<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 17, 1997
REGISTRATION NO 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------
DIAMOND OFFSHORE DRILLING, INC.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C> <C>
DELAWARE 1381 76-0321760
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Organization) Classification Code Number) Identification Number)
</TABLE>
<TABLE>
<S> <C> <C>
DIAMOND OFFSHORE DRILLING, INC. RICHARD L. LIONBERGER, ESQ.
15415 KATY FREEWAY VICE PRESIDENT, GENERAL COUNSEL AND COPY TO:
HOUSTON, TEXAS 77094 SECRETARY JAMES L. RICE III, ESQ.
(281) 492-5300 15415 KATY FREEWAY WEIL, GOTSHAL & MANGES LLP
(Address, Including Zip Code, and Telephone HOUSTON, TEXAS 77094 700 LOUISIANA, SUITE 1600
Number, (281) 492-5300 HOUSTON, TEXAS 77002
Including Area Code, of Registrant's (Name, Address, Including Zip Code and (713) 546-5000
Principal Executive Offices) Telephone Number, Including Area
Code, of Agent For Service)
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement.
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.[_]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered registered (1)(2) offering price per unit aggregate offering price(2) registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities(3)...........................
Warrants to Purchase Debt Securities.........
Preferred Stock, par value $.01 per share (4)
Warrants to Purchase Preferred Stock......... $600,000,000 (2) $600,000,000 $181,818.18
Common Stock, par value $.01 per share (5)...
====================================================================================================================================
<FN>
(1) In United States dollars or the equivalent thereof in foreign currency or
currency units.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended. The
aggregate public offering price of the Debt Securities, Warrants to
purchase Debt Securities, Preferred Stock and Warrants to purchase
Preferred Stock registered hereby will not exceed $600,000,000. No
separate consideration will be received for Common Stock, Preferred Stock
or Debt Securities that are issued upon conversion or exchange of
Preferred Stock or Debt Securities.
(3) Such indeterminate amount of Debt Securities as may from time to time be
issued at indeterminate prices or issuable upon conversion or exchange of
Debt Securities or Preferred Stock, to the extent such Debt Securities or
Preferred Stock are, by their terms, convertible into or exchangeable for
Debt Securities, or upon the exercise of Warrants to purchase Debt
Securities.
(4) Such indeterminate number of shares of Preferred Stock as may from time to
time be issued at indeterminate prices or issuable upon conversion or
exchange of Debt Securities or Preferred Stock, to the extent such Debt
Securities or Preferred Stock are, by their terms, convertible into or
exchangeable for shares of Preferred Stock, or upon the exercise of
Warrants to purchase Preferred Stock.
(5) Such indeterminate number of shares of Common Stock as may from time to
time be issuable upon conversion or exchange of Debt Securities or
Preferred Stock, to the extent such Debt Securities or Preferred Stock
are, by their terms, convertible into or exchangeable for shares of Common
Stock.
</FN>
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE>
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 JANUARY 17, 1997
[DIAMOND OFFSHORE DRILLING, INC. LOGO]
-----------------------------
$600,000,000
DEBT SECURITIES PREFERRED STOCK COMMON STOCK SECURITIES WARRANTS
-----------------------------
Diamond Offshore Drilling, Inc., a Delaware corporation (the "Company"),
may issue from time to time, together or separately, (1) its debt securities
(the "Debt Securities"), which may be either senior ("Senior Securities") or
subordinated ("Subordinated Securities") and which may be convertible into or
exchangeable for shares of common stock, par value $0.01 per share, of the
Company (the "Common Stock"), shares of preferred stock, par value $0.01 per
share, of the Company (the "Preferred Stock"), or other Debt Securities; (2)
warrants to purchase Debt Securities (the "Debt Warrants"); (3) Preferred Stock,
which may be convertible into or exchangeable for shares of Common Stock or
shares of Preferred Stock or Debt Securities; (4) warrants to purchase shares of
Preferred Stock (the "Preferred Stock Warrants"); and (5) Common Stock issuable
upon the conversion or exchange of Debt Securities or Preferred Stock offered
hereunder, to the extent such Debt Securities or Preferred Stock are by their
terms, convertible into or exchangeable for shares of Common Stock, in amounts,
at prices and on terms to be determined by market conditions at the time of
offering thereof. The Debt Warrants and Preferred Stock Warrants are
collectively referred to herein as the "Securities Warrants" and the Debt
Securities, Preferred Stock, Common Stock and Securities Warrants are
collectively referred to herein as the "Offered Securities".
The Offered Securities may be issued in one or more series or issuances
and will be limited to $600,000,000 in aggregate public offering price (or its
equivalent, based on the applicable exchange rate, to the extent Debt Securities
are issued for one or more foreign currencies or currency units). The Offered
Securities may be sold for U.S. dollars, or any foreign currency or currencies
or currency units, and the principal of, and any premium or interest on, the
Debt Securities may be payable in U.S. dollars, or any foreign currency or
currencies or currency units.
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered are set forth in the accompanying Prospectus
Supplement (the "Prospectus Supplement"), including, where applicable, (1) in
the case of Debt Securities, the specific designation, aggregate principal
amount, authorized denomination, initial offering price, maturity, premium (if
any), interest rate (which may be fixed or floating), time of and method of
calculating the payment of interest, if any, the currency in which principal,
premium, if any, and interest, if any, are payable, any redemption or sinking
fund terms, any terms for the conversion into or exchange for shares of Common
Stock or Preferred Stock or other Debt Securities, terms of subordination of
Subordinated Securities, and other specific terms; (2) in the case of Preferred
Stock, the specific designation, any dividend, liquidation, redemption, sinking
fund, voting or other rights, time of payment of dividends, any terms for the
conversion into or exchange for shares of Common Stock or shares of Preferred
Stock or Debt Securities, the initial offering price and other specific terms;
and (3) in the case of Securities Warrants, the duration, initial offering
price, exercise price and detachability thereof. The Prospectus Supplement will
also contain information, where applicable, about certain United States Federal
income tax considerations relating to, and any listing on a securities exchange
of, the Offered 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.
-----------------------------
The Offered Securities will be sold directly, through agents, dealers or
underwriters as designated from time to time, or through a combination of such
methods. If any agents of the Company or any dealers or underwriters are
involved in the sale of the Offered Securities in respect of which this
Prospectus is being delivered, the names of such agents, dealers or underwriters
and any applicable agent's commission, dealer's purchase price or underwriter's
discount will be set forth in or may be calculated from the Prospectus
Supplement. The net proceeds to the Company from such sale will be the purchase
price less such commission in the case of an agent, the purchase price in the
case of a dealer, or the public offering price less such discount in the case of
an underwriter and less, in each case, other attributable issuance expenses. See
"Plan of Distribution."
The date of this Prospectus is January __, 1997.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission") relating to its business, financial position,
results of operations and other matters. Such reports and other information can
be inspected and copied at the Public Reference Section maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549
and at certain of its Regional Offices, located at Northwest Atrium Center
(Suite 1400), 500 West Madison Street, Chicago, Illinois 60661, and Seven World
Trade Center, 13th Floor, New York, New York 10048. Copies of such material can
also be obtained from the Public Reference Section of the Commission at
prescribed rates. Such material can also be inspected at the offices of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005. Such
material may also be accessed electronically by means of the Commission's home
page on the Internet (http://www.sec.gov).
The Company has filed with the Commission a registration statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the securities offered hereby. This
Prospectus does not contain all the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. Reference is made to the Registration Statement
and to the exhibits relating thereto for further information with respect to the
Company and the securities offered hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference herein its Annual Report on
Form 10-K for the fiscal year ended December 31, 1995, its Quarterly Reports on
Form 10-Q for the quarterly periods ended March 31, 1996, June 30, 1996 and
September 30, 1996, its Current Reports on Form 8-K dated February 20, 1996 and
May 13, 1996, all of which have been previously filed with the Commission under
File No. 1-13926, and the description of Common Stock of the Company that is
contained in the registration statement on Form 8-A dated September 6, 1995
filed under the Exchange Act under File No. 1-13926, and Amendment No. 1 thereto
on Form 8-A/A dated October 9, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and before the
termination of the offering of the Offered Securities offered hereby shall be
deemed incorporated herein by reference, and such documents shall be deemed to
be a part hereof from the date of filing such documents. Any statement contained
herein, in a document incorporated or deemed to be incorporated by reference
herein, or in the accompanying Prospectus Supplement, shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein or in the accompanying Prospectus
Supplement modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the above documents incorporated or deemed to be
incorporated herein by reference (other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference into the documents that
this Prospectus incorporates). Written or oral requests should be directed to:
Diamond Offshore Drilling, Inc., 15415 Katy Freeway, Houston, Texas 77094; Attn:
Corporate Secretary (telephone 281-492-5300).
2
<PAGE>
THE COMPANY
The Company, through wholly owned subsidiaries, engages worldwide in the
contract drilling of offshore oil and gas wells and is a leader in deep water
drilling. The Company's fleet of 46 mobile offshore drilling rigs is one of the
largest in the world and includes the largest fleet of semisubmersible rigs. The
fleet is comprised of 30 semisubmersibles (including three of the world's 13
fourth-generation semisubmersibles), 15 jack-ups and one drillship.
On December 31, 1996, the Company exited the land drilling business with
the sale of its land rigs and associated equipment for approximately $26
million.
Unless the context otherwise requires, references herein and in any
Prospectus Supplement to the "Company" shall mean Diamond Offshore Drilling,
Inc. and its subsidiaries.
The Company is a Delaware corporation with its principal executive offices
located at 15415 Katy Freeway, Houston, Texas 77094, where its telephone number
is (281) 492-5300.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's fixed charges exceeded the Company's earnings by
approximately $13,803,000, $46,425,000, $21,670,000, $77,951,000, and
$22,609,000 for the years ended December 31, 1995, 1994, 1993, 1992 and 1991,
respectively. Fixed charges for the years ended December 31, 1991 through
December 31, 1995 consisted solely of interest expense on notes payable to Loews
Corporation. The Company's consolidated ratio of earnings to fixed charges for
the nine months ended September 30, 1996, was 49.49. For all such periods, the
ratio of earnings to fixed charges has been computed on a total enterprise
basis. Earnings represent income from continuing operations plus income taxes
and fixed charges. Fixed charges represent interest, whether expensed or
capitalized.
3
<PAGE>
USE OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement, the net proceeds
from the sale of the Offered Securities offered hereby will be used for general
corporate purposes, including repayment of borrowings, working capital, capital
expenditures and acquisitions. Additional information on the use of net proceeds
from the sale of the Offered Securities offered hereby is set forth in the
Prospectus Supplement relating to such Offered Securities.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities summarizes
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
and the extent, if any, to which such general provisions may apply to any series
of Debt Securities will be described in the Prospectus Supplement relating to
such series.
The Debt Securities are to be issued under one or more Indentures
(collectively, the "Indenture") between the Company and a trustee selected by
the Company, which trustee shall be named in a Prospectus Supplement (the
"Trustee"). The following statements are subject to the detailed provisions of
the Indenture, a copy of which is filed as an exhibit to the Registration
Statement. Wherever any particular provisions of the Indenture or terms defined
therein are referred to, such provisions and terms are incorporated by reference
as a part of the statements made herein and such statements are qualified in
their entirety by such references. References to particular sections of the
Indenture are noted below. Defined terms used herein but not defined herein
shall have the meanings ascribed to them in the Indenture.
GENERAL
The Debt Securities may be either Senior Securities or Subordinated
Securities and will be unsecured. The Indenture does not limit the amount of
Debt Securities which may be issued thereunder and Debt Securities may be issued
thereunder up to the aggregate principal amount which may be authorized from
time to time by the Company. (Section 301) Debt Securities will be issued from
time to time and offered on terms determined by market conditions at the time of
sale.
The Senior Securities will be unsecured and will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company. To the extent
provided in the Prospectus Supplement relating thereto, the Company may be
required to secure Senior Securities equally and ratably with other indebtedness
of the Company with respect to which the Company elects or is required to
provide security. The Subordinated Securities will be unsecured and will be
subordinated and junior to all "Senior Indebtedness" (which for this purpose
includes any Senior Securities) to the extent set forth in the applicable
supplemental Indenture and the Prospectus Supplement relating to such series.
The Debt Securities may be issued in one or more series with the same or
various maturities at par, at a premium or at a discount. Any Debt Securities
bearing no interest or interest at a rate which at the time of issuance is below
market rates will be sold at a discount (which may be substantial) from their
stated principal amount. Federal income tax
4
<PAGE>
consequences and other special considerations applicable to any such
substantially discounted Debt Securities will be described in the Prospectus
Supplement relating thereto.
Reference is made to the Prospectus Supplement for the following terms of
the Debt Securities offered hereby: (i) the designation, aggregate principal
amount and authorized denominations of such Debt Securities; (ii) the percentage
of their principal amount at which such Debt Securities will be issued; (iii)
the date or dates on which the Debt Securities will mature; (iv) the rate or
rates (which may be fixed or floating) per annum at which the Debt Securities
will bear interest, if any, or the method of determining such rate or rates; (v)
the date or dates on which any such interest will be payable, the date or dates
on which payment of any such interest will commence and the Regular Record Dates
for such Interest Payment Dates; (vi) whether such Debt Securities are Senior
Securities or Subordinated Securities; (vii) the terms of any mandatory or
optional redemption (including any provisions for any sinking, purchase or other
analogous fund) or repayment option; (viii) the currency, currencies or currency
units for which the Debt Securities may be purchased and the currency,
currencies or currency units in which the principal thereof, any premium thereon
and any interest thereon may be payable; (ix) if the currency, currencies or
currency units for which the Debt Securities may be purchased or in which the
principal thereof, any premium thereon and any interest thereon may be payable
is at the election of the Company or the purchaser, the manner in which such
election may be made; (x) if the amount of payments on the Debt Securities is
determined with reference to an index based on one or more currencies or
currency units, changes in the price of one or more securities or changes in the
price of one or more commodities, the manner in which such amounts may be
determined; (xi) the extent to which any of the Debt Securities will be issuable
in temporary or permanent global form, or the manner in which any interest
payable on a temporary or permanent Global Security will be paid; (xii) the
terms and conditions upon which conversion or exchange of the Debt Securities
into or for Common Stock, Preferred Stock or other Debt Securities will be
effected, including the conversion price or exchange ratio, the conversion or
exchange period and any other conversion or exchange provisions; (xiii)
information with respect to book-entry procedures, if any; (xiv) a discussion of
certain Federal income tax, accounting and other special considerations,
procedures and limitations with respect to the Debt Securities; and (xv) any
other specific terms of the Debt Securities not inconsistent with the Indenture.
If any of the Debt Securities are sold for one or more foreign currencies
or foreign currency units or if the principal of, premium, if any, or any
interest on any series of Debt Securities is payable in one or more foreign
currencies or foreign currency units, the restrictions, elections, Federal
income tax consequences, specific terms and other information with respect to
such issue of Debt Securities and such currencies or currency units will be set
forth in the Prospectus Supplement relating thereto.
Unless otherwise specified in the Prospectus Supplement, the principal of,
any premium on, and any interest on the Debt Securities will be payable, and the
Debt Securities will be transferable, at the Corporate Trust Office of the
Trustee specified in the applicable Indenture, provided that payment of
interest, if any, may be made at the option of the Company by check mailed on or
before the payment date, first class mail, to the address of the person entitled
thereto as it appears on the registry books of the Company or its agent.
5
<PAGE>
Unless otherwise specified in the Prospectus Supplement, the Debt
Securities will be issued only in fully registered form and in denominations of
$1,000 and any integral multiple thereof. (Sections 301 and 302) No service
charge will be made for any transfer or exchange of any Debt Securities, but the
Company may, except in certain specified cases not involving any transfer,
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. (Section 305)
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 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 may not be transferred except as a whole by the
Depositary for such Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any nominee of such Depositary to a successor
Depositary or any nominee of such successor.
The specific terms of the depositary arrangement with respect to a series
of Debt Securities will be described in the Prospectus Supplement relating to
such 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 such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Except as provided below, owners of beneficial interests in a Global
Security will not be entitled to have any of the individual Debt Securities 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 of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture governing such Debt Securities.
6
<PAGE>
Payments of principal of, any premium on, and any interest 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. Neither the Company, the Trustee for such Debt Securities, any
Paying Agent, nor the Security 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.
The Company expects that the Depositary for a series of Debt Securities or
its nominee, upon receipt of any payment of principal, premium or interest in
respect of a permanent Global Security representing any of 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 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.
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 denominations, unless otherwise specified by the
Company, of $1,000 and integral multiples thereof.
SENIOR SECURITIES
The Senior Securities will be direct, unsecured obligations of the
Company, and will constitute Senior Indebtedness (in each case as defined in the
applicable supplemental Indenture) ranking on a parity with all other unsecured
and unsubordinated indebtedness of the Company.
7
<PAGE>
SUBORDINATED SECURITIES
The Subordinated Securities will be direct, unsecured obligations of the
Company. The obligations of the Company pursuant to the Subordinated Securities
will be subordinate in right of payment to the extent set forth in the Indenture
and the applicable supplemental Indenture to all Senior Indebtedness (including
all Senior Securities) (in each case as defined in the applicable supplemental
Indenture). Except to the extent otherwise set forth in a Prospectus Supplement,
the Indenture does not contain any restriction on the amount of Senior
Indebtedness which the Company may incur.
The terms of the subordination of a series of Subordinated Securities,
together with the definition of Senior Indebtedness related thereto, will be as
set forth in the applicable supplemental Indenture and the Prospectus Supplement
relating to such series.
