and procedures. In
authenticating the Securities of such series and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and
(4) below only at or before the time of the first request of the Issuer to the
Trustee to authenticate Securities of such series) and (subject to Section 6.1)
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(1) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities of such series
are not to be delivered to the Issuer, provided that, with respect to
Securities of a series subject to a Periodic Offering, (a) such Issuer
Order may be delivered by the Issuer to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver Securities of
such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount
established for such series, pursuant to an Issuer Order or pursuant
to procedures acceptable to the Trustee as may be specified from time
to time by an Issuer Order, (c) if provided for in such procedures,
such Issuer Order may authorize authentication and delivery pursuant
to electronic instructions from the Issuer or its duly authorized
agent or agents, and (d) after the original issuance of the first
Security of such series to be issued, any separate request by the
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<PAGE> 21
Issuer that the Trustee authenticate Securities of such series for
original issuance will be deemed to be a certification by the Issuer
that it is in compliance with all conditions precedent provided for in
this Indenture relating to the authentication and delivery of such
Securities;
(2) the Board Resolution, Officers' Certificate or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by
or pursuant to which the forms and terms of the Securities of such
series were established;
(3) an Officers' Certificate setting forth the form or
forms and terms of the Securities stating that the form or forms and
terms of the Securities have been established pursuant to Sections 2.1
and 2.3 and comply with this Indenture; and
(4) at the option of the Issuer, either an Opinion of
Counsel, or a letter from legal counsel addressed to the Trustee
permitting it to rely on an Opinion of Counsel, substantially to the
effect that:
(a) the form or forms of the Securities of such
series have been duly authorized and established in conformity
with the provisions of this Indenture; and
(b) when the Securities of such series have been
executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered
to and duly paid for by the purchasers thereof, they will have
been duly issued under this Indenture and will be valid and
legally binding obligations of the Issuer, enforceable in
accordance with their respective terms, and will be entitled
to the benefits of this Indenture.
In rendering such opinions, such counsel may qualify any opinions as
to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the State of Texas
and the federal law of the United States, upon opinions of other counsel
(copies of which shall be delivered to the Trustee), who shall be counsel
reasonably satisfactory to the Trustee, in which case the opinion shall state
that such counsel believes that both such counsel and the Trustee are entitled
so to rely. Such counsel may also state that, insofar as such opinion involves
factual matters, such counsel has relied, to the extent such counsel deems
proper, upon certificates of officers of the Issuer and its Subsidiaries and
certificates of public officials.
The Trustee shall have the right to decline to authenticate and
deliver any Securities of any series under this Section 2.4 if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken
by the Issuer or if the Trustee in good faith by its board of directors or
board of trustees, executive committee or a trust committee of directors or
trustees or Responsible
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Officers shall determine that such action would expose the Trustee to personal
liability to existing Holders or would adversely affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section 2.4 and the Issuer Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount
of all of the Securities of such series to be issued in the form of Global
Securities and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions, and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security
may not be transferred except as a whole by the Depositary to the nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary" or such other
legend as may be required by the Depositary.
Each Depositary designated pursuant to Section 2.3 must, at the time
of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation.
SECTION 2.5 EXECUTION OF SECURITIES. The Securities shall be
signed on behalf of the Issuer by the chairman of the Board of Directors, the
president, any vice president or the treasurer of the Issuer, under its
corporate seal which may, but need not, be attested by its secretary or one of
its assistant secretaries. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Issuer
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall
be authenticated and delivered by the Trustee or disposed of by the Issuer,
such Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
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SECTION 2.6 CERTIFICATE OF AUTHENTICATION. Only such Securities
as shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee or its Authenticating Agent upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture. Each
reference in this Indenture to authentication by the Trustee includes
authentication by an agent appointed pursuant to Section 6.14.
SECTION 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF
INTEREST. The Securities of each series shall be issuable in registered form
in denominations established as contemplated by Section 2.3 or, with respect to
the Securities of any series, if not so established, in denominations of $1,000
and any integral multiple thereof. The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in accordance
with such method as the officers of the Issuer executing the same may determine
with the approval of the Trustee, as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest, if any, shall be payable on the dates, established as contemplated by
Section 2.3.
The Person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the
extent the Issuer shall default in the payment of the interest due on such
interest payment date for such series, in which case such defaulted interest
shall be paid to the Persons in whose names Outstanding Securities for such
series are registered (a) at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment
of such defaulted interest) established by notice given by mail by or on behalf
of the Issuer to the Holders of Securities not less than 15 days preceding such
subsequent record date or (b) as determined by such other procedure as is
mutually acceptable to the Issuer and the Trustee. The term "record date" as
used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the fifteenth day
of the next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month,
whether or not such record date is a Business Day.
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SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE. The Issuer will
keep at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide for
the registration of Securities of each series and the registration of transfer
of Securities of such series. Each such register shall be in written form in
the English language or in any other form capable of being converted into such
form within a reasonable time. At all reasonable times such register or
registers shall be open for inspection and available for copying by the
Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series, maturity date, interest rate, if
any, and original issue date in authorized denominations for a like aggregate
principal amount.
All Securities presented for registration of transfer shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing.
At the option of the Holder thereof, Securities of any series (other
than a Global Security, except as set forth below) may be exchanged for a
Security or Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Securities to be
exchanged at the agency of the Issuer that shall be maintained for such purpose
in accordance with Section 3.2. All Securities surrendered upon any exchange
or registration of transfer provided for in this Indenture shall be promptly
cancelled and returned to the Issuer.
The Issuer 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 of Securities. No service charge shall be made for
any such transaction or for any exchange of Securities of any series as
contemplated by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing or publication of notice of redemption of Securities of such
series to be redeemed, (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed or (c) any Security
if the Holder thereof has exercised his right, if any, to require the Issuer to
repurchase such Security in whole or in part, except the portion of such
Security not required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a
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part of the Securities of a series may not be transferred except as a whole by
the Depositary for such series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.4, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such ineligibility, the Issuer's election pursuant to Section
2.3 that such Securities be represented by one or more Global Securities shall
no longer be effective and the Issuer shall execute, and the Trustee, upon
receipt of an Issuer Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive registered form, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities in exchange for such Global Security
or Securities.
The Issuer may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Securities.
In such event the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, shall authenticate and deliver, Securities of such series in
definitive registered form, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities, in exchange for such Global Security
or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as
are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
(i) to the Person specified by such Depositary, a new
Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Global Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the
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aggregate principal amount of Securities authenticated and delivered
pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Issuer or the Trustee. Securities
in definitive registered form issued in exchange for a Global Security pursuant
to this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing or an agent of the Trustee or the Issuer or an
agent of the Issuer. The Trustee or such agent shall deliver at its office
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid and legally binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN
SECURITIES. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver a new Security of the same
series, maturity date, interest rate, if any, and original issue date, bearing
a number or other distinguishing symbol not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen. In every
case the applicant for a substitute Security shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by the Trustee or the Issuer to indemnify and
defend and to save each of the Trustee and the Issuer harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof and in
the case of mutilation or defacement, shall surrender the Security to the
Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer 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 or its agent) connected therewith. In case
any Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to hold each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the
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Trustee evidence to the Trustee's satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, 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
(but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities of such
series duly authenticated and delivered hereunder. All Securities shall be
held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced, destroyed, lost or stolen Securities and shall
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10 CANCELLATION OF SECURITIES; DISPOSITION THEREOF. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or
analogous fund, if surrendered to the Issuer or any agent of the Issuer or the
Trustee or any agent of the Trustee, shall be delivered to the Trustee or its
agent for cancellation or, if surrendered to the Trustee, shall be cancelled by
it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee or its agent
shall return cancelled Securities to the Issuer. If the Issuer or its agent
shall acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee or its agent for
cancellation.
SECTION 2.11 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities for any series, the Issuer may execute and, upon receipt
of written instructions from the Issuer, the Trustee shall authenticate and
deliver temporary Securities for such series (printed, lithographed,
typewritten or otherwise reproduced, in each case in form satisfactory to the
Trustee). Temporary Securities of any series shall be issuable in any
authorized denomination, and substantially in the form of the definitive
Securities of such series but with such omissions, insertions and variations as
may be appropriate for temporary Securities, all as may be determined by the
Issuer with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such references to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2 and the Trustee shall authenticate and
deliver in exchange for such
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temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series having authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series,
unless otherwise established pursuant to Section 2.3.
SECTION 2.12 CUSIP NUMBERS. The Issuer in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of and interest, if any, on each of the Securities at the place,
at the respective times and in the manner provided in the Securities.
SECTION 3.2 OFFICES FOR NOTICES AND PAYMENTS, ETC. So long as
any of the Securities are Outstanding, the Issuer will maintain in each Place
of Payment, an office or agency where the Securities may be presented for
payment, an office or agency where the Securities may be presented for
registration of transfer and for exchange as in this Indenture provided, and an
office or agency where notices and demands to or upon the Issuer in respect of
the Securities or of this Indenture may be served. In case the Issuer shall at
any time fail to maintain any such office or agency, or shall fail to give
notice to the Trustee of any change in the location thereof, presentation may
be made and notice and demand may be served in respect of the Securities or of
this Indenture at the Corporate Trust Office. Pursuant to a separate
instrument, the Issuer has or will initially designate the corporate trust
office of Bankers Trust Company for each such purpose (other than for the
purpose of where notices and demands may be served) and will appoint Bankers
Trust Company as the initial registrar and paying agent. The Issuer hereby
appoints the Trustee as the agent upon whom notices and demands may be served
with respect to the Securities.
SECTION 3.3 NO INTEREST EXTENSION. In order to prevent any
accumulation of claims for interest after maturity thereof, the Issuer will not
directly or indirectly extend or consent to the extension of the time for the
payment of any claim for interest on any of the Securities and will not
directly or indirectly be a party to or approve any such arrangement by the
purchase or funding of said claims or in any other manner; provided, however,
that this Section 3.3 shall not apply in any
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case where an extension shall be made pursuant to a plan proposed by the Issuer
to the Holders of all Securities of any series then Outstanding.
SECTION 3.4 APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE.
The Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.5 PROVISION AS TO PAYING AGENT.
(a) If the Issuer shall appoint a paying agent other than the
Trustee, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 3.5,
(1) that it will hold all sums held by it as such agent
for the payment of the principal of or interest, if any, on the
Securities (whether such sums have been paid to it by the Issuer or by
any other obligor on the Securities) in trust for the benefit of the
Holders of the Securities and the Trustee; and
(2) that it will give the Trustee notice of any failure
by the Issuer (or by any other obligor on the Securities) to make any
payment of the principal of or interest, if any, on the Securities
when the same shall be due and payable; and
(3) that it will, at any time during the continuance of
any such failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on
or before each due date of the principal of or interest, if any, on the
Securities, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities a sum sufficient to pay such principal or interest,
if any, so becoming due and will notify the Trustee of any failure to take such
action and of any failure by the Issuer (or by any other obligor under the
Securities) to make any payment of the principal of or interest, if any, on the
Securities when the same shall become due and payable.
(c) Anything in this Section 3.5 to the contrary notwithstanding,
the Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
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(d) Anything in this Section 3.5 to the contrary notwithstanding,
any agreement of the Trustee or any paying agent to hold sums in trust as
provided in this Section 3.5 is subject to Sections 10.4 and 10.5.
(e) Whenever the Issuer shall have one or more paying agents, it
will, on or before each due date of the principal of or interest, if any, on
any Securities, deposit with a paying agent a sum sufficient to pay the
principal or interest, if any, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal or interest, if any,
and (unless such paying agent is the Trustee) the Issuer will promptly notify
the Trustee of its action or failure so to act.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND
ADDRESSES OF SECURITYHOLDERS. The Issuer and any other obligor on the
Securities covenant and agree that they will furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each March 1 and
September 1, and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request,
provided that if and so long as the Trustee shall be the registrar for such
series, such list shall not be required to be furnished.
SECTION 4.2 PRESERVATION AND DISCLOSURE OF SECURITYHOLDERS LISTS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
Holders of each series of Securities (i) contained in the most recent list
furnished to it as provided in Section 4.1, and (ii) received by it in the
capacity of registrar or paying agent for such series, if so acting. The
Trustee may destroy any list furnished to it as provided in Section 4.1 upon
receipt of a new list so furnished.
(b) As provided in Section 312(b) of the Trust Indenture Act,
Holders may communicate with other Holders with respect to their rights under
this Indenture or under the Securities of any series.
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(c) Each and every Holder of Securities, by receiving and
holding the same, agrees with the Issuer and the Trustee that neither the
Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be held
accountable by reason of the disclosure of any information as to the names and
addresses of the Holders of Securities in accordance with the provisions of
Section 312(b) of the Trust Indenture Act, regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
such Section.
SECTION 4.3 REPORTS BY THE ISSUER. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Issuer is not required to file information,
documents or reports pursuant to either of such Sections, then to file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, in respect of a debt
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Issuer with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30
days after the filing thereof with the Trustee, in the manner and to the extent
provided in Section 4.4(c), such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to subsections (a) and (b)
of this Section 4.3 as may be required to be transmitted to such Holders by
rules and regulations prescribed from time to time by the Commission; and
(d) furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his knowledge of the Issuer's compliance
with all conditions and covenants under this Indenture. For purposes of this
subsection (d), such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
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SECTION 4.4 REPORTS BY THE TRUSTEE.
(a) On or about May 15 of each year, beginning May 15, 1997, the
Trustee shall, if required by law, mail to each Holder of a Security a brief
report dated as of such date that complies with Section 313(a) of the Trust
Indenture Act. The Trustee also shall comply with Sections 313(b) and 313(c)
of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and be filed by the
Trustee with each stock exchange upon which the Securities of any applicable
series are listed and also with the Commission. The Issuer agrees to promptly
notify the Trustee with respect to any series when and as the Securities of
such series become admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 EVENTS OF DEFAULT. "Event of Default", wherever used
herein with respect to Securities of any series, means any one or more of the
following events (whatever the reason for such Event of Default), unless it is
either inapplicable to a particular series or it is specifically deleted or
modified in or pursuant to the Board Resolution or supplemental indenture
establishing such series of Securities or in the form of Security, for such
series:
(a) 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
(b) default in the payment of the principal of or premium, if any,
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise; or
(c) default in the payment or satisfaction of any sinking fund or
other purchase obligation with respect to Securities of such series, as and
when such obligation shall become due and payable as in this Indenture
expressed; or
(d) failure on the part of the Issuer duly to observe or perform
any other of the covenants or agreements on the part of the Issuer in the
Securities of such series or in this Indenture continued for a period of 60
days after the date on which written notice of such failure, requiring the same
to be remedied and stating that such a notice is a "Notice of Default"
hereunder, shall have been given
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to the Issuer by the Trustee by certified or registered mail, or to the Issuer
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the Securities of such series then Outstanding; or
(e) without the consent of the Issuer a court having jurisdiction
shall enter an order for relief with respect to the Issuer under the Bankruptcy
Code or without the consent of the Issuer a court having jurisdiction shall
enter a judgment, order or decree adjudging the Issuer a bankrupt or insolvent,
or enter an order for relief for reorganization, arrangement, adjustment or
composition of or in respect of the Issuer under the Bankruptcy Code or
applicable state insolvency law and the continuance of any such judgment, order
or decree is unstayed and in effect for a period of 90 consecutive days; or
(f) the Issuer shall institute proceedings for entry of an order
for relief with respect to the Issuer under the Bankruptcy Code or for an
adjudication of insolvency, or shall consent to the institution of bankruptcy
or insolvency proceedings against it, or shall file a petition seeking, or seek
or consent to reorganization, arrangement, composition or relief under the
Bankruptcy Code or any applicable state law, or shall consent to the filing of
such petition or to the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator or similar official of the Issuer or of
substantially all of its property, or the Issuer shall make a general
assignment for the benefit of creditors as recognized under the Bankruptcy
Code; or
(g) default under any bond, debenture, note or other evidence of
Indebtedness for money borrowed by the Issuer or any Subsidiary or under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Issuer or any Subsidiary, whether such Indebtedness exists on the date hereof
or shall hereafter be created, which default shall have resulted in such
Indebtedness becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, or any default in payment
of such Indebtedness (after the expiration of any applicable grace periods and
the presentation of any debt instruments, if required), if the aggregate amount
of all such Indebtedness that has been so accelerated and with respect to which
there has been such a default in payment shall exceed $5,000,000, without each
such default and acceleration having been rescinded or annulled within a period
of ten days after there shall have been given to the Issuer by the Trustee by
certified or registered mail, or to the Issuer and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Securities of such series
then Outstanding, a written notice specifying each such default and requiring
the Issuer to cause each such default and acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder; or
(h) any other Event of Default provided with respect to the
Securities of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of
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such series shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding, by notice in writing to the Issuer
(and to the Trustee if given by Securityholders), may declare the principal
(or, if the Securities of such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) of all the Securities of such series and the interest, if any, accrued
thereon to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, notwithstanding
anything to the contrary contained in this Indenture or in the Securities of
such series. This provision, however, is subject to the condition that, if at
any time after the unpaid principal amount (or such specified amount) of the
Securities of such series shall have been so declared due and payable and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest, if any, upon all of the Securities of such series and the principal
of any and all Securities of such series which shall have become due otherwise
than by acceleration (with interest on overdue installments of interest, if
any, to the extent that payment of such interest is enforceable under
applicable law and on such principal at the rate borne by the Securities of
such series to the date of such payment or deposit) and the reasonable
compensation, disbursements, expenses and advances of the Trustee and all other
amounts due to the Trustee under Section 6.6, and any and all defaults under
this Indenture, other than the nonpayment of such portion of the principal
amount of and accrued interest, if any, on Securities of such series which
shall have become due by acceleration, shall have been cured or shall have been
waived in accordance with Section 5.7 or provision deemed by the Trustee to be
adequate shall have been made therefor, then and in every such case the Holders
of a majority in aggregate principal amount of the Securities of such series
then Outstanding, by written notice to the Issuer and to the Trustee, may
rescind and annul such declaration and its consequences; but no such rescission
and annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon. If any Event of Default with respect to
the Issuer specified in Section 5.1(e) or 5.1(f) occurs, all unpaid principal
amount (or, if the Securities of any series then Outstanding are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of each such series) and accrued interest on all Securities of
each series then Outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act by the Trustee or any
Securityholder.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Issuer, the Trustee and the Securityholders shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Securityholders shall continue as
though no such proceeding had been taken.
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Except with respect to an Event of Default pursuant to Section 5.1
(a), (b) or (c), the Trustee shall not be charged with knowledge of any Event
of Default unless written notice thereof shall have been given to a Responsible
Officer by the Issuer, a paying agent or any Securityholder.
SECTION 5.2 PAYMENT OF SECURITIES ON DEFAULT; SUIT THEREFOR. The
Issuer covenants that (a) if default shall be made in the payment of any
installment of interest upon any of the Securities of any series then
Outstanding as and when the same shall become due and payable, and such default
shall have continued for a period of 30 days, or (b) if default shall be made
in the payment of the principal of any of the Securities of such series as and
when the same shall have become due and payable, whether at maturity of the
Securities of such series or upon redemption or by declaration or otherwise,
then, upon demand of the Trustee, the Issuer will pay to the Trustee, for the
benefit of the Holders of the Securities, the whole amount that then shall have
become due and payable on all such Securities of such series for principal or
interest, if any, or both, as the case may be, with interest upon the overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest, if any, at the rate
borne by the Securities of such series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including a reasonable compensation to the Trustee, its agents, attorneys and
counsel, and all other amounts due to the Trustee under Section 6.6.
If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other obligor,
or in the case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of such series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount of principal and interest, if any, owing and unpaid in respect of the
Securities of such series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Securityholders
allowed in such judicial proceedings relative to the Issuer or any other
obligor on
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the Securities of such series, its or their creditors, or its or their
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses, and any receiver, assignee or trustee or similar
official in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, if the Trustee shall
consent to the making of such payments directly to the Securityholders, to pay
to the Trustee any amount due it for compensation and expenses, including
counsel fees and expenses incurred by it up to the date of such distribution
and all other amounts due to the Trustee under Section 6.6. To the extent that
such payment of reasonable compensation, expenses and counsel fees and expenses
out of the estate in any such proceedings shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of,
any and all distributions, dividends, moneys, securities and other property
which the Holders of the Securities of such series may be entitled to receive
in such proceedings, whether in liquidation or under any plan of reorganization
or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the Holders of
the Securities of the series in respect of which such judgment has been
recovered.
SECTION 5.3 APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any
moneys collected by the Trustee pursuant to Section 5.2 with respect to
Securities of any series then Outstanding shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities of such series, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
of all other amounts due to the Trustee pursuant to Section 6.6;
SECOND: If the principal of the Outstanding Securities of such series
shall not have become due and be unpaid, to the payment of interest, if any, on
the Securities of such series, in the order of the maturity of the installments
of such interest, if any, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue installments of interest, if
any, at the rate borne by the Securities of such series, such payment to be
made ratably to the Persons entitled thereto;
THIRD: If the principal of the Outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of the whole
amount then owing and unpaid upon the Securities of such series for principal
and interest, if any, with interest on the overdue principal and (to the extent
that such interest has been collected by the Trustee) upon overdue installments
of
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interest, if any, at the rate borne by the Securities of such series; and in
case such moneys shall be insufficient to pay in full the whole amounts so due
and unpaid upon the Securities of such series, then to the payment of such
principal and interest, if any, without preference or priority of principal
over interest or of interest over principal, or of any installment of interest
over any other installment of interest, or of any Security over any other
Security, ratably to the aggregate of such principal and accrued and unpaid
interest; and
FOURTH: To the payment of any surplus then remaining to the Issuer,
its successors or assigns, or to whomsoever may be lawfully entitled to receive
the same.
No claim for interest which in any manner at or after maturity shall
have been transferred or pledged separate or apart from the Securities to which
it relates, or which in any manner shall have been kept alive after maturity by
an extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on behalf or with the
consent or approval of the Issuer shall be entitled, in case of a default
hereunder, to any benefit of this Indenture, except after prior payment in full
of the principal of all Securities of any series then Outstanding and of all
claims for interest not so transferred, pledged, kept alive, extended,
purchased or funded.
SECTION 5.4 PROCEEDINGS BY SECURITYHOLDERS. No Holder of any
Securities of any series then Outstanding shall have any right by virtue of or
by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee or similar official, or for any
other remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of default and of the continuance thereof, as
hereinbefore provided, and unless the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request to the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding, it being
understood and intended, and being expressly covenanted by the Holder of every
Security of such series with every other taker and Holder and the Trustee, that
no one or more Holders of Securities of such series shall have any right in any
manner whatever by virtue of or by availing of any provision of this Indenture
or of the Securities to affect, disturb or prejudice the rights of any other
Holder of such Securities of such series, or to obtain or seek to obtain
priority over or preference as to any other such Holder, or to enforce any
right under this Indenture or the Securities, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Securities of such series.
