SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1996
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________ to ____________
COMMISSION FILE NUMBER: 1-11675
TRITON ENERGY LIMITED
(Exact name of registrant as specified in its charter)
CAYMAN ISLANDS NONE
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
CALEDONIAN HOUSE, MARY STREET, P.O. BOX 1043, GEORGE TOWN, GRAND CAYMAN,
CAYMAN ISLANDS
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (809) 949-0050
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
YES (X) NO
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
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Number of Shares
Title of Each Class Outstanding at April 30, 1996
------------------------------
Ordinary Shares, par value $0.01 per share 36,167,076
- ----------------------------------------------------- ------------------------------
</TABLE>
TRITON ENERGY LIMITED AND SUBSIDIARIES
INDEX
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PART I. FINANCIAL INFORMATION PAGE NO.
--------
Item 1. Financial Statements
Condensed Consolidated Statements of Operations -
Three months ended March 31, 1996 and 1995 2
Condensed Consolidated Balance Sheets -
March 31, 1996 and December 31, 1995 3
Condensed Consolidated Statements of Cash Flows -
Three months ended March 31, 1996 and 1995 4
Condensed Consolidated Statement of Shareholders' Equity -
Three months ended March 31, 1996 5
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 15
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 19
Item 4. Results of Votes of Security Holders 19
Item 6. Exhibits and Reports on Form 8-K 20
</TABLE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
TRITON ENERGY LIMITED AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 1996 AND 1995
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
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1996 1995
-------- --------
SALES AND OTHER OPERATING REVENUES:
Oil and gas sales $31,599 $19,464
Other operating revenues 4,182 287
-------- --------
35,781 19,751
-------- --------
COSTS AND EXPENSES:
Operating expenses 9,541 8,080
General and administrative 7,684 5,825
Depreciation, depletion and amortization 6,401 4,658
-------- --------
23,626 18,563
-------- --------
OPERATING INCOME 12,155 1,188
Interest income 1,834 1,236
Interest expense (5,698) (5,534)
Equity in earnings (loss) of affiliate (46) 2,927
Other income (expense), net 3,799 2,607
-------- --------
(111) 1,236
-------- --------
EARNINGS FROM CONTINUING OPERATIONS
BEFORE INCOME TAXES 12,044 2,424
Income tax expense 693 2,777
-------- --------
EARNINGS (LOSS) FROM CONTINUING OPERATIONS 11,351 (353)
DISCONTINUED OPERATIONS:
Loss from operations --- (1,202)
-------- --------
NET EARNINGS (LOSS) 11,351 (1,555)
DIVIDENDS ON PREFERENCE SHARES 772 449
-------- --------
EARNINGS (LOSS) APPLICABLE TO ORDINARY SHARES $10,579 $(2,004)
-------- --------
Average ordinary and equivalent shares outstanding 36,623 35,129
-------- --------
EARNINGS (LOSS) PER ORDINARY SHARE:
Continuing operations $ 0.29 $ (0.02)
Discontinued operations --- (0.04)
-------- --------
NET EARNINGS (LOSS) $ 0.29 $ (0.06)
-------- --------
</TABLE>
See accompanying notes to condensed consolidated financial statements.
<PAGE>
TRITON ENERGY LIMITED AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
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MARCH 31,
ASSETS 1996 DECEMBER 31,
(UNAUDITED) 1995
------------ --------------
Current assets:
Cash and equivalents $ 48,481 $ 49,050
Short-term marketable securities 26,509 42,419
Receivables 35,358 23,187
Inventories, prepaid expenses and other 4,695 4,128
------------ --------------
Total current assets 115,043 118,784
Long-term marketable securities --- 3,985
Property and equipment, at cost, less accumulated depreciation and
depletion of $87,470 and $264,796, respectively 544,938 524,381
Investments and other assets 185,465 177,017
------------ --------------
$ 845,446 $ 824,167
------------ --------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current installments of long-term debt $ 10,010 $ 1,313
Accounts payable and accrued liabilities 34,257 31,873
------------ --------------
Total current liabilities 44,267 33,186
------------ --------------
Long-term debt, excluding current installments 398,342 401,190
Deferred income taxes 32,944 29,897
Deferred income and other 111,898 113,869
Convertible debentures due to employees --- ---
Shareholders' equity:
Preference shares 8,840 14,109
Ordinary shares, par value $0.01 361 35,927
Additional paid-in capital 556,231 516,326
Accumulated deficit (299,943) (311,294)
Foreign currency translation adjustment (7,457) (8,616)
Other (37) (89)
------------ --------------
257,995 246,363
Less cost of ordinary shares in treasury --- 338
------------ --------------
Total shareholders' equity 257,995 246,025
Commitments and contingencies (Note 4) --- ---
------------ --------------
$ 845,446 $ 824,167
------------ --------------
</TABLE>
The Company uses the full cost method to account for its oil and gas producing
activities.
See accompanying notes to condensed consolidated financial statements.
