FIRST SUPPLEMENTAL INDENTURE between TRANSOCEAN INC. and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee December 11, 2007
FIRST
SUPPLEMENTAL INDENTURE
between
and
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION,
as
Trustee
December
11, 2007
FIRST SUPPLEMENTAL
INDENTURE
THIS
FIRST SUPPLEMENTAL INDENTURE, dated as of December 11, 2007 (the “First
Supplemental Indenture”), between Transocean Inc., a Cayman Islands exempted
company limited by shares (the “Company”), and ▇▇▇▇▇ Fargo Bank, National
Association (the “Trustee”).
W I T N E S S E T H :
WHEREAS,
the Company has heretofore executed and delivered to the Trustee an Indenture,
dated as of December 11, 2007, providing for the issuance from time to time of
one or more series of the Company’s Securities;
WHEREAS,
Sections 2.01 and 9.01(9) of the Indenture provide that the Company and the
Trustee may from time to time enter into one or more indentures supplemental
thereto to establish the form or terms of Securities of a new
series;
WHEREAS,
Section 9.01(6) of the Indenture permits the execution of supplemental
indentures without the consent of any Holders to add to the covenants of the
Company for the benefit of all or any series of Securities;
WHEREAS,
the Company desires to issue 5.25% Senior Notes due March 15, 2013, 6.00% Senior
Notes due March 15, 2018 and 6.80% Senior Notes due March 15, 2038,
each a new series of Securities the issuance of which was authorized by or
pursuant to resolution of the Board of Directors of the Company;
WHEREAS,
the Company, pursuant to the foregoing authority, proposes in and by this First
Supplemental Indenture to supplement and amend the Indenture insofar as it will
apply only to the Senior Notes in certain respects; and
WHEREAS,
all things necessary have been done to make the Senior Notes, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this First
Supplemental Indenture a valid agreement of the Company, in accordance with
their and its terms.
NOW
THEREFORE:
In
consideration of the premises provided for herein, the Company and the Trustee
mutually covenant and agree for the equal and proportionate benefit of all
Holders of the Senior Notes as follows:
ARTICLE
ONE
THE SENIOR
NOTES
SECTION
101 Designation of Senior Notes;
Establishment of Form. There shall be a series of Securities
designated “5.25% Senior Notes Due March 15, 2013” of the Company (the
“2013 Notes”), the form of which shall be substantially as set forth in Annex A
hereto; a series of Securities designated “6.00% Senior Notes Due March 15,
2018” of the Company (the “2018 Notes”), the form of which shall be
substantially as set forth in Annex B hereto; and a series of Securities
designated “6.80% Senior Notes Due March 15, 2038” of the Company (the
“2038 Notes”, and together with the 2013 Notes and the 2018 Notes,
the “Senior Notes”), the form of which shall be substantially as set forth in
Annex C hereto, each of which is incorporated into and shall be deemed a part of
this First Supplemental Indenture, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by the Indenture, and which may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers of the Company executing
such Senior Notes, as evidenced by their execution of the Senior
Notes.
All of
the Senior Notes will initially be issued in permanent global form,
substantially in the respective forms set forth in Annex A, Annex B and Annex C
hereto (the “Global Securities”), as Book-Entry Securities. Each
Global Security shall represent such of the Outstanding Senior Notes as shall be
specified therein and shall provide that it shall represent the aggregate amount
of Outstanding Senior Notes from time to time endorsed thereon and that the
aggregate amount of Outstanding Senior Notes represented thereby may from time
to time be reduced to reflect exchanges and redemptions. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of Outstanding Senior Notes represented thereby shall be
made by the Trustee in accordance with written instructions or such other
written form of instructions as is customary for the Depositary, from the
Depositary or its nominee on behalf of any Person having a beneficial interest
in the Global Security.
The
Company initially appoints The Depository Trust Company to act as Depositary
with respect to the Global Securities.
SECTION
102 Amount. Each series of
the Senior Notes may be issued in unlimited aggregate principal
amount. The Trustee shall authenticate and deliver Senior Notes for
original issue in an initial aggregate principal amount of up to $500,000,000 of
2013 Notes, up to $1,000,000,000 of 2018 Notes and up to $1,000,000,000 of 2038
Notes upon Company Order without any further action by the Company.
SECTION
103 Interest. The
Senior Notes of each series shall bear interest at the rate set forth under the
caption “Interest” in the Senior Notes of such series, commencing on the Issue
Date of the Senior Notes. Interest on the Senior Notes
shall be payable to the persons in whose name the Senior Notes are registered at
the close of business on the Regular Record Date for such interest
payment. The date from which interest shall accrue for each Senior
Note shall be December 11, 2007. The Interest Payment Dates on
which interest on the Senior Notes shall be payable are March 15 and September
15, commencing on March 15, 2008. The Regular Record Dates for the
interest payable on the Senior Notes on any Interest Payment Date shall be March
1 or September 1, as the case may be, immediately preceding such Interest
Payment Date.
SECTION
104 Additional Amounts. Additional
Amounts with respect to the Senior Notes of each series shall be payable in
accordance with the provisions and in the amounts set forth under the caption
“Tax Additional Amounts” in the Senior Notes of such series and in accordance
with the provisions of the Indenture.
SECTION
105 Denominations.
The
Senior Notes shall be issued in denominations of $1,000 or any integral multiple
thereof.
SECTION
106 Optional
Redemption. The
Company, at its option, may redeem the Senior Notes of each series in accordance
with the provisions of and at the Redemption Prices set forth under the captions
“Optional Redemption” and “Notice of Redemption” in the Senior Notes of such
series and in accordance with the provisions of the Indenture.
SECTION
107 Sinking
Fund. There shall be no sinking fund for the retirement of the
Senior Notes.
SECTION
108 Place of
Payment. The Place of Payment for the Senior Notes and the
place or places where the principal of and interest on the Senior Notes shall be
payable, the Senior Notes may be surrendered for registration of transfer, the
Senior Notes may be surrendered for exchange or redemption and where notices may
be given to the Company in respect of the Senior Notes is at the office or
agency of the Trustee in Fort Worth, Texas; provided that payment of
interest may be made at the option of the Company by check mailed to the address
of the person entitled thereto as such address shall appear in the register of
the Securities or by wire transfer of immediately available funds to the
accounts in the United States specified by the Holder of such Senior
Notes.
SECTION
109 Maturity. The
date on which the principal of the 2013 Notes is payable, unless accelerated
pursuant to the Indenture, shall be March 15, 2013. The date on
which the principal of the 2018 Notes is payable, unless accelerated pursuant to
the Indenture, shall be March 15, 2018. The date on which the
principal of the 2038 Notes is payable, unless accelerated pursuant to the
Indenture, shall be March 15, 2038.
SECTION
110 Paying Agent and Registrar. The
Company initially appoints the Trustee to act as Paying Agent and Registrar with
respect to the Senior Notes.
SECTION
111 No Defeasance. The
provisions of Section 8.01(b) and Section 8.01(c) of the Indenture do not apply
to the Senior Notes.
SECTION
112 Other Terms of the Senior
Notes. Without limiting the
foregoing provisions of this Article One, the terms of the 2013 Notes shall be
as set forth in the form of 2013 Notes set forth in Annex A hereto, the terms of
the 2018 Notes shall be as set forth in the form of 2018 Notes set forth in
Annex B hereto, and the terms of the 2038 Notes shall be as set forth in
the form of 2038 Notes set forth in Annex C hereto, and in each case as
provided in the Indenture.
ARTICLE
TWO
AMENDMENTS TO THE
INDENTURE
13 The
amendments contained herein shall apply to the Senior Notes only and not to any
other series of Security issued under the Indenture, and any covenants provided
herein are expressly being included solely for the benefit of the Senior Notes.