Notwithstanding any other provisions in this Indenture, however, the
right of any Holder of any Security to receive payment of the principal of and
interest, if any, on such Security, on or after
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the respective due dates expressed in such Security, or to institute suit for
the enforcement of any such payment on or after such respective dates shall not
be impaired or affected without the consent of such Holder.
SECTION 5.5 PROCEEDINGS BY TRUSTEE. In case of an Event of
Default hereunder, the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either by suit in equity or by action at law or by proceedings
in bankruptcy or otherwise, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid of the exercise of
any power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
SECTION 5.6 REMEDIES CUMULATIVE AND CONTINUING. All powers and
remedies given by this Article Five to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any thereof or of any other powers and remedies available to the Trustee or
the Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be
a waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.4, every power and remedy given by this Article Five or
by law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.7 SECURITYHOLDERS. The Holders of a majority in
aggregate principal amount of the Securities of any series then Outstanding
shall have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to Securities of such series;
provided, however, that (subject to the provisions of Section 6.1) the Trustee
shall have the right to decline to follow any such direction if the Trustee
shall determine upon advice of counsel that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith by its board
of directors, its executive committee, or a trust committee of directors or
Responsible Officers or both shall determine that the action or proceeding so
directed would involve the Trustee in personal liability. The Holders of a
majority in aggregate principal amount of the Securities of any series then
Outstanding may on behalf of the Holders of all of the Securities of such
series waive any past default or Event of Default hereunder and its
consequences except a default in the payment of interest, if any, on, or the
principal of, the Securities of such series. Upon any such waiver the Issuer,
the Trustee and the Holders of the Securities of such series shall be restored
to their former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by this Section 5.7, said default
or
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Event of Default shall for all purposes of the Securities and this Indenture be
deemed to have been cured and to be not continuing.
SECTION 5.8 NOTICE OF DEFAULTS. The Trustee shall, within 90
days after the occurrence of a default of which a Responsible Officer of the
Trustee has actual knowledge, with respect to Securities of any series then
Outstanding, mail to all Holders of Securities of such series, as the names and
the addresses of such Holders appear upon the Securities register, notice of
all defaults actually known to a Responsible Officer of the Trustee with
respect to such series, unless such defaults shall have been cured before the
giving of such notice (the term "defaults" for the purpose of this Section 5.8
being hereby defined to be the events specified in clauses (a), (b), (c), (d),
(e), (f), (g) and (h) of Section 5.1, not including periods of grace, if any,
provided for therein and irrespective of the giving of the written notice
specified in said clause (d) or (g) but in the case of any default of the
character specified in said clause (d) or (g) no such notice to Securityholders
shall be given until at least 60 days after the occurrence of the default;
provided, however, that, except in the case of default in the payment of the
principal of or interest, if any, on any of the Securities, or in the payment
or satisfaction of any sinking fund or other purchase obligation, the Trustee
shall be fully protected in withholding such notice if and so long as the board
of directors, the executive committee, or a trust committee of directors or
Responsible Officers or both of the Trustee in good faith determines that the
withholding of such notice is in the best interests of the Securityholders.
SECTION 5.9 UNDERTAKING TO PAY COSTS. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the cost of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorney's fees and expenses, against
any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of
this Section 5.9 shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder, or group of Securityholders, holding in
the aggregate more than 10% in principal amount of the Securities of any series
then Outstanding, or to any suit instituted by any Securityholders for the
enforcement of the payment of the principal of or interest, if any, on any
Security against the Issuer on or after the due date expressed in such
Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING
DEFAULT; PRIOR TO DEFAULT. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the
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occurrence of an Event of Default with respect to the Securities of a
particular series and after the curing or waiving of all Events of Default
which may have occurred with respect to such series, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture.
In case an Event of Default with respect to the Securities of a series has
occurred (which has not been cured or waived) the Trustee shall exercise with
respect to such series of Securities such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such Events
of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely by
the express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they reasonably conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.7 relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties
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or in the exercise of any of its rights or powers, if there shall be reasonable
ground for believing that the repayment of such funds or adequate indemnity
against such liability is not reasonably assured to it.
SECTION 6.2 CERTAIN RIGHTS OF THE TRUSTEE. Subject to Section
6.1:
(a) the Trustee may rely and shall be fully protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers' Certificate or
Issuer Order (unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a Board Resolution;
(c) the Trustee may consult with counsel of its selection and any
advice of such counsel promptly confirmed in writing shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture (including, without limitation, pursuant to Section 5.1), unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may
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require reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such investigation
shall be paid by the Issuer or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture, of the
Securities or of any prospectus used to sell the Securities. The Trustee shall
not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS,
ETC. The Trustee or any agent of the Issuer or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities with the
same rights it would have if it were not the Trustee or such agent and, subject
to Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
SECTION 6.5 MONEYS HELD BY TRUSTEE. Subject to the provisions of
Section 10.5 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS
PRIOR CLAIM. The Issuer covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, such compensation as shall be
agreed to in writing between the Issuer and the Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all agents and other Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any and all loss, liability, damage,
claim or
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expense, including taxes (other than taxes based on the income of the Trustee,
except as provided in Section 10.6), incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim or liability in the premises. The obligations of the
Issuer under this Section 6.6 to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture or the resignation or removal of the Trustee. Such additional
indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities, and the
Securities are hereby subordinated to such senior claim. When the Trustee
incurs expenses or renders services in connection with an Event of Default
specified in Section 5.1 or in connection with Article Five hereof, the
expenses (including the reasonable fees and expenses of its counsel) and the
compensation for the service in connection therewith are intended to constitute
expenses of administration under any bankruptcy law.
SECTION 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE,
ETC. Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS. If
the Trustee has or shall acquire any "conflicting interest" within the meaning
of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall
in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the penultimate paragraph of Section
310(b) of the Trust Indenture Act.
SECTION 6.9 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The
Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any state or the District of Columbia having a combined capital
and surplus of at least $50,000,000, and which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
federal, state or District of Columbia authority, or a corporation or other
Person permitted to act as trustee by the Commission. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this
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Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. No obligor upon the Securities or any Affiliate of
such obligor shall serve as trustee upon the Securities. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 6.9, the Trustee shall resign immediately in the manner and with
the effect specified in Section 6.10.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE.
(a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all series of Securities
by giving written notice of resignation to the Issuer. Upon receiving such
notice of resignation, the Issuer shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.9, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 6.8 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at
least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.9 and shall fail to resign after
written request therefor by the Issuer or by any such Securityholder;
or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt
or insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect
to the applicable series of Securities and appoint a successor trustee for such
series by written instrument, in duplicate,
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executed by order of the Board of Directors one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 5.9, any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at least six
months may on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Securityholders. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
delivery of such evidence of removal, the Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Section 5.9, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section
10.5, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
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If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to
the Securities of any series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such trustees co-trustees of the same
trust and that each such trustee shall be trustee of a trust or trusts under
separate indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall give notice thereof to the Holders of
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. If the Issuer
fails to give such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
given at the expense of the Issuer.
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE. 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 of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the
provisions of Section 6.8 and eligible under the provisions of Section 6.9,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of
the Trustee shall have; provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate
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Securities of any series in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated.
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is
made in this Indenture to the authentication and delivery of Securities of any
series by the Trustee or to 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 for such series and a Certificate of
Authentication executed on behalf of the Trustee by such Authenticating Agent.
Such Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States of America or of any state
or the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by federal or state authority.
Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the Trustee and to the
Issuer. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect to
one or more series of Securities, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and the Issuer
shall provide notice of such appointment to all Holders of Securities of such
series in the manner and to the extent provided
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in Section 11.4. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. The Issuer agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation.
The Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders 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. Proof of execution of any instrument
or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Article
Seven.
SECTION 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Subject to Sections 6.1 and 6.2, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in the following
manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to him
the execution thereof, by an affidavit of a witness to such execution sworn to
before any such notary or other such officer, or in any other manner acceptable
to the Trustee. Where such execution is by or on behalf of any legal entity
other than an individual, such certificate or affidavit shall also constitute
sufficient proof of the authority of the person executing the same.
(b) certificate of the Security registrar.
SECTION 7.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security shall be
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registered upon the Security register for such series as the absolute owner of
such Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and, subject
to the provisions of this Indenture, interest, if any, on such Security and for
all other purposes; and neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary.
SECTION 7.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING.
In determining whether the Holders of the requisite aggregate principal amount
of Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Issuer or any other obligor on the Securities with respect to which such
determination is being made or by any Affiliate of the Issuer or any other
obligor on the Securities with respect to which such determination is being
made shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only securities which a Responsible Officer of the Trustee knows are 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 Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article Seven, revoke such action so
far as concerns such Security provided that such revocation shall not become
effective until three Business Days after such filing. Except as aforesaid any
such action taken by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Security and of
any Securities issued in exchange or substitution therefor or on registration
of transfer thereof, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of
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the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by such
action.
SECTION 7.6 RECORD DATE FOR CONSENTS AND WAIVERS. The Issuer
may, but shall not be obligated to, direct the Trustee to establish a record
date for the purpose of determining the Persons entitled to (i) waive any past
default with respect to the Securities of such series in accordance with
Section 5.7 of the Indenture, (ii) consent to any supplemental indenture in
accordance with Section 8.2 of the Indenture or (iii) waive compliance with any
term, condition or provision of any covenant hereunder. If a record date is
fixed, the Holders on such record date, or their duly designated proxies, and
any such Persons, shall be entitled to waive any such past default, consent to
any such supplemental indenture or waive compliance with any such term,
condition or provision, whether or not such Holder remains a Holder after such
record date; provided, however, that unless such waiver or consent is obtained
from the Holders, or duly designated proxies, of the requisite principal amount
of Outstanding Securities of such series prior to the date which is the 180th
day after such record date, any such waiver or consent previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Issuer, when authorized by a Board Resolution (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as in force
at the date of the execution thereof) for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another Person to the Issuer, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of all or any series of
Securities (and if such covenants, restrictions, conditions or provisions are
to be
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for the protection of less than all series of Securities, stating that the same
are expressly being included solely for the protection of such series), and to
make the occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee upon such an
Event of Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to waive such an
Event of Default;
(d) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3;
(e) to modify the provisions relating to Global Securities, or to
permit the issuance of Securities in bearer or uncertificated form, provided
that any such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect;
(f) 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 not otherwise permitted under this Section
8.1 shall (i) become effective only when there is no Security Outstanding of
any series created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision or (ii) not apply to any Security
then Outstanding;
(g) 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
6.11; or
(h) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions as the Issuer may deem
necessary or desirable, provided, however, that no such action shall adversely
affect the interests of the Holders of the Securities in any respect.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental
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indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities then Outstanding, notwithstanding any of the provisions of Section
8.2.
SECTION 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than a majority in aggregate principal amount of the
Securities then Outstanding of any series affected by such supplemental
indenture, the Issuer, when authorized by a Board Resolution (which resolution
may provide general terms or parameters for such action and may provide that
the specific terms of such action may be determined in accordance with or
pursuant to an Issuer Order), and the Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act of 1939 as in force at the
date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner the rights of
the Holders of the Securities of such series; provided, that no such
supplemental indenture shall (a) extend the stated final maturity of the
principal of any Security, or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest, if any, thereon (or, in the
case of an Original Issue Discount Security, reduce the rate of accrual of
original issue discount thereon), or reduce or alter the method of computation
of any amount payable on redemption, repayment or purchase by the Issuer
thereof (or the time at which any such redemption, repayment or purchase may be
made), or make the principal thereof (including any amount in respect of
original issue discount), or interest, if any, thereon payable in any coin or
currency other than that provided in the Securities or in accordance with the
terms of the Securities, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 5.1 or the amount thereof provable in
bankruptcy pursuant to Section 5.2, or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if the Securities
provide therefor, any right of repayment or purchase at the option of the
Securityholder, in each case without the consent of the Holder of each Security
so affected, or (b) reduce the aforesaid percentage of Securities of any
series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected. No consent of any Holder of any Security shall be necessary under
this Section 8.2 to permit the Trustee and the Issuer to execute supplemental
indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant,
Event of Default 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 Holders of Securities of such
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series, with respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series.
Upon the request of the Issuer, accompanied by a Board Resolution
(which resolution may provide general terms or parameters for such action and
may provide that the specific terms of such action may be determined in
accordance with or pursuant to an Issuer Order) authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of the Holders of the Securities as aforesaid and other
documents, if any, required by Section 7.1, the Trustee shall join with the
Issuer in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Issuer, or the Trustee at the written direction of the Issuer, shall give
notice thereof to the Holders of then Outstanding Securities of each series
affected thereby, as provided in Section 12.4. Any failure to give such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 8.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and shall be deemed to be modified and amended in accordance therewith
and the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Issuer and the Holders of
Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and shall be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
SECTION 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, shall be entitled to receive
an Officers' Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant to this Article Eight complies
with the applicable provisions of this Indenture and that all conditions
precedent to the execution of such supplemental indenture have been satisfied.
SECTION 8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Eight may bear a notation in form approved by the Trustee for such
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series as to any matter provided for by such supplemental indenture or as to
any action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR DISPOSITION
SECTION 9.1 ISSUER MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Subject to the provisions of Section 9.2, nothing contained in this Indenture
or in any of the Securities shall prevent any consolidation or merger of the
Issuer with or into any other Person or Persons (whether or not affiliated with
the Issuer), or successive consolidations or mergers in which the Issuer or its
successor or successors shall be a party or parties, or shall prevent any sale,
lease, exchange or other disposition of all or substantially all the property
and assets of the Issuer to any other Person (whether or not affiliated with
the Issuer) authorized to acquire and operate the same; provided, however, and
the Issuer hereby covenants and agrees, that any such consolidation, merger,
sale, lease, exchange or other disposition shall be upon the conditions that
(a) immediately after such consolidation, merger, sale, lease, exchange or
other disposition, of the Person (whether the Issuer or such other Person)
formed by or surviving any such consolidation or merger, or to which such sale,
lease, exchange or other disposition shall have been made, shall not be in
default in the performance or observance of any of the terms, covenants and
conditions of this Indenture to be kept or performed by the Issuer; (b) the
Person (if other than the Issuer) formed by or surviving any such consolidation
or merger, or to which such sale, lease, exchange or other disposition shall
have been made, shall be a Person organized under the laws of the United States
of America, any state thereof or the District of Columbia; and (c) the due and
punctual payment of the principal of and interest, if any, on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Issuer, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee executed and delivered to the Trustee, by
the Person (if other than the Issuer) formed by such consolidation, or into
which the Issuer shall have been merged, or by the corporation which shall have
acquired or leased such property.
SECTION 9.2 SUCCESSOR CORPORATION TO BE SUBSTITUTED. In case of
any such consolidation or merger or any sale, conveyance or lease of all or
substantially all of the property of the Issuer and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and interest, if any, on all of the Securities and
the due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Issuer, such successor
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Person shall succeed to and be substituted for the Issuer, with the same effect
as if it had been named herein as the party of the first part, and the Issuer
(including any intervening successor to the Issuer which shall have become the
obligor hereunder) shall be relieved of any further obligation under this
Indenture and the Securities; provided, however, that in the case of a lease of
the property and assets of the Issuer (including any such intervening
successor), the Issuer (including any such intervening successor) shall
continue to be liable on its obligations under this Indenture and the
Securities to the extent, but only to the extent, of liability to pay the
principal of and interest, if any, on the Securities at the time, places and
rate prescribed in this Indenture and the Securities. Such successor Person
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Issuer, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor Person instead of the Issuer and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the officers of the
Issuer to the Trustee for authentication, and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation or merger or any sale, lease,
exchange or other disposition of all or substantially all of the property and
assets of the Issuer, such changes in phraseology and form (but not in
substance) may be made in the Securities, thereafter to be issued, as may be
appropriate.
SECTION 9.3 OPINION OF COUNSEL TO BE GIVEN TRUSTEE. The Trustee,
subject to Sections 6.1 and 6.2, shall be furnished an Officers' Certificate
and Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, lease, exchange or other disposition and any such assumption
complies with the provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE.
(A) If at any time (a) the Issuer shall have paid or
caused to be paid the principal of and interest, if any, on all the
Securities Outstanding (other than Securities which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9) as and when the same shall have become due
and payable, or (b) the Issuer shall have delivered to the Trustee for
cancellation all Securities theretofore authenticated (other
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than Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.9); and if, in any
such case, the Issuer shall also pay or cause to be paid all other
sums payable hereunder by the Issuer, then this Indenture shall cease
to be of further effect, and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent relating to the
satisfaction and discharge contemplated by this provision have been
complied with, and at the cost and expense of the Issuer, shall
execute proper instruments acknowledging such satisfaction and
discharging this Indenture. The Issuer agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly
incurred, and to compensate the Trustee for any services thereafter
reasonably and properly rendered, by the Trustee in connection with
this Indenture or the Securities.
(B) If at any time (a) the Issuer shall have paid or
caused to be paid the principal of, premium, if any, and interest, if
any, on all the Securities of any series Outstanding (other than
Securities of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.9) as
and when the same shall have become due and payable, or (b) the Issuer
shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated (other than any Securities of
such series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9), or (c) in the case
of any series of Securities with respect to which the exact amount
described in clause (ii) below can be determined at the time of making
the deposit referred to in such clause (ii), (i) all the Securities of
such series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due
and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and (ii) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as funds in
trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of Securities of such series, cash in an
amount (other than moneys repaid by the Trustee or any paying agent to
the Issuer in accordance with Section 10.5) or direct obligations of
the United States of America, backed by its full faith and credit
("U.S. Government Obligations"), maturing as to principal and
interest, if any, at such times and in such amounts as will insure the
availability of cash, or 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 (A) the principal of, premium, if any, and
interest, if any, on all Securities of such series on each date that
such principal of, premium, if any, or interest, if any, is due and
payable, and (B) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms
of the Indenture and the Securities of such series; then the Issuer
shall be deemed to have paid and discharged the entire indebtedness on
all the Securities of such series on the date of the deposit referred
to in clause (ii) above and the provisions of this Indenture with
respect to the Securities of such series shall no longer be in effect
(except, in
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the case of clause (c) of this Section 10.1(B), as to (i) rights of
registration of transfer and exchange of Securities of such series,
(ii) rights of substitution of mutilated, defaced, destroyed, lost or
stolen Securities of such series, (iii) rights of Holders of
Securities of such series to receive payments of principal thereof and
premium, if any, and interest, if any, thereon upon the original
stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders of Securities of such series to receive
mandatory sinking fund payments thereon, if any, when due, (iv) the
rights, obligations, duties and immunities of the Trustee hereunder,
(v) the rights of the Holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations of
the Issuer under Section 3.2 with respect to Securities of such
series) and the Trustee, on demand of the Issuer accompanied by an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied
with, and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging the same.
(C) The following provisions shall apply to the
Securities of each series unless specifically otherwise provided in a
Board Resolution, Officers' Certificate or indenture supplemental
hereto provided pursuant to Section 2.3. In addition to discharge of
the Indenture pursuant to the next preceding paragraph, in the case of
any series of Securities with respect to which the exact amount
described in subparagraph (a) below can be determined at the time of
making the deposit referred to in such subparagraph (a), the Issuer
shall be deemed to have paid and discharged the entire indebtedness on
all the Securities of such a series on the 91st day after the date of
the deposit referred to in subparagraph (a) below, and the provisions
of this Indenture with respect to the Securities of such series shall
no longer be in effect (except as to (i) rights of registration of
transfer and exchange of Securities of such series, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to
receive payments of principal thereof, premium, if any, and interest,
if any, thereon upon the original stated due dates therefor (but not
upon acceleration), and remaining rights of the Holders of Securities
of such series to receive mandatory sinking fund payments, if any,
(iv) the rights, obligations, duties and immunities of the Trustee
hereunder, (v) the rights of the Holders of Securities of such series
as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations of
the Issuer under Section 3.2 with respect to Securities of such
series) and the Trustee, on demand of the Issuer accompanied by an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied
with, and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging the same, if
(a) with reference to this provision the Issuer
has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit
of the Holders of
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Securities of such series (i) cash in an amount, or (ii) U.S.
Government Obligations, maturing as to principal and interest,
if any, at such times and in such amounts as will insure the
availability of cash, or (iii) 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 (A) the
principal of, premium, if any, and interest, if any, on all
Securities of such series on each date that such principal or
interest, if any, is due and payable, and (B) any mandatory
sinking fund payments on the dates on which such payments are
due and payable in accordance with the terms of the Indenture
and the Securities of such series;
(b) no Event of Default of the character
specified in Section 5.1(e) or 5.1(f) shall have occurred and
be continuing at any time during the period ending on the 91st
day after the date of such deposit and such deposit will not
result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound involving
payment by the Issuer or a Subsidiary of an amount in excess
$1,000,000;
(c) no other Event of Default or event which with
notice or lapse of time or both would become an Event of
Default with respect to Securities of such series shall have
occurred and be continuing on the date of such deposit; and
(d) the Issuer has delivered to the Trustee an
Opinion of Counsel based on the fact that (x) the Issuer has
received from, or there has been published by, the Internal
Revenue Service a ruling or (y), since the date hereof, there
has been a change in the applicable United States federal
income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the Securities of
such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income
tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance
and discharge had not occurred.
SECTION 10.2 DEFEASANCE OF CERTAIN OBLIGATIONS. If this Section 10.2
is specified to be applicable to Securities of any series in the supplemental
indenture, Board Resolution or Officer's Certificate creating such series, the
Issuer may omit to comply with any covenant restricting the Company's ability
to take certain actions or to permit to exist certain conditions or requiring
the Company to maintain certain financial ratios specified as applicable to the
Securities of such series in such supplemental indenture, Board Resolution or
Officer's Certificate as contemplated by Section 2.3, if
(a) with reference to this Section 10.2, the Issuer has
irrevocably deposited or caused to be irrevocably deposited (except as
provided in Section 10.5) with the Trustee, as
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trust funds and/or obligations in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
the Securities of that series, (i) money in an amount, or (ii) U.S.
Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms, without
consideration of any reinvestment thereof, will provide not later than
one day before the due date of any payment referred to in clause (A)
or (B) of this subsection (a) money in an amount, or (iii) a
combination thereof, sufficient, as expressed in a certificate of a
firm of independent public accountants delivered to the Trustee, to
pay and discharge (A) the principal of (and premium, if any) and
interest on the Outstanding Securities of that series due on the
maturity of such principal, premium, if any, and interest and (B) any
mandatory sinking fund payments or analogous payments applicable to
Securities of such series on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of such
Securities;
(b) such deposit shall not cause the Trustee with respect
to the Securities of that series to have a conflicting interest for
purposes of the Trust Indenture Act with respect to the Securities of
any series;
(c) no Event of Default of the character specified in
Section 5.1(e) or 5.1(f) shall have occurred and be continuing at any
time during the period ending on the 91st day after the date of such
deposit and such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement
or instrument to which the Issuer is a party or by which it is bound
involving payment by the Issuer of an amount in excess of $1,000,000
principal amount is then outstanding;
(d) no other Event of Default or event which with notice
or lapse of time or both would become an Event of Default with respect
to Securities of that series shall have occurred and be continuing on
the date of such deposit;
(e) the Issuer has delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and defeasance of certain
obligations and will be subject to Federal income tax on the same
amount and in the same manner and at the same times, as would have
been the case if such deposit and defeasance had not occurred;
(f) if the Securities of such series are to be redeemed,
either notice of such redemption shall have been given or the Issuer
shall have given the Trustee irrevocable direction to give notice of
such redemption in the name and at the expense of the Issuer, under
arrangements satisfactory to the Trustee; and
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(g) the Issuer 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 defeasance contemplated
by this Section have been complied with.
