================================================================================
TRANSOCEAN OFFSHORE INC.
AND
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
TRUSTEE
------------------------------------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF
APRIL 15, 1997
TO
INDENTURE
DATED AS OF
APRIL 15, 1997
================================================================================
FIRST SUPPLEMENTAL INDENTURE, dated as of April 15, 1997, between
TRANSOCEAN OFFSHORE INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company"), having its
principal office at 0 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, and TEXAS COMMERCE
BANK NATIONAL ASSOCIATION, as Trustee (herein called the "Trustee"), the office
of the Trustee at which at the date hereof its corporate trust business is
principally administered being 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000.
RECITALS OF THE COMPANY
The Company has executed and delivered to the Trustee an Indenture,
dated as of April 15, 1997 (the "Original Indenture" and as supplemented by this
First Supplemental Indenture, the "Indenture"), providing for the issuance from
time to time of the Company's unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), issuable in one or more series as
in the Indenture provided. All capitalized terms used herein which are defined
in the Original Indenture shall have the meanings assigned thereto in the
Original Indenture unless otherwise defined herein.
Section 901(2) of the Original 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 the Holders of all or any series of
Securities.
Pursuant to the foregoing authority, the Company proposes in and by
this First Supplemental Indenture to supplement and amend the Original
Indenture.
All things necessary to make this First Supplemental Indenture a
valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
The following definitions are hereby added to Section 101 of the
Indenture:
"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 generally accepted
accounting principles.
"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 generally accepted
accounting principles, 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 xxxxx, 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.
"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,
(including the effective interest rate on any original issue discount
Securities) which are outstanding on the effective date of such Sale and
Leaseback Transaction and which have the benefit of Section 1009.
-2-
ARTICLE TWO
COVENANTS
New Sections 1008 and 1009 are hereby added to Article Ten of the
Indenture, to apply with respect to each series of Securities unless the
Securities of any series expressly provide that such series shall not be
entitled to the benefit of such Sections 1008 and 1009.
SECTION 1008. 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 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:
(1) with respect to any series of Securities, any Lien existing on
the date of issuance of the series;
(2) any Lien existing on Restricted Property owned or leased by a
corporation at the time it becomes a Subsidiary;
(3) any Lien existing on Restricted Property at the time of the
acquisition thereof by the Company or a Subsidiary;
(4) 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;
(5) 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;
(6) any Lien securing debt of a Subsidiary owing to the Company or
to another Subsidiary;
-3-
(7) 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;
(8) 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;
(9) 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;
(10) 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;
(11) 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;
(12) 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
-4-
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
(13) 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 1009 but for this clause
(13), does not at any time exceed 10% of Consolidated Net Tangible Assets.
SECTION 1009. LIMITATION ON SALE AND LEASEBACKS.
The Company shall not enter into any Sale and Leaseback Transaction
covering any Restricted Property, nor permit any Subsidiary so to do, unless
either:
(1) 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 1008 would result, or
(2) 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.
* * *
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
-5-
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
TRANSOCEAN OFFSHORE INC.
[CORPORATE SEAL] By /s/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Vice President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, TRUSTEE
[CORPORATE SEAL] By /s/ XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: Vice President & Trust Officer
-6-
STATE OF TEXAS ss.
ss. ss.
COUNTY OF XXXXXX xx.
This instrument was acknowledged before me on the 29th day of April,
1997, by Xxxx X. Xxxxx, as Vice President of TRANSOCEAN OFFSHORE INC.
/s/ XXXXXXX XXXXXX
Notary Public
[NOTARIAL SEAL]
STATE OF TEXAS ss.
ss. ss:
COUNTY OF XXXXXX xx.
This instrument was acknowledged before me on the 28th day of April,
1997, by Xxxxxxx X. Xxxxxx, as VP & TO of TEXAS COMMERCE BANK NATIONAL
ASSOCIATION.
/s/ XXXXXXX X. XXXXX
Notary Public
[NOTARIAL SEAL]
-7-