The Subordinated Securities will not be subordinated to indebtedness of
the Company which is not Senior Indebtedness, and the creditors of the Company
who do not hold Senior Indebtedness will not benefit from the subordination
provisions described herein. In the event of the bankruptcy or insolvency of the
Company before or after maturity of the Subordinated Securities, such other
creditors would rank pari passu with holders of the Subordinated Securities,
subject, however, to the broad equity powers of the Federal bankruptcy court
pursuant to which such court may, among other things, reclassify the claims of
any series of Subordinated Securities into a class of claims having a different
relative priority with respect to the claims of such other creditors or any
other claims against the Company.
CERTAIN DEFINITIONS
Certain terms defined in Section 101 of the Indenture are summarized
below.
"Debt" means indebtedness for money borrowed.
"Domestic Subsidiary" means a Subsidiary incorporated in the United States
or any State thereof.
"Subsidiary", when used with respect to the Company, means any corporation
of which a majority of the outstanding voting stock is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or both.
COVENANTS
The Indenture contains certain covenants that will be applicable (unless
waived or amended) so long as any of the Debt Securities are outstanding, unless
stated otherwise in the Prospectus Supplement.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The Indenture provides that the Company may not consolidate with or merge
into any other corporation or convey or transfer its properties and assets
substantially as an entirety to any person, unless (i) the successor corporation
shall be a corporation organized and existing
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under the laws of the United States or any State thereof or the District of
Columbia, and shall expressly assume by a supplemental indenture the due and
punctual payment of the principal of, any premium on, and any interest on, all
the outstanding Debt Securities and the performance of every covenant in the
Indenture on the part of the Company to be performed or observed; (ii)
immediately after giving effect to such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing; and (iii) the Company shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance or transfer and such
supplemental indenture comply with the foregoing provisions relating to such
transaction. (Section 801) In case of any such consolidation, merger, conveyance
or transfer, such successor corporation will succeed to and be substituted for
the Company as obligor on the Debt Securities, with the same effect as if it had
been named in the Indenture as the Company. (Section 802)
EVENTS OF DEFAULT; WAIVER AND NOTICE THEREOF; DEBT SECURITIES IN FOREIGN
CURRENCIES
As to any series of Debt Securities, an Event of Default is defined in the
Indenture as (a) default for 30 days in payment of any interest on the Debt
Securities of such series; (b) default in payment of principal of or any premium
on the Debt Securities of such series at maturity; (c) default in payment of any
sinking or purchase fund or analogous obligation, if any, on the Debt Securities
of such series; (d) default by the Company in the performance of any other
covenant or warranty contained in the Indenture for the benefit of such series
which shall not have been remedied for a period of 90 days after notice is given
as specified in the Indenture; and (e) certain events of bankruptcy, insolvency
and reorganization of the Company. (Section 501)
A default under other indebtedness of the Company will not be a default
under the Indenture and a default under one series of Debt Securities will not
necessarily be a default under another series. Any additions, deletions or other
changes to the Events of Default which will be applicable to a series of Debt
Securities will be described in the Prospectus Supplement relating to such
series of Debt Securities.
The Indenture provides that (i) if an Event of Default described in clause
(a), (b), (c) or (d) above (if the Event of Default under clause (d) is with
respect to less than all series of Debt Securities then outstanding) shall have
occurred and be continuing with respect to any series, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series then outstanding (each such series acting as a
separate class) may declare the principal (or, in the case of Original Issue
Discount Securities, the portion thereof specified in the terms thereof) of all
outstanding Debt Securities of such series and the interest accrued thereon, if
any, to be due and payable immediately and (ii) if an Event of Default described
in clause (d) or (e) above (if the Event of Default under clause (d) is with
respect to all series of Debt Securities then outstanding) shall have occurred
and be continuing, either the Trustee or the holders of at least 25% in
aggregate principal amount of all Debt Securities then outstanding (treated as
one class) may declare the principal (or, in the case of Original Issue Discount
Securities, the portion thereof specified in the terms thereof) of all Debt
Securities then outstanding and the interest accrued thereon, if any, to be due
and payable
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immediately, but upon certain conditions such declarations may be annulled and
past defaults (except for defaults in the payment of principal of, any premium
on, or any interest on, such Debt Securities and in compliance with certain
covenants) may be waived by the holders of a majority in aggregate principal
amount of the Debt Securities of such series then outstanding.
(Sections 502 and 513)
Under the Indenture the Trustee must give to the holders of each series of
Debt Securities notice of all uncured defaults known to it with respect to such
series within 90 days after such a default occurs (the term default to include
the events specified above without notice or grace periods); provided that,
except in the case of default in the payment of principal of, any premium on, or
any interest on, any of the Debt Securities, or default in the payment of any
sinking or purchase fund installment or analogous obligations, the Trustee shall
be protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the interests of the holders of the Debt
Securities of such series. (Section 602)
No holder of any Debt Securities of any series may institute any action
under the Indenture unless (a) such holder shall have given the Trustee written
notice of a continuing Event of Default with respect to such series, (b) the
holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series then outstanding shall have requested the Trustee to
institute proceedings in respect of such Event of Default, (c) such holder or
holders shall have offered the Trustee such reasonable indemnity as the Trustee
may require, (d) the Trustee shall have failed to institute an action for 60
days thereafter and (e) no inconsistent direction shall have been given to the
Trustee during such 60-day period by the holders of a majority in aggregate
principal amount of Debt Securities of such series. (Section 507)
The holders of a majority in aggregate principal amount of the Debt
Securities of any series affected and then outstanding will have the right,
subject to certain limitations, to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to such series of Debt
Securities. (Section 512) The Indenture provides that, in case an Event of
Default shall occur and be continuing, the Trustee, in exercising its rights and
powers under the Indenture, will be required to use the degree of care of a
prudent man in the conduct of his own affairs. (Section 601) The Indenture
further provides that the Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties under the Indenture unless it has reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is reasonably assured to it.
(Section 601)
The Company must furnish to the Trustee within 120 days after the end of
each fiscal year a statement signed by one of certain officers of the Company to
the effect that a review of the activities of the Company during such year and
of its performance under the Indenture and the terms of the Debt Securities has
been made, and, to the best of the knowledge of the signatories based on such
review, the Company has complied with all conditions and covenants of the
Indenture or, if the Company is in default, specifying such default. (Section
1004)
If any Debt Securities are denominated in a coin or currency other than
that of the United States, then for the purposes of determining whether the
holders of the requisite
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principal amount of Debt Securities have taken any action as herein described,
the principal amount of such Debt Securities shall be deemed to be that amount
of United States dollars that could be obtained for such principal amount on the
basis of the spot rate of exchange into United States dollars for the currency
in which such Debt Securities are denominated (as evidenced to the Trustee by an
Officers' Certificate) as of the date the taking of such action by the holders
of such requisite principal amount is evidenced to the Trustee as provided in
the Indenture. (Section 104)
If any Debt Securities are Original Issue Discount Securities, then for
the purposes of determining whether the holders of the requisite principal
amount of Debt Securities have taken any action herein described, the principal
amount of such Debt Securities shall be deemed to be the portion of such
principal amount that would be due and payable at the time of the taking of such
action upon a declaration of acceleration of maturity thereof. (Section 101)
MODIFICATION OF THE INDENTURE
The Company and the Trustee may, without the consent of the holders of the
Debt Securities, enter into indentures supplemental to the Indenture for, among
others, one or more of the following purposes; (i) to evidence the succession of
another corporation to the Company, and the assumption by such successor of the
Company's obligations under the Indenture and the Debt Securities of any series;
(ii) to add covenants of the Company, or surrender any rights of the Company,
for the benefit of the holders of Debt Securities of any or all series; (iii) to
cure any ambiguity, omission, defect or inconsistency in such Indenture; (iv) to
establish the form or terms of any series of Debt Securities, including any
Subordinated Securities; (v) to evidence and provide for the acceptance of any
successor Trustee with respect to one or more series of Debt Securities or to
facilitate the administration of the trusts thereunder by one or more trustees
in accordance with such Indenture; and (vi) to provide any additional Events of
Default (Section 901).
With certain exceptions, the Indenture or the rights of the holders of the
Debt Securities may be modified by the Company and the Trustee with the consent
of the holders of a majority in aggregate principal amount of the Debt
Securities of each series affected by such modification then outstanding, but no
such modification may be made without the consent of the holder of each
outstanding Debt Security affected thereby which would (i) change the maturity
of any payment of principal of, or any premium on, or any installment of
interest on any Debt Security, or reduce the principal amount thereof or the
interest or any premium thereon, or change the method of computing the amount of
principal thereof or interest thereon on any date or change any place of payment
where, or the coin or currency in which, any Debt Security or any premium or
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the maturity thereof (or, in the
case of redemption or repayment, on or after the redemption date or the
repayment date, as the case may be), or (ii) reduce the percentage in principal
amount of the outstanding Debt Securities of any series, the consent of whose
holders is required for any such modification, or the consent of whose holders
is required for any waiver of compliance with certain provisions of the
Indenture or certain defaults thereunder and their consequences provided for in
the Indenture, or (iii) modify any of the provisions of certain Sections of the
Indenture, including the provisions summarized in this paragraph, except to
increase any such percentage or to provide
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that certain other provisions of the Indenture cannot be modified or waived
without the consent of the holder of each outstanding Debt Security affected
thereby. (Section 902)
DEFEASANCE OF THE INDENTURE AND DEBT SECURITIES
If the terms of any series of Debt Securities so provide, the Company will
be deemed to have paid and discharged the entire indebtedness on all the
outstanding Debt Securities of such series by (a) depositing with the Trustee
(i) as trust funds in trust an amount sufficient to pay and discharge the entire
indebtedness on all Debt Securities of such series for principal, premium and
interest or (ii) as obligations in trust such amount of direct obligations of,
or obligations the principal of and interest on which are fully guaranteed by,
the government which issued the currency in which the Debt Securities are
denominated as will, together with the income to accrue thereon without
consideration of any reinvestment thereof, be sufficient to pay and discharge
the entire indebtedness on all such Debt Securities for principal, premium and
interest and (b) satisfying certain other conditions precedent specified in the
Indenture. (Section 403) In the event of any such defeasance, holders of such
Debt Securities would be able to look only to such trust fund for payment of
principal of, any premium on, and any interest on their Debt Securities.
Such defeasance is likely to be treated as a taxable exchange by holders
of the relevant Debt Securities for an issue consisting of either obligations of
the trust or a direct interest in the cash and securities held in the trust,
with the result that such holders would be required for tax purposes to
recognize gain or loss as if such obligations or the cash or securities
deposited, as the case may be, had actually been received by them in exchange
for their Debt Securities. In addition, if the holders are treated as the owners
of their proportionate share of the cash or securities held in trust, such
holders would then be required to include in their income for tax purposes any
income, gain or loss attributable thereto even though no cash was actually
received. Thus, such holders might be required to recognize income for tax
purposes in different amounts and at different times than would be recognized in
the absence of defeasance. Prospective investors are urged to consult their own
tax advisors as to the specific consequences of defeasance.
DESCRIPTION OF PREFERRED STOCK
The following is a description of certain general terms and provisions of
the Preferred Stock. The particular terms of any series of Preferred Stock will
be described in the applicable Prospectus Supplement. If so indicated in a
Prospectus Supplement, the terms of any such series may differ from the terms
set forth below.
The Board of Directors of the Company (the "Board of Directors") is
authorized, without action by the holders of Common Stock, to issue up to
25,000,000 shares of Preferred Stock in one or more series. Prior to issuance of
shares of each series, the Board of Directors is required by the Delaware
General Corporation Law (the "DGCL") and the Company's Restated Certificate of
Incorporation (the "Certificate of Incorporation") to adopt resolutions and file
a Certificate of Designations (the "Certificate of Designations") with the
Secretary of State of the State of Delaware, fixing for each such series the
designations, powers, preferences and rights of the shares of such series and
the qualifications, limitations or restrictions thereon, including, but not
limited to, dividend rights, dividend rate or rates,
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conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), the redemption price or prices, and the liquidation
preferences as are permitted by the DGCL. The Board of Directors could authorize
the issuance of shares of Preferred Stock with terms and conditions which could
have the effect of discouraging a takeover or other transaction which holders of
some, or a majority, of such shares might believe to be in their best interests
or in which holders of some, or a majority, of such shares might receive a
premium for their shares over the then-market price of such shares.
Subject to limitations prescribed by the DGCL, the Board of Directors is
authorized to fix the number of shares constituting each series of Preferred
Stock and the designations and powers, preferences and relative, participating,
optional or other special rights and qualifications, limitations or restrictions
thereof, including such provisions as may be desired concerning voting,
redemption, dividends, dissolution or the distribution of assets, conversion or
exchange, and such other subjects or matters as may be fixed by resolution of
the Board of Directors or duly authorized committee thereof. The Preferred Stock
offered hereby will, upon issuance and full payment of the purchase price
therefor, be fully paid and nonassessable and will not have, or be subject to,
any preemptive or similar rights.
Reference is made to the Prospectus Supplement relating to the series of
Preferred Stock being offered for the specific terms thereof, including: (i) the
title and stated value of such Preferred Stock; (ii) the number of shares of
such Preferred Stock offered, the liquidation preference per share and the
purchase price of such Preferred Stock; (iii) the dividend rate(s), period(s)
and/or payment date(s) or method(s) of calculation thereof applicable to such
Preferred Stock; (iv) whether dividends shall be cumulative or non-cumulative
and, if cumulative, the date from which dividends on such Preferred Stock shall
accumulate; (v) the procedures for any auction and remarketing, if any, for such
Preferred Stock; (vi) the provisions for a sinking fund, if any, for such
Preferred Stock; (vii) the provisions for redemption, if applicable, of such
Preferred Stock; (viii) any listing of such Preferred Stock on any securities
exchange; (ix) the terms and conditions, if applicable, upon which such
Preferred Stock will be convertible into Common Stock, including the conversion
price (or manner of calculation thereof) and conversion period; (x) voting
rights, if any, of such Preferred Stock; (xi) a discussion of any material
and/or special Federal income tax considerations applicable to such Preferred
Stock; (xii) the relative ranking and preferences of such Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up of the
affairs of the Company; (xiii) any limitations on issuance of any series of
Preferred Stock ranking senior to or on a parity with such series of Preferred
Stock as to dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Company, and (xv) any other specific terms,
preferences, rights, limitations or restrictions of such Preferred Stock.
The transfer agent and registrar for each series of Preferred Stock will
be described in the related Prospectus Supplement.
DESCRIPTION OF COMMON STOCK
The following summary does not purport to be complete and is subject in
all respects to the applicable provisions of the DGCL and the Certificate of
Incorporation. The Company is
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presently authorized to issue 200,000,000 shares of Common Stock, par value
$0.01 per share. At the close of business on January 16, 1997, an aggregate of
68,386,262 shares of Common Stock were outstanding.
Subject to such preferential rights as may be granted by the Board of
Directors in connection with the future issuance of Preferred Stock, holders of
Common Stock are entitled to one vote for each share held. Such holders are not
entitled to cumulative voting for the purpose of electing directors and have no
preemptive or similar right to subscribe for, or to purchase, any shares of
Common Stock or other securities to be issued by the Company in the future.
Accordingly, the holders of more than 50% in voting power of the shares of
Common Stock voting generally for the election of directors will be able to
elect all of the Company's directors. At January 16, 1997, Loews Corporation
beneficially owned 51.3% of the outstanding shares of Common Stock and is in a
position to control actions that require the consent of stockholders, including
the election of directors, amendment of the Certificate of Incorporation and any
mergers or any sale of substantially all of the assets of the Company.
Holders of shares of Common Stock have no exchange, conversion or
preemptive rights and such shares are not subject to redemption. All outstanding
shares of Common Stock are, and upon issuance and full payment of the purchase
price therefor the shares of Common Stock offered hereby will be, duly
authorized, validly issued, fully paid and nonassessable. Subject to the prior
rights, if any, of holders of any outstanding class or series of Preferred Stock
having a preference in relation to the Common Stock as to distributions upon the
dissolution, liquidation and winding-up of the Company and as to dividends,
holders of shares of Common Stock are entitled to share ratably in all assets of
the Company which remain after payment in full of all debts and liabilities of
the Company, and to receive ratably such dividends, if any, as may be declared
by the Board of Directors from time to time out of funds and other property
legally available therefor.
The Company is a Delaware corporation and is subject to Section 203
("Section 203") of the DGCL. In general, Section 203 will prevent an "interested
stockholder" (defined generally as a person owning 15% or more of a
corporation's outstanding voting stock) of the Company from engaging in a
"business combination" (as therein defined) with the Company for three years
following the date such person became an interested stockholder, unless (i)
before such person became an interested stockholder, the Board of Directors
approved the business combination in question, or the transaction which resulted
in such person becoming an interested stockholder, (ii) upon consummation of the
transaction that resulted in the interested stockholder becoming such, the
interested stockholder owns at least 85% of the voting stock of the Company
outstanding at the time such transaction commenced (excluding stock held by
directors who are also officers of the Company and by employee stock plans that
do not provide employees with rights to determine confidentially whether shares
held subject to the plan will be tendered in a tender or exchange offer), or
(iii) following the transaction in which such person became an interested
stockholder, the business combination is approved by the Board of Directors and
authorized at a meeting of stockholders by the affirmative vote of the holders
of not less than 66-2/3% of the outstanding voting stock of the Company not
owned by the interested stockholder. Under Section 203, the restrictions
described above do not apply to certain business combinations proposed by an
interested stockholder following the announcement (or notification) of one of
certain extraordinary transactions involving the Company and a person who had
not been an interested stockholder during the preceding three
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years or who became an interested stockholder with the approval of the Board of
Directors, and which transactions are approved or not opposed by a majority of
the members of the Board of Directors then in office who were directors prior to
any person becoming an interested stockholder during the previous three years or
were recommended for election or elected to succeed such directors by a majority
of such directors. Section 203 does not apply to Loews Corporation because it
has been more than three years since Loews Corporation became an interested
stockholder.