SECTION 10.3 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT
OF SECURITIES. Subject to Section 10.5, all moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Section 10.1 or 10.2 shall
be held in trust, and such moneys and all moneys from such U.S. Government
Obligations shall be applied by it to the payment, either directly or through
any paying agent (including the Issuer acting as its own paying agent), to the
Holders of the particular Securities of such series for the payment or
redemption of which such moneys and U.S. Government Obligations have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest, if any, but such moneys and U.S. Government Obligations
need not be segregated from other funds except to the extent required by law.
SECTION 10.4 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to
such moneys.
SECTION 10.5 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT
UNCLAIMED FOR TWO YEARS. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest, if any, on
any Security of any series and not applied but remaining unclaimed for two
years after the date upon which such principal or interest, if any, shall have
become due and payable, shall, upon the written request of the Issuer and
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for
such series or such paying agent, and the Holder of the Securities of such
series shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter look only to the
Issuer for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such moneys shall
thereupon cease.
SECTION 10.6 INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The
Issuer 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 10.1 or 10.2 or the principal or interest received in
respect of such obligations. The obligation of the Issuer to pay or indemnify
the Trustee under this Section 10.6 for taxes, fees and other charges shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture or the resignation or removal of the Trustee.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified, as contemplated by
Section 2.3 for Securities of such series.
SECTION 11.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear in the
Security register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, the CUSIP number relating to such Securities, that payment
will be made upon presentation and surrender of such Securities, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest, if any, (or, in the case of Original Issue
Discount Securities, original issue discount) accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest, if any, (or, in the case of Original Issue Discount Securities,
original issue discount) thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Security of a series is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 11.2, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.5) an amount of money sufficient to redeem on the redemption date all the
Securities of
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such series so called for redemption at the appropriate redemption price,
together with accrued interest, if any, to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice period shall be satisfactory to the
Trustee) an Officers' Certificate stating the aggregate principal amount of
Securities to be redeemed. In case of a redemption at the election of the
Issuer prior to the expiration of any restriction on such redemption, the
Issuer shall deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officers' Certificate
stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed. Securities may be redeemed in part
in multiples equal to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
Issuer in writing of the Securities of such series selected for redemption and,
in the case of any Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 11.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest, if any, accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest, if
any, accrued to said date) interest (or, in the case of Original Issue Discount
Securities, original issue discount) on the Securities or portions of
Securities so called for redemption shall cease to accrue, and such Securities
shall cease from and after the date fixed for redemption (unless an earlier
date shall be specified in a Board Resolution, Officers' Certificate or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the form and terms of the Securities of such series were
established) except as provided in Sections 6.5 and 10.4, to be entitled to any
benefit or security under this Indenture, and the Holders thereof shall have no
right in respect of such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment specified
in said notice, said Securities or the specified portions thereof shall be paid
and redeemed by the Issuer at the applicable redemption price, together with
interest, if any, accrued thereon to the date fixed for redemption; provided
that payment of interest, if any, becoming due on or prior to the date fixed
for redemption if such date is a scheduled interest payment date shall be
payable to the Holders of Securities registered as such on the relevant record
date subject to the terms and provisions of Sections 2.3 and 2.7 hereof.
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If any Security called for redemption is surrendered for redemption,
and the Issuer defaults in the payment of the redemption price, then the price
shall, until paid or duly provided for, bear interest from the date fixed for
redemption at the rate of interest or Yield to Maturity (in the case of an
Original Issue Discount Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, and of like tenor, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 11.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Issuer, or (b) a Person specifically identified in such written
statement as an Affiliate of the Issuer.
SECTION 11.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum
amount of any sinking fund payment provided for by the terms of the 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 the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section 11.5,
or (c) receive credit for Securities of such series (not previously so
credited) redeemed by the Issuer through any optional redemption provision
contained in the terms of such series. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officers'
Certificate (a) specifying the portion of the mandatory sinking fund payment to
be satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series and the basis for such credit, (b) stating that none
of the Securities of such series to be so credited has theretofore been so
credited, (c) stating that no defaults in the payment
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<PAGE> 64
of interest or Events of Default with respect to such series have occurred
(which have not been waived or cured or otherwise ceased to exist) and are
continuing, and (d) stating whether or not the Issuer intends to exercise its
right to make an optional sinking fund payment with respect to such series and,
if so, specifying the amount of such optional sinking fund payment which the
Issuer intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee
with such Officers' Certificate (or reasonably promptly thereafter if
acceptable to the Trustee). Such Officers' Certificate shall be irrevocable
and upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure of
the Issuer, on or before any such 60th day, to deliver such Officers'
Certificate and Securities (subject to the parenthetical clause in the second
preceding sentence) specified in this paragraph, if any, shall not constitute a
default but shall constitute, on and as of such date, the irrevocable election
of the Issuer (i) that the mandatory sinking fund payment for such series due
on the next succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in respect
thereof, and (ii) that the Issuer will make no optional sinking fund payment
with respect to such series as provided in this Section 11.5.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000, or a lesser sum if the Issuer shall so request with respect to
the Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 11.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash,
as nearly as may be, and shall (if requested in writing by the Issuer) inform
the Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 11.2 (and with the effect provided
in Section 11.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied
or allocated to the redemption of Securities of such series shall be added to
the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this Section
11.5. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series, shall be applied, together with other moneys, if
necessary,
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sufficient for the purpose, to the payment of the principal of, and interest,
if any, on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest,
if any, accrued to the date fixed for redemption on Securities to be redeemed
on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of
Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default with respect to such series except that, where the giving of
notice of redemption of any Securities shall theretofore have been made, the
Trustee shall redeem or cause to be redeemed such Securities, provided that it
shall have received from the Issuer a sum sufficient for such redemption.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such default or Event of Default shall occur, and any moneys
thereafter paid into the sinking fund, shall, during the continuance of such
default or Event of Default, be deemed to have been collected under Article
Five and held for the payment of all such Securities. In case such Event of
Default shall have been waived as provided in Section 5.7 or the default cured
on or before the 60th day preceding the sinking fund payment date in any year,
such moneys shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of such
Securities.
ARTICLE TWELVE
MISCELLANEOUS PROVISIONS
SECTION 12.1 PARTNERS, INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer, or any partner of the
Issuer or of any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 12.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF
PARTIES AND HOLDERS OF SECURITIES. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any
Person, other than the parties hereto and their successors and the Holders of
the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any
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<PAGE> 66
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities.
SECTION 12.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 12.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF
SECURITIES. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer, or as required pursuant to the Trust Indenture
Act of 1939, may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee)
to Marine Drilling Companies, Inc., One Sugar Creek Center Boulevard, Suite
600, Sugar Land, Texas 77478, Attention: Chief Financial Officer. Any notice,
direction, request or demand by the Issuer or any Holder of Securities to or
upon the Trustee shall be deemed to have been sufficiently given or served by
being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Trustee
is filed by the Trustee with the Issuer) to Marine Midland Bank, 140 Broadway,
New York, New York 10005-1180, Attention: Corporate Trust Administration.
Where this Indenture provides for notice to Holders of Securities,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
entitled thereto, at his last address as it appears in the Security register.
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 or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be reasonably satisfactory to
the Trustee shall be deemed to be sufficient notice.
SECTION 12.5 OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, or as required pursuant to the Trust Indenture Act of 1939, the
Issuer shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
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furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture (other than
a certificate provided pursuant to Section 4.3(d)) and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) 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, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion as to whether
or not such covenant or condition has been complied with, and (d) a statement
as to whether or not, in the opinion of such person, such condition or covenant
has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 12.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If
the date of maturity of principal of or interest, if any, on the Securities of
any series or the date fixed for redemption, purchase or repayment of any such
Security shall not be a Business Day, then payment of interest, if any, or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed
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for redemption, purchase or repayment, and, in the case of payment, no interest
shall accrue for the period after such date.
SECTION 12.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT OF 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included herein by any of Sections 310
to 317, inclusive, or is deemed applicable to this Indenture by virtue of the
provisions, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 12.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY
SHALL BE DEEMED TO BE A CONTRACT 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.
SECTION 12.9 COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 12.10 EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
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<PAGE> 69
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of _______________, 1996.
MARINE DRILLING COMPANIES, INC.
By:
-------------------------------------
Title:
----------------------------------
Attest:
By
--------------------------
Title:
----------------------
MARINE MIDLAND BANK,
as Trustee
By:
-------------------------------------
Title:
----------------------------------
Attest:
By
--------------------------
Title:
----------------------
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<PAGE> 1
EXHIBIT 4.4
Draft of June 26, 1996
================================================================================
MARINE DRILLING COMPANIES, INC.
AND
BANKERS TRUST COMPANY,
as Trustee
Senior Subordinated Indenture
Dated as of _____________, 1996
================================================================================
<PAGE> 2
CROSS REFERENCE SHEET*
-----------------
Reconciliation and tie between certain provisions of the Trust
Indenture Act of 1939 and the Senior Subordinated Indenture, to be dated as of
June 1, 1996, between Marine Drilling Companies, Inc. and Bankers Trust
Company, Trustee:
<TABLE>
<CAPTION>
Section of the Act Section of Indenture
- ------------------ --------------------
<S> <C>
310(a)(1), (2) and (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
310(a)(3) and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8 and 6.10(a), (b) and (d)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(a) and (c)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(b) and (c)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 and 4.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2(a) and (b)(i) and (ii)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(a)(i), (ii), (iii), (iv),
(v), (vi) and (vii)
313(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(d)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
314(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a), (c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.9
</TABLE>
__________________________________
*This Cross Reference Sheet is not part of the Indenture.
<PAGE> 3
<TABLE>
<S> <C>
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not required
316(a) (last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5(a)
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7
</TABLE>
__________
-2-
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE
DEFINITIONS
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Securityholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer" or "Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
original issue date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
original issue discount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
principal amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
record date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
-i-
<PAGE> 5
<TABLE>
<S> <C>
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Senior Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
vice president . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE TWO
SECURITIES
Section 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.2 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.3 Amount Unlimited, Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.4 Authentication and Delivery of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.5 Execution of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.6 Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.7 Denomination and Date of Securities; Payments of Interest . . . . . . . . . . . . . . . . . . . . . 16
Section 2.8 Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . 19
Section 2.10 Cancellation of Securities; Disposition Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.11 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE THREE
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.2 Offices for Notices and Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.3 No Interest Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.4 Appointments to Fill Vacancies in Trustee's Office . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.5 Provision as to Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.6 Limitation on Issuance of Certain Other Subordinated Indebtedness . . . . . . . . . . . . . . . . . 23
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ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders . . . . . . . . . 23
Section 4.2 Preservation and Disclosure of Securityholders Lists . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 4.3 Reports by the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 4.4 Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 5.2 Payment of Securities on Default; Suit Therefor . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.3 Application of Moneys Collected by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.4 Proceedings by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 5.5 Proceedings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 5.6 Remedies Cumulative and Continuing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 5.7 Direction of Proceedings; Waiver of Defaults by Majority of Securityholders . . . . . . . . . . . . 31
Section 5.8 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 5.9 Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE SIX
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default . . . . . . . . . . . . 32
Section 6.2 Certain Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of
Proceeds Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 6.4 Trustee and Agents May Hold Securities; Collections, etc. . . . . . . . . . . . . . . . . . . . . . 35
Section 6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 6.6 Compensation and Indemnification of Trustee and Its Prior Claim . . . . . . . . . . . . . . . . . . 35
Section 6.7 Right of Trustee to Rely on Officers' Certificate, etc. . . . . . . . . . . . . . . . . . . . . . . 36
Section 6.8 Qualification of Trustee; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 6.9 Persons Eligible for Appointment as Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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Section 6.10 Resignation and Removal; Appointment of Successor Trustee . . . . . . . . . . . . . . . . . . . . . 37
Section 6.11 Acceptance of Appointment by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee . . . . . . . . . . . . . . . 39
Section 6.13 Preferential Collection of Claims Against the Issuer . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 6.14 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 7.2 Proof of Execution of Instruments and of Holding of Securities . . . . . . . . . . . . . . . . . . . 41
Section 7.3 Holders to be Treated as Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 7.5 Right of Revocation of Action Taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 7.6 Record Date for Consents and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . 43
Section 8.2 Supplemental Indentures with Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . . 45
Section 8.3 Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 8.4 Documents to Be Given to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 8.5 Notation on Securities in Respect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 47
Section 8.6 Subordination Unimpaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE
OR OTHER DISPOSITION
Section 9.1 Issuer May Consolidate, etc., on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 9.2 Successor Person to be Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 9.3 Opinion of Counsel to be Given Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 10.2 Defeasance of Certain Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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Section 10.3 Application by Trustee of Funds Deposited for Payment of Securities . . . . . . . . . . . . . . . . 53
Section 10.4 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 10.5 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years . . . . . . . . . . . . . 53
Section 10.6 Indemnity for U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 11.2 Notice of Redemption; Partial Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 11.3 Payment of Securities Called for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 11.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption . . . . . . . . . . . 56
Section 11.5 Mandatory and Optional Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE TWELVE
SUBORDINATION
Section 12.1 Securities Subordinated to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 12.2 Reliance on Certificate of Liquidating Agent; Further Evidence as to Ownership of
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 12.3 Payment Permitted If No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 12.4 Disputes with Holders of Certain Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 12.5 Trustee Not Charged with Knowledge of Prohibition . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 12.6 Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 12.7 Rights of Trustee as Holder of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 12.8 Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 12.9 Subordination Rights Not Impaired by Acts or Omissions of the Issuer or Holders of
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 12.10 Trustee Not Fiduciary for Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
Section 13.1 Partners, Incorporators, Stockholders, Officers and Directors of Issuer Exempt from
Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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Section 13.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities . . . . . . . . . 65
Section 13.3 Successors and Assigns of Issuer Bound by Indenture . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 13.4 Notices and Demands on Issuer, Trustee and Holders of Securities . . . . . . . . . . . . . . . . . . 65
Section 13.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein . . . . . . . . . 66
Section 13.6 Payments Due on Saturdays, Sundays and Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 13.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939 . . . . . . . . . . . . . . 67
Section 13.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 13.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 13.10 Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
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THIS SENIOR SUBORDINATED INDENTURE, dated as of ________________, 1996
between MARINE DRILLING COMPANIES, INC., a Texas corporation (the "Issuer"),
and BANKERS TRUST COMPANY, a New York banking corporation, as trustee (the
"Trustee"),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issuance from time to time
of its unsecured senior subordinated debentures, notes or other evidences of
indebtedness to be issued in one or more series (the "Securities") up to such
principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been undertaken and completed;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the Holders (as hereinafter defined) thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 For all purposes of this Indenture and of any
indenture supplemental hereto the following terms shall have the respective
meanings specified in this Section 1.1 (except as otherwise expressly provided
or unless the context otherwise clearly requires). All other terms used in
this Indenture that are defined in the Trust Indenture Act of 1939, including
terms defined therein by reference to the Securities Act of 1933, as amended,
shall have the meanings assigned to such terms in such Trust Indenture Act and
in such Securities Act as in force at the date of this Indenture (except as
herein otherwise expressly provided or unless the context otherwise clearly
requires).
All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation.
<PAGE> 11
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. The expressions "date of this
Indenture", "date hereof", "date as of which this Indenture is dated" and "date
of execution and delivery of this Indenture" and other expressions of similar
import refer to _____________, 199____, the effective date of the original
execution and delivery of this Indenture.
The terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" shall have the meaning set forth in Section
6.14.
"BANKRUPTCY CODE" means the United States Bankruptcy Code, 11 United
States Code Sections 101 et seq., or any successor statute thereto.
"BOARD OF DIRECTORS" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"BOARD RESOLUTION" means one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day, other than
a Saturday or Sunday, that (a) in the Place of Payment (or in any of the Places
of Payment, if more than one) in which amounts are payable, as specified in the
form of such Security, and (b) in the city in which the Corporate Trust Office
is located, is not a day on which banking institutions are authorized or
required by law or regulation to close.
"CAPITALIZED LEASE OBLIGATION" of any Person means the obligation to
pay rent or other payment amounts under a lease of (or other indebtedness
arrangements conveying the right to use) real or personal property of such
Person which is required to be classified and accounted for as a capital lease
or a liability on the face of a balance sheet of such Person in accordance with
generally accepted accounting principles.
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"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act of 1939, then the body performing such duties on
such date.
"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 of the execution of this Indenture, is
located at Four Albany Street, New York, New York 10006, Attention: Corporate
Trust and Agency Group or at any other time at such other address as the
Trustee may designate from time to time by notice to the holders of the
Outstanding Securities and the Issuer.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and, if at any time there is
more than one such Person, "Depositary" as used with respect to the Securities
of any such series shall mean the Depositary with respect to the Global
Securities of such series.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 5.1.
"GLOBAL SECURITY" means a Security evidencing all or a part of a
series of Securities issued to the Depositary for such series in accordance
with Section 2.3 and bearing the legend prescribed in Section 2.4.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other similar
terms mean, in the case of any Security, the Person in whose name such Security
is registered in the security register kept by the Issuer for that purpose in
accordance with the terms hereof.
"INDEBTEDNESS" means, with respect to any Person,
(a) (i) the principal of and premium, if any, and interest, if
any, on indebtedness for money borrowed of such Person, indebtedness of such
Person evidenced by bonds, notes, debentures or similar obligations, and any
guaranty by such Person of any indebtedness for money borrowed or indebtedness
evidenced by bonds, notes, debentures or similar obligations of any other
Person, whether any such indebtedness or guaranty is outstanding on the date of
this Indenture or is thereafter created, assumed or incurred, (ii) the
principal of and premium, if any, and interest, if any, on indebtedness for
money borrowed, incurred, assumed or guaranteed by such Person in connection
with the acquisition by it or any of its subsidiaries of any other businesses,
properties or other assets and (iii) Capitalized Lease Obligations of such
Person;
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(b) any indebtedness representing the balance deferred and unpaid
of the purchase price of any property or interest therein (other than trade
payables) that is outstanding on the date of this Indenture or is thereafter
created, assumed or incurred by such Person;
(c) obligations of such Person under interest rate, commodity or
currency swaps, caps, collars, options and similar arrangements;
(d) obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction; and
(e) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as Indebtedness in
clauses (a) through (d) above.
"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented or both, including, for all purposes of this instrument and any
such supplement, the provisions of the Trust Indenture Act of 1939 that are
deemed to be a part of and govern this instrument and any such supplement,
respectively, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
The term "INTEREST" means, when used with respect to non-interest
bearing Securities (including, without limitation, any Original Issue Discount
Security that by its terms bears interest only after maturity or upon default
in any other payment due on such Security), interest payable after maturity
(whether at stated maturity, upon acceleration or redemption or otherwise) or
after the date, if any, on which the Issuer becomes obligated to acquire a
Security, whether upon conversion, by purchase or otherwise.
"ISSUER" OR "COMPANY" means (except as otherwise provided in Section
6.8) Marine Drilling Companies, Inc., a Texas corporation, and, subject to
Article Nine, its successors and assigns.
"ISSUER ORDER" means a written statement, request or order of the
Issuer which is signed in its name by the chairman of the Board of Directors,
the president or any vice president of the Issuer.
"OFFICERS' CERTIFICATE", when used with respect to the Issuer, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the statements provided for
in Section 13.5 if and to the extent required by the provisions of such Section
13.5. One of the officers signing an Officers' Certificate given pursuant to
Section 4.3 shall be the principal executive, financial or accounting officer
of the Issuer.
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"OPINION OF COUNSEL" means an opinion in writing signed by the chief
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be satisfactory to the Trustee. Each
such opinion shall include the statements provided for in Section 13.5, if and
to the extent required by the provisions of such Section 13.5.
The term "ORIGINAL ISSUE DATE" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
The term "ORIGINAL ISSUE DISCOUNT" of any debt security, including any
Original Issue Discount Security, means the difference between the principal
amount of such debt security and the initial issue price of such debt security
(as set forth in the case of an Original Issue Discount Security on the face of
such Security).
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"OUTSTANDING" when used with reference to Securities, shall, subject
to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except:
(a) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities (other than Securities of any series as to which
the provisions of Article Ten hereof shall not be applicable), or portions
thereof, for the payment or redemption of which moneys or U.S. Government
Obligations (as provided for in Section 10.1 or 10.2) in the necessary amount
shall have been deposited in trust with the Trustee or with any paying agent
(other than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer for the Holders of such Securities (if the Issuer shall act
as its own paying agent), provided that, if such Securities, or portions
thereof, are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as herein provided, or provision satisfactory
to the Trustee shall have been made for giving such notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.9 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is held by a
Person in whose hands such Security is a legal, valid and binding obligation of
the Issuer).
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In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding for such purposes shall be the portion of the
principal amount thereof that would be due and payable as of the date of such
determination (as certified by the Issuer to the Trustee) upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.1.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political
subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of any
series, means the place or places where the principal of and interest, if any,
on the Securities of such series are payable as determined in accordance with
Section 2.3.
The term "PRINCIPAL" of a debt security, including any Security, means
the amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect
to such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, upon any redemption at the
option of the Issuer, upon any purchase or exchange at the option of the Issuer
or the Holder of such debt security and upon any acceleration of the maturity
of such debt security).
The term "PRINCIPAL AMOUNT" of a debt security, including any
Security, means the principal amount as set forth on the face of such debt
security.
The term "RECORD DATE" shall have the meaning set forth in Section
2.7.
"RESPONSIBLE OFFICER", means, with respect to the Trustee, any officer
within the Corporate Trust Office including any Vice President, Managing
Director, Assistant Vice President, Secretary, Assistant Secretary or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
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"SECURITY" or "SECURITIES" has the meaning stated in the first recital
of this Indenture or, as the case may be, Securities that have been
authenticated and delivered pursuant to this Indenture.
