Form 8-K Transocean Ltd. For: Feb 26
Exhibit 4.1
TRANSOCEAN INC.,
as Issuer,
TRANSOCEAN LTD.,
as a Guarantor,
THE SUBSIDIARY GUARANTORS FROM TIME TO TIME PARTY HERETO,
as Subsidiary Guarantors,
AND
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
___________________
INDENTURE
Dated as of February 26, 2021
___________________
4.00% Senior Guaranteed Exchangeable Bonds due 2025
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APPENDIXES
Exhibit 1.1 to Appendix A–Form of 144A Bond
Exhibit 1.2 to Appendix A–Form of Regulation S Bond
Exhibit 1.3 to Appendix A–Form of Accredited Investor Bond
Appendix B – Form of Certificate of Transfer
Appendix C – Form of Certificate of Bond Exchange
Appendix D – Form of Notice of Exchange
Appendix E – Form of Repurchase Notice
Appendix F – Form of Supplemental Indenture
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INDENTURE dated as of February 26, 2021 among TRANSOCEAN INC., a Cayman Islands exempted company (the “Company”), TRANSOCEAN LTD., a company organized under the laws of Switzerland (the “Parent”), the Subsidiary Guarantors (as defined herein, and, together with the Parent, the “Guarantors” and each, a “Guarantor”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as trustee (the “Trustee”).
RECITALS
The Company has duly authorized the issuance of $293,751,000 aggregate principal amount of 4.00% Senior Guaranteed Exchangeable Bonds due 2025 (each a “Bond” and collectively, the “Bonds”), and to provide therefor the Company has duly authorized the execution and delivery of this Indenture.
All things necessary to make the Bonds, when executed by the Company, authenticated and delivered hereunder and duly issued by the Company, the valid and binding obligations of the Company, and to make this Indenture a valid and legally binding agreement of the Company and the Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Bonds by the Holders thereof, it is mutually covenanted and agreed, for the benefit of each other and the equal and proportionate benefit of all Holders of the Bonds, as follows:
“Additional Amounts” shall have the meaning specified in Section 4.14(a).
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Notwithstanding the foregoing, any holding company whose only significant asset is capital stock of the Company or any of the Company’s direct or indirect parent companies shall not itself be considered a “person” or “group” for purposes of clause (b) above. Further, notwithstanding the foregoing, no change of control of the Parent will be deemed to have occurred if at least 90% of the consideration for the Parent Shares (excluding cash payments for fractional shares) in the transaction or transactions otherwise constituting a change of control in respect of the Parent consist of common stock, ordinary shares, American Depositary Receipts or equivalent capital stock traded on the New York Stock Exchange or the Nasdaq Global Select Market, or any successor to any such market, or which will be so traded when issued or exchanged in connection with the transaction or transactions otherwise constituting a change of control in respect of the Parent, and as a result of such transaction or transactions, the Bonds become exchangeable, upon the conditions for exchange and actual exchange in accordance with the terms hereof, into such common stock, ordinary shares, American Depositary Receipts or equivalent capital stock.
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“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at Wells Fargo Bank, National Association, CTSO Mail Operations, Attn: Patrick Giordano, MAC: N9300-070, 600 South 4th Street, 7th Floor, Minneapolis, MN 55415, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
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“Ex-Dividend Date” means the first date on which Parent Shares trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Parent or, if applicable, from the seller of Parent Shares on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
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“Form of Repurchase Notice” means the “Form of Repurchase Notice” attached hereto as Appendix E.
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provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Bonds have given any request, demand, authorization, direction, notice, consent or waiver hereunder, or are present at a meeting of Holders for quorum purposes, Bonds owned by the Company or any other obligor upon the Bonds or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Bonds which a Trust Officer of the Trustee actually knows to be so owned shall be so disregarded. Bonds so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Bonds and that the pledgee is not the Company or any other obligor upon the Bonds or any Affiliate of the Company.