These amendments shall be effective for so long as there remain any Senior Notes
Outstanding.
SECTION
201 Definitions. Section 1.01 of the
Indenture is amended by inserting or restating, as the case may be, in their
appropriate alphabetical position, the following definitions:
“Consolidated
Net Tangible Assets” means the total amount of assets (less applicable reserves
and other properly deductible items) after deducting (1) all current liabilities
(excluding the amount of those which are by their terms extendable or renewable
at the option of the obligor to a date more than 12 months after the date as of
which the amount is being determined) and (2) all goodwill, tradenames,
trademarks, patents, unamortized debt discount and expense and other like
intangible assets, all as set forth on the most recent balance sheet of the
Company and its consolidated Subsidiaries and determined in accordance with
GAAP.
“Funded
Debt” means indebtedness of the Company or a Subsidiary owning Restricted
Property maturing by its terms more than one year after its creation and
indebtedness classified as long-term debt under GAAP, and in each case ranking
at least pari passu with the Securities.
“Lien”
means any mortgage, pledge, lien, encumbrance, charge or security
interest.
“Restricted
Property” means (1) any drilling rig or drillship, or portion thereof, owned or
leased by the Company or any Subsidiary and used for drilling offshore oil and
gas ▇▇▇▇▇, which, in the opinion of the Board of Directors, is of material
importance to the business of the Company and its Subsidiaries taken as a whole,
but no such drilling rig or drillship, or portion thereof, shall be deemed of
material importance if its gross book value (before deducting accumulated
depreciation) is less than 2% of Consolidated Net Tangible Assets, or (2) any
shares of capital stock or indebtedness of any Subsidiary owning any such
drilling rig or drillship.
“Sale and
Leaseback Transaction” means any arrangement with any Person pursuant to which
the Company or any Subsidiary leases any Restricted Property that has been or is
to be sold or transferred by the Company or the Subsidiary to such Person, other
than (1) temporary leases for a term, including renewals at the option of the
lessee, of not more than three years, (2) leases between the Company and a
Subsidiary or between Subsidiaries, (3) leases of a Restricted Property executed
by the time of, or within 12 months after the latest of, the acquisition, the
completion of construction or improvement, or the commencement of commercial
operation of, the Restricted Property, and (4) arrangements pursuant to any
provision of law with an effect similar to the former Section 168(f)(8) of the
Internal Revenue Code of 1954.
“Senior
Notes” shall mean the 5.25% Senior Notes due March 15, 2013 of the Company, the
6.00% Senior Notes due March 15, 2018 of the Company and the 6.80% Senior Notes
due March 15, 2038 of the Company.
“Tax
Additional Amounts” has the meaning specified in Section 2.18.
“Value”
means, with respect to a Sale and Leaseback Transaction, an amount equal to the
present value of the lease payments with respect to the term of the lease
remaining on the date as of which the amount is being determined, without regard
to any renewal or extension options contained in the lease which are
outstanding on the effective date of such Sale and Leaseback Transaction and
which have the benefit of Section 4.09.
SECTION
202 Tax Additional
Amounts
Article
Two shall be amended by adding the following section:
Section
2.18 Tax Additional
Amounts.
The
Company shall pay any amounts due with respect to the payments on the Senior
Notes without deduction or withholding for any and all present and future
withholding taxes, levies, imposts and charges (each, a “Withholding Tax”)
imposed by or for the account of the Cayman Islands or any other jurisdiction in
which the Company is resident for tax purposes or any political subdivision or
taxing authority of such jurisdiction (the “Taxing Jurisdiction”), unless such
withholding or deduction is required by law. If such
deduction or withholding is at any time required, the Company will (subject to
compliance by such Holder with any relevant administrative requirements) pay
each Holder additional amounts (“Tax Additional Amounts”) as will result in such
Holder’s receipt of such amounts as it would have received had no such
withholding or deduction been required.
If the
Taxing Jurisdiction requires the Company to deduct or withhold any Withholding
Tax, the Company will (subject to compliance by a Holder with any relevant
administrative requirements) pay such Tax Additional Amounts in respect of
principal amount, Redemption Price and interest (if any) in accordance with the
terms of the Senior Notes and the Indenture; provided, however, that the foregoing
shall not apply to:
(a) any
Withholding Tax which would not be payable or due but for the fact that (1) the
Holder of a Senior Note (or a fiduciary, settlor, beneficiary of, member or
shareholder of, such Holder, if such Holder is an estate, trust, partnership or
corporation) is a domiciliary, national or resident of, or engaging in business
or maintaining a permanent establishment or being physically present in, the
Taxing Jurisdiction or otherwise having some present or former connection with
the Taxing Jurisdiction other than the holding or ownership of the Senior Note
or the collection of principal amount, Redemption Price and Interest (if any),
in accordance with the terms of the Senior Note and the Indenture or the
enforcement of the Senior Note or (2) where presentation is required, the
Senior Note was presented more than 30 days after the date such payment
became due or was provided for, whichever is later;
(b) any
Withholding Tax attributable to any estate, inheritance, gift, sales, transfer,
excise, personal property or similar tax, levy, impost or charge;
(c) any
Withholding Tax attributable to any tax, levy, impost or charge which is payable
otherwise than by withholding from payment of principal amount, Redemption Price
and interest (if any);
(d) any
Withholding Tax which would not have been imposed but for the failure to comply
with certification, information, documentation or other reporting requirements
concerning the nationality, residence, identity or connections with the relevant
tax authority of the Holder or beneficial owner of the Senior Note, if this
compliance is required by statute or by regulation as a precondition to relief
or exemption from such Withholding Tax;
(e) to
the extent a Holder is entitled to a refund or credit in such Taxing
Jurisdiction of amounts required to be withheld by such Taxing Jurisdiction;
or
(f) any
combination of the instances described in (a) through (e).
With
respect to Section 2.18(e), in the absence of evidence satisfactory to the
Company, the Company may conclusively presume that a Holder of a
Senior Note is entitled to a refund or credit of all amounts required to be
withheld. The Company shall not be required to pay any Tax Additional
Amounts to any Holder of a Senior Note who is a fiduciary or partnership or
other than the sole beneficial owner of the Senior Note to the extent that a
beneficiary or settlor with respect to such fiduciary, or a member of such
partnership or a beneficial owner thereof, would not have been entitled to the
payment of such Tax Additional Amounts had such beneficiary, settlor, member or
beneficial owner been the Holder of the Senior Note.
SECTION
203 Additional Covenants. Article Four
of the Indenture shall be amended by adding the following Sections 4.08 and
4.09:
Section
4.08 Limitation on
Liens
The
Company shall not create, assume or suffer to exist any Lien on any Restricted
Property to secure any debt of the Company, any Subsidiary or any other Person,
or permit any Subsidiary so to do, without making effective provision whereby
the Securities then outstanding and having the benefit of this Section 4.08
shall be secured by a Lien equally and ratably with such debt for so long as
such debt shall be so secured, except that the foregoing shall not prevent the
Company or any Subsidiary from creating, assuming or suffering to exist Liens of
the following character:
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1.
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any
Lien existing on the date of issuance of the Senior
Notes;
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2.
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any
Lien existing on Restricted Property owned or leased by a Person at the
time it becomes a Subsidiary;
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3.
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any
Lien existing on Restricted Property at the time of the acquisition
thereof by the Company or a
Subsidiary;
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4.
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any
Lien to secure any debt incurred prior to, at the time of, or within 12
months after the acquisition of Restricted Property for the purpose of
financing all or any part of the purchase price thereof and any Lien to
the extent that it secures debt which is in excess of such purchase price
and for the payment of which recourse may be had only against such
Restricted Property;
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5.