The transfer agent and registrar for the Common Stock is ChaseMellon
Shareholder Services, L.L.C., whose principal offices are located at 450 West
33rd Street, New York, New York 10001.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities or Preferred Stock. Securities Warrants may be issued independently
or together with any Debt Securities or shares of Preferred Stock offered by any
Prospectus Supplement and may be attached to or separate from such Debt
Securities or shares of Preferred Stock. The Securities Warrants are to be
issued under Warrant Agreements to be entered into between the Company and the
Warrant Agent named in the Prospectus Supplement relating to the particular
issue of Securities Warrants (the "Warrant Agent"). The Warrant Agent will act
solely as an agent of the Company in connection with the Securities Warrants and
will not assume any obligation or relationship of agency or trust for or with
any holders of Securities Warrants or beneficial owners of Securities Warrants.
The following summaries of certain provisions of the form of Warrant Agreement
and Securities Warrants do not purport to be complete and are subject to, and
are qualified in their entirety by reference to, all the provisions of the
applicable Warrant Agreement and the Securities Warrants.
GENERAL
If Securities Warrants are offered, the Prospectus Supplement will
describe the terms of the Securities Warrants, including the following: (i) the
offering price; (ii) the currency, currencies or currency units for which
Securities Warrants may be purchased; (iii) the designation, aggregate principal
amount, currency, currencies or currency units and terms of the Debt Securities
purchasable upon exercise of the Securities Warrants and the price at which such
Debt Securities may be purchased upon such exercise; (iv) the designation,
number of shares and terms of the series of Preferred Stock purchasable upon
exercise of the Securities Warrants to purchase Preferred Stock and the price at
which such shares of Preferred Stock may be purchased upon such exercise; (v) if
applicable, the designation and terms of the Debt Securities or Preferred Stock
with which the Securities Warrants are issued, and the number of Securities
Warrants issued with each such Debt Security or share of Preferred Stock; (vi)
if applicable, the date on and after which the Securities Warrants and the
related Debt Securities or shares of Preferred Stock will be separately
transferable; (vii) the date on which the right to exercise the Securities
Warrants shall commence and the date (the "Expiration Date") on which such right
shall expire; (viii) whether the Securities Warrants will be issued in
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registered or bearer form; (ix) a discussion of certain Federal income tax,
accounting and other special considerations, procedures and limitations relating
to the Securities Warrants; and (x) any other terms of the Securities Warrants.
Securities Warrants may be exchanged for new Securities Warrants of
different denominations, may (if in registered form) be presented for
registration of transfer, and may be exercised at the corporate trust office of
the Warrant Agent or any other office indicated in the Prospectus Supplement.
Before the exercise of their Securities Warrants, holders of Securities Warrants
will not have any of the rights of holders of the Debt Securities or shares of
Preferred Stock purchasable upon such exercise, including the right to receive
payments of principal of, any premium on, or any interest on, the Debt
Securities purchasable upon such exercise or to enforce the covenants in the
Indenture or to receive payments of dividends, if any, on the Preferred Stock
purchasable upon such exercise or to exercise any applicable right to vote.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder to purchase such principal
amount of Debt Securities or such number of shares of Preferred Stock at such
exercise price as shall in each case be set forth in, or calculable from, the
Prospectus Supplement relating to the Securities Warrant. Securities Warrants
may be exercised at such times as are set forth in the Prospectus Supplement
relating to such Securities Warrants. 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 Securities Warrants will become void.
Subject to any restrictions and additional requirements that may be set
forth in the Prospectus Supplement relating thereto, Securities Warrants may be
exercised by delivery to the Warrant Agent of the certificate evidencing such
Securities Warrants properly completed and duly executed and of payment as
provided in the Prospectus Supplement of the amount required to purchase the
Debt Securities or shares of Preferred Stock purchasable upon such exercise. The
exercise price will be the price applicable on the date of payment in full, as
set forth in the Prospectus Supplement relating to the Securities Warrants. Upon
receipt of such payment and the certificate representing the Securities Warrants
to be exercised properly completed and duly executed at the corporate trust
office of the Warrant Agent or any other office indicated in the Prospectus
Supplement, the Company will, as soon as practicable, issue and deliver the Debt
Securities or shares of Preferred Stock purchasable upon such exercise. If fewer
than all of the Securities Warrants represented by such certificate are
exercised, a new certificate will be issued for the remaining amount of
Securities Warrants.
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PLAN OF DISTRIBUTION
The Company may sell the Offered Securities offered hereby (1) through
underwriters or dealers; (2) through agents; (3) directly to purchasers; or (4)
through a combination of any such methods of sale. Any such underwriter, dealer
or agent may be deemed to be an underwriter within the meaning of the Securities
Act. The Prospectus Supplement relating to the Offered Securities will set forth
their offering terms, including the name or names of any underwriters, dealers
or agents, the purchase price of the Offered Securities and the proceeds to the
Company from such sale, any underwriting discounts, commissions and other items
constituting compensation to underwriters, dealers or agents, any initial public
offering price, any discounts or concessions allowed or reallowed or paid by
underwriters or dealers to other dealers, and any securities exchanges on which
the Offered Securities may be listed.
If underwriters or dealers are used in the sale, the Offered Securities
will be acquired by the underwriters or dealers for their own account and may be
resold from time to time in one or more transactions, at a fixed price or
prices, which may be changed, or at market prices prevailing at the time of
sale, or at prices related to such prevailing market prices, or at negotiated
prices. The Offered Securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more of such firms. Unless otherwise set forth in the
Prospectus Supplement, the obligations of underwriters or dealers to purchase
the Offered Securities will be subject to certain conditions precedent and the
underwriters or dealers will be obligated to purchase all the Offered Securities
if any are purchased. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid by underwriters or dealers to other
dealers may be changed from time to time.
Offered Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Offered Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in the Prospectus Supplement. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best efforts basis for
the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters, dealers or agents to solicit offers by certain specified
institutions to purchase Offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future. Such contracts will be subject to any conditions set forth in the
Prospectus Supplement and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts. The underwriters and
other persons soliciting such contracts will have no responsibility for the
validity or performance of any such contracts.
Underwriters, dealers and agents may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
by the Company to payments they may be required to make in respect thereof. The
terms and conditions of such indemnification will be described in an applicable
Prospectus Supplement. Underwriters, dealers and agents may be
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customers of, engage in transactions with, or perform services for the Company
in the ordinary course of business.
Each series of Offered Securities other than Common Stock will be a new
issue of securities with no established trading market. Any underwriters to whom
Offered Securities are sold by the Company for public offering and sale may make
a market in such Offered Securities, but such underwriters 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 Offered
Securities.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the Company
by Weil, Gotshal & Manges LLP, 700 Louisiana, Suite 1600, Houston, Texas 77002,
and for the underwriters, dealers or agents, if any, by Andrews & Kurth L.L.P.,
425 Lexington Avenue, New York, New York 10017, unless otherwise specified in
the Prospectus Supplement.
EXPERTS
The consolidated financial statements of the Company and subsidiaries as
of December 31, 1995 and 1994 and for each of the years in the three-year period
ended December 31, 1995, incorporated by reference in this Prospectus from the
Company's Annual Report on Form 10-K for the year ended December 31, 1995, have
been audited by Deloitte & Touche LLP, independent auditors, as indicated in
their report with respect thereto, and is incorporated by reference herein, in
reliance upon the authority of said firm as experts in accounting and auditing.
The consolidated financial statements of Arethusa (Off-Shore) Limited and
subsidiaries as of September 30, 1995 and 1994 and for each of the years in the
three-year period ended September 30, 1995, incorporated by reference in this
Prospectus from the Company's Current Report on Form 8-K dated May 13, 1996,
have been audited by Arthur Andersen & Co., independent public accountants, as
indicated in their report with respect thereto, and is incorporated by reference
herein in reliance upon the authority of said firm as experts in accounting and
auditing.
-----------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
OFFERED SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT
IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF
THE COMPANY SINCE SUCH DATE.
-----------------------------
18
<PAGE>
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
Securities and Exchange Commission Registration Fee.. $181,818.18
Trustee's Fees and Expenses.......................... 25,000.00
Printing Expenses.................................... 100,000.00
Rating Agencies' Fees................................ 100,000.00
Legal Fees and Expenses.............................. 200,000.00
Accountants' Fees and Expenses....................... 60,000.00
Blue Sky Fees and Expenses........................... 5,000.00
-------------------
Total............................................. $671,818.18
===================
- ---------------
* All amounts are estimated except for the registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102 of the DGCL allows a corporation to eliminate the personal
liability of directors of a corporation to the corporation or to any of its
stockholders for monetary damage for a breach of his fiduciary duty as a
director, except in the case where the director breached his duty of loyalty,
failed to act in good faith, engaged in intentional misconduct or knowingly
violated a law, authorized the payment of a dividend or approved a stock
repurchase in violation of Delaware corporate law or obtained an improper
personal benefit. The Company's Certificate of Incorporation contains a
provision which, in substance, eliminates directors' personal liability as set
forth above.
Section 145 of the DGCL provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was a director, officer, employee or agent of the corporation or is or was
serving at its request in such capacity in another corporation or business
association against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The Company's Certificate
of Incorporation contains a provision which, in substance, provides for
indemnification as set forth above.
Reference is made to Section 6 of the form of Underwriting Agreement filed
as Exhibit 1.1 for additional indemnification provisions.
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
1.1 -- Form of Underwriting Agreement.
4.1 -- Form of Indenture.
4.2* -- Form of Warrant Agreement.
II-1
<PAGE>
4.3 -- Restated Certificate of Incorporation of Diamond Offshore Drilling, Inc.
(incorporated by reference to Exhibit 3.1 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1995).
4.4 -- By-laws of Diamond Offshore Drilling, Inc. (incorporated by reference to
Exhibits 3.2, 3.2.1 and 3.2.2 of the Company's Registration Statement No. 333-
2680 on Forms S-4/S-1).
5.1 -- Opinion of Weil, Gotshal & Manges LLP, counsel for the Company.
12.1 -- Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Arthur Andersen & Co.
23.3 -- Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5.1).
24.1 -- Powers of Attorney (set forth on signature page to this Registration Statement).
<FN>
- ---------------
* To be filed by amendment or incorporated herein by reference.
</FN>
</TABLE>
ITEM 17. UNDERTAKINGS
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, 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 this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that 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 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 this Registration Statement;
II-2
<PAGE>
(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 registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering; and
(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 that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the provisions described under Item 15 above, or
otherwise, the Company 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
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on January 17, 1997.
DIAMOND OFFSHORE DRILLING, INC.
By: /s/ Richard L. Lionberger
----------------------------------
Richard L. Lionberger
Vice President, General Counsel
and Secretary
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Richard L. Lionberger and Larry R. Dickerson, and each of them, his true and
lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, and in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or his or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
II-4
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Robert E. Rose President, Chief Executive Officer January 17, 1997
- -------------------------- and Director
Robert E. Rose (Principal executive officer)
/s/ Lawrence R. Dickerson Senior Vice President and Chief January 17, 1997
- -------------------------- Financial Officer
Lawrence R. Dickerson (Principal financial officer)
/s/ Gary T. Krenek Controller (Principal accounting January 17, 1997
- -------------------------- officer)
Gary T. Krenek
/s/ James S. Tisch Chairman of the Board January 17, 1997
- --------------------------
James S. Tisch
/s/ Herbert C. Hofmann Director January 17, 1997
- --------------------------
Herbert C. Hofmann
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Exhibit
- --- -------
<S> <C>
1.1 -- Form of Underwriting Agreement.
4.1 -- Form of Indenture.
4.2* -- Form of Warrant Agreement.
4.3 -- Restated Certificate of Incorporation of Diamond Offshore Drilling, Inc.
(incorporated by reference to Exhibit 3.1 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1995).
4.4 -- By-laws of Diamond Offshore Drilling, Inc. (incorporated by reference to
Exhibits 3.2, 3.2.1 and 3.2.2 of the Company's Registration Statement No. 333-
2680 on Forms S-4/S-1).
5.1 -- Opinion of Weil, Gotshal & Manges LLP, counsel for the Company.
12.1 -- Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Arthur Andersen & Co.
23.3 -- Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5.1).
24.1 -- Powers of Attorney (set forth on signature page to this Registration Statement).
<FN>
- ---------------
* To be filed by amendment or incorporated herein by reference.
</FN>
</TABLE>
<PAGE>
EXHIBIT 1.1
DIAMOND OFFSHORE DRILLING, INC.
Debt Securities
UNDERWRITING AGREEMENT
1. Introduction. Diamond Offshore Drillling, Inc., a Delaware corporation
(the "Company"), proposes to issue and sell from time to time certain of its
debt securities registered under the registration statement referred to in
Section 2(a) ("Registered Securities"). The Registered Securities will be issued
under an indenture (the "Indenture"), between the Company and
____________________, as Trustee, in one or more series, which series may vary
as to interest rates, maturities, redemption provisions, selling prices and
other terms, with all such terms for any particular series of the Registered
Securities being determined at the time of sale. Particular series of the
Registered Securities will be sold pursuant to a Terms Agreement referred to in
Section 3, for resale in accordance with the terms of offering determined at the
time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Securities". The firm or firms which agree to purchase the
Securities are hereinafter referred to as the "Underwriters" of such Securities,
and the representative or representatives of the Underwriters, if any, specified
in a Terms Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives", as
used in this Agreement (other than in Sections 2(b), 5(b) and 6 and the second
sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) A registration statement, including a prospectus, relating to
the Registered Securities has been filed with the Securities
and Exchange Commission ("Commission") on January 17, 1997 and
has become effective. Such registration statement, as amended
at the time of any Terms Agreement referred to in Section 3,
is hereinafter referred to as the "Registration Statement".
Such prospectus, as supplemented as contemplated by Section 3
to reflect the terms of the Securities and the terms of
offering thereof, including all material incorporated by
reference therein, is hereinafter referred to as the
"Prospectus".
(b) On the effective date of the Registration Statement relating
to the Registered Securities and of each post-effective
amendment thereto, such Registration Statement conformed in
all material respects to the requirements of the Securities
Act of 1933, as amended ("Act"), the Trust Indenture Act of
1939, as amended ("Trust Indenture Act") and the
Exhibit 1.1 - 1
<PAGE>
rules and regulations of the Commission ("Rules and
Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading, and on the date of each Terms Agreement
referred to in Section 3, the Registration Statement and the
Prospectus will conform in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules
and Regulations, and neither of such documents will include
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading, except that the
foregoing does not apply to statements in or omissions from
any of such documents based upon written information furnished
to the Company by any Underwriter through the Representatives,
if any, specifically for use therein.
3. Purchase and Offering of Securities. The obligation of the underwriters
to purchase the Securities will be evidenced by an exchange of telegraphic or
other written communications ("Terms Agreement") at the time the Company
determines to sell the Securities. The Terms Agreement will generally be in the
form attached hereto as Annex I and will incorporate by reference the provisions
of this Agreement, except as otherwise provided therein, and will specify the
firm or firms which will be Underwriters, the names of any Representatives, the
principal amount to be purchased by each Underwriter, the purchase price to be
paid by the Underwriters and the terms of the Securities not already specified
in the Indenture, including, but not limited to, interest rate, maturity, any
redemption provisions and any sinking fund requirements and whether any of the
Securities may be sold to institutional investors pursuant to Delayed Delivery
Contracts (as defined below). The Terms Agreement will also specify the time and
date of delivery and payment (such time and date, or such other time not later
than seven full business days thereafter as the Representatives and the Company
agree as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the "Closing Date"), the place of delivery and payment
and any details of the terms of offering that should be reflected in the
prospectus supplement relating to the offering of the Securities. The
obligations of the Underwriters to purchase the Securities will be several and
not joint. It is understood that the Underwriters propose to offer the
Securities for sale as set forth in the Prospectus. The Securities delivered to
the Underwriters on the Closing Date will be in definitive fully registered
form, in such denominations and registered in such names as the Underwriters may
request.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex II attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount of Securities to be sold pursuant to Delayed Delivery Contracts
("Contract Securities"). The Underwriters will not have any
Exhibit 1.1 - 2
<PAGE>
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters and the aggregate principal amount of Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount of Securities set forth opposite each Underwriter's name in
such Terms Agreement, except to the extent that the Representatives determine
that such reduction shall be otherwise than pro rata and so advise the Company.
The Company will advise the Representatives not later than the business day
prior to the Closing Date of the principal amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the several
Underwriters that it will furnish to _________________________, special counsel
for the Underwriters (or any other counsel named as counsel for the Underwriters
in any Terms Agreement), one signed copy of the Registration Statement relating
to the Registered Securities, including all exhibits, in the form it became
effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Representatives promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Company promptly
will prepare and file with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as are reasonably requested.
Exhibit 1.1 - 3
<PAGE>
(e) The Company will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
(f) During the period of 5 years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report or
definitive proxy statement of the Company filed with the Commission under
the Securities Exchange Act of 1934, as amended, or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as the Representatives may reasonably request.
(g) The Company will pay all expenses incident to the performance of
its obligations under this Agreement and will reimburse the Underwriters
for any expenses (including fees and disbursements of counsel) incurred by
them in connection with qualification of the Registered Securities for
sale and determination of their eligibility for investment under the laws
of such jurisdictions as the Representatives may designate and the
printing of memoranda relating thereto, for any fees charged by investment
rating agencies for the rating of the Securities and for expenses incurred
in distributing the Prospectus, any preliminary prospectuses and any
preliminary prospectus supplements to Underwriters.