"SENIOR INDEBTEDNESS" means the principal of and any premium and
interest on, and any other payment due pursuant to, any of the following,
whether outstanding on the date of execution of this Indenture or thereafter
incurred, created or assumed:
(i) all obligations of the Company for money borrowed;
(ii) all obligations of the Company evidenced by notes,
debentures, bonds or other securities, including, without limitation,
any obligations incurred, created or assumed in connection with the
acquisition of property, assets or businesses;
(iii) all obligations of the Company or a subsidiary of the
Company pursuant to the Loan Agreement, dated as of December 1, 1994,
among the Company, Keyes Holding Corporation, and CIT Group/Equipment
Financing, Inc. and the related guaranty, in each case as amended and
as amended from time to time;
(iv) all Capitalized Lease Obligations of the Company;
(v) all reimbursement obligations of the Company with
respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of the Company;
(vi) all obligations of the Company issued or assumed as
the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary
course of business);
(vii) all payment obligations of the Company under any
interest rate, currency or commodity swap agreement, option agreement,
hedge agreement, forward contract, or similar agreement designed to
protect the Company or another Person against fluctuations in interest
rates, exchange rates or commodity prices;
(viii) all obligations of the type referred to in clauses
(i) through (vii) above of another Person and all dividends of another
Person, the payment of which, in either case, the Company has assumed
or guaranteed, or for which the Company is responsible or liable,
directly or indirectly, jointly or severally, as obligor, guarantor or
otherwise; and
(ix) all amendments, modifications, renewals, extensions,
refinancings, replacements and refundings by the Company of any such
indebtedness or obligations referred to in clauses (i) through (viii)
above (and of any such amended, modified, renewed, extended,
refinanced, replaced or refunded indebtedness or obligations);
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provided, however, that the following shall not constitute Senior
Indebtedness: (a) any indebtedness, renewal, extension, refinancing,
replacement, refunding, assumption, guarantee or other obligation
which expressly provides, or in the instrument creating or evidencing
the same or the assumption or guarantee of the same it is expressly
provided, that such indebtedness, renewal, extension, refinancing,
replacement, refunding, assumption, guarantee or other obligation is
junior in right of payment to or is pari passu with the Securities or
is subordinate in right of payment to all other indebtedness of the
Company not expressly subordinate to such indebtedness or obligation,
and (b) any indebtedness or obligation of the Company in respect of
the Securities. Senior Indebtedness shall continue to be Senior
Indebtedness and entitled to the benefits of the subordination
provisions irrespective of any amendment, modification or waiver of
any term of such Senior Indebtedness.
"SENIOR SUBORDINATED INDEBTEDNESS" means the Securities and any other
Indebtedness of the Issuer that ranks pari passu with the Securities. Any
Indebtedness of the Issuer that is subordinate or junior by its terms in right
of payment to any other Indebtedness of the Issuer shall be subordinate to
Senior Subordinated Indebtedness unless the instrument creating or evidencing
the same or pursuant to which the same is outstanding specifically provides
that such Indebtedness (i) is to rank pari passu with other Senior
Subordinated Indebtedness and (ii) is not subordinated by its terms to any
Indebtedness of the Issuer which is not Senior Indebtedness.
"SUBORDINATED INDEBTEDNESS" means the Securities, any other Senior
Subordinated Indebtedness and any other Indebtedness that is subordinate or
junior in right of payment to Senior Indebtedness.
"SUBSIDIARY" means any corporation of which the Issuer, or the Issuer
and one or more Subsidiaries, or any one or more Subsidiaries, directly or
indirectly own voting securities entitling any one or more of the Issuer and
its Subsidiaries to elect a majority of the directors, either at all times or,
so long as there is no default or contingency which permits the holders of any
other class or classes of securities to vote for the election of one or more
directors.
"TRUST INDENTURE ACT OF 1939" OR "TRUST INDENTURE ACT" (except as
otherwise provided in Sections 8.1 and 8.2) means the Trust Indenture Act of
1939, as amended, as in force at the date as of which this Indenture is
originally executed; provided, however, that in the event the Trust Indenture
Act of 1939, as amended, is amended after such date, "Trust Indenture Act of
1939" or "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"TRUSTEE" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and, if at any time there is more than
one such
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Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"U.S. GOVERNMENT OBLIGATIONS" shall have the meaning set forth in
Section 10.1(B).
The term "VICE PRESIDENT," when used with respect to the Issuer or the
Trustee, means any vice president, regardless of whether designated by a number
or a word or words added before or after the title "vice president."
"YIELD TO MATURITY" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with generally accepted financial practice or as
otherwise provided in the terms of such series of Securities.
ARTICLE TWO
SECURITIES
SECTION 2.1 FORMS GENERALLY. The Securities of each series shall
be substantially in such form (not inconsistent with this Indenture) as shall
be established by or pursuant to one or more Board Resolutions (as set forth in
a Board Resolution or, to the extent established pursuant to rather than set
forth in a Board Resolution, an Officers' Certificate detailing such
establishment) 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 imprinted or
otherwise reproduced thereon such legend or legends or endorsements, not
inconsistent with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant thereto, or with
any rules of any securities exchange or to conform to general usage, all as may
be determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
The definitive Securities shall be printed, lithographed, typewritten
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 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Securities shall be
substantially as follows:
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This is one of the Securities of the series designated herein referred
to in the within mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By
--------------------------------------
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Securities of such series shall
bear, in addition to the Trustee's certificate of authentication, an alternate
Certificate of Authentication which shall be substantially as follows:
This is one of the Securities of the series designated herein referred
to in the within mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By
-------------------------------------
as Authenticating Agent
By
-------------------------------------
Authorized Signatory
SECTION 2.3 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 and the Securities
of each such series shall rank equally and pari passu with the Securities of
each other series, but all Securities issued hereunder shall be subordinate and
junior in right of payment, to the extent and in the manner set forth in
Article Twelve, to all Senior Indebtedness. There shall be established in or
pursuant to one or more Board Resolutions (and, to the extent established
pursuant to, rather than set forth in, a Board Resolution, in an Officers'
Certificate detailing such establishment) or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series:
(1) the designation of the Securities of the series,
which shall distinguish the Securities of such series from the
Securities of all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities
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authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant
to Section 2.8, 2.9, 2.11, 8.5 or 11.3);
(3) the date or dates on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from which any
such interest shall accrue, on which any such interest shall be
payable and on which a record shall be taken for the determination of
Holders to whom any such interest is payable or the method by which
such rate or rates or date or dates shall be determined or both;
(5) the place or places where and the manner in which the
principal of and interest, if any, on Securities of the series shall
be payable (if other than as provided in Section 3.2) and the office
or agency for the Securities of the series maintained by the Issuer
pursuant to Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase
or repay Securities of the series, in whole or in part, at its option
and the period or periods within which, the price or prices (or the
method by which such price or prices shall be determined or both) at
which, the form or method of payment therefor if other than in cash
and any terms and conditions upon which and the manner in which (if
different from the provisions of Article Eleven) Securities of the
series may be so redeemed, purchased or repaid, in whole or in part,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series in whole or in part
pursuant to any mandatory redemption, sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which the price or prices (or the method by which such
price or prices shall be determined or both) at which, the form or
method of payment therefor if other than in cash and any terms and
conditions upon which and the manner in which (if different from the
provisions of Article Eleven) Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) the terms and conditions, if any, upon which such
Securities may be convertible into or exchangeable for Common Stock of
the Issuer or other securities of any kind, including the initial
conversion or exchange price or rate, the conversion or exchange
period, the circumstances under which any such conversion or exchange
right may expire, and any other conversion related provision;
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(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of
the series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon acceleration of the maturity thereof;
(11) whether Securities of the series will be issuable as
Global Securities;
(12) if the Securities of such series are to be issuable
in definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(13) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Securities of such series;
(14) any deleted, modified or additional events of default
or remedies or any additional covenants with respect to the Securities
of such series and any additions to the definitions currently set
forth in this Indenture;
(15) whether the provisions of Section 10.1(C) or 10.2
will be applicable to Securities of such series;
(16) any provision relating to the issuance of Securities
of such series at an original issue discount (including, without
limitation, the issue price thereof, the rate or rates at which such
original issue discount shall accrue, if any, and the date or dates
from or to which or period or periods during which such original issue
discount shall accrue at such rate or rates);
(17) if the amounts of payments of principal of and
interest on the Securities of such series are to be determined with
reference to an index, the manner in which such amounts shall be
determined; and
(18) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officers' Certificate referred to above or
as set forth in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution, such Officers' Certificate or in any such
indenture supplemental hereto.
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Any such Board Resolution or Officers' Certificate referred to above
with respect to Securities of any series filed with the Trustee on or before
the initial issuance of the Securities of such series shall be incorporated
herein by reference with respect to Securities of such series and shall
thereafter be deemed to be a part of the Indenture for all purposes relating to
Securities of such series as fully as if such Board Resolution or Officers'
Certificate were set forth herein in full.
SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES. The
Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication together with the applicable documents referred to
below in this Section 2.4, and the Trustee shall thereupon authenticate and
deliver such Securities to, or upon the order of, the Issuer (contained in the
Issuer Order referred to below in this Section 2.4) or pursuant to such
procedures acceptable to the Trustee and to such recipients as may be specified
from time to time by an Issuer Order. The maturity date, original issue date,
interest rate, if any, and any other terms of the Securities of such series
shall be determined by or pursuant to such Issuer Order and procedures. In
authenticating the Securities of such series and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and
(4) below only at or before the time of the first request of the Issuer to the
Trustee to authenticate Securities of such series) and (subject to Section 6.1)
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(1) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities of such series
are not to be delivered to the Issuer, provided that, with respect to
Securities of a series subject to a Periodic Offering, (a) such Issuer
Order may be delivered by the Issuer to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver Securities of
such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount
established for such series, pursuant to an Issuer Order or pursuant
to procedures acceptable to the Trustee as may be specified from time
to time by an Issuer Order, (c) if provided for in such procedures,
such Issuer Order may authorize authentication and delivery pursuant
to electronic instructions from the Issuer or its duly authorized
agent or agents, and (d) after the original issuance of the first
Security of such series to be issued, any separate request by the
Issuer that the Trustee authenticate Securities of such series for
original issuance will be deemed to be a certification by the Issuer
that it is in compliance with all conditions precedent provided for in
this Indenture relating to the authentication and delivery of such
Securities;
(2) the Board Resolution, Officers' Certificate or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by
or pursuant to which the forms and terms of the Securities of such
series were established;
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(3) an Officers' Certificate setting forth the form or
forms and terms of the Securities stating that the form or forms and
terms of the Securities have been established pursuant to Sections 2.1
and 2.3 and comply with this Indenture; and
(4) at the option of the Issuer, either an Opinion of
Counsel, or a letter from legal counsel addressed to the Trustee
permitting it to rely on an Opinion of Counsel, substantially to the
effect that:
(a) the form or forms of the Securities of such
series have been duly authorized and established in conformity
with the provisions of this Indenture; and
(b) when the Securities of such series have been
executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered
to and duly paid for by the purchasers thereof, they will have
been duly issued under this Indenture and will be valid and
legally binding obligations of the Issuer, enforceable in
accordance with their respective terms, and will be entitled
to the benefits of this Indenture.
In rendering such opinions, such counsel may qualify any opinions as
to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the State of Texas
and the federal law of the United States, upon opinions of other counsel
(copies of which shall be delivered to the Trustee), who shall be counsel
reasonably satisfactory to the Trustee, in which case the opinion shall state
that such counsel believes that both such counsel and the Trustee are entitled
so to rely. Such counsel may also state that, insofar as such opinion involves
factual matters, such counsel has relied, to the extent such counsel deems
proper, upon certificates of officers of the Issuer and its Subsidiaries and
certificates of public officials.
The Trustee shall have the right to decline to authenticate and
deliver any Securities of any series under this Section 2.4 if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken
by the Issuer or if the Trustee in good faith by its board of directors or
board of trustees, executive committee or a trust committee of directors or
trustees or Responsible Officers shall determine that such action would expose
the Trustee to personal liability to existing Holders or would adversely affect
the Trustee's own rights, duties or immunities under the Securities, this
Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section 2.4 and the Issuer Order with respect to such series,
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<PAGE> 24
authenticate and deliver one or more Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount
of all of the Securities of such series to be issued in the form of Global
Securities and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions, and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security
may not be transferred except as a whole by the Depositary to the nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary" or such other
legend as the Depositary may require.
Each Depositary designated pursuant to Section 2.3 must, at the time
of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation.
SECTION 2.5 EXECUTION OF SECURITIES. The Securities shall be
signed on behalf of the Issuer by the chairman of the Board of Directors, the
president, any vice president or the treasurer of the Issuer, under its
corporate seal which may, but need not, be attested by its secretary or one of
its assistant secretaries. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Issuer
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall
be authenticated and delivered by the Trustee or disposed of by the Issuer,
such Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 CERTIFICATE OF AUTHENTICATION. Only such Securities
as shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee or its Authenticating Agent upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture. Each
reference
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in this Indenture to authentication by the Trustee includes authentication by
an agent appointed pursuant to Section 6.14.
SECTION 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF
INTEREST. The Securities of each series shall be issuable in registered form
in denominations established as contemplated by Section 2.3 or, with respect to
the Securities of any series, if not so established, in denominations of $1,000
and any integral multiple thereof. The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in accordance
with such method as the officers of the Issuer executing the same may determine
with the approval of the Trustee, as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest, if any, shall be payable on the dates, established as contemplated by
Section 2.3.
The Person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the
extent the Issuer shall default in the payment of the interest due on such
interest payment date for such series, in which case such defaulted interest
shall be paid to the Persons in whose names Outstanding Securities for such
series are registered (a) at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment
of such defaulted interest) established by notice given by mail by or on behalf
of the Issuer to the Holders of Securities not less than 15 days preceding such
subsequent record date or (b) as determined by such other procedure as is
mutually acceptable to the Issuer and the Trustee. The term "record date" as
used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the fifteenth day
of the next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month,
whether or not such record date is a Business Day.
SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE. The Issuer will
keep at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide for
the registration of Securities of each series and the registration of transfer
of Securities of such series. Each such register shall be in written form in
the English language or in any other form capable of being converted into such
form within a reasonable time. At all reasonable times such register or
registers shall be open for inspection and available for copying by the
Trustee.
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Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series, maturity date, interest rate, if
any, and original issue date in authorized denominations for a like aggregate
principal amount.
All Securities presented for registration of transfer shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing.
At the option of the Holder thereof, Securities of any series (other
than a Global Security, except as set forth below) may be exchanged for a
Security or Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Securities to be
exchanged at the agency of the Issuer that shall be maintained for such purpose
in accordance with Section 3.2. All Securities surrendered upon any exchange
or registration of transfer provided for in this Indenture shall be promptly
cancelled and returned to the Issuer.
The Issuer 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 of Securities. No service charge shall be made for
any such transaction or for any exchange of Securities of any series as
contemplated by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing or publication of notice of redemption of Securities of such
series to be redeemed, (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed or (c) any Security
if the Holder thereof has exercised his right, if any, to require the Issuer to
repurchase such Security in whole or in part, except the portion of such
Security not required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a part of the Securities
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
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Section 2.4, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such ineligibility, the Issuer's election pursuant to Section
2.3 that such Securities be represented by one or more Global Securities shall
no longer be effective and the Issuer shall execute, and the Trustee, upon
receipt of an Issuer Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive registered form, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities in exchange for such Global Security
or Securities.
The Issuer may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Securities.
In such event the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, shall authenticate and deliver, Securities of such series in
definitive registered form, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities, in exchange for such Global Security
or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as
are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
(i) to the Person specified by such Depositary, a new
Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Global Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Securities authenticated and delivered pursuant to clause
(i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Issuer or the Trustee. Securities
in definitive registered form issued in exchange for a Global Security pursuant
to this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing or an agent of the Trustee
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or the Issuer or an agent of the Issuer. The Trustee or such agent shall
deliver at its office such Securities to or as directed by the Persons in whose
names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid and legally binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN
SECURITIES. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver a new Security of the same
series, maturity date, interest rate, if any, and original issue date, bearing
a number or other distinguishing symbol not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen. In every
case the applicant for a substitute Security shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by the Trustee or the Issuer to indemnify and
defend and to save each of the Trustee and the Issuer harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof and in
the case of mutilation or defacement, shall surrender the Security to the
Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer 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 or its agent) connected therewith. In case
any Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to hold each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to the Trustee's satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, 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
(but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities of such
series duly authenticated and delivered hereunder. All Securities shall be
held and
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owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, defaced, destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without their
surrender.
SECTION 2.10 CANCELLATION OF SECURITIES; DISPOSITION THEREOF. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or
analogous fund, if surrendered to the Issuer or any agent of the Issuer or the
Trustee or any agent of the Trustee, shall be delivered to the Trustee or its
agent for cancellation or, if surrendered to the Trustee, shall be cancelled by
it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee or its agent
shall return cancelled Securities to the Issuer. If the Issuer or its agent
shall acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee or its agent for
cancellation.
SECTION 2.11 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee,
upon receipt of written instructions from the Issuer, shall authenticate and
deliver temporary Securities for such series (printed, lithographed,
typewritten or otherwise reproduced, in each case in form satisfactory to the
Trustee). Temporary Securities of any series shall be issuable in any
authorized denomination, and substantially in the form of the definitive
Securities of such series but with such omissions, insertions and variations as
may be appropriate for temporary Securities, all as may be determined by the
Issuer with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such references to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2 and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series having
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless otherwise established pursuant to
Section 2.3.
SECTION 2.12 CUSIP NUMBERS. The Issuer in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or
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as contained in any notice of a redemption and that reliance may be placed only
on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of and interest, if any, on each of the Securities at the place,
at the respective times and in the manner provided in the Securities.
SECTION 3.2 OFFICES FOR NOTICES AND PAYMENTS, ETC. So long as
any of the Securities are Outstanding, the Issuer will maintain in each Place
of Payment, an office or agency where the Securities may be presented for
payment, an office or agency where the Securities may be presented for
registration of transfer and for exchange as in this Indenture provided, and an
office or agency where notices and demands to or upon the Issuer in respect of
the Securities or of this Indenture may be served. In case the Issuer shall at
any time fail to maintain any such office or agency, or shall fail to give
notice to the Trustee of any change in the location thereof, presentation may
be made and notice and demand may be served in respect of the Securities or of
this Indenture at the Corporate Trust Office. The Issuer hereby initially
designates the Corporate Trust Office for each such purpose and appoints the
Trustee as registrar and paying agent and as the agent upon whom notices and
demands may be served with respect to the Securities.
SECTION 3.3 NO INTEREST EXTENSION. In order to prevent any
accumulation of claims for interest after maturity thereof, the Issuer will not
directly or indirectly extend or consent to the extension of the time for the
payment of any claim for interest on any of the Securities and will not
directly or indirectly be a party to or approve any such arrangement by the
purchase or funding of said claims or in any other manner; provided, however,
that this Section 3.3 shall not apply in any case where an extension shall be
made pursuant to a plan proposed by the Issuer to the Holders of all Securities
of any series then Outstanding.
SECTION 3.4 APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE.
The Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
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SECTION 3.5 PROVISION AS TO PAYING AGENT.
(a) If the Issuer shall appoint a paying agent other than the
Trustee, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 3.5,
(1) that it will hold all sums held by it as such agent
for the payment of the principal of or interest, if any, on the
Securities (whether such sums have been paid to it by the Issuer or by
any other obligor on the Securities) in trust for the benefit of the
Holders of the Securities and the Trustee; and
(2) that it will give the Trustee notice of any failure
by the Issuer (or by any other obligor on the Securities) to make any
payment of the principal of or interest, if any, on the Securities
when the same shall be due and payable; and
(3) that it will, at any time during the continuance of
any such failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on
or before each due date of the principal of or interest, if any, on the
Securities, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities a sum sufficient to pay such principal or interest,
if any, so becoming due and will notify the Trustee of any failure to take such
action and of any failure by the Issuer (or by any other obligor under the
Securities) to make any payment of the principal of or interest, if any, on the
Securities when the same shall become due and payable.
(c) Anything in this Section 3.5 to the contrary notwithstanding,
the Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.5 to the contrary notwithstanding,
any agreement of the Trustee or any paying agent to hold sums in trust as
provided in this Section 3.5 is subject to Sections 10.4 and 10.5.
(e) Whenever the Issuer shall have one or more paying agents, it
will, on or before each due date of the principal of or interest, if any, on
any Securities, deposit with a paying agent a sum sufficient to pay the
principal or interest, if any, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal or interest, if any,
and (unless such paying agent is the Trustee) the Issuer will promptly notify
the Trustee of its action or failure so to act.
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SECTION 3.6 LIMITATION ON ISSUANCE OF CERTAIN OTHER SUBORDINATED
INDEBTEDNESS. The Issuer shall not issue, guarantee, assume or incur, directly
or indirectly, any Indebtedness which by its terms is both (a) subordinate or
junior in right of payment to Senior Indebtedness and (b) senior in right of
payment to the Securities.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND
ADDRESSES OF SECURITYHOLDERS. The Issuer and any other obligor on the
Securities covenant and agree that they will furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each March 1 and
September 1, and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request,
provided, that if and so long as the Trustee shall be the registrar for such
series, such list shall not be required to be furnished.
SECTION 4.2 PRESERVATION AND DISCLOSURE OF SECURITYHOLDERS LISTS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
Holders of each series of Securities (i) contained in the most recent list
furnished to it as provided in Section 4.1, and (ii) received by it in the
capacity of registrar or paying agent for such series, if so acting. The
Trustee may destroy any list furnished to it as provided in Section 4.1 upon
receipt of a new list so furnished.
(b) As provided in Section 312(b) of the Trust Indenture Act,
Holders may communicate with other Holders with respect to their rights under
this Indenture or under the Securities of any series.
(c) Each and every Holder of Securities, by receiving and holding
the same, agrees with the Issuer and the Trustee that neither the Issuer nor
the Trustee nor any agent of the Issuer or the Trustee shall be held
accountable by reason of the disclosure of any information as to the names and
addresses of the Holders of Securities in accordance with the provisions of
Section 312(b) of the Trust Indenture Act, regardless of the source from which
such information was derived, and that the
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Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under such Section.
SECTION 4.3 REPORTS BY THE ISSUER. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Issuer is not required to file information,
documents or reports pursuant to either of such Sections, then to file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, in respect of a debt
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Issuer with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30
days after the filing thereof with the Trustee, in the manner and to the extent
provided in Section 4.4(c), such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to subsections (a) and (b)
of this Section 4.3 as may be required to be transmitted to such Holders by
rules and regulations prescribed from time to time by the Commission; and
(d) furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his knowledge of the Issuer's compliance
with all conditions and covenants under this Indenture. For purposes of this
subsection (d), such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
SECTION 4.4 REPORTS BY THE TRUSTEE.
(a) On or before May 15 of each year, beginning May 15, 1997, the
Trustee shall, if required by law, mail to each Holder of a Security a brief
report dated as of such date that complies with Section 313(a) of the Trust
Indenture Act. The Trustee also shall comply with Sections 313(b) and 313(c)
of the Trust Indenture Act.