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any
Lien to secure any debt incurred prior to, at the time of, or within 12
months after the completion of the construction and commencement of
commercial operation, alteration, repair or improvement of Restricted
Property for the purpose of financing all or any part of the cost thereof
and any Lien to the extent that it secures debt which is in excess of such
cost and for the payment of which recourse may be had only against such
Restricted Property;
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6.
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any
Lien securing debt of a Subsidiary owing to the Company or to another
Subsidiary;
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7.
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any
Lien in favor of the United States of America or any State thereof or any
other country, or any agency, instrumentality of political subdivision of
any of the foregoing, to secure partial, progress, advance or other
payments or performance pursuant to the provisions of any contract or
statute, or any Liens securing industrial development, pollution control,
or similar revenue bonds;
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8.
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Liens
imposed by law, such as mechanics’, workmen’s, repairmen’s, materialmen’s,
carriers’, warehousemen’s, vendors’ or other similar Liens arising in the
ordinary course of business, or governmental (federal, state or municipal)
Liens arising out of contracts for the sale of products or services by the
Company or any Subsidiary, or deposits or pledges to obtain the release of
any of the foregoing;
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9.
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pledges
or deposits under workmen’s compensation laws or similar legislation and
Liens of judgments thereunder which are not currently dischargeable, or
good faith deposits in connection with bids, tenders, contracts (other
than for the payment of money) or leases to which the Company or any
Subsidiary is a party, or deposits to secure public or statutory
obligations of the Company or any Subsidiary, or deposits in connection
with obtaining or maintaining self-insurance or to obtain the benefits of
any law, regulation or arrangement pertaining to unemployment insurance,
old age pensions, social security or similar matters, or deposits of cash
or obligations of the United States of America to secure surety, appeal or
customs bonds to which the Company or any Subsidiary is a party, or
deposits in litigation or other proceedings such as, but not limited to,
interpleader proceedings;
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10.
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Liens
created by or resulting from any litigation or other proceeding which is
being contested in good faith by appropriate proceedings, including Liens
arising out of judgments or awards against the Company or any Subsidiary
with respect to which the Company or such Subsidiary is in good faith
prosecuting an appeal or proceedings for review; or Liens incurred by the
Company or any Subsidiary for the purpose of obtaining a stay or discharge
in the course of any litigation or other proceeding to which the Company
or such Subsidiary is a party;
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11.
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Liens
for taxes or assessments or governmental charges or levies not yet due or
delinquent, or which can thereafter be paid without penalty, or which are
being contested in good faith by appropriate
proceedings;
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12.
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any
extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part of any Lien referred to in clauses (1)
through (11) above, so long as the principal amount of the debt secured
thereby does not exceed the principal amount of debt so secured at the
time of the extension, renewal or replacement (except that, where an
additional principal amount of debt is incurred to provide funds for the
completion of a specific project, the additional principal amount, and any
related financing costs, may be secured by the Lien as well) and the Lien
is limited to the same property subject to the Lien so extended, renewed
or replaced (plus improvements on the property);
and
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13.
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any
Lien not permitted by clauses (1) through (12) above securing debt that,
together with the aggregate outstanding principal amount of all other debt
of the Company and its Subsidiaries secured by Liens which would otherwise
be prohibited by the foregoing restrictions and the aggregate Value of
existing Sale and Leaseback Transactions which would be subject to the
restrictions of Section 4.09 but for this clause (13), does not at any
time exceed 10% of Consolidated Net Tangible
Assets.
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Section
4.09 Limitation on Sale and Lease-Back
Transactions
The
Company shall not enter into any Sale and Leaseback Transaction covering any
Restricted Property, nor permit any Subsidiary so to do, unless
either:
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1.
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the
Company or such Subsidiary would be entitled to incur debt, in a principal
amount at least equal to the Value of such Sale and Leaseback Transaction,
which is secured by Liens on the property to be leased (without equally
and ratably securing the outstanding Securities) because such Liens would
be of such character that no violation of the provisions of Section 4.08
would result, or
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2.
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the
Company during the six months immediately following the effective date of
such Sale and Leaseback Transaction causes to be applied to (A) the
acquisition of Restricted Property or (B) the voluntary retirement of
Funded Debt (whether by redemption, defeasance, repurchase, or otherwise)
an amount equal to the Value of such Sale and Leaseback
Transaction.
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ARTICLE
THREE
MISCELLANEOUS
PROVISIONS
SECTION
301 Integral Part.
This
First Supplemental Indenture constitutes an integral part of the
Indenture.
SECTION
302 General
Definitions.
For all
purposes of this First Supplemental Indenture:
(a) capitalized
terms used herein without definition shall have the meanings specified in the
Indenture; and
(b) the
terms “herein”, “hereof”, “hereunder” and other words of similar import refer to
this First Supplemental Indenture.
SECTION
303 Adoption, Ratification and
Confirmation.
The
Indenture, as supplemented and amended by this First Supplemental Indenture, is
in all respects hereby adopted, ratified and confirmed.
SECTION
304 Counterparts.
This
First Supplemental Indenture may be executed in any number of counterparts, each
of which when so executed shall be deemed an original; and all such counterparts
shall together constitute but one and the same instrument.
SECTION
305 Governing Law.
THIS
FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO THE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
31 IN
WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first written
above.
| TRANSOCEAN INC. | ||
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By:
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/s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇
▇▇▇▇
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Title: Vice
President and Treasurer
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| ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Vice President
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Annex
A
[FORM
OF GLOBAL SECURITY]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
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.
5.25%
SENIOR NOTE DUE MARCH 15, 2013
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Issue
Date: December 11, 2007
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Maturity:
March 15, 2038
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Principal
Amount: $
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CUSIP:
893830 AR0
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ISIN:
US893830AR03
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Registered: No.
R-
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Transocean
Inc., a Cayman Islands exempted company limited by shares (herein called the
“Company”, which term includes any successor corporation under the indenture
hereinafter referred to), for value received, hereby promises to pay to Cede
& Co., or registered assigns, the principal sum of [ ] Dollars
($) on March 15, 2013 and to pay interest thereon and Tax Additional Amounts, if
any, in immediately available funds as specified on the reverse of this
Security.
Payment
of the principal of and interest on and Tax Additional Amounts, if any, with
respect to this Security will be made at the office or agency of the Company
maintained for that purpose in The City of New York, New York or Fort
Worth, Texas in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts; provided, however, that at the option
of the Company, payment of interest and Tax Additional Amounts, if any, may be
made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the register of Securities or by wire transfer of immediately
available funds to the accounts designated by the Holder of this
Security.
Reference
is hereby made to the further provisions of this Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
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By:
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Name:
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Title:
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Attest:
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Assistant
Secretary
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TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION, as Trustee
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Authorized
Signatory
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Date
of
Authentication:__________________________________________
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[Reverse
of Security]
5.25%
SENIOR NOTE DUE MARCH 15, 2013
This
Security is one of a duly authorized issue of senior securities of the Company
issued and to be issued in one or more series under an Indenture, dated as of
December 11, 2007, as amended by the First Supplemental Indenture thereto dated
as of December 11, 2007, and the Second Supplemental Indenture thereto dated as
of December 11, 2007 (as so amended, herein called the “Indenture”), between the
Company and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (herein called
the “Trustee”, which term includes any successor trustee under the Indenture),
or their respective predecessors, as applicable, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, which is initially
in the aggregate principal amount of $500,000,000. As used herein,
the term “Securities” means securities of the series designated on the face
hereof except that, where the context requires that such term be construed as
including another series of securities (e.g., where phrases such as
“Securities of each series” or Securities of any series” or similar phrases are
used), the term “Securities” means securities of any series issued or to be
issued under the Indenture.