(h) For a period beginning at the time of execution of the Terms
Agreement and ending 10 days after the Closing Date, without the prior
consent of the Representatives, the Company will not offer, sell, contract
to sell or otherwise dispose of any United States dollar-denominated debt
securities issued or guaranteed by the Company and having a maturity of
more than one year from the date of issue.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Securities will be subject
to the accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of Company officers made pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
(b) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or
properties of the Company or its subsidiaries which, in the judgment of a
majority in interest of the Underwriters, including any Representatives,
materially impairs the investment quality of the Securities; (ii) any
downgrading in the rating of the Company's debt securities by Moody's
Investors
Exhibit 1.1 - 4
<PAGE>
Service, Inc., or Standard & Poor's Corporation; (iii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iv) any banking moratorium
declared by Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority in
interest of the Underwriters, including any Representatives, the effect of
any such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Securities.
(c) The Representatives shall have received an opinion, dated the
Closing Date, of the Vice President and General Counsel of the Company or
other counsel satisfactory to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which it is required to
be so qualified, except where the failure to be so qualified would
not involve a material risk to the business, operations, or
financial condition or results of the Company, taken as a whole;
(ii) the Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust
Indenture Act; the Securities have been duly authorized; the
Securities other than any Contract Securities have been duly
executed, authenticated, issued and delivered; the Indenture and the
Securities other than any Contract Securities constitute, and any
Contract Securities, when executed, authenticated, issued and
delivered in the manner provided in the Indenture and sold pursuant
to Delayed Delivery Contracts, will constitute, valid and legally
binding obligations of the Company, enforceable in accordance with
their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equitable principles;
and the Securities other than any Contract Securities conform, and
any Contract Securities, when so issued and delivered and sold, will
conform, to the description thereof contained in the Prospectus;
(iii) no consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
the Terms Agreement (including the provisions of this Agreement),
except such as have been obtained and made under the Act and the
Trust Indenture Act and such as may be required under state
securities laws in connection with the issuance or sale of the
Securities by the Company;
Exhibit 1.1 - 5
<PAGE>
(iv) the execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or any court
having jurisdiction over the Company or any of its properties or any
agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the properties of the
Company is subject, or the certificate of incorporation or by-laws
of the Company, and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by the
Terms Agreement (including the provisions of this Agreement);
(v) the Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement or
of any part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under
the Act;
(vi) based on the information gained in the course, in such
counsel's role as General Counsel, of such counsel's participation
in certain meetings and making of certain inquiries and
investigations in connection with the preparation of the
Registration Statement and Prospectus, the Registration Statement
relating to the Registered Securities and each post-effective
amendment thereto, as of their respective effective dates, the
Registration Statement and the Prospectus, as of the date the
Prospectus was filed with the Commission and as of the Closing Date,
and any amendment or supplement thereto, as of its date, appeared on
their face to be appropriately responsive in all material respects
to the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations; nothing has come to such counsel's attention
in the course of performing such activities that caused such counsel
to believe that the Registration Statement, as of its effective
date, the Registration Statement or the Prospectus, as of the date
the Prospectus was filed with the Commission and as of the Closing
Date, or any such amendment or supplement, as of its date, contains
or contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, provided, however,
that such counsel may state that in rendering the foregoing opinions
in this clause (vi), such counsel does not assume responsibility for
the accuracy or completeness of statements made in the Registration
Statement and Prospectus; the descriptions in the Registration
Statement and the Prospectus of statutes, legal and governmental
proceedings and contracts and other documents fairly present the
information required to be shown; and such counsel does not know of
any legal or governmental proceedings required to be described in
the Prospectus which are not described as required or of any
contracts or documents of a character required to be described in
the Registration Statement or Prospectus or to be filed as exhibits
to the Registration Statement which are not
Exhibit 1.1 - 6
<PAGE>
described and filed as required; it being understood that such
counsel need express no opinion as to the financial statements or
other financial data contained in the Registration Statement or the
Prospectus; and
(vii) the Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
In rendering such opinion, such Vice President and General Counsel or other
counsel may rely as to the incorporation of the Company, the authorization,
execution and delivery of the Terms Agreement and all other matters governed by
Delaware law upon an opinion of counsel satisfactory to the Representatives, a
copy of which shall be delivered concurrently with the opinion of such General
Counsel or other counsel.
(d) The Representatives shall have received from
______________________, special counsel for the Underwriters (or any other
counsel named as counsel for the Underwriters in any Terms Agreement),
such opinion or opinions, dated the Closing Date, with respect to the
incorporation of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters. In rendering such opinion, ______________________
(or such other counsel for the Underwriters named in any Terms Agreement)
may rely as to the incorporation of the Company, the authorization,
execution and delivery of the Terms Agreement and all other matters
governed by Delaware law upon the opinion of such other counsel as
referred to above.
(e) The Representatives shall have received a certificate, dated the
Closing Date, of the President, any Senior Vice President, the Treasurer
or any Vice-President and a principal financial or accounting officer of
the Company in which such officers, to the best of their knowledge after
reasonable investigation, state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company has
complied with all agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date, that
no stop order suspending the effectiveness of the Registration Statement
or of any part thereof has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the financial
position or results of operations of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the Prospectus
or as described in such certificate.
(f) The Representatives shall have received a letter, dated the
Closing Date, of Deloitte & Touche LLP, or any successor firm, confirming
that they are independent public accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder, and stating
in effect that:
Exhibit 1.1 - 7
<PAGE>
(i) in their opinion, the financial statements and
schedules examined by them and included in the Prospectus contained
in the Registration Statement relating to the Registered Securities,
as amended to the date of such letter, comply in form in all
material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) on the basis of a reading of the latest available
interim financial statements of the Company, inquiries of officials
of the Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) the unaudited financial statements, if any, included
in the Prospectus do not comply in form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations or are not
in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included in the Prospectus;
(B) the unaudited capsule information, if any, included
in the Prospectus does not agree with the amounts set forth in
the unaudited consolidated financial statements from which it
was derived or was not determined on a basis substantially
consistent with that of the audited financial statements
included in the Prospectus;
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than five days prior to the Closing Date, there was
any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and consolidated
subsidiaries or, at the date of the latest available balance
sheet read by such accountants, there was any decrease in
consolidated net assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(D) for the period from the date of the latest income
statement included in the Prospectus to the closing date of
the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding
period of the previous year, in consolidated net sales,
operating income, income before extraordinary items or net
income;
except in all cases set forth in clauses (C) and (D) above for changes or
decreases which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information included in the Prospectus (in each case to the extent
that such dollar amounts, percentages and other financial
information are contained in the general accounting records
Exhibit 1.1 - 8
<PAGE>
of the Company and its subsidiaries subject to the internal controls
of the Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter. All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed
included in the Prospectus.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives, if any,
specifically for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through the Representatives, if any, specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or
Exhibit 1.1 - 9
<PAGE>
defending any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under subsection (a)
or (b) above. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject
of this subsection (d). Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities
Exhibit 1.1 - 10
<PAGE>
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed the Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Securities under the Terms Agreement and the
aggregate principal amount of the Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of the Securities, the Representatives may make arrangements
satisfactory to the Company for the purchase of such Securities by other
persons, including any of the Underwriters, but if no such arrangements are made
by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of the Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made within
36 hours after such default, such Terms Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Company, except as
provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default. The
respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts of the Securities
set forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section will not
apply if the Terms Agreement specifies that such obligations and agreements will
not apply.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the
Exhibit 1.1 - 11
<PAGE>
results thereof, made by or on behalf of any Underwriter, the Company or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Securities. If the
Terms Agreement is terminated pursuant to Section 7 or if for any reason the
purchase of the Securities by the Underwriters under the Terms Agreement is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Securities by the Underwriters is not consummated for any
reason other than because of the termination of the Terms Agreement pursuant to
Section 7 or the occurrence of any event specified in Section 5(b), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities.
9. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
them at their addresses furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 15415 Katy Freeway, Houston, Texas 77094,
Attention: Treasurer.
10. Successors. This Agreement will inure to the benefit of and be binding
upon the Company and such Underwriters as are identified in the Terms Agreement
and their respective successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will have any right or
obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Exhibit 1.1 - 12
<PAGE>
ANNEX I
DIAMOND OFFSHORE DRILLING, INC.
("Company")
DEBT SECURITIES
TERMS AGREEMENT
_____, 199_
Diamond Offshore Drilling, Inc.
15415 Katy Freeway
Houston, Texas 77094
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and for
their respective accounts, we--We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 333- ) (the "Underwriting
Agreement"), the following securities (the "Securities") on the following terms:
TITLE: [ ]% [Floating Rate]--Notes--Debentures--Bonds--
Due______________.
PRINCIPAL AMOUNT: $
INTEREST: [ ]% per annum, from __________, 19__, payable semiannually on
___________and commencing ___________, 19__, to holders of record on the
preceding or ___, as the case may be.
MATURITY:
OPTIONAL REDEMPTION:
SINKING FUND:
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be __________,
19__. Underwriter['s][s'] fee is [ ]% of the principal amount of the Contract
Securities.]
Exhibit 1.1 - I - 1
<PAGE>
PURCHASE PRICE: [ ]% of principal amount plus accrued interest
[, if any,] from___________, 19__.
EXPECTED REOFFERING PRICE: [ ]% of principal amount, subject to change
by the undersigned.
CLOSING: _______a.m. on___________, 19__, at the offices of [____________
___________________________________________________________________], in same
day funds.
NAME[S] AND ADDRESSE[S] OF REPRESENTATIVE[S]:
The respective principal amounts of the Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A hereto.
[If appropriate, insert--It is understood that we may, with your consent,
amend this offer to add additional Underwriters and reduce the aggregate
principal amount to be purchased by the Underwriters listed in Schedule A hereto
by the aggregate principal amount to be purchased by such additional
Underwriters.]
The provisions of the Underwriting Agreement are incorporated herein by
reference. [If appropriate, insert--, except that the obligations and
agreements set forth in Section 7 ("Default of Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters to
purchase the above Securities] [If appropriate, insert--, except that the
provisions of Section _____ are amended as follows: ].
The Securities will be made available for checking at the offices of
______________________________________ at least 24 hours prior to the Closing
Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us by mail or hand
delivery.]
[Please signify your acceptance of the foregoing by return wire not later
than _____ p.m. today.]
Very truly yours,
[Insert name(s) of Representatives or Underwriters]
[On behalf of--themselves--itself--and as
Representative[s] of the Several] [As]
[Underwriter[s]]
[By [lead manager]]
By___________________________________
[Insert Title]
Exhibit 1.1 - I - 2
<PAGE>
If the Securities are denominated in a currency other than United States
dollars, make appropriate modifications to provisions of Terms Agreement (e.g.,
type of funds specified under "Closing") and consider including in the Terms
Agreement such changes and additions to the Underwriting Agreement as may be
appropriate in the circumstances, e.g., expanding Section 4(h) to cover debt
securities denominated in the currency in which the Securities are denominated,
expanding Section 5(c)(iv) to cover a banking moratorium declared by authorities
in the country of such currency, expanding Section 5(c)(v) to cover a change or
prospective change in, or governmental action affecting, exchange controls
applicable to such currency, and modifying Section 5(d) to permit a statement to
the effect that enforcement of the Indenture and the Securities is subject to
provisions of law which may require that a judgment for money damages rendered
by a court in the United States be expressed only in United States dollars and
appropriate exceptions as to any provisions requiring payment of additional
amounts. Also consider requiring an opinion of counsel for the Company
confirming information as to United States tax matters in the Prospectus and an
opinion of foreign counsel for the Company regarding such matters as foreign
consents, approvals, authorizations, licenses, waivers, withholding taxes,
transfer or stamp taxes and any information as to foreign laws in the
Prospectus.
Exhibit 1.1 - I - 3
<PAGE>
SCHEDULE A
Underwriter Principal Amount
- ----------- ----------------
$
---------------
Total .........................................................$
To: [Insert name(s) of Representatives or Underwriters]
As [Representative[s] of the Several] Underwriter[s],
[c/o [name and address of lead manager]
We accept the offer contained in your [letter] [wire], dated, ___________,
19__, relating to $_______ million principal amount of our [insert title of
Securities]. We also confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement filed as an exhibit to the undersigned's registration
statement on Form S-3 (No. 333- ) (the "Underwriting Agreement") are true and
correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any part thereof has
been issued and no proceedings for that purpose have been instituted or, to the
knowledge of the undersigned, are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent financial
statements in the Prospectus (as defined in the Underwriting Agreement), there
has been no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
DIAMOND OFFSHORE DRILLING, INC.
By
_____________________________
Name:
Title:
Exhibit 1.1 - I - A - 1
<PAGE>
ANNEX II
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on___________________, 199__)(1)
DELAYED DELIVERY CONTRACT
[date]
DIAMOND OFFSHORE DRILLING, INC.
c/o [name and address of
lead manager]
Gentlemen:
The undersigned hereby agrees to purchase from Diamond Offshore Drilling,
Inc., a Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof,] for
delivery on _________, 19__ ("Delivery Date")
[$] __________________
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated _________, 19__ and a Prospectus
Supplement dated __________, 19__ relating thereto, receipt of copies of which
is hereby acknowledged, at ___% of the principal amount thereof plus accrued
interest, if any, and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the principal amounts set
forth below:
Delivery Date Principal Amount
------------- ----------------
-----------------------
-----------------------
- --------
(1) Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
Exhibit 1.1 - II - 1
<PAGE>
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for
delivery on--the--each--Delivery Date shall be made to the Company or its order
in same day funds at the office of ___________ at ____________________ .M.
on--the--such--Delivery Date upon delivery to the undersigned of the Securities
to be purchased by the undersigned--for delivery on such Delivery Date--in
definitive fully registered form and in such denominations and registered in
such names as the undersigned may designate by written or telegraphic
communication addressed to the Company not less than five full business days
prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
__________________________________
(Name of Purchaser)
By
Exhibit 1.1 - II - 2
<PAGE>
_________________________________
_________________________________
(Title of Signatory)
_________________________________
_________________________________
(Address of Purchaser)
Accepted, as of the above date.
DIAMOND OFFSHORE DRILLING, INC.
By_____________________________
[Insert Title]
Exhibit 1.1 - II - 3
<PAGE>
EXHIBIT 4.1
DIAMOND OFFSHORE DRILLING, INC.