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(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and be filed by the
Trustee with each stock exchange upon which the Securities of any applicable
series are listed and also with the Commission. The Issuer agrees to promptly
notify the Trustee with respect to any series when and as the Securities of
such series become admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 EVENTS OF DEFAULT. "Event of Default", wherever used
herein with respect to Securities of any series, means any one or more of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Twelve or otherwise), unless
it is either inapplicable to a particular series or it is specifically deleted
or modified in or pursuant to the Board Resolution or supplemental indenture
establishing such series of Securities or in the form of Security, for such
series:
(a) 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
(b) default in the payment of the principal of or premium, if any,
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise; or
(c) default in the payment or satisfaction of any sinking fund or
other purchase obligation with respect to Securities of such series, as and
when such obligation shall become due and payable as in this Indenture
expressed; or
(d) failure on the part of the Issuer duly to observe or perform
any other of the covenants or agreements on the part of the Issuer in the
Securities of such series or in this Indenture continued for a period of 60
days after the date on which written notice of such failure, requiring the same
to be remedied and stating that such a notice is a "Notice of Default"
hereunder, shall have been given to the Issuer by the Trustee by certified or
registered mail, or to the Issuer and the Trustee by the Holders of at least
25% in aggregate principal amount of the Securities of such series then
Outstanding; or
(e) without the consent of the Issuer a court having jurisdiction
shall enter an order for relief with respect to the Issuer under the Bankruptcy
Code or without the consent of the Issuer a
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court having jurisdiction shall enter a judgment, order or decree adjudging the
Issuer a bankrupt or insolvent, or enter an order for relief for
reorganization, arrangement, adjustment or composition of or in respect of the
Issuer under the Bankruptcy Code or applicable state insolvency law and the
continuance of any such judgment, order or decree is unstayed and in effect for
a period of 90 consecutive days; or
(f) the Issuer shall institute proceedings for entry of an order
for relief with respect to the Issuer under the Bankruptcy Code or for an
adjudication of insolvency, or shall consent to the institution of bankruptcy
or insolvency proceedings against it, or shall file a petition seeking, or seek
or consent to reorganization, arrangement, composition or relief under the
Bankruptcy Code or any applicable state law, or shall consent to the filing of
such petition or to the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator or similar official of the Issuer or of
substantially all of its property, or the Issuer shall make a general
assignment for the benefit of creditors as recognized under the Bankruptcy
Code; or
(g) default under any bond, debenture, note or other evidence of
Indebtedness for money borrowed by the Issuer or under any mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Issuer, whether such
Indebtedness exists on the date hereof or shall hereafter be created, which
default shall have resulted in such Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, or any default in payment of such Indebtedness (after the expiration
of any applicable grace periods and the presentation of any debt instruments,
if required), if the aggregate amount of all such Indebtedness that has been so
accelerated and with respect to which there has been such a default in payment
shall exceed $5,000,000, without each such default and acceleration having been
rescinded or annulled within a period of ten days after there shall have been
given to the Issuer by the Trustee by certified or registered mail, or to the
Issuer and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Securities of such series then Outstanding, a written notice
specifying each such default and requiring the Issuer to cause each such
default and acceleration to be rescinded or annulled and stating that such
notice is a "Notice of Default" hereunder; or
(h) any other Event of Default provided with respect to the
Securities of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then
Outstanding, by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities
of such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such
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declaration the same shall become and shall be immediately due and payable,
notwithstanding anything to the contrary contained in this Indenture or in the
Securities of such series. This provision, however, is subject to the
condition that, if at any time after the unpaid principal amount (or such
specified amount) of the Securities of such series shall have been so declared
due and payable and before any judgment or decree for the payment of the moneys
due shall have been obtained or entered as hereinafter provided, the Issuer
shall pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest, if any, upon all of the Securities of such series and
the principal of any and all Securities of such series which shall have become
due otherwise than by acceleration (with interest on overdue installments of
interest, if any, to the extent that payment of such interest is enforceable
under applicable law and on such principal at the rate borne by the Securities
of such series to the date of such payment or deposit) and the reasonable
compensation, disbursements, expenses (including reasonable attorney fees and
expenses) and advances of the Trustee and all other amounts due to the Trustee
under Section 6.6, and any and all defaults under this Indenture, other than
the nonpayment of such portion of the principal amount of and accrued interest,
if any, on Securities of such series which shall have become due by
acceleration, shall have been cured or shall have been waived in accordance
with Section 5.7 or provision deemed by the Trustee to be adequate shall have
been made therefor, then and in every such case the Holders of a majority in
aggregate principal amount of the Securities of such series then Outstanding,
by written notice to the Issuer and to the Trustee, may rescind and annul such
declaration and its consequences; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon. If any Event of Default with respect to the Issuer
specified in Section 5.1(e) or 5.1(f) occurs, all unpaid principal amount (or,
if the Securities of any series then Outstanding are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of each such series) and accrued interest on all Securities of each
series then Outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act by the Trustee or any
Securityholder.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Issuer, the Trustee and the Securityholders shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Securityholders shall continue as
though no such proceeding had been taken.
Except with respect to an Event of Default pursuant to Section 5.1
(a), (b) or (c), the Trustee shall not be charged with knowledge of any Event
of Default unless written notice thereof shall have been given to a Responsible
Officer by the Issuer, a paying agent or any Securityholder.
SECTION 5.2 PAYMENT OF SECURITIES ON DEFAULT; SUIT THEREFOR. The
Issuer covenants that (a) if default shall be made in the payment of any
installment of interest upon any of the Securities of any series then
Outstanding as and when the same shall become due and payable, and such default
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shall have continued for a period of 30 days, or (b) if default shall be made
in the payment of the principal of any of the Securities of such series as and
when the same shall have become due and payable, whether at maturity of the
Securities of such series or upon redemption or by declaration or otherwise,
then, upon demand of the Trustee, the Issuer will pay to the Trustee, for the
benefit of the Holders of the Securities, the whole amount that then shall have
become due and payable on all such Securities of such series for principal or
interest, if any, or both, as the case may be, with interest upon the overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest, if any, at the rate
borne by the Securities of such series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including a reasonable compensation to the Trustee, its agents, attorneys and
counsel, and all other amounts due to the Trustee under Section 6.6.
If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other obligor,
or in the case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of such series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount of principal and interest, if any, owing and unpaid in respect of the
Securities of such series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Securityholders
allowed in such judicial proceedings relative to the Issuer or any other
obligor on the Securities of such series, its or their creditors, or its or
their property, and to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses, and any receiver, assignee or trustee or
similar official in bankruptcy or reorganization is hereby authorized by each
of the Securityholders to make such payments to the Trustee, and, if the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due it for compensation and
expenses, including counsel fees and expenses incurred by it up to the date of
such distribution and
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all other amounts due to the Trustee under Section 6.6. To the extent that
such payment of reasonable compensation, expenses and counsel fees and expenses
out of the estate in any such proceedings shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of,
any and all distributions, dividends, moneys, securities and other property
which the Holders of the Securities of such series may be entitled to receive
in such proceedings, whether in liquidation or under any plan of reorganization
or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the Holders of
the Securities of the series in respect of which such judgment has been
recovered.
SECTION 5.3 APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any
moneys collected by the Trustee pursuant to Section 5.2 with respect to
Securities of any series then Outstanding shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities of such series, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all other amounts due the Trustee pursuant to Section
6.6;
SECOND: If the principal of the Outstanding Securities of
such series shall not have become due and be unpaid, to the payment of
interest, if any, on the Securities of such series, in the order of
the maturity of the installments of such interest, if any, with
interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest, if any, at the
rate borne by the Securities of such series, such payment to be made
ratably to the Persons entitled thereto;
THIRD: If the principal of the Outstanding Securities of such
series shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the Securities
of such series for principal and interest, if any, with interest on
the overdue principal and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest, if
any, at the rate borne by the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amounts so
due and unpaid upon the Securities of such series, then to the payment
of such principal and interest, if any, without preference or priority
of principal over interest or of interest over principal, or of any
installment of interest over any other installment of interest, or of
any
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Security over any other Security, ratably to the aggregate of such
principal and accrued and unpaid interest; and
FOURTH: To the payment of any surplus then remaining to the
Issuer, its successors or assigns, or to whomsoever may be lawfully
entitled to receive the same.
No claim for interest which in any manner at or after maturity shall
have been transferred or pledged separate or apart from the Securities to which
it relates, or which in any manner shall have been kept alive after maturity by
an extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on behalf or with the
consent or approval of the Issuer shall be entitled, in case of a default
hereunder, to any benefit of this Indenture, except after prior payment in full
of the principal of all Securities of any series then Outstanding and of all
claims for interest not so transferred, pledged, kept alive, extended,
purchased or funded.
SECTION 5.4 PROCEEDINGS BY SECURITYHOLDERS. No Holder of any
Securities of any series then Outstanding shall have any right by virtue of or
by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee or similar official, or for any
other remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of default and of the continuance thereof, as
hereinbefore provided, and unless the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request to the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding, it being
understood and intended, and being expressly covenanted by the Holder of every
Security of such series with every other taker and Holder and the Trustee, that
no one or more Holders of Securities of such series shall have any right in any
manner whatever by virtue of or by availing of any provision of this Indenture
or of the Securities to affect, disturb or prejudice the rights of any other
Holder of such Securities of such series, or to obtain or seek to obtain
priority over or preference as to any other such Holder, or to enforce any
right under this Indenture or the Securities, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Securities of such series.
Notwithstanding any other provisions in this Indenture, but subject to
Article Twelve, the right of any Holder of any Security to receive payment of
the principal of and interest, if any, on such Security, on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates shall not be
impaired or affected without the consent of such Holder.
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SECTION 5.5 PROCEEDINGS BY TRUSTEE. In case of an Event of
Default hereunder, the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either by suit in equity or by action at law or by proceedings
in bankruptcy or otherwise, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid of the exercise of
any power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
SECTION 5.6 REMEDIES CUMULATIVE AND CONTINUING. All powers and
remedies given by this Article Five to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any thereof or of any other powers and remedies available to the Trustee or
the Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be
a waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.4, every power and remedy given by this Article Five or
by law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.7 DIRECTION OF PROCEEDINGS; WAIVER OF DEFAULTS BY
MAJORITY OF SECURITYHOLDERS. The Holders of a majority in aggregate principal
amount of the Securities of any series then Outstanding shall have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to Securities of such series; provided, however, that
(subject to the provisions of Section 6.1) the Trustee shall have the right to
decline to follow any such direction if the Trustee shall determine upon advice
of counsel that the action or proceeding so directed may not lawfully be taken
or if the Trustee in good faith by its board of directors, its executive
committee, or a trust committee of directors or Responsible Officers or both
shall determine that the action or proceeding so directed would involve the
Trustee in personal liability. The Holders of a majority in aggregate
principal amount of the Securities of any series then Outstanding may on behalf
of the Holders of all of the Securities of such series waive any past default
or Event of Default hereunder and its consequences except a default in the
payment of interest, if any, on, or the principal of, the Securities of such
series. Upon any such waiver the Issuer, the Trustee and the Holders of the
Securities of such series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 5.7, said default or Event of Default shall
for all purposes of the Securities and this Indenture be deemed to have been
cured and to be not continuing.
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SECTION 5.8 NOTICE OF DEFAULTS. The Trustee shall, within 90
days after the occurrence of a default of which a Responsible Officer of the
Trustee has actual knowledge, with respect to Securities of any series then
Outstanding, mail to all Holders of Securities of such series, as the names and
the addresses of such Holders appear upon the Securities register, notice of
all defaults actually known to a Responsible Officer of the Trustee with
respect to such series, unless such defaults shall have been cured before the
giving of such notice (the term "defaults" for the purpose of this Section 5.8
being hereby defined to be the events specified in clauses (a), (b), (c), (d),
(e), (f), (g) and (h) of Section 5.1, not including periods of grace, if any,
provided for therein and irrespective of the giving of the written notice
specified in said clause (d) or (g) but in the case of any default of the
character specified in said clause (d) or (g) no such notice to Securityholders
shall be given until at least 60 days after the occurrence of the default;
provided, however, that, except in the case of default in the payment of the
principal of or interest, if any, on any of the Securities, or in the payment
or satisfaction of any sinking fund or other purchase obligation, the Trustee
shall be fully protected in withholding such notice if and so long as the board
of directors, the executive committee, or a trust committee of directors or
Responsible Officers or both of the Trustee in good faith determines that the
withholding of such notice is in the best interests of the Securityholders.
SECTION 5.9 UNDERTAKING TO PAY COSTS. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the cost of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorney's fees and expenses, against
any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of
this Section 5.9 shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder, or group of Securityholders, holding in
the aggregate more than 10% in principal amount of the Securities of any series
then Outstanding, or to any suit instituted by any Securityholders for the
enforcement of the payment of the principal of or interest, if any, on any
Security against the Issuer on or after the due date expressed in such
Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING
DEFAULT; PRIOR TO DEFAULT. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture.
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In case an Event of Default with respect to the Securities of a series has
occurred (which has not been cured or waived) the Trustee shall exercise with
respect to such series of Securities such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such Events
of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely by
the express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they reasonably conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.7 relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that
the repayment of such funds or indemnity satisfactory against such liability is
not assured to it.
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SECTION 6.2 CERTAIN RIGHTS OF THE TRUSTEE. Subject to Section
6.1:
(a) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, Officers' Certificate
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon, security or other paper
or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers' Certificate or
Issuer Order (unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a Board Resolution;
(c) the Trustee may consult with counsel of its selection and any
advice of such counsel promptly confirmed in writing shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture (including, without limitation, pursuant to Section 5.1), unless such
Securityholders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder of
which a Responsible Officer of the Trustee has actual knowledge and after the
curing or waiving of all Events of Default, 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, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided that, the Trustee may require
indemnity satisfactory to it against the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid
by the Issuer or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Issuer upon demand; and
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(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 not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of, or for the supervision of,
any such agent or attorney appointed with due care by it hereunder.
SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture, of the
Securities or of any prospectus used to sell the Securities. The Trustee shall
not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS,
ETC. The Trustee or any agent of the Issuer or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities with the
same rights it would have if it were not the Trustee or such agent and, subject
to Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
SECTION 6.5 MONEYS HELD BY TRUSTEE. Subject to the provisions of
Section 10.5 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS
PRIOR CLAIM. The Issuer covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, such compensation as shall be
agreed to in writing between the Issuer and the Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all agents and other Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee, its officers, directors,
employees, and its agents and each predecessor Trustee for, and to hold it
harmless against, any and all loss, liability, damage, claim or expense,
including taxes (other than taxes based on the income of the Trustee), incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending itself
against or
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investigating any claim or liability in the premises. The obligations of the
Issuer under this Section 6.6 to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture or the resignation or removal of the Trustee and shall not be
subordinate to the payment of Senior Indebtedness pursuant to Article Thirteen.
Such additional indebtedness shall be a senior claim to that of the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Securities,
and the Securities are hereby subordinated to such senior claim. When the
Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.1 or in connection with Article Five hereof, the
expenses (including the reasonable fees and expenses of its counsel) and the
compensation for the service in connection therewith are intended to constitute
expenses of administration under any bankruptcy law.
SECTION 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE,
ETC. Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS. If
the Trustee has or shall acquire any "conflicting interest" within the meaning
of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall
in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the penultimate paragraph of Section
310(b) of the Trust Indenture Act.
SECTION 6.9 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The
Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any state or the District of Columbia having a combined capital
and surplus of at least $50,000,000, and which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
federal, state or District of Columbia authority, or a corporation or other
Person permitted to act as trustee by the Commission. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. No obligor upon the Securities or any
Affiliate of such obligor shall serve as trustee upon the Securities. In case
at
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any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.9, the Trustee shall resign immediately in the
manner and with the effect specified in Section 6.10.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE.
(a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all series of Securities
by giving written notice of resignation to the Issuer. Upon receiving such
notice of resignation, the Issuer shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.9, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 6.8 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at
least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.9 and shall fail to resign after
written request therefor by the Issuer or by any such Securityholder;
or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt
or insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of
Directors one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 5.9, any Securityholder who has been a bona fide Holder of a Security
or Securities of such
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series for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee with respect
to such series. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Securityholders. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
delivery of such evidence of removal, the Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Section 5.9, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section
10.5, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities
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of any applicable series shall execute and deliver an indenture supplemental
hereto which shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Securities of any series as to which
the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such trustees
co-trustees of the same trust and that each such trustee shall be trustee of a
trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall give notice thereof to the Holders of
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. If the Issuer
fails to give such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
given at the expense of the Issuer.
The Trustee shall be paid all amounts owed to it upon its resignation
or removal. The Trustee shall not be liable for the acts or omissions of any
successor Trustee.
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE. 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 of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the
provisions of Section 6.8 and eligible under the provisions of Section 6.9,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of
the Trustee shall have; provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate
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Securities of any series in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated.
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is
made in this Indenture to the authentication and delivery of Securities of any
series by the Trustee or to 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 for such series and a Certificate of
Authentication executed on behalf of the Trustee by such Authenticating Agent.
Such Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States of America or of any state
or the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by federal or state authority.
Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the Trustee and to the
Issuer. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect to
one or more series of Securities, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and the Issuer
shall provide notice of such appointment to all Holders of Securities of such
series in the manner and to the extent provided
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in Section 11.4. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. The Issuer agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation.
The Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders 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. Proof of execution of any instrument
or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Article
Seven.
SECTION 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Subject to Sections 6.1 and 6.2, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in the following
manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to him
the execution thereof, by an affidavit of a witness to such execution sworn to
before any such notary or other such officer, or in any other manner acceptable
to the Trustee. Where such execution is by or on behalf of any legal entity
other than an individual, such certificate or affidavit shall also constitute
sufficient proof of the authority of the person executing the same.
(b) The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar.
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SECTION 7.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this Indenture, interest, if
any, on such Security and for all other purposes; and neither the Issuer nor
the Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
SECTION 7.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING.
In determining whether the Holders of the requisite aggregate principal amount
of Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Issuer or any other obligor on the Securities with respect to which such
determination is being made or by any Affiliate of the Issuer or any other
obligor on the Securities with respect to which such determination is being
made shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only securities which a Responsible Officer of the Trustee actually knows are
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 Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article Seven, revoke such action so
far as concerns such Security provided that such revocation shall not become
effective until three Business Days after such filing. Except as aforesaid any
such action taken by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Security and of
any Securities issued in exchange or substitution therefor or on registration
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of transfer thereof, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all
series, as the case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Issuer, the Trustee and the
Holders of all the Securities affected by such action.
SECTION 7.6 RECORD DATE FOR CONSENTS AND WAIVERS. The Issuer
may, but shall not be obligated to, direct the Trustee to establish a record
date for the purpose of determining the Persons entitled to (i) waive any past
default with respect to the Securities of such series in accordance with
Section 5.7 of the Indenture, (ii) consent to any supplemental indenture in
accordance with Section 8.2 of the Indenture or (iii) waive compliance with any
term, condition or provision of any covenant hereunder. If a record date is
fixed, the Holders on such record date, or their duly designated proxies, and
any such Persons, shall be entitled to waive any such past default, consent to
any such supplemental indenture or waive compliance with any such term,
condition or provision, whether or not such Holder remains a Holder after such
record date; provided, however, that unless such waiver or consent is obtained
from the Holders, or duly designated proxies, of the requisite principal amount
of Outstanding Securities of such series prior to the date which is the 180th
day after such record date, any such waiver or consent previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Issuer, when authorized by a Board Resolution (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as in force
at the date of the execution thereof) for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities of one or more series any property or assets and
to otherwise secure any series of Securities; or
(b) to evidence the succession of another Person to the Issuer, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Issuer pursuant to Article Nine;
or
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(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of all or any series of
Securities, (and if such covenants, restrictions, conditions or provisions are
to be for the protection of less than all series of Securities, stating that
the same are expressly being included solely for the protection of such series)
and to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions, conditions or provisions an Event
of Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee upon such an
Event of Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to waive such an
Event of Default; or
(d) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3; or
(e) to modify the provisions relating to Global Securities, or to
permit the issuance of Securities in bearer or uncertificated form, provided
that any such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect; or
(f) 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 not otherwise permitted under this Section
8.1 shall (i) become effective only when there is no Security Outstanding of
any series created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision or (ii) not apply to any Security
then Outstanding; or
(g) 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
6.11; or
(h) subject to Section 8.6, to make any change in Article Twelve
that would limit or terminate the benefits available to any holder of Senior
Indebtedness under such Article; or
(i) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions as the Issuer may deem
necessary or desirable, provided, however, that no such action shall adversely
affect the interests of the Holders of the Securities in any respect.
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The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities then Outstanding, notwithstanding any of the provisions of Section
8.2.
SECTION 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than a majority in aggregate principal amount of the
Securities then Outstanding of any series affected by such supplemental
indenture, the Issuer, when authorized by a Board Resolution (which resolution
may provide general terms or parameters for such action and may provide that
the specific terms of such action may be determined in accordance with or
pursuant to an Issuer Order), and the Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act of 1939 as in force at the
date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner the rights of
the Holders of the Securities of such series; provided, that no such
supplemental indenture shall (a) extend the stated final maturity of the
principal of any Security, or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest, if any, thereon (or, in the
case of an Original Issue Discount Security, reduce the rate of accrual of
original issue discount thereon), or reduce or alter the method of computation
of any amount payable on redemption, repayment or purchase by the Issuer
thereof (or the time at which any such redemption, repayment or purchase may be
made), or make the principal thereof (including any amount in respect of
original issue discount), or interest, if any, thereon payable in any coin or
currency other than that provided in the Securities or in accordance with the
terms of the Securities, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 5.1 or the amount thereof provable in
bankruptcy pursuant to Section 5.2, or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if the Securities
provide therefor, any right of repayment or purchase at the option of the
Securityholder, in each case without the consent of the Holder of each Security
so affected, or (b) reduce the aforesaid percentage of Securities of any
series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected. No consent of any Holder of any Security shall be necessary under
this Section 8.2 to permit the Trustee and the Issuer to execute supplemental
indentures pursuant to Sections 8.1 and 9.2.
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A supplemental indenture which changes or eliminates any covenant,
Event of Default 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 Holders of Securities of such series, with
respect to such covenant or provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a Board
Resolution (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order) authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of the Holders of the Securities as aforesaid and other
documents, if any, required by Section 7.1, the Trustee shall join with the
Issuer in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Issuer, or the Trustee upon the written direction of the Issuer, shall give
notice thereof to the Holders of then Outstanding Securities of each series
affected thereby, as provided in Section 13.4. Any failure to give such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 8.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and shall be deemed to be modified and amended in accordance therewith
and the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Issuer and the Holders of
Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and shall be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
SECTION 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, shall be entitled to receive
an Officers' Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant to this Article Eight complies
with the applicable provisions of this Indenture and that all conditions
precedent to the execution of such supplemental indenture have been satisfied.