The
Company may, without the consent of the existing holders of the Securities,
issue additional Securities having the same ranking and the same interest rate,
maturity and other terms as the Securities. Any additional Securities
having such similar terms, together with the Securities, will constitute a
single series of Securities under the Indenture.
Interest
The rate
at which this Security shall bear interest shall be 5.25% per
annum. The date from which interest shall accrue for this Security
shall be December 11, 2007. The Interest Payment Dates on which
interest on this Security shall be payable are March 15 and September 15 of each
year, commencing on March 15, 2008. The Regular Record Date for the
interest payable on this Security on any Interest Payment Date shall be the
March 1 or September 1, as the case may be, immediately preceding such Interest
Payment Date. Interest will cease to accrue on this Security upon its
maturity, conversion, purchase by the Company at the option of a holder or
redemption.
Method
of Payment
Payments
in respect of principal of and interest, if any, on the Securities shall be made
by the Company in immediately available funds.
Optional
Redemption
The
Securities are redeemable, at the option of the Company, at any time prior to
maturity in whole or from time to time in part, on a date fixed by the Company
for such redemption (the “Redemption Date”) and at a price (the “Redemption
Price”) equal to 100% of the principal amount thereof plus accrued and unpaid
interest up to but not including the Redemption Date plus a Make-Whole Premium,
if any is required to be paid. However, if the Redemption Date is after a
Regular Record Date and on or prior to the corresponding Interest Payment Date,
the interest will be paid on the Redemption Date to the person in whose name the
Securities are registered at the close of business on the Regular Record Date
and not included in the Redemption Price. The Redemption Price will never be
less than 100% of the principal amount of the Securities plus accrued and unpaid
interest up to but not including the Redemption Date.
The
amount of the Make-Whole Premium is equal to the excess, if any, of: (i) the sum
of the present values, calculated as of the Redemption Date, of :(A) the
remaining scheduled payments of interest on the Securities to be redeemed that
would be due after the Redemption Date but for such redemption (except that, if
such Redemption Date is not an Interest Payment Date, the amount of the next
succeeding scheduled interest payment will be reduced by the amount of interest
accrued thereon to the Redemption Date); and (B) the principal amount that, but
for the redemption, would have been payable at the Stated Maturity; over (ii)
the aggregate principal amount of the Securities being redeemed.
The
present values of interest and principal payments referred to in clause (i)
above will be determined in accordance with generally accepted principles of
financial analysis. Those present values will be calculated by discounting the
amount of each payment of interest or principal from the date that each payment
would have been payable, but for the redemption, to the Redemption Date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
a discount rate equal to the Treasury Rate (as defined below) plus 30 basis
points.
‘‘Treasury
Rate’’ means, with respect to any Redemption Date, the rate per annum equal to
the semiannual equivalent yield to maturity (computed as of the second Business
Day immediately preceding such Redemption Date) of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
‘‘Comparable
Treasury Issue’’ means the United States Treasury security selected by an
Independent Investment Banker that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Securities.
‘‘Independent
Investment Banker’’ means one of the Reference Treasury Dealers appointed by the
Company.
‘‘Comparable
Treasury Price’’ means, with respect to any Redemption Date, (1) the average of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) on the third Business Day
preceding such Redemption Date, as set forth in the daily statistical release
(or any successor release) published by the Federal Reserve Bank of New York and
designated ‘‘H.15(519) Selected Interest Rates’’ or (2) if such release (or any
successor release) is not published or does not contain such prices on such
Business Day, (a) the average of the Reference Treasury Dealer Quotations for
such Redemption Date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all Reference Treasury
Dealer Quotations obtained.
‘‘Reference
Treasury Dealer’’ means ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and ▇▇▇▇▇▇ Brothers Inc. and
their successors and two other nationally recognized investment banking firms
that are Primary Treasury Dealers specified from time to time by us, except that
if any of the foregoing ceases to be a primary U.S. Government securities dealer
in New York City (a ‘‘Primary Treasury Dealer’’), the Company is required to
designate as a substitute another nationally recognized investment banking firm
that is a Primary Treasury Dealer.
‘‘Reference
Treasury Dealer Quotations’’ means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Trustee
by such Reference Treasury Dealer as of 3:30 p.m., New York City time, on the
third Business Day preceding such Redemption Date.
On and
after any Redemption Date, interest will cease to accrue on the Securities
called for redemption. If less than all of the Securities are to be
redeemed, the Trustee will select the Securities to be redeemed by lot, pro rata
or by any other method the Trustee deems fair and appropriate.
Notice of
redemption will be mailed by first class mail at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at its registered address. Securities in denominations larger than $1,000
Principal Amount may be redeemed in part, but only in whole multiples of $1,000.
On and after the Redemption Date, subject to the deposit with the Paying Agent
of funds sufficient to pay the Redemption Price, interest ceases to accrue on
Securities or portions thereof called for redemption.
The
Securities are not entitled to the benefit of any sinking fund or other
mandatory redemption provisions.
Tax
Additional Amounts
The
Company shall pay any amounts due with respect to the payments on the Security
without deduction or withholding for any and all present and future withholding
taxes, levies, imposts and charges (each, a “Withholding Tax”) imposed by or for
the account of the Cayman Islands or any other jurisdiction in which the Company
is resident for tax purposes or any political subdivision or taxing authority of
such jurisdiction (the “Taxing Jurisdiction”), unless such withholding or
deduction is required by law. If such deduction or
withholding is at any time required, the Company will (subject to compliance by
such Holder with any relevant administrative requirements) pay each Holder such
additional amounts (“Tax Additional Amounts”) as will result in such Holders
receipt of such amounts as it would have received had no such withholding or
deduction been required.
If the
Taxing Jurisdiction requires the Company to deduct or withhold any Withholding
Tax, the Company will (subject to compliance by a Holder with any relevant
administrative requirements) pay such Tax Additional Amounts in respect of
principal amount, Redemption Price and interest (if any) in accordance with the
terms of the Security and the Indenture; provided, however, that the foregoing
shall not apply to:
(a) any
Withholding Tax which would not be payable or due but for the fact that (1) the
Holder of a Security (or a fiduciary, settlor, beneficiary of, member or
shareholder of, such Holder, if such Holder is an estate, trust, partnership or
corporation) is a domiciliary, national or resident of, or engaging in business
or maintaining a permanent establishment or being physically present in, the
Taxing Jurisdiction or otherwise having some present or former connection with
the Taxing Jurisdiction other than the holding or ownership of the Security or
the collection of principal amount, Redemption Price and Interest (if any), in
accordance with the terms of the Security and the Indenture or the enforcement
of the Security or (2) where presentation is required, the Security was
presented more than 30 days after the date such payment became due or was
provided for, whichever is later;
(b) any
Withholding Tax attributable to any estate, inheritance, gift, sales, transfer,
excise, personal property or similar tax, levy, impost or charge;
(c) any
Withholding Tax attributable to any tax, levy, impost or charge which is payable
otherwise than by withholding from payment of principal amount, Redemption Price
and interest (if any);
(d) any
Withholding Tax which would not have been imposed but for the failure to comply
with certification, information, documentation or other reporting requirements
concerning the nationality, residence, identity or connections with the relevant
tax authority of the Holder or beneficial owner of the Security, if this
compliance is required by statute or by regulation as a precondition to relief
or exemption from such Withholding Tax;
(e) to
the extent a Holder is entitled to a refund or credit in such Taxing
Jurisdiction of amounts required to be withheld by such Taxing Jurisdiction;
or
(f) any
combination of the instances described in (a) through (e).