and
_______________________________,
Trustee
INDENTURE
Dated as of __________________, 1997
_______________________________
Providing for Issuance of Securities in Series
<PAGE>
TABLE OF CONTENTS
PAGE
----
Recitals of the Company..................................................... 1
Agreements of the Parties................................................... 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions............................................. 1
Act...................................................... 2
Affiliate................................................ 2
Authenticating Agent..................................... 2
Board of Directors....................................... 2
Board Resolution......................................... 2
Business Day............................................. 2
Commission............................................... 3
Company.................................................. 3
Company Request, Company Order and Company Consent....... 3
Corporate Trust Office................................... 3
Debt..................................................... 3
Defaulted Interest....................................... 3
Depositary............................................... 3
Domestic Subsidiary...................................... 3
Event of Default......................................... 3
Global Security.......................................... 4
Holder................................................... 4
Indenture or this Indenture.............................. 4
Independent.............................................. 4
Interest................................................. 4
Interest Payment Date.................................... 4
Maturity................................................. 4
Mortgage................................................. 5
Officers' Certificate.................................... 5
Opinion of Counsel....................................... 5
Original Issue Discount Security......................... 5
Outstanding.............................................. 5
Paying Agent............................................. 6
Person................................................... 6
i
<PAGE>
Place of Payment......................................... 6
Predecessor Securities................................... 6
Redemption Date.......................................... 6
Redemption Price......................................... 6
Regular Record Date...................................... 7
Repayment Date........................................... 7
Repayment Price.......................................... 7
Responsible Officer...................................... 7
Security or Securities................................... 7
Securityholder........................................... 7
Security Register........................................ 7
Security Registrar....................................... 7
Special Record Date...................................... 7
Stated Maturity.......................................... 7
Subsidiary............................................... 8
Trust Indenture Act...................................... 8
Trustee.................................................. 8
Vice President........................................... 8
Voting Stock............................................. 8
Section 102. Compliance Certificates and Opinions.................... 8
Section 103. Form of Documents Delivered to Trustee.................. 9
Section 104. Acts of Securityholders................................. 10
Section 105. Notices, Etc., to Trustee and Company................... 11
Section 106. Notices to Securityholders; Waiver...................... 11
Section 107. Conflict with Trust Indenture Act....................... 12
Section 108. Effect of Headings and Table of Contents................ 12
Section 109. Successors and Assigns.................................. 12
Section 110. Separability Clause..................................... 12
Section 111. Benefits of Indenture................................... 12
Section 112. Governing Law........................................... 12
Section 113. Counterparts............................................ 12
Section 114. Judgment Currency....................................... 12
ARTICLE TWO
Security Forms
Section 201. Forms Generally......................................... 13
Section 202. Forms of Securities..................................... 14
Section 203. Form of Trustee's Certificate of Authentication......... 14
ii
<PAGE>
Section 204. Securities Issuable in the Form of a Global Security.... 14
ARTICLE THREE
The Securities
Section 301.General Title; General Limitations; Issuable in Series; Terms of
Particular Series.............................................. 16
Section 302. Denominations........................................... 19
Section 303. Execution, Authentication and Delivery and Dating....... 19
Section 304. Temporary Securities.................................... 21
Section 305. Registration, Transfer and Exchange..................... 21
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........ 23
Section 307. Payment of Interest; Interest Rights Preserved.......... 24
Section 308. Persons Deemed Owners................................... 25
Section 309. Cancellation............................................ 25
Section 310. Computation of Interest................................. 25
Section 311. Medium-Term Securities.................................. 26
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture................. 26
Section 402. Application of Trust Money.............................. 27
Section 403. Satisfaction, Discharge and Defeasance of Securities
of any Series........................................... 28
ARTICLE FIVE
Remedies
Section 501. Events of Default....................................... 30
Section 502. Acceleration of Maturity; Rescission and Annulment...... 31
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee................................................. 33
Section 504. Trustee May File Proofs of Claim........................ 34
Section 505. Trustee May Enforce Claims Without Possession of
Securities ............................................. 34
Section 506. Application of Money Collected.......................... 34
Section 507. Limitation on Suits..................................... 35
Section 508. Unconditional Right of Securityholders to Receive
Principal, Premium and Interest......................... 36
iii
<PAGE>
Section 509.Restoration of Rights and Remedies....................... 36
Section 510. Rights and Remedies Cumulative.......................... 36
Section 511. Delay or Omission Not Waiver............................ 36
Section 512. Control by Securityholders.............................. 36
Section 513. Waiver of Past Defaults................................. 37
Section 514. Undertaking for Costs................................... 37
Section 515. Waiver of Stay or Extension Laws........................ 38
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities........................... 38
Section 602. Notice of Defaults...................................... 39
Section 603. Certain Rights of Trustee............................... 40
Section 604. Not Responsible for Recitals or Issuance of Securities.. 41
Section 605. May Hold Securities..................................... 41
Section 606. Money Held in Trust..................................... 41
Section 607. Compensation and Reimbursement.......................... 41
Section 608. Disqualification; Conflicting Interests................. 42
Section 609. Corporate Trustee Required; Eligibility................. 42
Section 610. Resignation and Removal; Appointment of Successor....... 42
Section 611. Acceptance of Appointment by Successor.................. 44
Section 612. Merger, Conversion, Consolidation or Succession
to Business............................................. 44
Section 613. Preferential Collection of Claims Against Company....... 45
Section 614. Appointment of Authenticating Agent..................... 49
ARTICLE SEVEN
Securityholders' Lists and Reports by Trustee and Company
Section 701. Company To Furnish Trustee Names and Addresses of
Securityholders......................................... 51
Section 702. Preservation of Information; Communications to
Securityholders......................................... 51
Section 703. Reports by Trustee...................................... 52
Section 704. Reports by Company...................................... 54
iv
<PAGE>
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, Etc., Only on Certain Terms.... 55
Section 802. Successor Corporation Substituted....................... 55
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Securityholders.... 56
Section 902. Supplemental Indentures With Consent of Securityholders....... 57
Section 903. Execution of Supplemental Indentures.......................... 58
Section 904. Effect of Supplemental Indentures............................. 58
Section 905. Conformity with Trust Indenture Act..................... 58
Section 906. Reference in Securities to Supplemental Indentures............ 58
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest............ 59
Section 1002. Maintenance of Office or Agency............................. 59
Section 1003. Money for Security Payments to be Held in Trust....... 59
Section 1004. Statement as to Compliance............................ 61
Section 1005. Corporate Existence................................... 61
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.............................. 61
Section 1102. Election to Redeem; Notice to Trustee................. 62
Section 1103. Selection by Trustee of Securities to Be Redeemed..... 62
Section 1104. Notice of Redemption.................................. 63
Section 1105. Deposit of Redemption Price........................... 63
Section 1106. Securities Payable on Redemption Date................. 63
Section 1107. Securities Redeemed in Part........................... 64
Section 1108. Provisions with Respect to any Sinking Funds.......... 64
v
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THIS INDENTURE between DIAMOND OFFSHORE DRILLING, INC., a Delaware
corporation (hereinafter called the "Company") having its principal office at
15415 Katy Freeway, Houston, Texas 77094, and __________________________, a
_____________________________ incorporated and existing under the laws of
______________________, trustee (hereinafter called the "Trustee"), is made and
entered into as of this ______ day of _________________, 1997.
Recitals of the Company
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its debentures, notes, bonds or other
evidences of indebtedness, to be issued in one or more fully registered series.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Agreements of the Parties
To set forth or to provide for the establishment of the terms and
conditions upon which the Securities are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Securities
by the Holders thereof, it is mutually covenanted and agreed as follows, for the
equal and proportionate benefit of all Holders of the Securities or of a series
thereof, as the case may be:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions. For all purposes of this Indenture and of any
indenture supplemental hereto, except as otherwise expressly provided or unless
the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act or by Commission rule under the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
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(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles
and, except as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted in the
United States of America at the date of such computation;
(4) all references in this instrument to designated "Articles", "Sections"
and other subdivisions are to the designated Articles, Sections and other
subdivisions of this instrument as originally executed. 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; and
(5) "including" and words of similar import shall be deemed to be followed
by "without limitation".
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Securityholder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
authenticate Securities under Section 614.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day which is neither a Saturday, Sunday or other
day on which banking institutions in the pertinent Place or Places of Payment
are authorized or required by law or executive order to be closed.
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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, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor corporation.
"Company Request", "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its Chairman of the Board, President or a Vice President, and by its
Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
____________________________, at which at any particular time its corporate
trust business shall be principally administered, which office at the date
hereof is located at ______________________________, except that with respect to
the presentation of Securities for payment or for registration of transfer and
exchange, such term shall mean the office or the agency of the Trustee in said
city at which at any particular time its corporate agency business shall be
conducted, which office at the date hereof is located
_____________________________.
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, unless otherwise specified by the Company pursuant to
either Section 204 or 301, with respect to Securities of any series issuable or
issued as a Global Security, The Depository Trust Company, New York, New York,
or any successor thereto registered as a clearing agency under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation.
"Domestic Subsidiary" means a Subsidiary which is incorporated in the
United States of America or any State thereof.
"Event of Default" has the meaning specified in Article Five.
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"Global Security" means with respect to any series of Securities issued
hereunder, a Security which is executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and an indenture supplemental
hereto, if any, or Board Resolution and pursuant to a Company Request, which
shall be registered in the name of the Depositary or its nominee and which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such series or any
portion thereof, in either case having the same terms, including, without
limitation, the same original issue date, date or dates on which principal is
due, and interest rate or method of determining interest.
"Holder", when used with respect to any Security, means a Securityholder.
"Indenture" or "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities
established as contemplated by Section 301.
"Independent", when used with respect to any specified Person, means such
a Person who (1) is in fact independent, (2) does not have any direct financial
interest or any material indirect financial interest in the Company or in any
other obligor upon the Securities or in any Affiliate of the Company or of such
other obligor, and (3) is not connected with the Company or such other obligor
or any Affiliate of the Company or of such other obligor, as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions. Whenever it is herein provided that any Independent Person's
opinion or certificate shall be furnished to the Trustee, such Person shall be
appointed by a Company Order and approved by the Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer has
read this definition and that the signer is Independent within the meaning
hereof.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of any installment of interest on those
Securities.
"Maturity", when used with respect to any Securities, means the date on
which the principal of any such Security becomes due and payable as therein or
herein provided, whether on a Repayment Date, at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
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"Mortgage" means any mortgage, pledge, lien, encumbrance, charge or
security interest of any kind.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee. Wherever this
Indenture requires that an Officers' Certificate be signed also by an engineer
or an accountant or other expert, such engineer, accountant or other expert
(except as otherwise expressly provided in this Indenture) may be in the employ
of the Company, and shall be acceptable to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may (except
as otherwise expressly provided in this Indenture) be an employee of or of
counsel to the Company. Such counsel shall be acceptable to the Trustee, whose
acceptance shall not be unreasonably withheld.
"Original Issue Discount Security" means (i) any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof, and (ii) any other
Security deemed an Original Issue Discount Security for United States Federal
income tax purposes.
"Outstanding", when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent in trust for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made; and
(iii) such Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, or which shall have been paid pursuant to the terms of Section
306 (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 Company).
5
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In determining whether the Holders of the requisite principal amount of
such Securities Outstanding have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (i) the principal amount of any
Original Issue Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable as of the date
of the taking of such action upon a declaration of acceleration of the Maturity
thereof and (ii) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding. In determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer assigned to the corporate trust department of the Trustee knows to be
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor 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
to act as owner with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" means with respect to any series of Securities issued
hereunder the city or political subdivision so designated with respect to the
series of Securities in question in accordance with the provisions of Section
301.
"Predecessor Securities" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price specified in the Security at which it is to be redeemed pursuant
to this Indenture.
6
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"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date specified in such Security as the Regular
Record Date.
"Repayment Date", when used with respect to any Security to be repaid,
means the date fixed for such repayment pursuant to such Security.
"Repayment Price", when used with respect to any Security to be repaid,
means the price at which it is to be repaid pursuant to such Security.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer or trust officer, the controller and any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, of any series authenticated and delivered from time to time under this
Indenture.
"Securityholder" means a Person in whose name a Security is registered in
the Security Register.
"Security Register" shall have the meaning specified in Section 305.
"Security Registrar" means the Person who keeps the Security Register
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest (as
defined in Section 307) means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date specified in
such Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
7
<PAGE>
"Subsidiary" of any specified corporation means any corporation at least a
majority of whose outstanding Voting Stock shall at the time be owned, directly
or indirectly, by the specified corporation or by one or more of its
Subsidiaries, or both.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, as in force at the date as of
which this instrument was executed except as provided in Section 905.
"Trustee" means the Person named as the Trustee in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean and
include each Person who is then a Trustee hereunder. If at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Vice President" when used with respect to the Company or the Trustee
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president", including, without
limitation, an assistant vice president.
"Voting Stock", as applied to the stock of any corporation, means stock of
any class or classes (however designated) having by the terms thereof ordinary
voting power to elect a majority of the members of the board of directors (or
other governing body) of such corporation other than stock having such power
only by reason of the happening of a contingency.
Section 102. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such Counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
8
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Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (except for the written statement
required by Section 1004) shall include
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
the other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
9
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Section 104. Acts of Securityholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Securityholders or Securityholders of any
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by an
agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee, and, where it is hereby expressly required, to the
Company. If any Securities are denominated in coin or currency other than that
of the United States, then for the purposes of determining whether the Holders
of the requisite principal amount of Securities have taken any action as herein
described, the principal amount of such Securities shall be deemed to be that
amount of United States dollars that could be obtained for such principal amount
on the basis of the spot rate of exchange into United States dollars for the
currency in which such Securities are denominated (as evidenced to the Trustee
by an Officers' Certificate) as of the date the taking of such action by the
Holders of such requisite principal amount is evidenced to the Trustee as
provided in the immediately preceding sentence. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership, on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, by Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Holders of record at the close of
business on the
10
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record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Securities Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the
Securities Outstanding shall be computed as of the record date; provided that no
such authorization, agreement or consent by the Holders on the record date shall
be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind the Holder of every
Security issued upon the transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done or suffered to be done by the Trustee or
the Company in reliance thereon whether or not notation of such action is made
upon such Security.
Section 105. Notices, Etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Securityholders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder (except as provided in Section 501(4) or,
in the case of a request for repayment, as specified in the Security carrying
the right to repayment) if in writing and mailed, first-class postage prepaid,
to the Company addressed to it at the address of its principal office specified
in the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
Section 106. Notices to Securityholders; Waiver. Where this Indenture or
any Security provides for notice to Securityholders of any event, such notice
shall be sufficiently given (unless otherwise herein or in such Security
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Securityholder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Securityholders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Securityholder
shall affect the sufficiency of such notice with respect to other
Securityholders. Where this Indenture or any Security 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
11
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Securityholders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of regular mail service as a result
of a strike, work stoppage or otherwise, it shall be impractical to mail notice
of any event to any Securityholder when such notice is required to be given
pursuant to any provision of this Indenture, then any method of notification as
shall be satisfactory to the Trustee and the Company shall be deemed to be a
sufficient giving of such notice.
Section 107. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with the duties imposed by any of Sections 310 to
317, inclusive, of the Trust Indenture Act through the operation of Section
318(c) thereof, such imposed duties shall control.
Section 108. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 109. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 110. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 111. Benefits of Indenture. Nothing in this Indenture or in any
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Authenticating Agent or Paying Agent,
the Security Registrar and the Holders of Securities (or such of them as may be
affected thereby), any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law. This Indenture shall be construed in
accordance with and governed by the laws of the State of New York.
Section 113. Counterparts. This instrument may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
Section 114. Judgment Currency. The Company agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in
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any court it is necessary to convert the sum due in respect of the principal of,
or premium or interest, if any, on the Securities of any series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in the City of New
York the Required Currency with the Judgment Currency on the New York Banking
Day (as defined below) preceding that on which final unappealable judgment is
given and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in the City of New York or a
day on which banking institutions in the City of New York are authorized or
required by law or executive order to close.
ARTICLE TWO
Security Forms
Section 201. Forms Generally. The Securities shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon, as may be
required to comply with applicable laws or regulations or with the rules of any
securities exchange, or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Security.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods 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, subject, with
respect to the Securities of any series, to the rules of any securities exchange
on which such Securities are listed.
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Section 202. Forms of Securities. Each Security shall be in one of the
forms approved from time to time by or pursuant to a Board Resolution, or
established in one or more indentures supplemental hereto. Prior to the delivery
of a Security to the Trustee for authentication in any form approved by or
pursuant to a Board Resolution, the Company shall deliver to the Trustee the
Board Resolution by or pursuant to which such form of Security has been
approved, which Board Resolution shall have attached thereto a true and correct
copy of the form of Security which has been approved thereby or, if a Board
Resolution authorizes a specific officer or officers to approve a form of
Security, a certificate of such officer or officers approving the form of
Security attached thereto. Any form of Security approved by or pursuant to a
Board Resolution must be acceptable as to form to the Trustee, such acceptance
to be evidenced by the Trustee's authentication of Securities in that form or a
certificate signed by a Responsible Officer of the Trustee and delivered to the
Company.
Section 203. Form of Trustee's Certificate of Authentication. The form of
Trustee's Certificate of Authentication for any Security issued pursuant to this
Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
------------------------------
as Trustee,
By:___________________________
Authorized Signatory
Section 204. Securities Issuable in the Form of a Global Security. (a) If
the Company shall establish pursuant to Sections 202 and 301 that the Securities
of a particular series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee or its
agent shall, in accordance with Section 303 and the Company Request delivered to
the Trustee or its agent thereunder, authenticate and deliver such Global
Security or Securities, which (i) shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of, the Outstanding Securities
of such series to be represented by such Global Security or Securities, or such
portion thereof as the Company shall specify in a Company Request, (ii) shall be
registered in the name of the
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Depositary for such Global Security or Securities or its nominee, (iii) shall be
delivered by the Trustee or its agent to the Depositary or pursuant to the
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for the
individual Securities represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary."
(b) Notwithstanding any other provisions of this Section 204 or of Section
305, and subject to the provisions of paragraph (c) below, unless the terms of a
Global Security expressly permit such Global Security to be exchanged in whole
or in part for individual Securities, a Global Security may be transferred, in
whole but not in part and in the manner provided in Section 305, only to a
nominee of the Depositary for such Global Security, or to the Depositary, or a
successor Depositary for such Global Security selected or approved by the
Company, or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time the Depositary for the Securities for such series
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the Company shall
appoint a successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee or its agent, upon
receipt of a Company Request for the authentication and delivery of individual
Securities of such series in exchange for such Global Security, will
authenticate and deliver, individual Securities of such series of like tenor and
terms in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion
determine that the Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the
Company will execute, and the Trustee, upon receipt of a Company Request
for the authentication and delivery of individual Securities of such
series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of such Global Security or Securities representing
such series or portion thereof in exchange for such Global Security or
Securities.
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(iii) If specified by the Company pursuant to Sections 202 and 301
with respect to Securities issued or issuable in the form of a Global
Security, the Depositary for such Global Security may surrender such
Global Security in exchange in whole or in part for individual Securities
of such series of like tenor and terms in definitive form on such terms as
are acceptable to the Company and such Depositary. Thereupon the Company
shall execute, and the Trustee or its agent shall authenticate and
deliver, without service charge, (1) to each Person specified by such
Depositary a new Security or Securities of the same series of like tenor
and terms and of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and (2) to such Depositary a
new Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal amount
of the surrendered Global Security and the aggregate principal amount of
Securities delivered to the Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Securities in definitive registered
form in authorized denominations. Upon the exchange of the entire
principal amount of a Global Security for individual Securities, such
Global Security shall be cancelled by the Trustee or its agent. Except as
provided in the preceding paragraph, Securities issued in exchange for a
Global Security pursuant to this Section 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 or the Security
Registrar. The Trustee or the Security Registrar shall deliver such
Securities to the Persons in whose names such Securities are so
registered.
ARTICLE THREE
The Securities
Section 301. General Title; General Limitations; Issuable in Series; Terms
of Particular Series. The aggregate principal amount of Securities which may be
authenticated and delivered and Outstanding under this Indenture is not limited.
The Securities may be issued in one or more series up to an aggregate
principal amount of Securities as from time to time may be authorized by the
Board of Directors. All Securities of each series under this Indenture shall in
all respects be equally and ratably entitled to the benefits hereof with respect
to such series without preference, priority or distinction on account
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of the actual time of the authentication and delivery or Stated Maturity of the
Securities of such series.