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“Restricted Bonds” means Restricted Physical Bonds and Restricted Global Bonds and, in each case, any Parent Shares issued or delivered upon exchange of such Bonds in accordance with Article 11 hereof that are required to bear the Private Placement Legend.
“Restricted Global Bonds” means 144A Global Bonds, Regulation S Global Bonds and AI Global Bonds.
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“Unrestricted Global Bonds” means one or more Global Bonds that do not and are not required to bear the Private Placement Legend and are deposited with and registered in the name of the Depositary or its nominee.
“Voting Stock” means, with respect to any Person, securities of any class or classes of capital stock of such Person entitling the holders thereof (whether at all times or at the times that such class of capital stock has voting power by reason of the happening of any contingency) to vote in the election of members of the Board of Directors or comparable body of such Person.
“VWAP” or “volume weighted average price” per Parent Share on any Trading Day means such price as displayed on Bloomberg (or any successor service) page “RIG US <EQUITY> AQR” in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day; or, if such price is not available, the volume-weighted average price means the market value per Parent Share on such day as determined by a nationally recognized independent investment banking firm retained for this purpose by the Company. The “volume-weighted average price” or “VWAP” will be determined without regard to extended or afterhours trading or any other trading outside of the regular trading session trading hours.
“withholding tax” shall have the meaning specified in Section 4.14(a).
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Term | Defined in Section |
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“144A Global Bond” | Appendix A 2.1(a) |
“Agent Members” | Appendix A 2.1(b) |
“AI Global Bond” | Appendix A 2.1(a) |
“Appendix A” | 2.01 |
“Bond Register” | 2.06 |
“Bond Registrar” | 2.03 |
“DTC” | 2.03 |
“Event of Default” | 6.01 |
“Exchange Agent” | 2.03 |
“Global Bond” | Appendix A 2.1(a) |
“Guaranteed Obligations” | 10.01 |
“Paying Agent” | 2.03 |
“Refinancing” | 4.04(a)(xiii) |
“Regulation S Global Bond” | Appendix A 2.1(a) |
“Trust Indenture Act” | 1.06 |
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Company in full force and effect so long as any of the Bonds shall be Outstanding or any amounts shall be payable in respect of any Bonds.
Each of the Company and the Guarantors irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such action, suit or proceeding in any such court or any appellate court with respect thereto and irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of any such action, suit or proceeding in any such court.
To the extent that the Company or any Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, each of them hereby irrevocably waives such immunity in respect of its obligations under this Indenture, the Guarantees and the Bonds, to the extent permitted by law.
If an Officer whose signature is on a Bond no longer holds that office at the time the Trustee authenticates such Bond, such Bond shall be valid nevertheless.
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A Bond shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on such Bond. The signature shall be conclusive evidence that the Bonds have been authenticated under this Indenture.
The Trustee, upon a Company Order, together with the other documents required by Sections 13.02 and 13.03, shall authenticate (i) Bonds for original issue on the Issue Date in the aggregate principal amount not to exceed $293,751,000 and (ii) subject to Section 2.10 and Section 4.04 hereof, additional Bonds; provided that no Opinion of Counsel under Section 13.02 shall be required in connection with the authentication of the initial Bonds issued on the Issue Date. Such Company Order shall specify the amount of Bonds to be authenticated and the date on which the original issue of Bonds is to be authenticated.
The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate the Bonds. Unless limited by the terms of such appointment, an authenticating agent may authenticate Bonds whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as any Bond Registrar, Paying Agent or agent for service of notices and demands.
If the Company fails to maintain a Bond Registrar, Paying Agent or Exchange Agent, the Trustee shall act as such and shall be entitled to appropriate reasonable compensation therefor pursuant to Section 7.06. The Company may change the Bond Registrar, Paying Agent or Exchange Agent without prior notice to the Holders. The Parent or any of its Subsidiaries incorporated or organized within The United States of America may act as Bond Registrar, Paying Agent, Exchange Agent, co-registrar or transfer agent.