With
respect to clause (e), above, in the absence of evidence satisfactory to the
Company, the Company may conclusively presume that a Holder of a Security is
entitled to a refund or credit of all amounts required to be
withheld. The Company shall not be required to pay any Tax Additional
Amounts to any Holder of a Security who is a fiduciary or partnership or other
than the sole beneficial owner of the Security to the extent that a beneficiary
or settlor with respect to such fiduciary, or a member of such partnership or a
beneficial owner thereof, would not have been entitled to the payment of such
Tax Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the Holder of the Security.
Transfer
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the register of the Securities,
upon surrender of this Security for registration or transfer at the office or
agency in a Place of Payment for Securities of this series, duly endorsed by, or
accompanied by a written instrument of transfer in form reasonably satisfactory
to the Registrar duly executed by the Holder thereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of like tenor and of other authorized denominations and for the same aggregate
principal amount, executed by the Company and authenticated and delivered by the
Trustee, will be issued to the designated transferee or
transferees.
The
Securities of this series are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations set forth therein and on the face
of this Security, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination as requested by the Holder surrendering the
same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to
due presentment of this Security for registration of transfer, the Company, the
Trustee or any agent of the Company or the Trustee may treat the Person in whose
name this Security is registered as the owner hereof for all purposes, whether
or not this Security be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
Amendment,
Supplement and Waiver; Limitation on Suits
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities of all series affected (acting as one class). The Indenture also
contains provisions permitting the Holders of at least a majority in principal
amount of the then outstanding Securities of any series or of all series (acting
as one class), to waive compliance by the Company with certain existing or past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this
Security.
Subject
to the right of the Holder of any Securities of this series to institute
proceedings to enforce the Holder’s right to receive payment of the principal
thereof and interest thereon (or repurchase price thereof) and any Tax
Additional Amounts with respect thereto and to receive shares on conversion, no
Holder of the Securities of this series shall have any right to institute any
proceeding, judicial or otherwise, with respect to the Indenture, or for the
appointment of a receiver or trustee, or for any other remedy thereunder,
unless
(1) such
Holder has previously given written notice to the Trustee of a continuing Event
of Default;
(2) the
Holders of not less than 25% in principal amount of the then Outstanding
Securities of this series shall have made written request to the Trustee to
pursue the remedy;
(3) such
Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense to be incurred in compliance with such
request;
(4) the
Trustee for 60 days after its receipt of such 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 then outstanding Securities of this series;
it being
understood and intended that no one or more of such Holders shall have the right
in any manner whatever by virtue of, or by availing of, any provision of the
Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under the Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
Successor
Corporation
When a
successor Person assumes all the obligations of its predecessor under the
Securities and the Indenture in accordance with the terms and conditions of the
Indenture, the predecessor Person will (except in certain circumstances
specified in the Indenture) be released from those obligations.
Defaults
and Remedies
If an
Event of Default with respect to Securities of this series shall occur and be
continuing, all unpaid Principal Amount plus accrued and unpaid interest through
the acceleration date of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the
Indenture.
No
Recourse Against Others
No
recourse shall be had for the payment of the principal of or the interest, if
any, on this Security, for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, shareholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, whether
by virtue of any constitution, statute or rule of law or by the enforcement of
any assessment of penalty or otherwise, all such liability being, by acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
Indenture
to Control; Governing Law
In the
case of any conflict between the provisions of this Security and the Indenture,
the provisions of the Indenture shall control.
THE
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO THE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Definitions
All terms
defined in the Indenture and used in this Security but not specifically defined
herein are used herein as so defined.
Annex
B
[FORM
OF GLOBAL SECURITY]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
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.
6.00%
SENIOR NOTE DUE MARCH 15, 2018
|
Issue
Date: December 11, 2007
|
Maturity:
March 15, 2018
|
|
Principal
Amount: $
|
CUSIP:
893830 AS8
|
|
ISIN:
US893830AS85
|
|
|
Registered: No.
R-
|
Transocean
Inc., a Cayman Islands exempted company limited by shares (herein called the
“Company”, which term includes any successor corporation under the indenture
hereinafter referred to), for value received, hereby promises to pay to Cede
& Co., or registered assigns, the principal sum of [] Dollars ($) on March
15, 2018 and to pay interest thereon and Tax Additional Amounts, if any, in
immediately available funds as specified on the reverse of this
Security.
Payment
of the principal of and interest on and Tax Additional Amounts, if any, with
respect to this Security will be made at the office or agency of the Company
maintained for that purpose in The City of New York, New York or Fort
Worth, Texas in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts; provided, however, that at the option
of the Company, payment of interest and Tax Additional Amounts, if any, may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the register of Securities or by wire transfer of
immediately available funds to the accounts designated by the Holder of this
Security.
Reference
is hereby made to the further provisions of this Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
|
Dated:
|
|||
|
TRANSOCEAN
INC.
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Attest:
|
|||
|
|
|||
|
Assistant
|
Secretary
|
||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
|
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION, as Trustee
|
|
|
|
|
|
Authorized
Signatory
|
|
|
Date
of Authentication: _____________________
|
[Reverse
of Security]
TRANSOCEAN
INC.
6.00%
SENIOR NOTES DUE MARCH 15, 2018
This
Security is one of a duly authorized issue of senior securities of the Company
issued and to be issued in one or more series under an Indenture, dated as of
December 11, 2007, as amended by the First Supplemental Indenture thereto dated
as of December 11, 2007, and the Second Supplemental Indenture thereto dated as
of December 11, 2007 (as so amended, herein called the “Indenture”), between the
Company and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (herein called
the “Trustee”, which term includes any successor trustee under the Indenture),
or their respective predecessors, as applicable, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, which is initially
in the aggregate principal amount of $1,000,000,000. As used herein,
the term “Securities” means securities of the series designated on the face
hereof except that, where the context requires that such term be construed as
including another series of securities (e.g., where phrases such as
“Securities of each series” or Securities of any series” or similar phrases are
used), the term “Securities” means securities of any series issued or to be
issued under the Indenture.
The
Company may, without the consent of the existing holders of the Securities,
issue additional Securities having the same ranking and the same interest rate,
maturity and other terms as the Securities. Any additional Securities
having such similar terms, together with the Securities, will constitute a
single series of Securities under the Indenture.
Interest
The rate
at which this Security shall bear interest shall be 6.00% per
annum. The date from which interest shall accrue for this Security
shall be December 11, 2007. The Interest Payment Dates on which
interest on this Security shall be payable are March 15 and September 15 of each
year, commencing on March 15, 2008. The Regular Record Date for the
interest payable on this Security on any Interest Payment Date shall be the
March 1 or September 1, as the case may be, immediately preceding such Interest
Payment Date. Interest will cease to accrue on this Security upon its
maturity, conversion, purchase by the Company at the option of a holder or
redemption.
Method
of Payment
Payments
in respect of principal of and interest, if any, on the Securities shall be made
by the Company in immediately available funds.
Optional
Redemption
1The
Securities are redeemable, at the option of the Company, at any time prior to
maturity in whole or from time to time in part, on a date fixed by the Company
for such redemption (the “Redemption Date”) and at a price (the “Redemption
Price”) equal to 100% of the principal amount thereof plus accrued and unpaid
interest up to but not including the Redemption Date plus a Make-Whole Premium,
if any is required to be paid. However, if the Redemption Date is after a
Regular Record Date and on or prior to the corresponding Interest Payment Date,
the interest will be paid on the Redemption Date to the person in whose name the
Securities are registered at the close of business on the Regular Record Date
and not included in the Redemption Price. The Redemption Price will never be
less than 100% of the principal amount of the Securities plus accrued and unpaid
interest up to but not including the Redemption Date.