Each series of Securities shall be created either by or pursuant to a
Board Resolution or by or pursuant to an indenture supplemental hereto. The
Securities of each such series may bear such date or dates, be payable at such
place or places, have such Stated Maturity or Maturities, be issuable at such
premium over or discount from their face value, bear interest at such rate or
rates (which may be fixed or floating), from such date or dates, payable in such
installments and on such dates and at such place or places to the Holders of
Securities registered as such on such Regular Record Dates, or may bear no
interest, and may be redeemable or repayable at such Redemption Price or Prices
or Repayment Price or Prices, as the case may be, whether at the option of the
Holder or otherwise, and upon such terms, all as shall be provided for in or
pursuant to the Board Resolution or in or pursuant to the supplemental indenture
creating that series. There may also be established in or pursuant to a Board
Resolution or in or pursuant to a supplemental indenture prior to the issuance
of Securities of each such series, provision for:
(1) the exchange or conversion of the Securities of that series, at the
option of the Holders thereof, for or into new Securities of a different series
or other securities or other property, including shares of capital stock of the
Company or any subsidiary of the Company or securities directly or indirectly
convertible into or exchangeable for any such shares;
(2) a sinking or purchase fund or other analogous obligation;
(3) if other than U.S. dollars, the currency or currencies or units based
on or related to currencies (including European Currency Units) in which the
Securities of such series shall be denominated and in which payments of
principal of, and any premium and interest on, such Securities shall or may be
payable;
(4) if the principal of (and premium, if any) or interest, if any, on the
Securities of such series are to be payable, at the election of the Company or a
holder thereof, in a currency or currencies or units based on or related to
currencies (including European Currency Units) other than that in which the
Securities are stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(5) if the amount of payments of principal of (and premium, if any) or
interest, if any, on the Securities of such series may be determined with
reference to an index based on (i) a currency or currencies or units based on or
related to currencies (including European Currency Units) other than that in
which the Securities are stated to be payable, (ii) changes in the price of one
or more other securities or groups or indexes of securities or (iii) changes in
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the prices of one or more commodities or groups or indexes of commodities, or
any combination of the foregoing, the manner in which such amounts shall be
determined;
(6) if the aggregate principal amount of the Securities of that series is
to be limited, such limitations;
(7) the exchange of Securities of that series, at the option of the
Holders thereof, for other Securities of the same series of the same aggregate
principal amount of a different authorized kind or different authorized
denomination or denominations, or both;
(8) the appointment by the Trustee of an Authenticating Agent in one or
more places other than the location of the office of the Trustee with power to
act on behalf of the Trustee and subject to its direction in the authentication
and delivery of the Securities of any one or more series in connection with such
transactions as shall be specified in the provisions of this Indenture or in or
pursuant to the Board Resolution or the supplemental indenture creating such
series;
(9) the portion of the principal amount of Securities of the series, if
other than the total principal amount thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
provable in bankruptcy pursuant to Section 504;
(10) any Event of Default with respect to the Securities of such series,
if not set forth herein and any additions, deletions or other changes to the
Events of Default set forth herein that shall be applicable to the Securities of
such series (including a provision making any Event of Default set forth herein
inapplicable to the Securities of that series);
(11) any covenant solely for the benefit of the Securities of such series
and any additions, deletions or other changes to the provisions of Article Ten
or any definitions relating to such Article that shall be applicable to the
Securities of such series (including a provision making any Section of such
Article inapplicable to the Securities of such series);
(12) the applicability of Section 403 of this Indenture to the Securities
of such series;
(13) if the Securities of the series shall be issued in whole or in part
in the form of a Global Security or Global Securities, the terms and conditions,
if any, upon which such Global Security or Global Securities may be exchanged in
whole or in part for other individual Securities; and the Depositary for such
Global Security or Global Securities (if other than the Depositary specified in
Section 101 hereof);
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(14) the subordination of the Securities of such series to any other
indebtedness of the Company, including without limitation, the Securities of any
other series; and
(15) any other terms of the series, which shall not be inconsistent with
the provisions of this Indenture, all upon such terms as may be determined in or
pursuant to a Board Resolution or in or pursuant to a supplemental indenture
with respect to such series. All Securities of the same series shall be
substantially identical in tenor and effect, except as to denomination.
The form of the Securities of each series shall be established pursuant to
the provisions of this Indenture in or pursuant to the Board Resolution or in or
pursuant to the supplemental indenture creating such series. The Securities of
each series shall be distinguished from the Securities of each other series in
such manner, reasonably satisfactory to the Trustee, as the Board of Directors
may determine.
Unless otherwise provided with respect to Securities of a particular
series, the Securities of any series may only be issuable in registered form,
without coupons.
Any terms or provisions in respect of the Securities of any series issued
under this Indenture may be determined pursuant to this Section by providing in
a Board Resolution or supplemental indenture for the method by which such terms
or provisions shall be determined.
Section 302. Denominations. The Securities of each series shall be
issuable in such denominations and currency as shall be provided in the
provisions of this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series. In the absence of any such
provisions with respect to the Securities of any series, the Securities of that
series shall be issuable only in fully registered form in denominations of
$1,000 and any integral multiple thereof.
Section 303. Execution, Authentication and Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President, one of its Vice Presidents or its Treasurer under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
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At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication; and the Trustee shall, upon Company Order,
authenticate and deliver such Securities as in this Indenture provided and not
otherwise.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive, in addition to any Officers' Certificate and Opinion of
Counsel required to be furnished to the Trustee pursuant to Section 102, and the
Board Resolution and any certificate relating to the issuance of the series of
Securities required to be furnished pursuant to Section 202, an Opinion of
Counsel stating that:
(1) all instruments furnished to the Trustee conform to the requirements
of the Indenture and constitute sufficient authority hereunder for the Trustee
to authenticate and deliver such Securities;
(2) the form and terms (or in connection with the issuance of medium-term
Securities under Section 311, the manner of determining the terms) of such
Securities have been established in conformity with the provisions of this
Indenture;
(3) all laws and requirements with respect to the execution and delivery
by the Company of such Securities have been complied with, the Company has the
corporate power to issue such Securities and such Securities have been duly
authorized and delivered by the Company and, assuming due authentication and
delivery by the Trustee, constitute legal, valid and binding obligations of the
Company enforceable in accordance with their terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws and legal principles affecting creditors' rights generally from time
to time in effect and to general equitable principles, whether applied in an
action at law or in equity) and entitled to the benefits of this Indenture,
equally and ratably with all other Securities, if any, of such series
Outstanding; and
(4) such other matters as the Trustee may reasonably request;
and, if the authentication and delivery relates to a new series of Securities
created by an indenture supplemental hereto, also stating that all laws and
requirements with respect to the form and execution by the Company of the
supplemental indenture with respect to that series of Securities have been
complied with, the Company has corporate power to execute and deliver any such
supplemental indenture and has taken all necessary corporate action for those
purposes and any such supplemental indenture has been executed and delivered and
constitutes the legal, valid and binding obligation of the Company enforceable
in accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization,
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insolvency, moratorium or other laws and legal principles affecting creditors'
rights generally from time to time in effect and to general equitable
principles, whether applied in an action at law or in equity).
The Trustee shall not be required to authenticate such Securities if the
issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture.
Unless otherwise provided in the form of Security for any series, all
Securities shall be dated the date of their authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
Section 304. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute, and, upon receipt of the
documents required by Section 303, together with a Company Order, the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment, without charge to the Holder; and upon
surrender for cancellation of any one or more temporary Securities the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of such series of
authorized denominations and of like tenor and terms. Until so exchanged the
temporary Securities of such series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
Section 305. Registration, Transfer and Exchange. The Company shall keep
or cause to be kept a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the
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registration of Securities, or of Securities of a particular series, and for
transfers of Securities or of Securities of such series. Any such register shall
be in written form or in any other form capable of being converted into written
form within a reasonable time. At all reasonable times the information contained
in such register or registers shall be available for inspection by the Trustee
at the office or agency to be maintained by the Company as provided in Section
1002.
Subject to Section 204, upon surrender for transfer of any Security of any
series at the office or agency of the Company in a Place of Payment, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of such
series of any authorized denominations, of a like aggregate principal amount and
Stated Maturity and of like tenor and terms.
Subject to Section 204, at the option of the Holder, Securities of any
series may be exchanged for other Securities of such series of any authorized
denominations, of a like aggregate principal amount and Stated Maturity and of
like tenor and terms, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Securityholder making the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
Unless otherwise provided in the Security to be transferred or exchanged,
no service charge shall be made on any Securityholder for any transfer or
exchange of Securities, but the Company may (unless otherwise provided in such
Security) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Securities, other than exchanges pursuant to Section 304 or 906 not
involving any transfer.
The Company shall not be required (i) to issue, transfer or exchange any
Security of any series during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Securities of
such series selected for redemption under Section 1103 and ending at the close
of business on the date of such mailing, or (ii) to transfer
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or exchange any Security so selected for redemption in whole or in part, except
for the portion of such Security not so selected for redemption.
None of the Company, the Trustee, any agent of the Trustee, any Paying
Agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company initially appoints the Trustee to act as Security Registrar
for the Securities on its behalf. The Company may at any time and from time to
time authorize any Person to act as Security Registrar in place of the Trustee
with respect to any series of Securities issued under this Indenture.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. If (i) any
mutilated Security is surrendered to the Trustee, or the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Security, a new Security
of like tenor, series, Stated Maturity and principal amount, bearing a number
not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of the same series duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided with respect to such Security pursuant to Section 301,
interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder on the
relevant Regular Record Date by virtue of his having been such Holder; and,
except as hereinafter provided, such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or Clause (2)
below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names any such Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to the Holder of each such Security at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
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(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
If any installment of interest the Stated Maturity of which is on or prior
to the Redemption Date for any Security called for redemption pursuant to
Article Eleven is not paid or duly provided for on or prior to the Redemption
Date in accordance with the foregoing provisions of this Section, such interest
shall be payable as part of the Redemption Price of such Securities.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners. The Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name any Security is
registered in the Security Register as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any), and (subject
to Section 307) interest on, such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Section 309. Cancellation. All Securities surrendered for payment,
redemption, transfer, conversion or exchange or credit against a sinking fund
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and, if not already cancelled, shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Security shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this Section, except
as expressly permitted by this Indenture. The Trustee shall dispose of all
cancelled Securities in accordance with its customary procedures and shall
deliver a certificate of such disposition to the Company.
Section 310. Computation of Interest. Unless otherwise provided as
contemplated in Section 301, interest on the Securities shall be calculated on
the basis of a 360-day year of twelve 30-day months.
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Section 311. Medium-Term Securities. Notwithstanding any contrary
provision herein, if all Securities of a series are not to be originally issued
at one time, it shall not be necessary for the Company to deliver to the Trustee
an Officers' Certificate, Board Resolution, supplemental indenture, Opinion of
Counsel or Company Request otherwise required pursuant to Sections 202, 301 and
303 at or prior to the time of authentication of each Security of such series if
such documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first Security of such series to be
issued; provided that any subsequent request by the Company to the Trustee to
authenticate Securities of such series upon original issuance shall constitute a
representation and warranty by the Company that as of the date of such request,
the statements made in the Officers' Certificate delivered pursuant to Section
102 shall be true and correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board Resolution
delivered by the Company to the Trustee in the circumstances set forth in the
preceding paragraph may provide that Securities which are the subject thereof
will be authenticated and delivered by the Trustee or its agent on original
issue from time to time upon the telephonic or written order of persons
designated in such Officers' Certificate, Board Resolution or supplemental
indenture (any such telephonic instructions to be confirmed promptly in writing
by such persons) and that such persons are authorized to determine, consistent
with such Officers' Certificate, supplemental indenture or Board Resolution,
such terms and conditions of said Securities as are specified in such Officers'
Certificate, supplemental indenture or Board Resolution.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture. This Indenture shall
cease to be of further effect with respect to any series of Securities (except
as to any surviving rights of conversion, transfer or exchange of Securities of
such series expressly provided for herein or in the form of Security for such
series), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when
(1) either
(A) all Securities of that series theretofore authenticated and
delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Section 306, and (ii) Securities of such series for whose payment money
has theretofore been deposited in trust or segregated and
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held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee cancelled or for cancellation; or
(B) all such Securities of that series not theretofore delivered to
the Trustee cancelled or for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for such purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee cancelled or for
cancellation, for principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due and payable), or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Securities of such series; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture with respect to
the Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee with respect to that series under Section 607 shall survive and the
obligations of the Trustee under Sections 402 and 1003 shall survive.
Section 402. Application of Trust Money. All money and obligations
deposited with the Trustee pursuant to Section 401 or Section 403 and all money
received by the Trustee in respect of such obligations shall be held in trust
and applied by it, in accordance with the provisions of the series of Securities
in respect of which it was deposited and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its
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own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, if any) and interest for whose payment such money
and obligations have been deposited with or received by the Trustee; but such
money and obligations need not be segregated from other funds except to the
extent required by law.
Section 403. Satisfaction, Discharge and Defeasance of Securities of any
Series. If this Section 403 is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company shall be deemed to have paid
and discharged the entire indebtedness on all the Securities of any such series
at the time outstanding, and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction, discharge and defeasance
of such indebtedness, when
(1) either
(A) with respect to all Securities of such series at the time
outstanding,
(i) the Company has deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose an amount
sufficient, together with any obligations deposited pursuant to
clause (ii) below, to pay and discharge the entire indebtedness on
all such Securities for principal (and premium, if any) and
interest, on the days on which such principal (and premium, if any)
or interest, as the case may be, is due and payable in accordance
with the terms of this Indenture and such Securities, to the date of
maturity or date of redemption thereof as contemplated by the
penultimate paragraph of this Section 403, as the case may be; or
(ii) the Company has deposited or caused to be deposited with
the Trustee as obligations in trust for such purpose such amount of
direct obligations of, or obligations the principal of and interest
on which are fully guaranteed by, the government which issued the
currency in which such Securities are denominated (other than such
obligations as are redeemable at the option of the issuer thereof)
as will, together with the income to accrue thereon without
consideration of any reinvestment thereof, be sufficient, in the
written opinion of a firm of nationally recognized independent
public accountants (which may be the Company's auditors) delivered
to the Trustee, together with any funds deposited pursuant to clause
(i) above, to pay and discharge the entire indebtedness on all such
Securities for principal (and premium, if any) and interest, on the
days on which such principal (and premium, if any) or interest, as
the case may be, is due and payable in accordance with the terms of
this Indenture and such Securities, to the date of maturity or date
of redemption
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thereof as contemplated by the penultimate paragraph of this Section
403, as the case may be; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
301, to be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all other sums payable with
respect to the Securities of such series at the time Outstanding;
(3) 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;
(4) no Event of Default or event which, after notice or lapse of time or
both, would become an Event of Default shall have occurred and be continuing on
the date of such deposit; and
(5) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction, discharge and defeasance of the
entire indebtedness on all Securities of any such series at the time Outstanding
have been complied with.
Any deposits with the Trustee referred to in Section 403(1)(A) above
shall be irrevocable. If any Securities of such series at the time outstanding
are to be redeemed prior to their Stated Maturity, whether pursuant to any
optional redemption provisions or in accordance with any mandatory sinking fund
requirement, the Company shall make such arrangements as are satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403 with
respect to all the Securities of any series at the time Outstanding, the terms
and conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture (except as to any surviving rights of
conversion, transfer or exchange of Securities of such series expressly provided
for herein or in the form of Security for such series), shall no longer be
binding upon, or applicable to, the Company, provided that the Company shall not
be discharged from any payment obligations in respect of Securities of such
series which are deemed not to be Outstanding under clause (iii) of the
definition thereof if such obligations continue to be valid obligations of the
Company under applicable law.
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Notwithstanding the satisfaction of the conditions set forth in this
Section 403 with respect to all Securities of any series at the time
Outstanding, the obligations of the Company to the Trustee with respect to that
series under Section 607 and the obligations of the Trustee with respect to that
series under Section 402 and 1003 shall survive.
ARTICLE FIVE
Remedies
Section 501. Events of Default. "Event of Default", wherever used herein,
means with respect to any series of Securities any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless such event is either inapplicable
to a particular series or it is specifically deleted or modified in the
supplemental indenture creating such series of Securities or in the form of
Security for such series:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(3) default in the payment of any sinking or purchase fund or analogous
obligation when the same becomes due by the terms of the Securities of such
series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture in respect of the Securities of such series (other
than a covenant or warranty in respect of the Securities of such series a
default in the performance of which or the breach of which is elsewhere in this
Section specifically dealt with), all of such covenants and warranties in the
Indenture which are not expressly stated to be for the benefit of a particular
series of Securities being deemed in respect of the Securities of all series for
this purpose, and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
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(5) the entry of an order for relief against the Company under the Federal
Bankruptcy Code by a court having jurisdiction in the premises or a decree or
order by a court having jurisdiction in the premises adjudging the Company
bankrupt or insolvent under any other applicable Federal or State law, or the
entry of a decree or order approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company under the Federal Bankruptcy Code or any other applicable Federal or
State law, or appointing a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days; or
(6) the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under the Federal Bankruptcy Code or
any other applicable Federal or State law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(7) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security for
such series.
Section 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default described in paragraph (1), (2), (3), (4) or (7) (if the Event
of Default under paragraph (4) or (7) is with respect to less than all series of
Securities then Outstanding) of Section 501 occurs and is continuing with
respect to any series, then and in each and every such case, unless the
principal of all 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 hereunder
(each such series acting as a separate class), by notice in writing to the
Company (and to the Trustee if given by Holders), may declare the principal
amount (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 that series) of all the Securities of such series then Outstanding and
all accrued interest thereon to be due and payable immediately, and upon any
such declaration the same shall become and shall be immediately due and payable,
anything in this Indenture or in the Securities of such series contained to the
contrary notwithstanding. If an Event of Default described in paragraph (4) or
(7) (if the Event of Default under paragraph (4) or (7) is with respect to all
series of Securities then Outstanding), (5) or (6) of Section 501 occurs and is
continuing, then and in
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each and every such case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of all the Securities then Outstanding
hereunder (treated as one class), by notice in writing to the Company (and to
the Trustee if given by Holders), may declare the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms thereof) of all the Securities then
Outstanding and all accrued interest thereon to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due
and payable, anything in this Indenture or in the Securities contained to the
contrary notwithstanding.