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SECTION 8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Eight may bear a notation in form approved by the Trustee for such
series as to any matter provided for by such supplemental indenture or as to
any action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
SECTION 8.6 SUBORDINATION UNIMPAIRED. This Indenture may not be
amended to alter the subordination of any Outstanding Securities without the
written consent of each holder of Senior Indebtedness then outstanding that
would be adversely affected thereby.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE
OR OTHER DISPOSITION
SECTION 9.1 ISSUER MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Subject to the provisions of Section 9.2, nothing contained in this Indenture
or in any of the Securities shall prevent any consolidation or merger of the
Issuer with or into any other Person or Persons (whether or not affiliated with
the Issuer), or successive consolidations or mergers in which the Issuer or its
successor or successors shall be a party or parties, or shall prevent any sale,
lease, exchange or other disposition of all or substantially all the property
and assets of the Issuer to any other Person (whether or not affiliated with
the Issuer) authorized to acquire and operate the same; provided, however, and
the Issuer hereby covenants and agrees, that any such consolidation, merger,
sale, lease, exchange or other disposition shall be upon the conditions that
(a) immediately after such consolidation, merger, sale, lease, exchange or
other disposition of, the Person (whether the Issuer or such other Person)
formed by or surviving any such consolidation or merger, or to which such sale,
lease, exchange or other disposition shall have been made, shall not be in
default in the performance or observance of any of the terms, covenants and
conditions of this Indenture to be kept or performed by the Issuer; (b) the
Person (if other than the Issuer) formed by or surviving any such consolidation
or merger, or to which such sale, lease, exchange or other disposition shall
have been made, shall be a Person organized under the laws of the United States
of America, any state thereof or the District of Columbia; and (c) the due and
punctual payment of the principal of and interest, if any, on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Issuer, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee executed and delivered to the Trustee, by
the Person (if other than the Issuer) formed by such consolidation,
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or into which the Issuer shall have been merged, or by the corporation
which shall have acquired or leased such property.
SECTION 9.2 SUCCESSOR PERSON TO BE SUBSTITUTED. In case of any
such consolidation or merger or any sale, conveyance or lease of all or
substantially all of the property of the Issuer and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and interest, if any, on all of the Securities and
the due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Issuer, such successor Person shall succeed to
and be substituted for the Issuer, with the same effect as if it had been named
herein as the party of the first part, and the Issuer (including any
intervening successor to the Issuer which shall have become the obligor
hereunder) shall be relieved of any further obligation under this Indenture and
the Securities; provided, however, that in the case of a lease of the property
and assets of the Issuer (including any such intervening successor), the Issuer
(including any such intervening successor) shall continue to be liable on its
obligations under this Indenture and the Securities to the extent, but only to
the extent, of liability to pay the principal of and interest, if any, on the
Securities at the time, places and rate prescribed in this Indenture and the
Securities. Such successor Person thereupon may cause to be signed, and may
issue either in its own name or in the name of the Issuer, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
Person instead of the Issuer and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor Person thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation or merger or any sale, lease,
exchange or other disposition of all or substantially all of the property and
assets of the Issuer, such changes in phraseology and form (but not in
substance) may be made in the Securities, thereafter to be issued, as may be
appropriate.
SECTION 9.3 OPINION OF COUNSEL TO BE GIVEN TRUSTEE. The Trustee,
subject to Sections 6.1 and 6.2, shall be furnished an Officers' Certificate
and Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, lease, exchange or other disposition and any such assumption
complies with the provisions of this Article Nine.
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ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE.
(A) If at any time (a) the Issuer shall have paid or caused to be
paid the principal of and interest, if any, on all the Securities Outstanding
(other than Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9) as and when the same shall
have become due and payable, or (b) the Issuer shall have delivered to the
Trustee for cancellation all Securities theretofore authenticated (other than
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9); and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable hereunder by
the Issuer, then this Indenture shall cease to be of further effect, and the
Trustee, on demand of the Issuer accompanied by an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent relating to the
satisfaction and discharge contemplated by this provision have been complied
with, and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction and discharging this Indenture.
The Issuer agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred, and to compensate the Trustee for any
services thereafter reasonably and properly rendered, by the Trustee in
connection with this Indenture or the Securities.
(B) If at any time (a) the Issuer shall have paid or caused to be
paid the principal of, premium, if any, and interest, if any, on all the
Securities of any series Outstanding (other than Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9) as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee for cancellation
all Securities of any series theretofore authenticated (other than any
Securities of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.9), or (c) in the case of
any series of Securities with respect to which the exact amount described in
clause (ii) below can be determined at the time of making the deposit referred
to in such clause (ii), (i) all the Securities of such series not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and (ii) the Issuer shall have
irrevocably deposited or caused to be deposited with the Trustee as funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of Securities of such series, cash in an amount (other
than moneys repaid by the Trustee or any paying agent to the Issuer in
accordance with Section 10.5) or direct obligations of the United States of
America, backed by its full faith and credit ("U.S. Government Obligations"),
maturing as to principal and interest, if any, at such times and in such
amounts as will insure the availability of cash, or a combination thereof,
sufficient in the opinion of a nationally recognized firm of
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independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal of, premium, if any, and
interest, if any, on all Securities of such series on each date that such
principal of, premium, if any, or interest, if any, is due and payable, and (B)
any mandatory sinking fund payments on the dates on which such payments are due
and payable in accordance with the terms of the Indenture and the Securities of
such series; then the Issuer shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of such series on the date of the
deposit referred to in clause (ii) above and the provisions of this Indenture
with respect to the Securities of such series shall no longer be in effect
(except, in the case of clause (c) of this Section 10.1(B), as to (i) rights of
registration of transfer and exchange of Securities of such series, (ii) rights
of substitution of mutilated, defaced, destroyed, lost or stolen Securities of
such series, (iii) rights of Holders of Securities of such series to receive
payments of principal thereof and premium, if any, and interest, if any,
thereon upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders of Securities of such series
to receive mandatory sinking fund payments thereon, if any, when due, (iv) the
rights, obligations, duties and immunities of the Trustee hereunder, (v) the
rights of the Holders of Securities of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (vi) the obligations of the Issuer under Section 3.2 with respect to
Securities of such series) and the Trustee, on demand of the Issuer accompanied
by an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied with,
and at the cost and expense of the Issuer, shall execute proper instruments
acknowledging the same.
(C) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities with respect to which the
exact amount described in subparagraph (a) below can be determined at the time
of making the deposit referred to in such subparagraph (a), the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the
Securities of such a series on the 91st day after the date of the deposit
referred to in subparagraph (a) below, and the provisions of this Indenture
with respect to the Securities of such series shall no longer be in effect
(except as to (i) rights of registration of transfer and exchange of Securities
of such series, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities of such series, (iii) rights of Holders of Securities of such
series to receive payments of principal thereof, premium, if any, and interest,
if any, thereon upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders of Securities of such series
to receive mandatory sinking fund payments, if any, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v) the rights of
the Holders of Securities of such series as beneficiaries hereof with respect
to the property so deposited with the Trustee payable to all or any of them and
(vi) the obligations of the Issuer under Section 3.2 with respect to Securities
of such series) and the Trustee, on demand of the Issuer accompanied by an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have
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been complied with, and at the cost and expense of the Issuer, shall execute
proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Securities of such
series (i) cash in an amount, or (ii) U.S. Government Obligations,
maturing as to principal and interest, if any, at such times and in
such amounts as will insure the availability of cash, or (iii) 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 (A) the
principal of, premium, if any, and interest, if any, on all Securities
of such series on each date that such principal or interest, if any,
is due and payable, and (B) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance with
the terms of the Indenture and the Securities of such series;
(b) no Event of Default of the character specified in
Section 5.1(e) or 5.1(f) shall have occurred and be continuing at any
time during the period ending on the 91st day after the date of such
deposit and such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement
or instrument to which the Issuer is a party or by which it is bound
involving payments by the Issuer or a Subsidiary of an amount in
excess of $1,000,000;
(c) no other Event of Default or event which with notice
or lapse of time or both would become an Event of Default with respect
to Securities of such series shall have occurred and be continuing on
the date of such deposit; and
(d) the Issuer has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or
(y), since the date hereof, there has been a change in the applicable
United States federal income tax law, in either case to the effect
that, and such opinion shall confirm that, the Holders of the
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on the same
amount and in the same manner and at the same times, as would have
been the case if such deposit, defeasance and discharge had not
occurred.
SECTION 10.2 DEFEASANCE OF CERTAIN OBLIGATIONS. If this Section 10.2
is specified to be applicable to Securities of any series in the supplemental
indenture, Board Resolution or Officer's Certificate creating such series, the
Issuer may omit to comply with Section 3.6 and any covenant restricting the
Company's ability to take certain actions or to permit to exist certain
conditions or requiring the Company to maintain certain financial ratios
specified as applicable to the Securities
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of such series in such supplemental indenture, Board Resolution or Officer's
Certificate as contemplated by Section 2.3, if
(a) with reference to this Section 10.2, the Issuer has
irrevocably deposited or caused to be irrevocably deposited (except as
provided in Section 10.5) with the Trustee, as trust funds and/or
obligations in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
that series, (i) money in an amount, or (ii) U.S. Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms, without consideration
of any reinvestment thereof, will provide not later than one day
before the due date of any payment referred to in clause (A) or (B) of
this subsection (a) money in an amount, or (iii) a combination
thereof, sufficient, as expressed in a certificate of a firm of
independent public accountants delivered to the Trustee, to pay and
discharge (A) the principal of (and premium, if any) and interest on
the Outstanding Securities of that series due on the maturity of such
principal, premium, if any, and interest and (B) any mandatory sinking
fund payments or analogous payments applicable to Securities of such
series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities;
(b) such deposit shall not cause the Trustee with respect
to the Securities of that series to have a conflicting interest for
purposes of the Trust Indenture Act with respect to the Securities of
any series;
(c) no Event of Default of the character specified in
Section 5.1(e) or 5.1(f) shall have occurred and be continuing at any
time during the period ending on the 91st day after the date of such
deposit and such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement
or instrument, to which the Issuer is a party or by which it is bound
involving payment by the Issuer or a Subsidiary of an amount in excess
of $1,000,000;
(d) no other Event of Default or event which with notice
or lapse of time or both would become an Event of Default with respect
to Securities of that series shall have occurred and be continuing on
the date of such deposit;
(e) the Issuer has delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and defeasance of certain
obligations and will be subject to Federal income tax on the same
amount and in the same manner and at the same times, as would have
been the case if such deposit and defeasance had not occurred;
(f) if the Securities of such series are to be redeemed,
either notice of such redemption shall have been given or the Issuer
shall have given the Trustee irrevocable
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direction to give notice of such redemption in the name and at the
expense of the Issuer, under arrangements satisfactory to the Trustee;
and
(g) the Issuer 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 defeasance contemplated
by this Section have been complied with.
SECTION 10.3 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT
OF SECURITIES. Subject to Section 10.5, all moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Section 10.1 or 10.2 shall
be held in trust, and such moneys and all moneys from such U.S. Government
Obligations shall be applied by it to the payment, either directly or through
any paying agent (including the Issuer acting as its own paying agent), to the
Holders of the particular Securities of such series for the payment or
redemption of which such moneys and U.S. Government Obligations have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest, if any, but such moneys and U.S. Government Obligations
need not be segregated from other funds except to the extent required by law.
SECTION 10.4 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to
such moneys.
SECTION 10.5 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT
UNCLAIMED FOR TWO YEARS. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest, if any, on
any Security of any series and not applied but remaining unclaimed for two
years after the date upon which such principal or interest, if any, shall have
become due and payable, shall, upon the written request of the Issuer and
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for
such series or such paying agent, and the Holder of the Securities of such
series shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter look only to the
Issuer for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such moneys shall
thereupon cease.
SECTION 10.6 INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The
Issuer 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 10.1 or the principal or interest received in respect of
such obligations. The obligation of the Issuer to pay or indemnify the Trustee
under this Section 10.6 for taxes, fees and other charges shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture or the resignation or removal of the
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Trustee and shall not be subordinate to the payment of Senior Indebtedness
pursuant to Article Thirteen.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified, as contemplated by
Section 2.3 for Securities of such series.
SECTION 11.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear in the
Security register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, the CUSIP number relating to such Securities, that payment
will be made upon presentation and surrender of such Securities, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest, if any, (or, in the case of Original Issue
Discount Securities, original issue discount) accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest, if any, (or, in the case of Original Issue Discount Securities,
original issue discount) thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Security of a series is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
written request, by the Trustee in the name and at the expense of the Issuer.
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On or before the redemption date specified in the notice of redemption
given as provided in this Section 11.2, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.5) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest, if any, to the date fixed for
redemption. The Issuer will deliver to the Trustee at least 45 days prior to
the date fixed for redemption (unless a shorter notice period shall be
satisfactory to the Trustee) an Officers' Certificate stating the aggregate
principal amount of each series of Securities to be redeemed, the scheduled
redemption date and, in the case of Original Issue Discount Securities, the
original issue discount accrued or to accrue to the redemption date. In case
of a redemption at the election of the Issuer prior to the expiration of any
restriction on such redemption, the Issuer shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officers' Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed. Securities may be redeemed in part
in multiples equal to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
Issuer in writing of the Securities of such series selected for redemption and,
in the case of any Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 11.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest, if any, accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest, if
any, accrued to said date) interest (or, in the case of Original Issue Discount
Securities, original issue discount) on the Securities or portions of
Securities so called for redemption shall cease to accrue, and such Securities
shall cease from and after the date fixed for redemption (unless an earlier
date shall be specified in a Board Resolution, Officers' Certificate or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the form and terms of the Securities of such series were
established) except as provided in Sections 6.5 and 10.5, to be entitled to any
benefit or security under this Indenture, and the Holders thereof shall have no
right in respect of such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment specified
in said notice, said Securities or the specified portions thereof shall be paid
and redeemed by the Issuer at the applicable redemption price, together with
interest, if any, accrued thereon to the date fixed for redemption; provided
that payment of interest, if any, becoming
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due on or prior to the date fixed for redemption, if such date is a
scheduled interest payment date, shall be payable to the Holders of Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption is surrendered for redemption
and the Issuer defaults in the payment of the redemption prices, then the
redemption price shall, until paid or duly provided for, bear interest from the
date fixed for redemption at the rate of interest or Yield to Maturity (in the
case of an Original Issue Discount Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, and of like tenor, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 11.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Issuer, or (b) a Person specifically identified in such written
statement as an Affiliate of the Issuer.
SECTION 11.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum
amount of any sinking fund payment provided for by the terms of the 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 the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section 11.5,
or (c) receive credit for Securities of such series (not previously so
credited) redeemed by the Issuer through any optional redemption provision
contained in the terms of such series. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
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On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officers'
Certificate (a) specifying the portion of the mandatory sinking fund payment to
be satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series and the basis for such credit, (b) stating that none
of the Securities of such series to be so credited has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured or otherwise ceased to exist) and are continuing, and (d) stating
whether or not the Issuer intends to exercise its right to make an optional
sinking fund payment with respect to such series and, if so, specifying the
amount of such optional sinking fund payment which the Issuer intends to pay on
or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officers' Certificate (or
reasonably promptly thereafter if acceptable to the Trustee, but, in any event,
no later than the 45th day next preceding the sinking fund payment date). Such
Officers' Certificate shall be irrevocable and upon its receipt by the Trustee
the Issuer shall become unconditionally obligated to make all the cash payments
or payments therein referred to, if any, on or before the next succeeding
sinking fund payment date. Failure of the Issuer, on or before any such 60th
day, to deliver such Officers' Certificate and Securities (subject to the
parenthetical clause in the second preceding sentence) specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Issuer (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof, and (ii) that the Issuer
will make no optional sinking fund payment with respect to such series as
provided in this Section 11.5.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000, or a lesser sum if the Issuer shall so request with respect to
the Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 11.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash,
as nearly as may be, and shall (if requested in writing by the Issuer) inform
the Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 11.2 (and with the effect provided
in Section 11.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied
or allocated to the redemption of Securities
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of such series shall be added to the next cash sinking fund payment for such
series and, together with such payment, shall be applied in accordance with the
provisions of this Section 11.5. Any and all sinking fund moneys held on the
stated maturity date of the Securities of any particular series (or earlier, if
such maturity is accelerated), which are not held for the payment or redemption
of particular Securities of such series, shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest, if any, on, the Securities of such series at
maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest,
if any, accrued to the date fixed for redemption on Securities to be redeemed
on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of
Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default with respect to such series except that, where the giving of
notice of redemption of any Securities shall theretofore have been made, the
Trustee shall redeem or cause to be redeemed such Securities, provided that it
shall have received from the Issuer a sum sufficient for such redemption.
Except as aforesaid, and subject to Article Twelve, any moneys in the sinking
fund for such series at the time when any such default or Event of Default
shall occur, and any moneys thereafter paid into the sinking fund, shall,
during the continuance of such default or Event of Default, be deemed to have
been collected under Article Five and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided
in Section 5.7 or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.
ARTICLE TWELVE
SUBORDINATION
SECTION 12.1 SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
(a) The Issuer covenants and agrees, and each Holder of Securities
of each series, by his acceptance thereof, likewise covenants and agrees, that
anything in this Indenture or the Securities of any series to the contrary
notwithstanding, the indebtedness evidenced by the Securities of each series is
subordinate and junior in right of payment, to the extent provided herein, to
all Senior Indebtedness, whether outstanding on the date of execution of this
Indenture or thereafter created, incurred or assumed, and that the
subordination is for the benefit of the holders of Senior Indebtedness, but the
Securities shall in all respects rank pari passu with all other Senior
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Subordinated Indebtedness of the Issuer. The Securities shall rank senior to
all existing and future Indebtedness of the Issuer that is neither Senior
Indebtedness nor Senior Subordinated Indebtedness and only Indebtedness of the
Issuer that is Senior Indebtedness shall rank senior to the Securities in
accordance with the provisions set forth herein.
(b) Subject to Section 12.4, if (i) the Issuer shall default in
the payment of any principal of, premium, if any, or interest, if any, on any
Senior Indebtedness when the same becomes due and payable, whether at maturity
or at a date fixed for prepayment or by declaration of acceleration or
otherwise, or (ii) any other default shall occur with respect to Senior
Indebtedness and the maturity of such Senior Indebtedness has been accelerated
in accordance with its terms, then, upon written notice of such default to the
Issuer by the holders of Senior Indebtedness or any trustee therefor, unless
and until, in either case, the default has been cured or waived, and any such
acceleration has been rescinded or such Senior Indebtedness has been paid in
full, no direct or indirect payment (in cash, property, securities, by set-off
or otherwise) shall be made or agreed to be made on account of the principal
of, premium, if any, or interest, if any, on any of the Securities, or in
respect of any redemption, retirement, purchase or other acquisition of any of
the Securities other than those made in capital stock of the Issuer (or cash in
lieu of fractional shares thereof).
(c) If any default (other than a default described in paragraph
(b)) shall occur under the Senior Indebtedness, pursuant to which the maturity
thereof may be accelerated immediately without further notice (except such
notice as may be required to effect such acceleration) or the expiration of any
applicable grace periods occurs (a "Senior Nonmonetary Default"), then, upon
the receipt by the Issuer and the Trustee of written notice thereof (a "Payment
Notice") from or on behalf of holders of such Senior Indebtedness specifying an
election to prohibit such payment and other action by the Issuer in accordance
with the following provisions of this paragraph, the Issuer may not make any
payment or take any other action that would be prohibited by paragraph (b)
above during the period (the "Payment Blockage Period") commencing on the date
of receipt of such Payment Notice and ending on the earlier of (i) the date, if
any, on which the holders of such Senior Indebtedness or their representative
notify the Trustee that such Senior Nonmonetary Default is cured or waived or
ceases to exist or the Senior Indebtedness to which such Senior Nonmonetary
Default relates is discharged or (ii) the 179th day after the date of receipt
of such Payment Notice. Notwithstanding the provisions described in the
immediately preceding sentence, the Issuer may resume payments on the
Securities after such Payment Blockage Period.
(d) If (i) (A) without the consent of the Issuer, a receiver,
conservator, liquidator or trustee of the Issuer or of any of its property is
appointed by the order or decree of any court or agency or supervisory
authority having jurisdiction, and such decree or order remains in effect for
more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or (C)
any of its property is sequestered by court order and such order remains in
effect for more than 60 days or (D) a petition is filed against the Issuer
under any state or federal bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution, liquidation or receivership law of any
jurisdiction
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whether now or hereafter in effect (including without limitation the Bankruptcy
Code), and is not dismissed within 60 days after such filing; or (ii) the
Issuer (A) commences a voluntary case or other proceeding seeking liquidation,
reorganization, arrangement, insolvency, readjustment of debt, dissolution,
liquidation or other relief with respect to itself or its debt or other
liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect (including without limitation the Bankruptcy Code) or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or (B) consents
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
(C) fails generally to, or cannot, pay its debts generally as they become due
or (D) takes any corporate action to authorize or effect any of the foregoing;
or (iii) any Subsidiary of the Issuer takes, suffers or permits to exist any of
the events or conditions referred to in the foregoing clause (i) or (ii), then
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall
be made to any Holder of any Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment) which would otherwise
(but for these subordination provisions) be payable or deliverable in respect
of the Securities of any series shall be paid or delivered directly to the
holders of Senior Indebtedness in accordance with the priorities then existing
among such holders until all Senior Indebtedness (including any interest
thereon accruing after the commencement of any such proceedings) shall have
been paid in full. In the event of any such proceeding, after payment in full
of all sums owing with respect to Senior Indebtedness, the Holders of the
Securities, together with the holders of any obligations of the Issuer ranking
on a parity with the Securities, shall be entitled to be paid from the
remaining assets of the Issuer the amounts at the time due and owing on account
of unpaid principal of and interest, if any, on the Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Issuer ranking junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution
of any character, whether in cash, securities or other property (other than
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in the subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment), shall be received by
the Trustee or any Holder in contravention of any of the terms hereof, such
payment or distribution of securities shall be received in trust for the
benefit of and shall be paid over or delivered and transferred to the holders
of the Senior Indebtedness then outstanding in accordance
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with the priorities then existing among such holders for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent necessary to
pay all such Senior Indebtedness in full. In the event of the failure of the
Trustee or any Holder to endorse or assign any such payment, distribution or
security, each holder of Senior Indebtedness is hereby irrevocably authorized
to endorse or assign the same.
(f) No present or future holder of any Senior Indebtedness shall
be prejudiced in the right to enforce subordination of the indebtedness
evidenced by the Securities by any act or failure to act on the part of the
Issuer or any Holder of Securities. Nothing contained herein shall impair, as
between the Issuer and the Holders of Securities of each series, the obligation
of the Issuer to pay to such Holders the principal of and interest, if any, on
such Securities or prevent the Trustee or the Holder from exercising all
rights, powers and remedies otherwise permitted by applicable law or hereunder
upon a default or Event of Default hereunder, all subject to the rights of the
holders of the Senior Indebtedness to receive cash, securities or other
property otherwise payable or deliverable to the Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in
full unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding.
Upon the payment in full of all Senior Indebtedness, the Holders of Securities
of each series shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payment or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the Securities of such
series shall have been paid in full and such payments or distributions received
by such Holders, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Issuer and its creditors other than the
holders of Senior Indebtedness, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Issuer on account of Senior
Indebtedness, and not on account of the Securities of such series.