The
amount of the Make-Whole Premium is equal to the excess, if any, of: (i) the sum
of the present values, calculated as of the Redemption Date, of :(A) the
remaining scheduled payments of interest on the Securities to be redeemed that
would be due after the Redemption Date but for such redemption (except that, if
such Redemption Date is not an Interest Payment Date, the amount of the next
succeeding scheduled interest payment will be reduced by the amount of interest
accrued thereon to the Redemption Date); and (B) the principal amount that, but
for the redemption, would have been payable at the Stated Maturity; over (ii)
the aggregate principal amount of the Securities being redeemed.
The present values of interest and
principal payments referred to in clause (i) above will be determined in
accordance with generally accepted principles of financial analysis. Those
present values will be calculated by discounting the amount of each payment of
interest or principal from the date that each payment would have been payable,
but for the redemption, to the Redemption Date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at a discount rate equal to the
Treasury Rate (as defined below) plus 35 basis points.
‘‘Treasury
Rate’’ means, with respect to any Redemption Date, the rate per annum equal to
the semiannual equivalent yield to maturity (computed as of the second Business
Day immediately preceding such Redemption Date) of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
‘‘Comparable
Treasury Issue’’ means the United States Treasury security selected by an
Independent Investment Banker that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Securities.
‘‘Independent
Investment Banker’’ means one of the Reference Treasury Dealers appointed by the
Company.
‘‘Comparable
Treasury Price’’ means, with respect to any Redemption Date, (1) the average of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) on the third Business Day
preceding such Redemption Date, as set forth in the daily statistical release
(or any successor release) published by the Federal Reserve Bank of New York and
designated ‘‘H.15(519) Selected Interest Rates’’ or (2) if such release (or any
successor release) is not published or does not contain such prices on such
Business Day, (a) the average of the Reference Treasury Dealer Quotations for
such Redemption Date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all Reference Treasury
Dealer Quotations obtained.
‘‘Reference
Treasury Dealer’’ means ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and ▇▇▇▇▇▇ Brothers Inc. and
their successors and two other nationally recognized investment banking firms
that are Primary Treasury Dealers specified from time to time by us, except that
if any of the foregoing ceases to be a primary U.S. Government securities dealer
in New York City (a ‘‘Primary Treasury Dealer’’), the Company is required to
designate as a substitute another nationally recognized investment banking firm
that is a Primary Treasury Dealer.
‘‘Reference
Treasury Dealer Quotations’’ means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Trustee
by such Reference Treasury Dealer as of 3:30 p.m., New York City time, on the
third Business Day preceding such Redemption Date.
On and
after any Redemption Date, interest will cease to accrue on the Securities
called for redemption. If less than all of the Securities are to be
redeemed, the Trustee will select the Securities to be redeemed by lot, pro rata
or by any other method the Trustee deems fair and appropriate.
Notice of
redemption will be mailed by first class mail at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at its registered address. Securities in denominations larger than $1,000
Principal Amount may be redeemed in part, but only in whole multiples of $1,000.
On and after the Redemption Date, subject to the deposit with the Paying Agent
of funds sufficient to pay the Redemption Price, interest ceases to accrue on
Securities or portions thereof called for redemption.
The
Securities are not entitled to the benefit of any sinking fund or other
mandatory redemption provisions.
Tax
Additional Amounts
The
Company shall pay any amounts due with respect to the payments on the Security
without deduction or withholding for any and all present and future withholding
taxes, levies, imposts and charges (each, a “Withholding Tax”) imposed by or for
the account of the Cayman Islands or any other jurisdiction in which the Company
is resident for tax purposes or any political subdivision or taxing authority of
such jurisdiction (the “Taxing Jurisdiction”), unless such withholding or
deduction is required by law. If such deduction or
withholding is at any time required, the Company will (subject to compliance by
such Holder with any relevant administrative requirements) pay each Holder such
additional amounts (“Tax Additional Amounts”) as will result in such Holders
receipt of such amounts as it would have received had no such withholding or
deduction been required.
If the
Taxing Jurisdiction requires the Company to deduct or withhold any Withholding
Tax, the Company will (subject to compliance by a Holder with any relevant
administrative requirements) pay such Tax Additional Amounts in respect of
principal amount, Redemption Price and interest (if any) in accordance with the
terms of the Security and the Indenture; provided, however, that the foregoing
shall not apply to:
(a) any
Withholding Tax which would not be payable or due but for the fact that (1) the
Holder of a Security (or a fiduciary, settlor, beneficiary of, member or
shareholder of, such Holder, if such Holder is an estate, trust, partnership or
corporation) is a domiciliary, national or resident of, or engaging in business
or maintaining a permanent establishment or being physically present in, the
Taxing Jurisdiction or otherwise having some present or former connection with
the Taxing Jurisdiction other than the holding or ownership of the Security or
the collection of principal amount, Redemption Price and Interest (if any), in
accordance with the terms of the Security and the Indenture or the enforcement
of the Security or (2) where presentation is required, the Security was
presented more than 30 days after the date such payment became due or was
provided for, whichever is later;
(b) any
Withholding Tax attributable to any estate, inheritance, gift, sales, transfer,
excise, personal property or similar tax, levy, impost or charge;
(c) any
Withholding Tax attributable to any tax, levy, impost or charge which is payable
otherwise than by withholding from payment of principal amount, Redemption Price
and interest (if any);
(d) any
Withholding Tax which would not have been imposed but for the failure to comply
with certification, information, documentation or other reporting requirements
concerning the nationality, residence, identity or connections with the relevant
tax authority of the Holder or beneficial owner of the Security, if this
compliance is required by statute or by regulation as a precondition to relief
or exemption from such Withholding Tax;
(e) to
the extent a Holder is entitled to a refund or credit in such Taxing
Jurisdiction of amounts required to be withheld by such Taxing Jurisdiction;
or
(f) any
combination of the instances described in (a) through (e).
With
respect to clause (e), above, in the absence of evidence satisfactory to the
Company, the Company may conclusively presume that a Holder of a Security is
entitled to a refund or credit of all amounts required to be
withheld. The Company shall not be required to pay any Tax Additional
Amounts to any Holder of a Security who is a fiduciary or partnership or other
than the sole beneficial owner of the Security to the extent that a beneficiary
or settlor with respect to such fiduciary, or a member of such partnership or a
beneficial owner thereof, would not have been entitled to the payment of such
Tax Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the Holder of the Security.
Transfer
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the register of the Securities,
upon surrender of this Security for registration or transfer at the office or
agency in a Place of Payment for Securities of this series, duly endorsed by, or
accompanied by a written instrument of transfer in form reasonably satisfactory
to the Registrar duly executed by the Holder thereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of like tenor and of other authorized denominations and for the same aggregate
principal amount, executed by the Company and authenticated and delivered by the
Trustee, will be issued to the designated transferee or
transferees.
The
Securities of this series are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations set forth therein and on the face
of this Security, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination as requested by the Holder surrendering the
same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to
due presentment of this Security for registration of transfer, the Company, the
Trustee or any agent of the Company or the Trustee may treat the Person in whose
name this Security is registered as the owner hereof for all purposes, whether
or not this Security be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
Amendment,
Supplement and Waiver; Limitation on Suits
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities of all series affected (acting as one class). The Indenture also
contains provisions permitting the Holders of at least a majority in principal
amount of the then outstanding Securities of any series or of all series (acting
as one class), to waive compliance by the Company with certain existing or past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this
Security.