At any time after such a declaration of acceleration has been made with
respect to the Securities of any series and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue installments of interest on the Securities of such
series,
(B) the principal of (and premium, if any, on) any such series which
have become due otherwise than by such declaration of acceleration, and
interest thereon at the rate or rates prescribed therefor by the terms of
the Securities of such series, to the extent that payment of such interest
is lawful,
(C) interest upon overdue installments of interest at the rate or
rates prescribed therefor by the terms of the Securities of such series to
the extent that payment of such interest is lawful, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee
under Section 607;
and
(2) all Events of Default with respect to such series of Securities, other
than the nonpayment of the principal of the Securities of such series which have
become due solely by such acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default is made in the payment of any installment of interest on any
Security of any series when such interest becomes due and payable, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, or
(3) default is made in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the Securities of
any series,
and any such default continues for any period of grace provided with respect to
the Securities of such series, the Company will, upon demand of the Trustee, pay
to it, for the benefit of the Holder of any such Security (or the Holders of any
such series in the case of Clause (3) above), the whole amount then due and
payable on any such Security (or on the Securities of any such series in the
case of Clause (3) above) for principal (and premium, if any) and interest, with
interest, to the extent that payment of such interest shall be legally
enforceable, upon the overdue principal (and premium, if any) and upon overdue
installments of interest, at such rate or rates as may be prescribed therefor by
the terms of any such Security (or of Securities of any such series in the case
of Clause (3) above); and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due the Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities of such series and
collect the money adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to any series of Securities occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
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Section 504. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceedings or otherwise, (i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary and
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee under
Section 607) and of the Securityholders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same; and any receiver, assignee,
trustee, liquidator, sequestrator (or other similar official) in any such
judicial proceeding is hereby authorized by each Securityholder to make such
payment to the Trustee and in the event that the Trustee shall consent to the
making of such payments directly to the Securityholders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities of any
series may be prosecuted and enforced by the Trustee without the possession of
any of the Securities of such series or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agent and counsel, be
for the ratable benefit of the Holders of the Securities of the series in
respect of which such judgment has been recovered.
Section 506. Application of Money Collected. Any money collected by the
Trustee with respect to a series of Securities pursuant to this Article shall be
applied in the following
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order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Securities of such series and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607.
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of that series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal
(and premium, if any) and interest, respectively.
Section 507. Limitation on Suits. No Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of such series;
it being understood and intended 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 to affect, disturb or prejudice the
rights of any other Holders of Securities of such series, or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and proportionate benefit of all the Holders of all Securities of such
series.
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Section 508. Unconditional Right of Securityholders to Receive Principal,
Premium and Interest. Notwithstanding any other provisions in this Indenture,
the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on the Redemption Date or Repayment Date, as the case may be) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies. If the Trustee or any
Securityholder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, then and in every such case the Company, the Trustee and the
Securityholders shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Securityholders shall
continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Securityholders, as the case may be.
Section 512. Control by Securityholders. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series, provided that
(1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the action
so directed may not lawfully be
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taken or would conflict with this Indenture or if the Trustee in good faith
shall, by a Responsible Officer, determine that the proceedings so directed
would involve it in personal liability or be unjustly prejudicial to the Holders
not taking part in such direction, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default not theretofore cured
(1) in the payment of the principal of (or premium, if any) or interest on
any Security of such series, or in the payment of any sinking or purchase fund
or analogous obligation with respect to the Securities of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 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 Outstanding Securities of any series to which the suit relates, or
to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Security on or after
the respective Stated Maturities expressed in such Security (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment Date).
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Section 515. Waiver of Stay or Extension Laws. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default with respect to any series of Securities,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect to the
Securities of such series, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to any series of Securities
has occurred and is continuing, the Trustee shall exercise with respect to the
Securities of such series such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
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(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 602. Notice of Defaults. Within 90 days after the occurrence of
any default hereunder with respect to Securities of any series, the Trustee
shall transmit by mail to all Securityholders of such series, as their names and
addresses appear in the Security Register, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such series or
in the payment of any sinking or purchase fund installment or analogous
obligation with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Securityholders of such series; and provided,
further, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series no such notice to
Securityholders of such series shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default", with
respect to Securities of any series, means any event which is, or after notice
or lapse of time or both would become, an Event of Default with respect to
Securities of such series.
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Section 603. Certain Rights of Trustee. Except as otherwise provided in Section
601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Securityholders pursuant to this Indenture, unless such Securityholders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
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Section 604. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the certificates of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities. The Trustee, any Paying Agent, the
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
Section 606. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any) or interest on
particular Securities.
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Section 608. Disqualification; Conflicting Interests. The Trustee for the
Securities of any series issued hereunder shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act during the period of time provided for
therein. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of
Section 310(b) of the Trust Indenture Act.
Section 609. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder with respect to each series of Securities, which
shall be a corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, and subject to supervision or examination by Federal or State
authority. 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. If at
any time the Trustee with respect to any series of Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 611.
(b) The Trustee may resign with respect to any series of Securities at any
time by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed with respect to any series of Securities at
any time by Act of the Holders of a majority in principal amount of the
Outstanding Securities of that series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act pursuant to Section 608(a) with respect to any series
of Securities after written request therefor by the Company or by any
Securityholder who has been a bona fide Holder of a Security of that
series for at least 6 months, or
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(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, with respect to the series, or in the case of Clause (4), with respect
to all series, or (ii) subject to Section 514, any Securityholder who has been a
bona fide Holder of a Security of such series for at least 6 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 the series, or, in the case of Clause (4),
with respect to all series.
(e) If the Trustee shall resign, be removed or become incapable of acting
with respect to any series of Securities, or if a vacancy shall occur in the
office of the Trustee with respect to any series of Securities for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
for that series of Securities. If, within one year after such resignation,
removal or incapacity, or the occurrence of such vacancy, a successor Trustee
with respect to such series of Securities shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee with respect to such series and supersede the successor
Trustee appointed by the Company with respect to such series. If no successor
Trustee with respect to such series shall have been so appointed by the Company
or the Securityholders of such series and accepted appointment in the manner
hereinafter provided, any Securityholder who has been a bona fide Holder of a
Security of that series for at least 6 months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to any series and each appointment of a successor
Trustee with respect to any series by mailing written notice of such event by
first-class mail, postage prepaid, to the
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Holders of Securities of that series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
and the address of its principal Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the predecessor Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the predecessor Trustee shall become
effective with respect to any series as to which it is resigning or being
removed as Trustee, and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the predecessor Trustee with respect to any such series; but, on request of
the Company or the successor Trustee, such predecessor Trustee shall, upon
payment of its reasonable charges, if any, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
predecessor Trustee, and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such predecessor Trustee
hereunder with respect to all or any such series, subject nevertheless to its
lien, if any, provided for in Section 607. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the
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 being succeeded 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
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.
No successor Trustee with respect to any series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to that series under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be
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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 such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company. (a)
Subject to Subsection (b) of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the Company
within 3 months prior to a default, as defined in Subsection (c) of this
Section, or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders of the Securities and the
holders of other indenture securities (as defined in Subsection (c) of this
Section):
(1) an amount equal to any and all reductions in the amount due and owing
upon any claim as such creditor in respect of principal or interest, effected
after the beginning of such 3-month period and valid as against the Company and
its other creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this Subsection, or
from the exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company upon the
date of such default; and
(2) all property received by the Trustee in respect of any claim as such
creditor, either as security therefor, or in satisfaction or composition
thereof, or otherwise, after the beginning of such 3-month period, or an amount
equal to the proceeds of any such property, if disposed of, subject, however, to
the rights, if any, of the Company and its other creditors in such property or
such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim by
the Trustee to a third person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law;
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(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such 3-month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such
3-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default as defined in
Subsection (c) of this Section would occur within 3 months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim
as provided in paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such 3-month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held
in such special account and the proceeds thereof shall be apportioned between
the Trustee, the Securityholders and the holders of other indenture securities
in such manner that the Trustee, the Securityholders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Securityholders and the holders of other indenture securities dividends on
claims filed against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal Bankruptcy Act or applicable State
law, but after crediting thereon receipts on account of the indebtedness
represented by their respective claims from all sources other than from such
dividends and from the funds and
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property so held in such special account. As used in this paragraph, with
respect to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
whether such distribution is made in cash, securities, or other property, but
shall not include any such distribution with respect to the secured portion, if
any, of such claim. The court in which such bankruptcy, receivership or
proceedings for reorganization is pending shall have jurisdiction (i) to
apportion between the Trustee and the Securityholders and the holders of other
indenture securities in accordance with the provisions of this paragraph, the
funds and property held in such special account and proceeds thereof, or (ii) in
lieu of such apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Securityholders and the holders
of other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
3-month period shall be subject to the provisions of this Subsection as though
such resignation or removal had not occurred. If any Trustee has resigned or
been removed prior to the beginning of such 3-month period, it shall be subject
to the provisions of this Subsection if and only if the following conditions
exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such 3-month period; and
(ii) such receipt of property or reduction of claim occurred within
3 months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of this
Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which
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shall at any time be subject to the lien of this Indenture or of
discharging tax liens or other prior liens or encumbrances thereon, if
notice of such advances and of the circumstances surrounding the making
thereof is given to the Securityholders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the
Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper as defined in Subsection (c)
of this Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due
and payable.
(2) The term "other indenture securities" means securities, if any,
upon which the Company is an obligor outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of this Section, and
(iii) under which a default exists at the time of the apportionment of the
funds and property held in such special account.
(3) The term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within 7 days after delivery
of the goods or securities in currency or in checks or other orders drawn
upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company
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for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a lien upon,
the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting
the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the
Company arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.
(5) The term "Company" means any obligor upon the Securities.
Section 614. Appointment of Authenticating Agent. At any time when any of
the Securities remain Outstanding the Trustee, with the approval of the Company,
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as an Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and,
if other than the Company itself, subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise
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eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and, if other than the Company, to the Company. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and, if other than
the Company, to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee,
with the approval of the Company, may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve, as
their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent (other than an
Authenticating Agent appointed at the request of the Company from time to time)
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
----------------------------------------
as Trustee
By:_____________________________________
As Authenticating Agent
By:_____________________________________
Authorized Signatory
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ARTICLE SEVEN
Securityholders' Lists and Reports by Trustee and Company
Section 701. Company To Furnish Trustee Names and Addresses of
Securityholders. The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, in each year in such form as the Trustee may reasonably
require, a list of the names and addresses of the Holders of
Securities of such series as of such date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished,
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to
Securityholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Securities received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) If 3 or more Holders of Securities of any series (hereinafter referred
to as "applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security of such series
for a period of at least 6 months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities of such series or with the Holders of all Securities with
respect to their rights under this Indenture or under such Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within 5 Business Days
after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 702(a), or
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(ii) inform such applicants as to the approximate number of Holders
of Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 702(a), and as to the approximate cost
of mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or to all Securityholders, as
the case may be, whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 702(a), a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless, within 5 days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of such series or all Securityholders, as the case may be, or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all Securityholders of such series or all Securityholders, as
the case may be, with reasonable promptness after the entry of such order and
the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders of Securities in accordance with Section
702(b), 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 Section 702(b).
Section 703. Reports by Trustee. (a) The term "reporting date" as used in
this Section means ________________. Within 60 days after the reporting date in
each year, beginning in 199__, the Trustee shall transmit by mail to all
Securityholders, as their names and addresses appear in the Security Register, a
brief report dated as of such reporting date with respect to any of the
following events which may have occurred during the 12 months
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preceding the date of such report (but if no such event has occurred within such
period no report need be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of Securities of any series, on any property or
funds held or collected by it as Trustee, except that the Trustee shall
not be required (but may elect) to report such advances if such advances
so remaining unpaid aggregate not more than 1/2 of 1% of the principal
amount of the Securities of such series outstanding on the date of such
report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in a manner described in Section 613(b)(2), (3), (4)
or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 602.
(b) The Trustee shall transmit by mail to all Securityholders, as their
names and addresses appear in the Security Register, a brief report with respect
to the character and amount of any advances (and if the Trustee elects so to
state, the circumstances surrounding the making thereof) made by the Trustee (as
such) since the date of the last report transmitted pursuant to Subsection (a)
of this Section (or if no such report has yet been so transmitted,
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since the date of execution of this instrument) for the reimbursement of which
it claims or may claim a lien or charge, prior to that of the Securities of any
series, on property or funds held or collected by it as Trustee, and which it
has not previously reported pursuant to this Subsection, except that the Trustee
shall not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
the Securities Outstanding of such series at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, and also with the Commission. The Company will notify the
Trustee when the Securities are listed on any stock exchange.
Section 704. Reports by Company. The Company will (1) file with the
Trustee, within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of said
Sections, then it will 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 in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) 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 Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to all Securityholders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and reports required
to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time to time by the
Commission.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, Etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or convey
or transfer its properties and assets substantially as an entirety to any
Person, unless:
(1) the corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer the properties
and assets of the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America or any
State or the District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest on all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that such consolidation, merger, conveyance
or transfer and such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
Section 802. Successor Corporation Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 801, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein. In the event of any such conveyance or transfer,
the Company as the predecessor corporation may be dissolved, wound up or
liquidated at any time thereafter.
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ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Securityholders.
Without the consent of the Holders of any Securities, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company,
and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(2) to add to the covenants of the Company, or to surrender any right or
power herein conferred upon the Company, for the benefit of the
Holders of the Securities of any or all series (and if such
covenants or the surrender of such right or power are to be for the
benefit of less than all series of Securities, stating that such
covenants are expressly being included or such surrenders are
expressly being made solely for the benefit of one or more specified
series); or
(3) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions
arising under this Indenture; or
(4) to add to this Indenture such provisions as may be expressly
permitted by the TIA, excluding, however, the provisions referred to
in Section 316(a)(2) of the TIA as in effect at the date as of which
this instrument was executed or any corresponding provision in any
similar federal statute hereafter enacted; or
(5) to establish any form of Security, as provided in Article Two, and
to provide for the issuance of any series of Securities as provided
in Article Three and to set forth the terms thereof, and/or to add
to the rights of the Holders of the Securities of any series; or
(6) to evidence and provide for the acceptance of appointment by another
corporation as a successor Trustee hereunder with respect to one or
more series of Securities 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 Section 611; or
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(7) to add any additional Events of Default in respect of the Securities
of any or all series (and if such additional Events of Default are
to be in respect of less than all series of Securities, stating that
such Events of Default are expressly being included solely for the
benefit of one or more specified series); or
(8) to provide for the issuance of Securities in coupon as well as fully
registered form.
No supplemental indenture for the purposes identified in Clauses (2), (3),
(5) or (7) above may be entered into if to do so would adversely affect the
interest of the Holders of Securities of any series.
Section 902. Supplemental Indentures With Consent of Securityholders. With
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture or indentures, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Maturity of the principal of, or the Stated Maturity of
any premium on, or any installment of interest on, any Security, or
reduce the principal amount thereof or the interest or any premium
thereon, or change the method of computing the amount of principal
thereof or interest thereon on any date or change any Place of
Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after
the Maturity or the Stated Maturity, as the case may be, thereof
(or, in the case of redemption or repayment, on or after the
Redemption Date or the Repayment Date, as the case may be); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders
is required for any waiver of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences,
provided for in this Indenture; or
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(3) modify any of the provisions of this Section or Section 513, except
to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not (except to the extent required in
the case of a supplemental indenture entered into under Section 901(4) or
901(6)) be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby to the
extent provided therein.
Section 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the
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Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest. With respect to
each series of Securities, the Company will duly and punctually pay the
principal of (and premium, if any) and interest on such Securities in accordance
with their terms and this Indenture, and will duly comply with all the other
terms, agreements and conditions contained in, or made in the Indenture for the
benefit of, the Securities of such series.
Section 1002. Maintenance of Office or Agency. The Company will maintain
an office or agency in each Place of Payment where Securities may be presented
or surrendered for payment, where Securities may be surrendered for transfer or
exchanged and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and of any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the principal Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Section 1003. Money for Security Payments to be Held in Trust. If the
Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on, any of the Securities of such series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, on or prior to each due date of the principal of (and
premium, if any) or interest on, any Securities of such series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal (and premium, if any) or interest, and
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(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and premium,
if any) or interest on Securities of such series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of such series) in the making of any such payment of
principal (and premium, if any) or interest on the Securities of such series;
and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture with respect to any series of Securities or for
any other purpose, pay, or by Company Order direct any Paying Agent to pay, to
the Trustee all sums held in trust by the Company or such Paying Agent in
respect of each and every series of Securities as to which it seeks to discharge
this Indenture or, if for any other purpose, all sums so held in trust by the
Company in respect of all Securities, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease. The Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company mail to
the Holders of the Securities as to which the money to be repaid was held in
trust, as their names and addresses appear in the Security Register, a notice
that such moneys remain unclaimed and that, after a date specified in the
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notice, which shall not be less than 30 days from the date on which the notice
was first mailed to the Holders of the Securities as to which the money to be
repaid was held in trust, any unclaimed balance of such moneys then remaining
will be paid to the Company free of the trust formerly impressed upon it.
The Company initially authorizes the Trustee to act as Paying Agent for
the Securities on its behalf. The Company may at any time and from time to time
authorize one or more Persons to act as Paying Agent in addition to or in place
of the Trustee with respect to any series of Securities issued under this
Indenture.