(h) The provisions of this Section 12.1 shall not impair any
rights, interests, remedies or powers of any secured creditor of the Issuer in
respect of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise
ranking on a parity with the Securities or ranking junior to the Securities,
shall not be deemed to prevent such obligations from constituting,
respectively, obligations ranking on a parity with the Securities or ranking
junior to the Securities.
SECTION 12.2 RELIANCE ON CERTIFICATE OF LIQUIDATING AGENT; FURTHER
EVIDENCE AS TO OWNERSHIP OF SENIOR INDEBTEDNESS. Upon any payment or
distribution of assets of the Issuer, the Trustee and the Holders shall be
entitled to rely upon an order or decree issued by any court of competent
jurisdiction in which such dissolution or winding up or liquidation or
reorganization or
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arrangement proceedings are pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors or other Person
making such payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Issuer, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Twelve. In the absence of any such bankruptcy trustee,
receiver, assignee or other Person, the Trustee shall be entitled to
conclusively rely upon written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee or representative on behalf of such
holder) as evidence that such Person is a holder of Senior Indebtedness (or is
such a trustee or representative). If the Trustee determines, in good faith,
that further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distributions
pursuant to this Article Twelve, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, as to the extent to which such Person
is entitled to participate in such payment or distribution, and as to other
facts pertinent to the rights of such Person under this Article Twelve, and if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 12.3 PAYMENT PERMITTED IF NO DEFAULT. Nothing contained
in this Article Twelve or elsewhere in this Indenture, or in any of the
Securities, shall prevent (a) the Issuer at any time, except during the
pendency of any default with respect to Senior Indebtedness described in
Section 12.1(b) or Section 12.1(c) or of any of the events described in Section
12.1(d), from making payments of the principal of or interest, if any, on the
Securities, or (b) the application by the Trustee or any paying agent of any
moneys deposited with it hereunder to payments of the principal of or interest,
if any, on the Securities, if, at the time of such deposit, the Trustee or such
paying agent, as the case may be, did not have the written notice provided for
in Section 12.5 of any event prohibiting the making of such deposit, or if, at
the time of such deposit (whether or not in trust) by the Issuer with the
Trustee or paying agent (other than the Issuer) such payment would not have
been prohibited by the provisions of this Article Twelve, and the Trustee or
any paying agent shall not be affected by any notice to the contrary received
by it on or after such date.
SECTION 12.4 DISPUTES WITH HOLDERS OF CERTAIN SENIOR INDEBTEDNESS.
Any failure by the Issuer to make any payment on or under any Senior
Indebtedness, other than any Senior Indebtedness as to which the provisions of
this Section 12.4 shall have been waived by the Issuer in the instrument or
instruments by which the Issuer incurred, assumed, guaranteed or otherwise
created such Senior Indebtedness, shall not be deemed a default under Section
12.1 if (i) the Issuer shall be disputing its obligation to make such payment
or perform such obligation, and (ii) either (A) no final judgment relating to
such dispute shall have been issued against the Issuer which is in full force
and effect and is not subject to further review, including a judgment that has
become final by reason of the expiration of the time within which a party may
seek further appeal or review, or (B) if a judgment that is subject to further
review or appeal has been issued, the Issuer shall in good faith
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be prosecuting an appeal or other proceeding for review, and a stay of
execution shall have been obtained pending such appeal or review.
SECTION 12.5 TRUSTEE NOT CHARGED WITH KNOWLEDGE OF PROHIBITION.
Anything in this Article Twelve or elsewhere in this Indenture contained to the
contrary notwithstanding, the Trustee shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee and shall be entitled to assume
conclusively that no such facts exists and that no event specified in clauses
(a) and (b) of Section 12.1 has happened unless and until the Trustee shall
have received an Officers' Certificate to the effect or notice in writing to
that effect signed by or on behalf of the holder or holders, or the
representatives, of Senior Indebtedness who shall have been certified by the
Issuer or otherwise established to the reasonable satisfaction of the Trustee
to be such holder or holders or representatives or from any trustee under any
indenture pursuant to which such Senior Indebtedness shall be outstanding;
provided, however, that, if the Trustee shall not have received the Officers'
Certificate or notice provided for in this Section 12.5 at least three Business
Days preceding the date upon which by the terms hereof any moneys become
payable for any purpose (including, without limitation, the payment of either
the principal of or interest, if any, on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such moneys and apply the same to the purpose for
which they were received and shall not be affected by any notice to the
contrary that may be received by it within three Business Days preceding such
date. The Issuer shall give prompt written notice to the Trustee and to each
paying agent of any facts that would prohibit any payment of moneys to or by
the Trustee or any paying agent, and the Trustee shall not be charged with
knowledge of the curing of any default or the elimination of any other fact or
condition preventing such payment or distribution unless and until the Trustee
shall have received an Officers' Certificate to such effect.
SECTION 12.6 TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of
Securities by his acceptance thereof authorizes and directs the Trustee on the
Holder's behalf to take such action as may be necessary or appropriate to
effectuate the subordination as between such Holder and holders of Senior
Indebtedness as provided in this Article Twelve and appoints the Trustee its
attorney-in-fact for any and all such purposes.
SECTION 12.7 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all the rights set forth in this Article
Twelve with respect to any Senior Indebtedness which may at the time be held by
it, to the same extent as any other holder of Senior Indebtedness and nothing
in this Indenture shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article Twelve shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.6.
SECTION 12.8 ARTICLE APPLICABLE TO PAYING AGENTS. In case at any
time any paying agent other than the Trustee shall have been appointed by the
Issuer and be then acting hereunder, the term
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"Trustee" as used in this Article Twelve shall in such case (unless the context
shall otherwise require) be construed as extending to and including such paying
agent within its meaning as fully for all intents and purposes as if the paying
agent were named in this Article Twelve in addition to or in place of the
Trustee; provided, however, that Sections 12.5 and 12.7 shall not apply to the
Issuer if it acts as paying agent.
SECTION 12.9 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF THE ISSUER OR HOLDERS OF SENIOR INDEBTEDNESS. No right of any
present or future holders of any Senior Indebtedness to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Issuer or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Issuer
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof which any such holder may have or be otherwise charged with.
The holders of Senior Indebtedness may, at any time or from time to time and in
their absolute direction, change the manner, place or terms of payment, change
or extend the time of payment of, or renew or alter, any such Senior
indebtedness, or amend or supplement any instrument pursuant to which any such
Senior Indebtedness is issued or by which it may be secured, or release any
security therefor, or exercise or refrain from exercising any other of their
rights under the Senior Indebtedness, including, without limitation, the waiver
of default thereunder, all without notice to or assent from the Holders of the
Securities or the Trustee and without affecting the obligations of the Issuer,
the Trustee or the Holders of Securities under this Article Twelve.
SECTION 12.10 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of the Senior Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or distribute money or assets to
Securityholders or the Issuer. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article Twelve
and no implied covenants or obligations with respect to holders of Senior
Indebtedness shall be read into this Indenture against the Trustee.
SECTION 12.11 TRUST MONEYS NOT SUBORDINATED. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of Government Obligations held in trust by the Trustee under Article Ten for
the payment of the principal of, premium, if any, and interest on any series of
Securities shall not be subordinated to the prior payment of any Senior
Indebtedness or subject to the restrictions set forth in this Article, and no
Holder of such Securities nor the Trustee shall be obligated to pay over any
such amount to any holder of Senior Indebtedness.
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ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.1 PARTNERS, INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer, or any partner of the
Issuer or of any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 13.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF
PARTIES AND HOLDERS OF SECURITIES. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any
Person, other than the parties hereto and their successors and the Holders of
the Senior Indebtedness and the Holders of the Securities, any legal or
equitable right, remedy or claim under this Indenture or under any covenant or
provision herein contained, all such covenants and provisions being for the
sole benefit of the parties hereto and their successors and of the Holders of
the Securities and, with respect to Article Twelve, the holders of the Senior
Indebtedness.
SECTION 13.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 13.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF
SECURITIES. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer, or as required pursuant to the Trust Indenture
Act of 1939, may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee)
to Marine Drilling Companies, Inc., One Sugar Creek Center Boulevard, Suite
600, Sugar Land, Texas 77478, Attention: Chief Financial Officer. Any notice,
direction, request or demand by the Issuer or any Holder of Securities to or
upon the Trustee shall be deemed to have been sufficiently given or served by
being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Trustee
is filed by the Trustee with the Issuer) to its Corporate Trust Office.
Where this Indenture provides for notice to Holders of Securities,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
entitled thereto, at his last address as it appears in the Security
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register. 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 or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be reasonably satisfactory to
the Trustee shall be deemed to be sufficient notice.
SECTION 13.5 OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, or as required pursuant to the Trust Indenture Act of 1939, the
Issuer shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture (other than
a certificate provided pursuant to Section 4.3(d)) and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) 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, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion as to whether
or not such covenant or condition has been complied with, and (d) a statement
as to whether or not, in the opinion of such person, such condition or covenant
has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
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based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 13.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If
the date of maturity of principal of or interest, if any, on the Securities of
any series or the date fixed for redemption, purchase or repayment of any such
Security shall not be a Business Day, then payment of interest, if any, or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption, purchase or repayment, and, in the case of
payment, no interest shall accrue for the period after such date.
SECTION 13.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT OF 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included herein by any of Sections 310
to 317, inclusive, or is deemed applicable to this Indenture by virtue of the
provisions, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 13.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY
SHALL BE DEEMED TO BE A CONTRACT 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.
SECTION 13.9 COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 13.10 EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, effective as of _________________, 1996.
MARINE DRILLING COMPANIES, INC.
By:
-------------------------------------
Title:
----------------------------------
Attest:
By
-----------------------------
Title:
-------------------------
BANKERS TRUST COMPANY,
as Trustee
By:
-------------------------------------
Title:
----------------------------------
Attest:
By
-----------------------------
Title:
-------------------------
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EXHIBIT 5.1
(713) 758-2222 (713) 615-2346
June 27, 1996
Marine Drilling Companies, Inc.
One Sugar Creek Center Boulevard
Suite 600
Sugar Land, Texas 77478
Ladies and Gentlemen:
We have acted as counsel to Marine Drilling Companies, Inc., a Texas
corporation ("Marine"), in connection with the preparation of the Registration
Statement on Form S-3 (the "Registration Statement") filed on even date
herewith with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
(a) Marine's (i) unsecured debt securities ("Debt Securities"), in one or more
series, which may be senior or senior subordinated in priority of payment, any
of which may be convertible or exchangeable into common stock, par value $.01
per share, of Marine ("Common Stock"), preferred stock, par value $.01 per
share, of Marine ("Preferred Stock") or other securities; (ii) warrants to
purchase Common Stock ("Warrants"); (iii) shares of Preferred Stock, which may
be convertible into shares of Common Stock or exchangeable for Debt Securities;
and (iv) shares of Common Stock (such Debt Securities, Preferred Stock, Common
Stock, and Warrants are collectively referred to herein as the "Securities"),
which Securities may be issued from time to time pursuant to Rule 415 under the
Securities Act for an aggregate initial offering price not to exceed
$150,000,000.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of (i) the Restated Articles of Incorporation
and Bylaws of Marine, each as amended to the date hereof, (ii) the Senior
Indenture (the "Senior Indenture") to be entered into between Marine and Marine
Midland Bank, as Trustee, in the form included as an exhibit to the
Registration Statement, (iii) the Senior Subordinated Indenture (the
"Subordinated Indenture") to be entered into between Marine and Bankers Trust
Company, as Trustee, in the form included as an exhibit to the Registration
Statement, and (iv) such other certificates, statutes and other instruments and
documents as we considered appropriate for purposes of the opinions hereafter
expressed.
In connection with this opinion, we have assumed that (i) the
Registration Statement, and any amendments thereto (including post-effective
amendments), will have become effective; (ii) a
<PAGE> 2
Marine Drilling Companies, Inc.
Page 2
June 27, 1996
Prospectus Supplement will have been prepared and filed with the Commission
describing the Securities offered thereby; (iii) all Securities will be issued
and sold in compliance with applicable federal and state securities laws and in
the manner stated in the Registration Statement and the applicable Prospectus
Supplement; (iv) the Senior Indenture and the Subordinated Indenture will each
be duly authorized, executed and delivered by the parties thereto in
substantially the form reviewed by us; (v) a definitive purchase, underwriting
or similar agreement with respect to any Securities offered will have been duly
authorized and validly executed and delivered by Marine and the other parties
thereto; and (vi) any Securities issuable upon conversion, exchange or exercise
of any Security being offered will have been duly authorized, created and, if
appropriate, reserved for issuance upon such conversion, exchange or exercise.
Based on the foregoing, we are of the opinion that:
1. Marine has been duly incorporated and is validly existing and
in good standing under the laws of the State of Texas.
2. With respect to Debt Securities to be issued under the Senior
Indenture, when (i) the Senior Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"); (ii) the Board of
Directors of Marine or, to the extent permitted by Article 2.36 of the Texas
Business Corporation Act (the "TBCA"), a duly constituted and acting committee
thereof (such Board of Directors or committee being referred to herein as the
"Board") has taken all necessary corporate action to approve the issuance and
terms of such Debt Securities, the terms of the offering thereof and related
matters; (iii) the terms of such Debt Securities and of their issuance and sale
have been established so as not to violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon Marine and
so as to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over Marine; and (iv) such Debt
Securities have been duly executed, authenticated, issued and delivered in
accordance with the provisions of the Senior Indenture and in accordance with
the applicable definitive purchase, underwriting or similar agreement approved
by the Board upon payment of the consideration provided for therein, such Debt
Securities will be legally issued and will constitute valid and binding
obligations of Marine, enforceable against Marine in accordance with their
terms, except as such enforcement is subject to any applicable bankruptcy,
insolvency, reorganization or other law relating to or affecting creditors'
rights generally and general principles of equity and will be entitled to the
benefits of the Senior Indenture.
3. With respect to Debt Securities to be issued under the
Subordinated Indenture, when (i) the Subordinated Indenture has been duly
qualified under the TIA; (ii) the Board has taken all necessary corporate
action to approve the issuance and terms of such Debt Securities, the terms of
the offering thereof and related matters; (iii) the terms of such Debt
Securities and of their issuance and sale have been established so as not to
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon Marine and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over
<PAGE> 3
Marine Drilling Companies, Inc.
Page 3
June 27, 1996
Marine; and (iv) such Debt Securities have been duly executed, authenticated,
issued and delivered in accordance with the provisions of the Subordinated
Indenture and in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment of the
consideration provided for therein, such Debt Securities will be legally issued
and will constitute valid and binding obligations of Marine, enforceable
against Marine in accordance with their terms, except as such enforcement is
subject to any applicable bankruptcy, insolvency, reorganization or other law
relating to or affecting creditors' rights generally and general principles of
equity and will be entitled to the benefits of the Subordinated Indenture.
4. With respect to shares of any series of Preferred Stock, when
(i) the Board has taken all necessary corporate action to approve the issuance
and terms of the shares of such series, the terms of the offering thereof and
related matters, including the adoption of a resolution establishing and
designating such series and fixing and determining the preferences,
limitations, and relative rights thereof and the filing of a statement with
respect to such series with the Secretary of State of the State of Texas as
required under Article 2.13 of the TBCA; and (ii) certificates representing the
shares of such series of Preferred Stock have been duly executed,
countersigned, registered and delivered either (a) in accordance with the
applicable definitive purchase, underwriting or similar agreement approved by
the Board upon payment of the consideration therefor (not less than the par
value of the Preferred Stock) provided for therein, or (b) upon conversion,
exchange or exercise of any other Security in accordance with the terms of such
Security or the instrument governing such Security providing for such
conversion, exchange or exercise as approved by the Board, for the
consideration approved by the Board (not less than the par value of the
Preferred Stock), the shares of such series of Preferred Stock will be duly
authorized, validly issued, fully paid and non-assessable.
5. With respect to shares of Common Stock, when (i) the Board has
taken all necessary corporate action to approve the issuance and terms of the
offering thereof and related matters; and (ii) certificates representing the
shares of Common Stock have been duly executed, countersigned, registered and
delivered either (a) in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment of the
consideration therefor (not less than the par value of the Common Stock)
provided for therein, or (b) upon conversion, exchange or exercise of any other
Security in accordance with the terms of such Security or the instrument
governing such Security providing for such conversion, exchange or exercise as
approved by the Board, for the consideration approved by the Board (not less
than the par value of the Common Stock and, in the case of shares of Common
Stock issued upon the conversion, exchange or exercise of another security, the
consideration specified in Article 2.15E of the TBCA), the shares of Common
Stock will be duly authorized, validly issued, fully paid and non-assessable.
6. With respect to the Warrants, when (i) the Board has taken all
necessary corporate action to approve the creation of and the issuance and
terms of the Warrants, the terms of the offering thereof and related matters;
(ii) the warrant agreement or agreements relating to the Warrants have been
duly authorized and validly executed and delivered by Marine and the warrant
<PAGE> 4
Marine Drilling Companies, Inc.
Page 4
June 27, 1996
gent appointed by Marine; and (iii) the Warrants or certificates representing
the Warrants have been duly executed, countersigned, registered and delivered
in accordance with the appropriate warrant agreement or agreements and the
applicable definitive purchase, underwriting or similar agreement approved by
the Board upon payment of the consideration provided for therein, the Warrants
will be duly authorized and validly issued.
The foregoing opinions are limited in all respects to the laws of the
State of Texas, the laws of the State of New York and federal laws.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. By giving such consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission issued
thereunder.
Very truly yours,
VINSON & ELKINS L.L.P.
<PAGE> 1
EXHIBIT 12.1
MARINE DRILLING COMPANIES, INC.
COMPUTATION OF RATIO TO EARNINGS TO FIXED CHARGES AND
THE RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
Three
Years Ended December 31, Months Ended
------------------------------------------------------------------------- ------------
1991 1992 1993 1994 1995 31-Mar-96
--------- ---------- --------- -------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) before income $ (4,462) $ (91,327) $ 23,301 $ 9,123 $ (6,102) $ 3,669
taxes and extraordinary items
Adjustments:
Fixed charges, as below 14,340 9,727 580 70 1,032 232
Interest capitalized - - - - (126) (38)
--------- ---------- --------- -------- --------- ---------
Earnings (losses) as adjusted $ (20,122) $ (81,600) $ 23,881 $ 9,193 $ (5,196) $ 3,863
========= ========== ========= ======== ========= =========
Fixed charges:
Interest on indebtedness,
expensed or capitalized $ 14,340 $ 9,727 $ 580 $ 70 $ 961 $ 219
Amortization of debt discount
and expense - - - - 51 13
--------- ---------- --------- -------- --------- ---------
Total fixed charges 14,340 9,727 580 70 1,032 232
--------- ---------- --------- -------- --------- ---------
Preferred dividend requirements,
adjusted to a pre-tax basis 7,937 6,681 - - - -
--------- ---------- --------- -------- --------- ---------
Combined fixed charges and
preferred dividend requirements $ 22,277 $ 16,408 $ 580 $ 70 $ 1,032 $ 232
========= ========== ========= ======== ========= =========
Ratio of earnings to fixed charges - - 41.2 131.3 - 16.7
========= ========== ========= ======== ========= =========
Ratio of earnings to fixed charges
and preferred stock dividends - - 41.2 131.3 - 16.7
========= ========== ========= ======== ========= =========
Amount by which earnings did not
cover fixed charges $ 34,462 $ 91,327 $ - $ - $ 6,228 $ -
========= ========== ========= ======== ========= =========
</TABLE>
<PAGE> 1
EXHIBIT 15.1
LETTER REGARDING UNAUDITED INTERIM FINANCIAL INFORMATION
The Board of Directors and Shareholders
Marine Drilling Companies, Inc.:
With respect to this Registration Statement, we acknowledge our
awareness of the use therein of our report dated April 26, 1996, related to our
review of interim financial information. Pursuant to Rule 436(c) under the
Securities Act of 1933, such report is not considered part of a registration
statement prepared or certified by an accountant within the meanings of
Sections 7 and 11 of the Act.
KPMG PEAT MARWICK LLP
Houston, Texas
June 27, 1996
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Shareholders
Marine Drilling Companies, Inc.:
We consent to the use of our audit report dated January 26, 1996 on the
consolidated financial statements of Marine Drilling Companies, Inc. and
subsidiaries as of December 31, 1995 and 1994, and for each of the years in the
three-year period then ended, and all related schedules, incorporated herein by
reference and to the reference to our firm under the heading "Experts" in the
prospectus included in this Registration Statement.
KPMG PEAT MARWICK LLP
Houston, Texas
June 27, 1996
<PAGE> 1
POWER OF ATTORNEY
(UNIVERSAL SHELF)
WHEREAS, Marine Drilling Companies, Inc., a Texas corporation (the
"Company"), will file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 ("Registration Statement") including one or more
prospectuses included therein ("Prospectuses"), with such amendments (including
pre-effective and post-effective amendments) to such Registration Statement and
any supplement or supplements to the Prospectuses as may be necessary or
appropriate, in connection with registration by the Company of up to $150
million aggregate public offering price of (i) unsecured debt securities, in
one or more series, consisting of notes, debentures or other evidences of
indebtedness, (ii) shares of preferred stock, par value $.01 per share, in one
or more series, (iii) shares of common stock, par value $.01 per share and (iv)
warrants to purchase Common Stock;
NOW, THEREFORE, the undersigned in his capacity as a director or
officer or both, as the case may be, of the Company does hereby appoint William
H Flores, Joan R. Smith and each of them, severally, his true and lawful
attorney-in-fact or attorneys-in-fact, with or without the others and with
full power of substitution and resubstitution, to execute in his name, place,
and stead, in his capacity as a director or officer or both, as the case may
be, of the Company;
(1) the Registration Statement, including the Prospectuses and
exhibits thereto, and any and all amendments (including
pre-effective and post-effective amendments) to such
Registration statement and any supplement or supplements to
the Prospectuses as said attorneys-in-fact or any of them
shall deem necessary or appropriate, together with all
instruments necessary or incidental in connection therewith,
to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection
with any matter relating thereto; and
(2) any application, statement, petition, notice, or other
document, or any amendment thereto, or any exhibit filed in
connection therewith, which is required to register or qualify
(or exempt from registration or qualification) the securities
of the Company being offered, and to register or license the
Company as a broker or dealer in securities, under the
securities or blue-sky laws of all states as may be necessary
or appropriate to permit the offering and sale as contemplated
by said Registration Statement.
Each of said attorneys-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable in connection with such
Registration statement or related securities or blue-sky filings, as fully and
for all intents and purposes as the undersigned might or could do in person,
the undersigned hereby ratifying and approving the acts of said attorneys-in-
fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument this
3rd day of June, 1996.