Subject
to the right of the Holder of any Securities of this series to institute
proceedings to enforce the Holder’s right to receive payment of the principal
thereof and interest thereon (or repurchase price thereof) and any Tax
Additional Amounts with respect thereto and to receive shares on conversion, no
Holder of the Securities of this series shall have any right to institute any
proceeding, judicial or otherwise, with respect to the Indenture, or for the
appointment of a receiver or trustee, or for any other remedy thereunder,
unless
(1) such
Holder has previously given written notice to the Trustee of a continuing Event
of Default;
(2) the
Holders of not less than 25% in principal amount of the then Outstanding
Securities of this series shall have made written request to the Trustee to
pursue the remedy;
(3) such
Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense to be incurred in compliance with such
request;
(4) the
Trustee for 60 days after its receipt of such 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 then outstanding Securities of this series;
it being
understood and intended that no one or more of such Holders shall have the right
in any manner whatever by virtue of, or by availing of, any provision of the
Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under the Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
Successor
Corporation
When a
successor Person assumes all the obligations of its predecessor under the
Securities and the Indenture in accordance with the terms and conditions of the
Indenture, the predecessor Person will (except in certain circumstances
specified in the Indenture) be released from those obligations.
Defaults
and Remedies
If an
Event of Default with respect to Securities of this series shall occur and be
continuing, all unpaid Principal Amount plus accrued and unpaid interest through
the acceleration date of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the
Indenture.
No
Recourse Against Others
No
recourse shall be had for the payment of the principal of or the interest, if
any, on this Security, for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, shareholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, whether
by virtue of any constitution, statute or rule of law or by the enforcement of
any assessment of penalty or otherwise, all such liability being, by acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
Indenture
to Control; Governing Law
In the
case of any conflict between the provisions of this Security and the Indenture,
the provisions of the Indenture shall control.
THE
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO THE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Definitions
All terms
defined in the Indenture and used in this Security but not specifically defined
herein are used herein as so defined.
Annex
C
[FORM
OF GLOBAL SECURITY]
144 UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
145 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.
6.80%
SENIOR NOTE DUE MARCH 15, 2038
TRANSOCEAN
INC.
|
Issue
Date: December 11, 2007
|
Maturity:
March 15, 2038
|
|
Principal
Amount: $
|
CUSIP:
893830 AT6
|
|
ISIN:
US893830AT68
|
|
|
Registered: No.
R-
|
Transocean
Inc., a Cayman Islands exempted company limited by shares (herein called the
“Company”, which term includes any successor corporation under the indenture
hereinafter referred to), for value received, hereby promises to pay to Cede
& Co., or registered assigns, the principal sum of [] Dollars ($) on March
15, 2038 and to pay interest thereon and Tax Additional Amounts, if any, in
immediately available funds as specified on the reverse of this
Security.
Payment
of the principal of and interest on and Tax Additional Amounts, if any, with
respect to this Security will be made at the office or agency of the Company
maintained for that purpose in The City of New York, New York or Fort
Worth, Texas in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts; provided, however, that at the option
of the Company, payment of interest and Tax Additional Amounts, if any, may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the register of Securities or by wire transfer of
immediately available funds to the accounts designated by the Holder of this
Security.
Reference
is hereby made to the further provisions of this Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
|
Dated:
|
|||
|
TRANSOCEAN
INC.
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Attest:
|
|||
|
Assistant
Secretary
|
|||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
|
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION, as Trustee
|
||
|
Authorized
Signatory
|
||
|
Date
of Authentication:____________________________________
|
||
[Reverse
of Security]
TRANSOCEAN
INC.
6.80%
SENIOR NOTES DUE MARCH 15, 2038
This
Security is one of a duly authorized issue of senior securities of the Company
issued and to be issued in one or more series under an Indenture, dated as of
December 11, 2007, as amended by the First Supplemental Indenture thereto dated
as of December 11, 2007, and the Second Supplemental Indenture thereto dated as
of December 11, 2007 (as so amended, herein called the “Indenture”), between the
Company and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (herein called
the “Trustee”, which term includes any successor trustee under the Indenture),
or their respective predecessors, as applicable, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, which is initially
in the aggregate principal amount of $1,000,000,000. As used herein,
the term “Securities” means securities of the series designated on the face
hereof except that, where the context requires that such term be construed as
including another series of securities (e.g., where phrases such as
“Securities of each series” or Securities of any series” or similar phrases are
used), the term “Securities” means securities of any series issued or to be
issued under the Indenture.
The
Company may, without the consent of the existing holders of the Securities,
issue additional Securities having the same ranking and the same interest rate,
maturity and other terms as the Securities. Any additional Securities
having such similar terms, together with the Securities, will constitute a
single series of Securities under the Indenture.
Interest
The rate
at which this Security shall bear interest shall be 6.80% per
annum. The date from which interest shall accrue for this Security
shall be December 11, 2007. The Interest Payment Dates on which
interest on this Security shall be payable are March 15 and September 15 of each
year, commencing on March 15, 2008. The Regular Record Date for the
interest payable on this Security on any Interest Payment Date shall be the
March 1 or September 1, as the case may be, immediately preceding such Interest
Payment Date. Interest will cease to accrue on this Security upon its
maturity, conversion, purchase by the Company at the option of a holder or
redemption.
Method
of Payment
Payments
in respect of principal of and interest, if any, on the Securities shall be made
by the Company in immediately available funds.
Optional
Redemption
The
Securities are redeemable, at the option of the Company, at any time prior to
maturity in whole or from time to time in part, on a date fixed by the Company
for such redemption (the “Redemption Date”) and at a price (the “Redemption
Price”) equal to 100% of the principal amount thereof plus accrued and unpaid
interest up to but not including the Redemption Date plus a Make-Whole Premium,
if any is required to be paid. However, if the Redemption Date is after a
Regular Record Date and on or prior to the corresponding Interest Payment Date,
the interest will be paid on the Redemption Date to the person in whose name the
Securities are registered at the close of business on the Regular Record Date
and not included in the Redemption Price. The Redemption Price will never be
less than 100% of the principal amount of the Securities plus accrued and unpaid
interest up to but not including the Redemption Date.
The
amount of the Make-Whole Premium is equal to the excess, if any, of: (i) the sum
of the present values, calculated as of the Redemption Date, of :(A) the
remaining scheduled payments of interest on the Securities to be redeemed that
would be due after the Redemption Date but for such redemption (except that, if
such Redemption Date is not an Interest Payment Date, the amount of the next
succeeding scheduled interest payment will be reduced by the amount of interest
accrued thereon to the Redemption Date); and (B) the principal amount that, but
for the redemption, would have been payable at the Stated Maturity; over (ii)
the aggregate principal amount of the Securities being redeemed.
The
present values of interest and principal payments referred to in clause (i)
above will be determined in accordance with generally accepted principles of
financial analysis. Those present values will be calculated by discounting the
amount of each payment of interest or principal from the date that each payment
would have been payable, but for the redemption, to the Redemption Date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
a discount rate equal to the Treasury Rate (as defined below) plus 40 basis
points.
‘‘Treasury
Rate’’ means, with respect to any Redemption Date, the rate per annum equal to
the semiannual equivalent yield to maturity (computed as of the second Business
Day immediately preceding such Redemption Date) of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
‘‘Comparable
Treasury Issue’’ means the United States Treasury security selected by an
Independent Investment Banker that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Securities.
‘‘Independent
Investment Banker’’ means one of the Reference Treasury Dealers appointed by the
Company.
‘‘Comparable
Treasury Price’’ means, with respect to any Redemption Date, (1) the average of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) on the third Business Day
preceding such Redemption Date, as set forth in the daily statistical release
(or any successor release) published by the Federal Reserve Bank of New York and
designated ‘‘H.15(519) Selected Interest Rates’’ or (2) if such release (or any
successor release) is not published or does not contain such prices on such
Business Day, (a) the average of the Reference Treasury Dealer Quotations for
such Redemption Date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all Reference Treasury
Dealer Quotations obtained.