Section 1004. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, a written statement
signed by the principal executive officer, principal financial officer or
principal accounting officer of the Company, stating that
(1) a review of the activities of the Company during such year and of the
Company's performance under this Indenture and under the terms of the Securities
has been made under his supervision; and
(2) to the best of his knowledge, based on such review, the Company has
complied with all conditions and covenants under this Indenture through such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to him and the nature and status thereof.
Section 1005. Corporate Existence. Subject to Article Eight the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article. The Company may reserve the right
to redeem and pay before Stated Maturity all or any part of the Securities of
any series, either by optional redemption, sinking or purchase fund or analogous
obligation or otherwise, by provision therefor in the form of Security for such
series established and approved pursuant to Section 202 and on such terms as are
specified in such form or in the Board Resolution or indenture supplemental
hereto with respect to Securities of such series as provided in Section 301.
Redemption of Securities of any series shall be made in accordance with the
terms of such
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Securities and, to the extent that this Article does not conflict with such
terms, the succeeding Sections of this Article.
Section 1102. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities redeemable at the election of the Company shall
be evidenced by, or made pursuant to authority granted by, a Board Resolution.
In case of any redemption at the election of the Company of any Securities of
any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed.
In the case of any redemption of Securities (i) prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities of like tenor and terms of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may include provision
for the selection for redemption of portions of the principal of Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series. Unless otherwise provided in the terms of a
particular series of Securities, the portions of the principal of Securities so
selected for partial redemption shall be equal to the minimum authorized
denomination of the Securities of such series, or an integral multiple thereof,
and the principal amount which remains outstanding shall not be less than the
minimum authorized denomination for Securities of such series. If less than all
the Securities of unlike tenor and terms of a series are to be redeemed, the
particular Securities to be redeemed shall be selected by the Company.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal of such Security which has been or is to be redeemed.
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Section 1104. Notice of Redemption. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each holder of Securities to be redeemed, at
his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the Securities to be redeemed, from the Holder
to whom the notice is given;
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security, and that interest, if any, thereon shall cease
to accrue from and after said date;
(5) the place where such Securities are to be surrendered for payment of
the Redemption Price, which shall be the office or agency of the Company in the
Place of Payment; and
(6) that the redemption is on account of a sinking or purchase fund, or
other analogous obligation, if that be the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price. On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of all the Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date. Notice of Redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Securities
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shall cease to bear interest. Upon surrender of such Securities for redemption
in accordance with the notice, such Securities shall be paid by the Company at
the Redemption Price. Installments of interest the Stated Maturity of which is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities registered as such on the relevant Regular Record Dates according to
their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by the Security, or as otherwise provided in
such Security.
Section 1107. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company in the Place of Payment with respect to that series (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity and of like tenor and terms, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
Section 1108. Provisions with Respect to any Sinking Funds. Unless the
form or terms of any series of Securities shall provide otherwise, in lieu of
making all or any part of any mandatory sinking fund payment with respect to
such series of Securities in cash, the Company may at its option (1) deliver to
the Trustee for cancellation any Securities of such series theretofore acquired
by the Company, or (2) receive credit for any Securities of such series (not
previously so credited) acquired by the Company and theretofore delivered to the
Trustee for cancellation or redeemed by the Company other than through the
mandatory sinking fund, and if it does so then (i) Securities so delivered or
credited shall be credited at the applicable sinking fund Redemption Price with
respect to Securities of such series, and (ii) on or before the 60th day next
preceding each sinking fund Redemption Date with respect to such series of
Securities, the Company will deliver to the Trustee (A) an Officers' Certificate
specifying the portions of such sinking fund payment to be satisfied by payment
of cash and by delivery or credit of Securities of such series acquired by the
Company or so redeemed, and (B) such Securities so acquired, to the extent not
previously surrendered. Such Officers' Certificate shall also state the basis
for such credit and that the Securities for which the Company elects to receive
credit have not been previously so credited and were not redeemed by the Company
through operation of the mandatory sinking fund, if any, provided with respect
to such Securities and shall also state that no Event of Default with respect to
Securities
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of such series has occurred and is continuing. All Securities so delivered to
the Trustee shall be cancelled by the Trustee and no Securities shall be
authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional) with
respect to any series of Securities made in cash plus any unused balance of any
preceding sinking fund payments with respect to Securities of such series made
in cash shall exceed $50,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of Securities, that cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect
to Securities of such series next following the date of such payment to the
redemption of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series, together with
accrued interest, if any, to the date fixed for redemption, with the effect
provided in Section 1106. The Trustee shall select, in the manner provided in
Section 1103, for redemption on such sinking fund Redemption Date a sufficient
principal amount of Securities of such series to utilize that cash and shall
thereupon cause notice of redemption of the Securities of such series for the
sinking fund to be given in the manner provided in Section 1104 (and with the
effect provided in Section 1106) for the redemption of Securities in part at the
option of the Company. Any sinking fund moneys not so applied or allocated by
the Trustee to the redemption of Securities of such series shall be added to the
next cash sinking fund payment with respect to Securities of such series
received by the Trustee and, together with such payment, shall be applied in
accordance with the provisions of this Section 1108. Any and all sinking fund
moneys with respect to Securities of any series held by the Trustee at the
Maturity of Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient
for the purpose, to the payment of the principal of the Securities of such
series at Maturity.
On or before each sinking fund Redemption Date provided with respect to
Securities of any series, the Company shall pay to the Trustee in cash a sum
equal to all accrued interest, if any, to the date fixed for redemption on
Securities to be redeemed on such sinking fund Redemption Date pursuant to this
Section 1108.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
DIAMOND OFFSHORE DRILLING, INC.
By:__________________________
Name:
Title:
Attest:
- --------------------------------
Richard L. Lionberger, Secretary
{SEAL}
By:
---------------------------
Attest:
Name:
Title:
{SEAL}
66
HOFS04...:\11\41411\0003\1615\IND.A
<PAGE>
STATE OF TEXAS )
) ss:
COUNTY OF HARRIS )
On the ____ day of ______________, 1997 before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he resides at Houston, Texas; that he is ______________ of Diamond Offshore
Drilling, Inc., one of the parties described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to that instrument is such corporate seal; that it was affixed by
authority of the board of directors of the corporation; and that he signed his
name thereto by like authority.
---------------------------------------
Name:
{SEAL}
- -----------------------------
{Notarial Seal}
67
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STATE OF )
) ss:
COUNTY OF )
On the ____ day of _____________, 1997 before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he resides at ________________________________; that he is _______________
of _____________________, one of the parties described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that the
seal affixed to that instrument is such corporate seal; that it was affixed by
authority of the board of directors of the corporation; and that he signed his
name thereto by like authority.
------------------------------------------
Name:
{SEAL}
- -----------------------------------
{Notarial Seal}
68
HOFS04...:\11\41411\0003\1615\IND.A
<PAGE>
EXHIBIT 5.1
WEIL, GOTSHAL & MANGES LLP
700 LOUISIANA, SUITE 1600
HOUSTON, TEXAS 77002
(713) 546-5000
January 17, 1997
Diamond Offshore Drilling, Inc.
15415 Katy Freeway
Suite 400
Houston, Texas 77094
Ladies and Gentlemen:
We have acted as counsel to Diamond Offshore Drilling, Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing by the Company of a Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"), pertaining
to the issuance by the Company from time to time, together or separately, and as
set forth in the prospectus contained in the Registration Statement (the
"Prospectus") and in one or more supplements to the Prospectus (each, a
"Prospectus Supplement"), of up to $600,000,000 aggregate offering price of (1)
debt securities (the "Debt Securities"), which may be either senior or
subordinated and which may be convertible into or exchangeable for shares of
common stock, par value $.01 per share, of the Company (the "Common Stock"),
shares of preferred stock, par value $.01 per share, of the Company (the
"Preferred Stock"), or other Debt Securities; (2) warrants to purchase Debt
Securities (the "Debt Warrants"); (3) Preferred Stock, which may be convertible
into or exchangeable for shares of Common Stock or shares of Preferred Stock or
Debt Securities; (4) warrants to purchase shares of Preferred Stock (the
"Preferred Stock Warrants"); and (5) Common Stock issuable upon the conversion
or exchange of Debt Securities or Preferred Stock offered thereunder, to the
extent such Debt Securities or Preferred Stock are, by their terms, convertible
into or exchangeable for shares of Common Stock, in amounts, at prices and on
terms to be determined by market conditions at the time of offering thereof. The
Debt Securities will be issued pursuant to one or more indentures (each, an
"Indenture") in the form filed as an exhibit to the Registration Statement, as
amended or supplemented from time to time, between the Company, as obligor, and
a trustee (each, a "Trustee") chosen by the Company and qualified to act as such
under the Trust Indenture Act of 1939, as amended (the "TIA"). The Debt Warrants
and the Preferred Stock Warrants will be issued under one or more warrant
agreements (each, a "Warrant Agreement") between the Company and a financial
institution identified therein as warrant agent (each, a "Warrant Agent").
Exhibit 5.1 - 1
<PAGE>
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Company's Restated Certificate
of Incorporation (the "Certificate"), the resolutions adopted by the Board of
Directors of the Company authorizing the filing of the Registration Statement,
the Indenture, and such other corporate records, agreements, documents and other
instruments, and such certificates or comparable documents of public officials
and of officers and representatives of the Company, and have made such inquiries
of such officers and representatives, as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, we
have relied upon certificates or comparable documents of officers and
representatives of the Company.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that:
1. When (1) the Registration Statement shall have become effective
under the Act, (2) an Indenture shall have been duly executed and delivered by
the Company and a Trustee and duly qualified under the TIA, duly establishing
the terms of particular Debt Securities, and (3) such Debt Securities shall have
been (a) duly authorized, executed, authenticated, issued and delivered against
payment therefor as contemplated by the Indenture and the Registration Statement
and/or the applicable Prospectus Supplement or (b) duly authorized and issued
upon conversion or exchange of Debt Securities or Preferred Stock which, by
their respective terms, are convertible into or exchangeable for Debt Securities
or upon exercise of Debt Warrants, in each case as contemplated by the Indenture
and the Registration Statement and/or the applicable Prospectus Supplement, and
the Company shall have received any additional consideration which is payable
upon such conversion, exchange or exercise, such Debt Securities will constitute
binding obligations of the Company enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity) and except that rights to indemnification and contribution thereunder
and under the Indenture may be limited by federal or state securities laws or
public policy relating thereto.
2. When (1) the Registration Statement shall have become effective
under the Act, and (2) a series of Preferred Stock shall have been (a) duly
authorized, duly established in accordance with the terms of the Company's
Certificate and applicable law, and upon adoption by the Board of Directors of
the Company of one or more resolutions in form and content as required by
applicable law, issued and sold against payment therefor as contemplated by the
Exhibit 5.1 - 2
<PAGE>
Registration Statement and/or the applicable Prospectus Supplement and by such
resolution(s), or (b) duly authorized, duly established in accordance with the
terms of the Company's Certificate and applicable law, and upon adoption by the
Board of Directors of the Company of one or more resolutions in form and content
as required by applicable law, issued upon conversion or exchange of Debt
Securities or Preferred Stock which, by their respective terms, are convertible
into or exchangeable for such shares of Preferred Stock or upon exercise of
Preferred Stock Warrants, and the Company shall have received any additional
consideration which is payable upon such conversion, exchange or exercise, in
each case as contemplated by the Registration Statement and/or the applicable
Prospectus Supplement and by such resolution(s), and assuming for the purpose of
each opinion set forth in this paragraph 2 that the Company shall have
sufficient authorized but unissued shares of Preferred Stock to so issue such
shares of such series of Preferred Stock, such shares of such series of
Preferred Stock will be validly issued, fully paid and non-assessable.
3. When (1) the Registration Statement shall have become effective
under the Act, and (2) shares of Common Stock shall have been duly authorized
pursuant to adoption by the Board of Directors of the Company of one or more
resolutions in form and content as required by applicable law, and issued upon
conversion or exchange of Debt Securities or Preferred Stock which, by their
respective terms, are convertible into or exchangeable for such shares of Common
Stock, and the Company shall have received any additional consideration which is
payable upon such conversion or exchange, in each case as contemplated by the
Registration Statement and/or the applicable Prospectus Supplement and by such
resolution(s), and assuming for the purpose of each opinion set forth in this
paragraph 3 that the Company shall have sufficient authorized but unissued
shares of Common Stock to so issue such shares of Common Stock, such shares of
Common Stock will be validly issued, fully paid and non-assessable.
4. When (1) the Registration Statement shall have become effective
under the Act, (2) the blue sky or securities laws of the necessary states shall
have been complied with, (3) a Warrant Agreement shall have been duly
authorized, executed and delivered by the Company and a Warrant Agent, duly
establishing Debt Warrants or Preferred Stock Warrants, and (4) the Debt
Warrants or Preferred Stock Warrants, as the case may be, shall have been duly
authorized, executed, authenticated, issued and delivered against payment
therefor as contemplated by such Warrant Agreement and the Registration
Statement and/or the applicable Prospectus Supplement, such Debt Warrants or
Preferred Stock Warrants, as the case may be, will be validly issued.
To the extent that the obligations of the Company under any
Indenture may be dependent upon such matters, we assume for purposes of the
opinions set forth herein that each Trustee is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization; that
each Trustee is duly qualified to engage in the activities contemplated by each
Indenture to which it is a party; that each Indenture has been duly authorized,
executed and delivered by the Trustee party thereto and constitutes the legal,
valid
Exhibit 5.1 - 3
<PAGE>
and binding obligation of such Trustee, enforceable against such Trustee in
accordance with its terms; that each Trustee is in compliance, generally and
with respect to acting as a Trustee under each Indenture to which it is a party,
with all applicable laws and regulations; and that each Trustee has the
requisite organizational and legal power and authority to perform its
obligations under each Indenture to which it is a party.
To the extent that the obligations of the Company under any Warrant
Agreement may be dependent upon such matters, we assume for purposes of the
opinions set forth herein that each Warrant Agent is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization; that each Warrant Agent is duly qualified to engage in the
activities contemplated by each Warrant Agreement to which it is a party; that
each Warrant Agreement has been duly authorized, executed and delivered by the
Warrant Agent party thereto and constitutes the legal, valid and binding
obligation of such Warrant Agent, enforceable against such Warrant Agent in
accordance with its terms; that each Warrant Agent is in compliance, generally
and with respect to acting as a Warrant Agent under each Warrant Agreement to
which it is a party, with all applicable laws and regulations; and that each
Warrant Agent has the requisite organizational and legal power and authority to
perform its obligations under each Warrant Agreement to which it is a party.
The opinions expressed herein are limited to the laws of the State
of New York, the corporate laws of the State of Delaware, and the federal laws
of the United States, and we express no opinion as to the effect on the matters
covered by this letter of the laws of any other jurisdiction.
The opinions expressed herein are rendered solely for your benefit
in connection with the transactions described herein. Such opinions may not be
used or relied upon by any other person, nor may this letter or any copies
thereof be furnished to a third party, filed with a governmental agency, quoted,
cited or otherwise referred to without our prior written consent, except that we
hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our Firm under the caption "Legal Matters" in
the Prospectus contained therein.
Very truly yours,
/s/ WEIL, GOTSHAL & MANGES LLP
Exhibit 5.1 - 4
<PAGE>
EXHIBIT 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
For the years ended December 31, Nine Months
1991 1992 1993 1994 1995 Ended 9/30/96
--------------------------------------------------------------------------
(Thousands of Dollars)
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges
COMPUTATION OF EARNINGS
Pretax income from continuing operations $ (22,609) $ (77,951) $ (21,670) $ (46,425) $ (13,803) $ 130,843
Less interest capitalized during the period and
actual preferred dividend requirements of
majority-owned subsidiaries and 50%-owned
persons included in fixed charges but not
deducted from pretax income 0 0 0 0 0 (2,542)
--------------------------------------------------------------------------
Total earnings, before fixed charge addition $ (22,609) $ (77,951) $ (21,670) $ (46,425) $ (13,803) $ 128,301
--------------------------------------------------------------------------
COMPUTATION OF FIXED CHARGES
Interest 7,296 28,591 25,906 31,346 27,052 2,646
--------------------------------------------------------------------------
Total fixed charges $ 7,296 $ 28,591 $ 25,906 $ 31,346 $ 27,052 $ 2,646
--------------------------------------------------------------------------
Total earnings and fixed charges $ (15,313) (49,360) $ 4,236 (15,079) $ 13,249 $ 130,947
--------------------------------------------------------------------------
Ratio of earnings to fixed charges (2.10) (1.73) 0.16 (0.48) 0.49 49.49
==========================================================================
</TABLE>
Exhibit 12.1
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Diamond Offshore Drilling, Inc. on Form S-3 of our report dated January 29, 1996
(February 13, 1996 as to Note 12), appearing in the Annual Report on Form 10-K
of Diamond Offshore Drilling, Inc. for the year ended December 31, 1995, and to
the reference to us under the heading "Experts" in the Prospectus, which is part
of this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Houston, Texas
January 17, 1997
Exhibit 23.1 - 1
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of Diamond Offshore Drilling, Inc. on
Form S-3 of our report dated November 14, 1995 on the consolidated financial
statements of Arethusa (Off-Shore) Limited as of and for the year ended
September 30, 1995, included in the Current Report on Form 8-K of Diamond
Offshore Drilling, Inc. dated May 13, 1996, and to all references to our firm
included in this Registration Statement.
/s/ Arthur Andersen & Co.
ARTHUR ANDERSEN & CO.
Hamilton, Bermuda
January 17, 1997
Exhibit 23.2 - 1