The Company hereby initially appoints the Trustee as Bond Registrar, Paying Agent and Exchange Agent in connection with the Bonds.
The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Bonds.
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If a Bond is replaced pursuant to Section 2.07, it ceases to be Outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Bond is held by a protected purchaser (as defined in Section 8-303 of the Uniform Commercial Code).
If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on the Maturity Date money sufficient to pay all principal and interest payable on that date with respect to the Bonds (or
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portions thereof) maturing, then on and after that date such Bonds (or portions thereof) cease to be Outstanding and interest on them ceases to accrue.
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The Bonds will not be subject to redemption at the option of the Company.
The Company, the Parent and its Subsidiaries may at any time and from time to time acquire Bonds by tender offer, open market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws and regulations, so long as such acquisition does not otherwise violate the terms of this Indenture, upon such terms and at such prices as the Company, the Parent or its Subsidiaries may determine. The Company shall cause any Bonds so repurchased (other than Bonds repurchased pursuant to cash-settled swaps or other derivatives that are not physically settled) either (x) to be surrendered to the Trustee for cancellation, and they will no longer be considered Outstanding under this Indenture upon their repurchase or (y) if such Bonds represent beneficial interests in one or more Global Bonds, to be exchanged for Physical Bonds and, regardless of the format of such Bonds, to be subject to the limitations set forth in the following sentence. Notwithstanding anything to the contrary in this Indenture or such repurchased Bonds, in no event shall any such repurchased Bonds described in clause (y) of the immediately preceding sentence be (i) offered, sold, pledged or otherwise transferred or (ii) exchanged, in each case, whether by the Guarantors or its Subsidiaries or any of its respective agents.
The Company shall pay interest on Defaulted Amounts at the rate specified therefor in the Bonds, and shall pay interest on overdue installments of interest at the same rate to the extent lawful.
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benefit of this Section 4.03 shall be directly secured equally and ratably with, or prior to, the Indebtedness secured by such Initial Lien for so long as such Indebtedness shall be so secured, except that the foregoing shall not prevent the Company or any of its Subsidiaries from creating, assuming or suffering to exist Liens of the following character:
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In addition, without securing the Bonds as described above, the Company and its Subsidiaries may create, assume or allow to exist any Lien not permitted by clauses (i) through (x) above securing Indebtedness, if after giving effect thereto, Aggregate Debt would not exceed the greater of (i) $1.4 billion and (ii) 6.75% of Consolidated Net Tangible Assets measured at the time of Incurrence of and after giving effect to such Incurrence.
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any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to waive compliance with any covenant or condition hereunder. If a record date is fixed, the Holders of such record date, or their duly appointed agents, and only such Persons shall be entitled to waive any such compliance, whether or not such Holders remain Holders after such record date, provided that unless the Holders of at least a majority in aggregate principal amount of the Outstanding Bonds shall have waived such compliance prior to the date which is 90 days after such record date, any such waiver previously given shall automatically and without further action by any Holder be cancelled and of no further effect.
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In addition to the foregoing, the Company shall also pay and indemnify the Holder for any present or future stamp, stamp duty, stamp duty reserve tax, issue, registration, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest, additions to
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tax and other liabilities related thereto) that are levied by any Taxing Jurisdiction on the execution, delivery, issuance, or registration of any of the Bonds, the Guarantee, this Indenture or any other document or instrument referred to therein, or the receipt of any payments with respect to, or enforcement of, the Bonds.
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None of the Company or the Parent shall, in any transaction or series of transactions, consolidate with, merge with or into or complete a scheme of arrangement qualifying as an amalgamation with any Person, or sell, lease, convey, transfer or otherwise dispose of all or substantially all of its assets to any Person, unless:
For the avoidance of doubt, unless otherwise provided in a supplemental indenture or board resolution, the term “merger” includes an amalgamation under Cayman Islands law, and the term “all or substantially all of its assets”, with respect to the Company or the Parent, as applicable, shall be computed on a consolidated basis.
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