‘‘Reference
Treasury Dealer’’ means ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and ▇▇▇▇▇▇ Brothers Inc. and
their successors and two other nationally recognized investment banking firms
that are Primary Treasury Dealers specified from time to time by us, except that
if any of the foregoing ceases to be a primary U.S. Government securities dealer
in New York City (a ‘‘Primary Treasury Dealer’’), the Company is required to
designate as a substitute another nationally recognized investment banking firm
that is a Primary Treasury Dealer.
‘‘Reference
Treasury Dealer Quotations’’ means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Trustee
by such Reference Treasury Dealer as of 3:30 p.m., New York City time, on the
third Business Day preceding such Redemption Date.
On and
after any Redemption Date, interest will cease to accrue on the Securities
called for redemption. If less than all of the Securities are to be
redeemed, the Trustee will select the Securities to be redeemed by lot, pro rata
or by any other method the Trustee deems fair and appropriate.
Notice of
redemption will be mailed by first class mail at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at its registered address. Securities in denominations larger than $1,000
Principal Amount may be redeemed in part, but only in whole multiples of $1,000.
On and after the Redemption Date, subject to the deposit with the Paying Agent
of funds sufficient to pay the Redemption Price, interest ceases to accrue on
Securities or portions thereof called for redemption.
The
Securities are not entitled to the benefit of any sinking fund or other
mandatory redemption provisions.
Tax
Additional Amounts
The
Company shall pay any amounts due with respect to the payments on the Security
without deduction or withholding for any and all present and future withholding
taxes, levies, imposts and charges (each, a “Withholding Tax”) imposed by or for
the account of the Cayman Islands or any other jurisdiction in which the Company
is resident for tax purposes or any political subdivision or taxing authority of
such jurisdiction (the “Taxing Jurisdiction”), unless such withholding or
deduction is required by law. If such deduction or
withholding is at any time required, the Company will (subject to compliance by
such Holder with any relevant administrative requirements) pay each Holder such
additional amounts (“Tax Additional Amounts”) as will result in such Holders
receipt of such amounts as it would have received had no such withholding or
deduction been required.
If the
Taxing Jurisdiction requires the Company to deduct or withhold any Withholding
Tax, the Company will (subject to compliance by a Holder with any relevant
administrative requirements) pay such Tax Additional Amounts in respect of
principal amount, Redemption Price and interest (if any) in accordance with the
terms of the Security and the Indenture; provided, however, that the foregoing
shall not apply to:
(a) any
Withholding Tax which would not be payable or due but for the fact that (1) the
Holder of a Security (or a fiduciary, settlor, beneficiary of, member or
shareholder of, such Holder, if such Holder is an estate, trust, partnership or
corporation) is a domiciliary, national or resident of, or engaging in business
or maintaining a permanent establishment or being physically present in, the
Taxing Jurisdiction or otherwise having some present or former connection with
the Taxing Jurisdiction other than the holding or ownership of the Security or
the collection of principal amount, Redemption Price and Interest (if any), in
accordance with the terms of the Security and the Indenture or the enforcement
of the Security or (2) where presentation is required, the Security was
presented more than 30 days after the date such payment became due or was
provided for, whichever is later;
(b) any
Withholding Tax attributable to any estate, inheritance, gift, sales, transfer,
excise, personal property or similar tax, levy, impost or charge;
(c) any
Withholding Tax attributable to any tax, levy, impost or charge which is payable
otherwise than by withholding from payment of principal amount, Redemption Price
and interest (if any);
(d) any
Withholding Tax which would not have been imposed but for the failure to comply
with certification, information, documentation or other reporting requirements
concerning the nationality, residence, identity or connections with the relevant
tax authority of the Holder or beneficial owner of the Security, if this
compliance is required by statute or by regulation as a precondition to relief
or exemption from such Withholding Tax;
(e) to
the extent a Holder is entitled to a refund or credit in such Taxing
Jurisdiction of amounts required to be withheld by such Taxing Jurisdiction;
or
(f) any
combination of the instances described in (a) through (e).
With
respect to clause (e), above, in the absence of evidence satisfactory to the
Company, the Company may conclusively presume that a Holder of a Security is
entitled to a refund or credit of all amounts required to be
withheld. The Company shall not be required to pay any Tax Additional
Amounts to any Holder of a Security who is a fiduciary or partnership or other
than the sole beneficial owner of the Security to the extent that a beneficiary
or settlor with respect to such fiduciary, or a member of such partnership or a
beneficial owner thereof, would not have been entitled to the payment of such
Tax Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the Holder of the Security.
Transfer
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the register of the Securities,
upon surrender of this Security for registration or transfer at the office or
agency in a Place of Payment for Securities of this series, duly endorsed by, or
accompanied by a written instrument of transfer in form reasonably satisfactory
to the Registrar duly executed by the Holder thereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of like tenor and of other authorized denominations and for the same aggregate
principal amount, executed by the Company and authenticated and delivered by the
Trustee, will be issued to the designated transferee or
transferees.
The
Securities of this series are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations set forth therein and on the face
of this Security, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination as requested by the Holder surrendering the
same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to
due presentment of this Security for registration of transfer, the Company, the
Trustee or any agent of the Company or the Trustee may treat the Person in whose
name this Security is registered as the owner hereof for all purposes, whether
or not this Security be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
Amendment,
Supplement and Waiver; Limitation on Suits
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities of all series affected (acting as one class). The Indenture also
contains provisions permitting the Holders of at least a majority in principal
amount of the then outstanding Securities of any series or of all series (acting
as one class), to waive compliance by the Company with certain existing or past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this
Security.
Subject
to the right of the Holder of any Securities of this series to institute
proceedings to enforce the Holder’s right to receive payment of the principal
thereof and interest thereon (or repurchase price thereof) and any Tax
Additional Amounts with respect thereto and to receive shares on conversion, no
Holder of the Securities of this series shall have any right to institute any
proceeding, judicial or otherwise, with respect to the Indenture, or for the
appointment of a receiver or trustee, or for any other remedy thereunder,
unless
(1) such
Holder has previously given written notice to the Trustee of a continuing Event
of Default;
(2) the
Holders of not less than 25% in principal amount of the then Outstanding
Securities of this series shall have made written request to the Trustee to
pursue the remedy;
(3) such
Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense to be incurred in compliance with such
request;
(4) the
Trustee for 60 days after its receipt of such 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 then outstanding Securities of this series;
it being
understood and intended that no one or more of such Holders shall have the right
in any manner whatever by virtue of, or by availing of, any provision of the
Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under the Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
Successor
Corporation
When a
successor Person assumes all the obligations of its predecessor under the
Securities and the Indenture in accordance with the terms and conditions of the
Indenture, the predecessor Person will (except in certain circumstances
specified in the Indenture) be released from those obligations.
Defaults
and Remedies
If an
Event of Default with respect to Securities of this series shall occur and be
continuing, all unpaid Principal Amount plus accrued and unpaid interest through
the acceleration date of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the
Indenture.
No
Recourse Against Others
No
recourse shall be had for the payment of the principal of or the interest, if
any, on this Security, for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, shareholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, whether
by virtue of any constitution, statute or rule of law or by the enforcement of
any assessment of penalty or otherwise, all such liability being, by acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
Indenture
to Control; Governing Law
In the
case of any conflict between the provisions of this Security and the Indenture,
the provisions of the Indenture shall control.
THE
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO THE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Definitions
All terms
defined in the Indenture and used in this Security but not specifically defined
herein are used herein as so defined.