/s/ Robert L. Barbanell
-------------------------------
<PAGE> 2
POWER OF ATTORNEY
(UNIVERSAL SHELF)
WHEREAS, Marine Drilling Companies, Inc., a Texas corporation (the
"Company"), will file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 ("Registration Statement") including one or more
prospectuses included therein ("Prospectuses"), with such amendments (including
pre-effective and post-effective amendments) to such Registration Statement and
any supplement or supplements to the Prospectuses as may be necessary or
appropriate, in connection with registration by the Company of up to $150
million aggregate public offering price of (i) unsecured debt securities, in
one or more series, consisting of notes, debentures or other evidences of
indebtedness, (ii) shares of preferred stock, par value $.01 per share, in one
or more series, (iii) shares of common stock, par value $.01 per share and (iv)
warrants to purchase Common Stock;
NOW, THEREFORE, the undersigned in his capacity as a director or
officer or both, as the case may be, of the Company does hereby appoint William
H Flores, Joan R. Smith and each of them, severally, his true and lawful
attorney-in-fact or attorneys-in-fact, with or without the others and with
full power of substitution and resubstitution, to execute in his name, place,
and stead, in his capacity as a director or officer or both, as the case may
be, of the Company;
(1) the Registration Statement, including the Prospectuses and
exhibits thereto, and any and all amendments (including
pre-effective and post-effective amendments) to such
Registration statement and any supplement or supplements to
the Prospectuses as said attorneys-in-fact or any of them
shall deem necessary or appropriate, together with all
instruments necessary or incidental in connection therewith,
to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection
with any matter relating thereto; and
(2) any application, statement, petition, notice, or other
document, or any amendment thereto, or any exhibit filed in
connection therewith, which is required to register or qualify
(or exempt from registration or qualification) the securities
of the Company being offered, and to register or license the
Company as a broker or dealer in securities, under the
securities or blue-sky laws of all states as may be necessary
or appropriate to permit the offering and sale as contemplated
by said Registration Statement.
Each of said attorneys-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable in connection with such
Registration statement or related securities or blue-sky filings, as fully and
for all intents and purposes as the undersigned might or could do in person,
the undersigned hereby ratifying and approving the acts of said attorneys-in-
fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument this
3rd day of June, 1996.
/s/ David A.B. Brown
-------------------------------
<PAGE> 3
POWER OF ATTORNEY
(UNIVERSAL SHELF)
WHEREAS, Marine Drilling Companies, Inc., a Texas corporation (the
"Company"), will file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 ("Registration Statement") including one or more
prospectuses included therein ("Prospectuses"), with such amendments (including
pre-effective and post-effective amendments) to such Registration Statement and
any supplement or supplements to the Prospectuses as may be necessary or
appropriate, in connection with registration by the Company of up to $150
million aggregate public offering price of (i) unsecured debt securities, in
one or more series, consisting of notes, debentures or other evidences of
indebtedness, (ii) shares of preferred stock, par value $.01 per share, in one
or more series, (iii) shares of common stock, par value $.01 per share and (iv)
warrants to purchase Common Stock;
NOW, THEREFORE, the undersigned in his capacity as a director or
officer or both, as the case may be, of the Company does hereby appoint William
H Flores, Joan R. Smith and each of them, severally, his true and lawful
attorney-in-fact or attorneys-in-fact, with or without the others and with
full power of substitution and resubstitution, to execute in his name, place,
and stead, in his capacity as a director or officer or both, as the case may
be, of the Company;
(1) the Registration Statement, including the Prospectuses and
exhibits thereto, and any and all amendments (including
pre-effective and post-effective amendments) to such
Registration statement and any supplement or supplements to
the Prospectuses as said attorneys-in-fact or any of them
shall deem necessary or appropriate, together with all
instruments necessary or incidental in connection therewith,
to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection
with any matter relating thereto; and
(2) any application, statement, petition, notice, or other
document, or any amendment thereto, or any exhibit filed in
connection therewith, which is required to register or qualify
(or exempt from registration or qualification) the securities
of the Company being offered, and to register or license the
Company as a broker or dealer in securities, under the
securities or blue-sky laws of all states as may be necessary
or appropriate to permit the offering and sale as contemplated
by said Registration Statement.
Each of said attorneys-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable in connection with such
Registration statement or related securities or blue-sky filings, as fully and
for all intents and purposes as the undersigned might or could do in person,
the undersigned hereby ratifying and approving the acts of said attorneys-in-
fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument this
3rd day of June, 1996.
/s/ Howard I. Bull
-------------------------------
<PAGE> 4
POWER OF ATTORNEY
(UNIVERSAL SHELF)
WHEREAS, Marine Drilling Companies, Inc., a Texas corporation (the
"Company"), will file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 ("Registration Statement") including one or more
prospectuses included therein ("Prospectuses"), with such amendments (including
pre-effective and post-effective amendments) to such Registration Statement and
any supplement or supplements to the Prospectuses as may be necessary or
appropriate, in connection with registration by the Company of up to $150
million aggregate public offering price of (i) unsecured debt securities, in
one or more series, consisting of notes, debentures or other evidences of
indebtedness, (ii) shares of preferred stock, par value $.01 per share, in one
or more series, (iii) shares of common stock, par value $.01 per share and (iv)
warrants to purchase Common Stock;
NOW, THEREFORE, the undersigned in his capacity as a director or
officer or both, as the case may be, of the Company does hereby appoint William
H Flores, Joan R. Smith and each of them, severally, his true and lawful
attorney-in-fact or attorneys-in-fact, with or without the others and with
full power of substitution and resubstitution, to execute in his name, place,
and stead, in his capacity as a director or officer or both, as the case may
be, of the Company;
(1) the Registration Statement, including the Prospectuses and
exhibits thereto, and any and all amendments (including
pre-effective and post-effective amendments) to such
Registration statement and any supplement or supplements to
the Prospectuses as said attorneys-in-fact or any of them
shall deem necessary or appropriate, together with all
instruments necessary or incidental in connection therewith,
to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection
with any matter relating thereto; and
(2) any application, statement, petition, notice, or other
document, or any amendment thereto, or any exhibit filed in
connection therewith, which is required to register or qualify
(or exempt from registration or qualification) the securities
of the Company being offered, and to register or license the
Company as a broker or dealer in securities, under the
securities or blue-sky laws of all states as may be necessary
or appropriate to permit the offering and sale as contemplated
by said Registration Statement.
Each of said attorneys-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable in connection with such
Registration statement or related securities or blue-sky filings, as fully and
for all intents and purposes as the undersigned might or could do in person,
the undersigned hereby ratifying and approving the acts of said attorneys-in-
fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument this
4th day of June, 1996.
/s/ Nathaniel A. Gregory
-------------------------------
<PAGE> 5
POWER OF ATTORNEY
(UNIVERSAL SHELF)
WHEREAS, Marine Drilling Companies, Inc., a Texas corporation (the
"Company"), will file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 ("Registration Statement") including one or more
prospectuses included therein ("Prospectuses"), with such amendments (including
pre-effective and post-effective amendments) to such Registration Statement and
any supplement or supplements to the Prospectuses as may be necessary or
appropriate, in connection with registration by the Company of up to $150
million aggregate public offering price of (i) unsecured debt securities, in
one or more series, consisting of notes, debentures or other evidences of
indebtedness, (ii) shares of preferred stock, par value $.01 per share, in one
or more series, (iii) shares of common stock, par value $.01 per share and (iv)
warrants to purchase Common Stock;
NOW, THEREFORE, the undersigned in his capacity as a director or
officer or both, as the case may be, of the Company does hereby appoint William
H Flores, Joan R. Smith and each of them, severally, his true and lawful
attorney-in-fact or attorneys-in-fact, with or without the others and with
full power of substitution and resubstitution, to execute in his name, place,
and stead, in his capacity as a director or officer or both, as the case may
be, of the Company;
(1) the Registration Statement, including the Prospectuses and
exhibits thereto, and any and all amendments (including
pre-effective and post-effective amendments) to such
Registration statement and any supplement or supplements to
the Prospectuses as said attorneys-in-fact or any of them
shall deem necessary or appropriate, together with all
instruments necessary or incidental in connection therewith,
to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection
with any matter relating thereto; and
(2) any application, statement, petition, notice, or other
document, or any amendment thereto, or any exhibit filed in
connection therewith, which is required to register or qualify
(or exempt from registration or qualification) the securities
of the Company being offered, and to register or license the
Company as a broker or dealer in securities, under the
securities or blue-sky laws of all states as may be necessary
or appropriate to permit the offering and sale as contemplated
by said Registration Statement.
Each of said attorneys-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable in connection with such
Registration statement or related securities or blue-sky filings, as fully and
for all intents and purposes as the undersigned might or could do in person,
the undersigned hereby ratifying and approving the acts of said attorneys-in-
fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument this
3rd day of June, 1996.
/s/ Christopher M. Linneman
-------------------------------
<PAGE> 1
EXHIBIT 25.1
Conformed Copy
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
----------------------------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
----------------------------
MARINE MIDLAND BANK
(Exact name of trustee as specified in its charter)
New York 16-1057879
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
national bank)
140 Broadway, New York, N.Y. 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
Eric Parets
Senior Vice President
140 Broadway
New York, New York 10005-1180
Tel: (212) 658-6560
(Name, address and telephone number of agent for service)
MARINE DRILLING COMPANIES, INC.
(Exact name of obligor as specified in its charter)
Texas 74-2558926
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One Sugar Creek Center Blvd., Suite 600
Sugar Land, Texas 77478-3556
(713) 243-3000 (Zip Code)
(Address of principal executive offices)
DEBT SECURITIES
(Title of Indenture Securities)
<PAGE> 2
General
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory
authority to which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington,
D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None
<PAGE> 3
Item 16. List of Exhibits.
<TABLE>
<CAPTION>
Exhibit
- -------
<S> <C> <C> <C>
T1A(i) * - Copy of the Organization Certificate of
Marine Midland Bank.
T1A(ii) * - Certificate of the State of New York
Banking Department dated December 31, 1993
as to the authority of Marine Midland Bank
to commence business.
T1A(iii) - Not applicable.
T1A(iv) * - Copy of the existing By-Laws of Marine
Midland Bank as adopted on January 20, 1994.
T1A(v) - Not applicable.
T1A(vi) * - Consent of Marine Midland Bank required by
Section 321(b) of the Trust Indenture Act
of 1939.
T1A(vii) - Copy of the latest report of condition of the
trustee (March 31, 1996), published pursuant
to law or the requirement of its supervisory
or examining authority.
T1A(viii) - Not applicable.
T1A(ix) - Not applicable.
</TABLE>
* Exhibits previously filed with the Securities and Exchange Commission
with Registration No. 33-53693 and incorporated herein by reference
thereto.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
Marine Midland Bank, a banking corporation and trust company organized under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York on the 10th day
of June 1996.
MARINE MIDLAND BANK
By: /s/ Frank J. Godino
----------------------------------
Frank J. Godino
Corporate Trust Officer
<PAGE> 5
EXHIBIT T1A (VII)
Board of Governors of the
Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL Expires March 31, 1999
- --------------------------------------------------------------------------------
This financial information has not [1]
been reviewed, or confirmed for
accuracy or relevance, by the
Federal Reserve System. Please refer to page i,
Table of Contents, for
the required disclosure
of estimated burden.
- --------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES--FFIEC 031
REPORT AT THE CLOSE OF BUSINESS MARCH 31, 1996
This report is required by law; This report form is to be filed by
12 U.S.C. Section 324 (State member banks with branches and consolidated
banks); 12 U.S.C. Section 1817 subsidiaries in U.S. territories and
(State nonmember banks); and possessions, Edge or Agreement
12 U.S.C. Section 161 (National banks) subsidiaries, foreign branches,
consolidated foreign subsidiaries,
or international Banking Facilities.
- --------------------------------------------------------------------------------
NOTE: The Reports of Condition and The Reports of Condition and income
Income must be signed by an authorized are to be prepared in accordance
officer and the Report of condition with Federal regulatory authority
must be attested to by not less than instructions. NOTE: These
two directors (trustees) for State instructions may in some cases
nonmember banks and three directors differ from generally accepted
for State member and national banks. accounting principles.
I, Gerald A. Ronning, We, the undersigned directors
Executive VP & Controller (trustees), attest to the
-------------------------------- correctness of this Report of
Name and Title of Officer Condition (including the supporting
Authoried to Sign Report schedules) and declare that it has
been examined by us and to the best
of the named bank do hereby declare of our knowledge and belief has been
that these Reports of Condition and prepared in conformance with the
income (including the supporting instructions issued by the
schedules) have been prepared in appropriate Federal regulatory
conformance with the instructions authority and is true and correct.
issued by the appropriate Federal
regulatory authority and are true /s/ Henry J. Nowak
to the best of my knowledge and ------------------------------------
believe. Director (Trustee)
/s/ Gerald A. Ronning /s/ Bernard J. Kennedy
- ------------------------------- ------------------------------------
Signature of Officer Authorized Director (Trustee)
to Sign Report
/s/ James H. Cleave
4/25/96 ------------------------------------
- ------------------------------- Director (Trustee)
- --------------------------------------------------------------------------------
For Banks Submitting Hard Copy
Report Forms:
State Member Bank: Return the original National Banks: Return the original
and one copy to the appropriate Federal only in the special return address
Reserve District Bank. envelope provided. If express mail
is used in lieu of the special
State Nonmember Banks: Return the return addres envelope, return the
original only in the special return original only to the FDIC, c/o
address envelope provided. If express Quality Data Systems, 2127 Espey
mail is used in lieu of the special Court, Suite 204, Crofton, MD 21114
return address envelope, return the
original only to the FDIC, c/o Quality
Data Systems, 2127 Espey Court, Suite
204, Crofton, MD 21114
- --------------------------------------------------------------------------------
FDIC Certificate Number 0 0 5 8 9
---------------
(RCRI 9030)
<PAGE> 6
NOTICE
This form is intended to assist institutions with state publication
requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities
for your state publication requirements.
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
Marine Midland Bank of Buffalo
Name of Bank City
in the state of New York, at the close of business
March 31, 1996
ASSETS Thousands
of dollars
Cash and balances due from depository
institutions:
<TABLE>
<S> <C>
Noninterest-bearing balances
currency and coin.................................... $ 1,344,915
Interest-bearing balances ........................... 1,536,664
Held-to-maturity securities.......................... 0
Available-for-sale securities........................ 3,338,156
</TABLE>
Federal Funds sold and securities purchased
under agreements to resell in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
<TABLE>
<S> <C>
Federal funds sold................................... 439,200
Securities purchased under
agreements to resell................................. 323,578
</TABLE>
Loans and lease financing receivables:
<TABLE>
<S> <C>
Loans and leases net of unearned
income............................... 13,404,283
LESS: Allowance for loan and lease
losses............................... 470,421
LESS: Allocated transfer risk reserve 0
Loans and lease, net of unearned
income, allowance, and reserve....................... 12,933,862
Trading assets....................................... 818,882
Premises and fixed assets (including
capitalized leases).................................. 177,937
</TABLE>
<TABLE>
<S> <C>
Other real estate owned................................. 4,004
Investments in unconsolidated
subsidiaries and associated companies................... 0
Customers' liability to this bank on
acceptances outstanding................................. 24,688
Intangible assets....................................... 60,829
Other assets............................................ 436,079
Total assets............................................ 21,438,794
</TABLE>
<PAGE> 7
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices.................................. 13,972,231
Noninterest-bearing.................. 3,227,485
Interest-bearing..................... 10,744,746
In foreign offices, Edge, and Agreement
subsidiaries, and IBFs.................. 2,915,229
Noninterest-bearing.................. 0
Interest-bearing..................... 2,915,229
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased.............................. 759,940
Securities sold under agreements to
repurchase........................................... 809,703
Demand notes issued to the U.S. Treasury 111,294
Trading Liabilities...................................... 323,875
Other borrowed money:
With original maturity of one year
or less.............................................. 83,438
With original maturity of more than
one year............................................. 0
Mortgage indebtedness and obligations
under capitalized leases................................ 34,696
Bank's liability on acceptances
executed and outstanding................................ 24,688
Subordinated notes and debentures....................... 225,000
Other liabilities....................................... 467,094
Total liabilities....................................... 19,727,188
Limited-life preferred stock and
related surplus......................................... 0
</TABLE>
<TABLE>
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related
surplus................................................. 0
Common Stock............................................ 185,000
Surplus................................................. 1,633,098
Undivided profits and capital reserves.................. (115,039)
Net unrealized holding gains (losses)
on available-for-sale securities........................ 8,547
Cumulative foreign currency translation
adjustments............................................. 0
Total equity capital.................................... 1,711,606
Total liabilities, limited-life
preferred stock, and equity capital..................... 21,438,794
</TABLE>
<PAGE> 1
EXHIBIT 25.2
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)
------------
-----------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
</TABLE>
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
_________________________________
MARINE DRILLING COMPANIES, INC.
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
TEXAS 74-2558926
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
ONE SUGAR CREEK CENTER BLVD., SUITE 600
SUGAR LAND, TEXAS 77478-3556
(Address of principal executive offices) (Zip Code)
</TABLE>
------------------------------
SENIOR SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE> 2
-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.
NAME ADDRESS
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
ITEM 3.-15. NOT APPLICABLE
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1 - Restated Organization Certificate of Bankers
Trust Company dated August 7, 1990 and
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated
June 21, 1995 - Incorporated herein by
reference to Exhibit 1 filed with Form T-1
Statement, Registration No. 33-65171.
EXHIBIT 2 - Certificate of Authority to commence business
- Incorporated herein by reference to Exhibit
2 filed with Form T-1 Statement, Registration
No. 33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise
corporate trust powers - Incorporated herein
by reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company,
dated as amended on October 19, 1995. -
Incorporated herein by reference to Exhibit 4
filed with Form T-1 Statement, Registration
No. 33-65171.
<PAGE> 3
-3-
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated
herein by reference to Exhibit 4 filed with
Form T-1 Statement, Registration No.
22-18864.
EXHIBIT 7 - A copy of the latest report of condition of
Bankers Trust Company dated as of March 31,
1996.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State of New York,
on the 7th day of June, 1996.
BANKERS TRUST COMPANY
By: /s/ Jenna Kaufman
-----------------
Jenna Kaufman
Vice President
<PAGE> 5
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 3/31/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED
SAVINGS BANKS MARCH 31, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
---------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS / / / / / / / / / / / / / /
1. Cash and balances due from depository institutions (from Schedule RC-A): / / / / / / / / / / / / / /
a. Noninterest-bearing balances and currency and coin(1) ................ 0081 1,145,000 1.a.
b. Interest-bearing balances(2) ......................................... 0071 1,403,000 1.b.
2. Securities: / / / / / / / / / / / / / /
a. Held-to-maturity securities (from Schedule RC-B, column A) ........... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).......... 1773 3,535,000 2.b.
3 Federal funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement / / / / / / / / / / / / /
subsidiaries, and in IBFs: / / / / / / / / / / / / /
a. Federal funds sold ................................................... 0276 3,190,000 3.a.
b. Securities purchased under agreements to resell ...................... 0277 2,242,000 3.b.
4. Loans and lease financing receivables: / / / / / / / / / / / / / /
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 24,678,000 / / / / / / / / / / / 4.a.
b. LESS: Allowance for loan and lease losses...................RCFD 3123 938,000 / / / / / / / / / / / / / / 4.b.
c. LESS: Allocated transfer risk reserve ......................RCFD 3128 0 / / / / / / / / / / / / / / 4.c.
d. Loans and leases, net of unearned income, / / / / / / / / / / / / /
allowance, and reserve (item 4.a minus 4.b and 4.c) .................. 2125 23,740,000 4.d.
5. Assets held in trading accounts ........................................... 3545 32,261,000 5.
6. Premises and fixed assets (including capitalized leases) .................. 2145 857,000 6.
7. Other real estate owned (from Schedule RC-M) .............................. 2150 247,000 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 253,000 8.
9. Customers' liability to this bank on acceptances outstanding .............. 2155 402,000 9.
10. Intangible assets (from Schedule RC-M) .................................... 2143 12,000 10.
11. Other assets (from Schedule RC-F) ......................................... 2160 11,579,000 11.
12. Total assets (sum of items 1 through 11) .................................. 2170 80,866,000 12.
----------------------------------
</TABLE>
- -----------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE> 6
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 3/31/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
SCHEDULE RC--CONTINUED
---------------------------------
Dollar Amounts in Thousands / / / / / / / Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------------
LIABILITIES / / / / / / / / / / / / /
13. Deposits: / / / / / / / / / / / / /
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) RCON 2200 7,327,000 13.a.
(1) Noninterest-bearing(1) ................RCON 6631 2,132,000.......... / / / / / / / / / / / / / 13.a.(1)
(2) Interest-bearing .......................RCON 6636 5,195,000......... / / / / / / / / / / / / / 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E / / / / / / / / / / / / /
part II) RCFN 2200 18,575,000 13.b.
(1) Noninterest-bearing ...................RCFN 6631 552,000 / / / / / / / / / / / / / 13.b.(1)
(2) Interest-bearing ......................RCFN 6636 18,023,000 / / / / / / / / / / / / / 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase in / / / / / / / / / / / / /
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs: / / / / / / / / / / / / /
a. Federal funds purchased.................................................... RCFD 0278 2,324,000 14.a.
b. Securities sold under agreements to repurchase ............................ RCFD 0279 651,000 14.b.
15. a. Demand notes issued to the U.S. Treasury .................................. RCON 2840 0 15.a.
b. Trading liabilities........................................................ RCFD 3548 18,807,000 15.b.
16. Other borrowed money: / / / / / / / / / / / /
a. With original maturity of one year or less ................................ RCFD 2332 13,784,000 16.a.
b. With original maturity of more than one year .............................. RCFD 2333 3,462,000 16.b.
17. Mortgage indebtedness and obligations under capitalized leases ................ RCFD 2910 34,00 17.
18. Bank's liability on acceptances executed and outstanding ...................... RCFD 2920 415,000 18.
19. Subordinated notes and debentures ............................................. RCFD 3200 1,227,000 19.
20. Other liabilities (from Schedule RC-G) ........................................ RCFD 2930 9,724,000 20.
21. Total liabilities (sum of items 13 through 20) ................................ RCFD 2948 76,330,000 21.
/ / / / / / / / / / / / /
22. Limited-life preferred stock and related surplus .............................. RCFD 3282 0 22.
EQUITY CAPITAL / / / / / / / / / / / / /
23. Perpetual preferred stock and related surplus ................................. RCFD 3838 500,000 23.
24. Common stock................................................................... RCFD 3230 1,002,000 24.
25. Surplus (exclude all surplus related to preferred stock) ...................... RCFD 3839 528,000 25.
26. a. Undivided profits and capital reserves..................................... RCFD 3632 2,879,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities .... RCFD 8434 (8,000) 26.b.
27. Cumulative foreign currency translation adjustments ........................... RCFD 3284 (365,000) 27.
28. Total equity capital (sum of items 23 through 27) ............................. RCFD 3210 4,536,000 28.
29. Total liabilities, limited-life preferred stock, and equity capital / / / / / / / / / / / / /
(sum of items 21, 22, and 28).................................................. RCFD 3300 80,866,000 29.
-------------------------------------------
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work Nummber
performed for the bank by independent external -----------------
auditors as of any date during 1994........................................... | RCFD 6724 2 | M.1
---------------------------------
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- ----------------------
(1) Including total demand deposits and noninterest-bearing time and
savings deposits.