<PAGE>
TRITON ENERGY LIMITED AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
THREE MONTHS ENDED MARCH 31, 1996 AND 1995
(IN THOUSANDS)
(UNAUDITED)
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1996 1995
--------- ---------
Cash flows from operating activities:
Net earnings (loss) $ 11,351 $ (1,555)
Adjustments to reconcile net earnings (loss) to net cash provided
by operating activities:
Depreciation, depletion and amortization 6,401 4,775
Amortization of debt discount 5,698 5,597
Amortization of unearned revenue (2,026) ---
Gain on sale of assets (4,150) ---
Equity in (earnings) losses of affiliate 46 (2,927)
Deferred income taxes and other (3,304) 2,999
Changes in working capital pertaining to operating activities 3,158 (6,815)
--------- ---------
Net cash provided by operating activities 17,174 2,074
--------- ---------
Cash flows from investing activities:
Capital expenditures and investments (54,946) (36,035)
Proceeds from sale of marketable securities 18,008 6,550
Proceeds from sale of assets 25,475 ---
Other (1,743) (709)
--------- ---------
Net cash used by investing activities (13,206) (30,194)
--------- ---------
Cash flows from financing activities:
Short-term borrowings, net --- (10,000)
Proceeds from long-term debt 43,601 26,000
Payments on long-term debt (48,959) ---
Issuance of ordinary shares 2,013 ---
Other (1,119) (829)
--------- ---------
Net cash provided (used) by financing activities (4,464) 15,171
--------- ---------
Effect of exchange rate changes on cash and equivalents (73) (279)
--------- ---------
Net decrease in cash and equivalents (569) (13,228)
Cash and equivalents at beginning of period 49,050 22,341
--------- ---------
Cash and equivalents at end of period $ 48,481 $ 9,113
--------- ---------
</TABLE>
TRITON ENERGY LIMITED AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
THREE MONTHS ENDED MARCH 31, 1996
(IN THOUSANDS)
(UNAUDITED)
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ADDITIONAL
PREFERENCE ORDINARY PAID-IN ACCUMULATED TREASURY
SHARES SHARES CAPITAL DEFICIT OTHER SHARES
------------ ---------- ------------ ------------- -------- ----------
Balance at
December 31, 1995 $ 14,109 $ 35,927 $ 516,326 $ (311,294) $(8,705) $ (338)
Net income --- --- --- 11,351 --- ---
Foreign currency translation
adjustment --- --- --- --- 1,159 ---
Dividends on preference shares --- --- (772) --- --- ---
Conversion of preference shares (5,269) 153 5,116 --- --- ---
Reduction in par value --- (35,799) 35,595 --- --- 204
Stock issue costs --- --- (2,831) --- --- ---
Exercise of employee stock
options and debentures --- 80 2,505 --- --- ---
Other --- --- 292 --- 52 134
------------ ---------- ------------ ------------- -------- ----------
Balance at March 31, 1996 $ 8,840 $ 361 $ 556,231 $ (299,943) $(7,494) $ ---
------------ ---------- ------------ ------------- -------- ----------
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TOTAL
SHAREHOLDERS'
EQUITY
---------------
Balance at
December 31, 1995 $ 246,025
Net income 11,351
Foreign currency translation
adjustment 1,159
Dividends on preference shares (772)
Conversion of preference shares ---
Reduction in par value ---
Stock issue costs (2,831)
Exercise of employee stock
options and debentures 2,585
Other 478
---------------
Balance at March 31, 1996 $ 257,995
---------------
</TABLE>
TRITON ENERGY LIMITED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. GENERAL
Triton Energy Limited, a Cayman Islands company, was incorporated in August
1995 to become the parent holding company of Triton Energy Corporation, a
Delaware corporation ("TEC"). The term "Company" when used herein means
Triton Energy Limited and its subsidiaries and other affiliates through which
the Company conducts its business.
On March 25, 1996, the stockholders of TEC approved the merger of a wholly
owned subsidiary of the Company with and into TEC (the "Reorganization").
Pursuant to the Reorganization, the Company became the parent holding company
of TEC and each share of Common Stock, par value $1.00, and 5% Convertible
Preferred Stock of TEC outstanding on March 25, 1996, was converted into one
Ordinary Share, par value $.01, and one 5% Convertible Preference Share,
respectively, of the Company. The Reorganization has been accounted for as a
combination of entities under common control (as if it were a pooling of
interests).
In the opinion of management, the accompanying unaudited condensed
consolidated financial statements of the Company contain all adjustments of a
normal recurring nature necessary to present fairly the Company's financial
position as of March 31, 1996, and the results of its operations for the three
months ended March 31, 1996 and 1995, its cash flows for the three months
ended March 31, 1996 and 1995, and shareholders' equity for the three months
ended March 31, 1996. The results of operations for the three months ended
March 31, 1996 and 1995, are not necessarily indicative of the final results
to be expected for the full year.
The condensed consolidated financial statements should be read in conjunction
with the Notes to Consolidated Financial Statements, which are included as
part of TEC's Annual Report on Form 10-K for the year ended December 31,
1995.
The Company discontinued its aviation sales and services segment in June 1995.
The Condensed Consolidated Statement of Operations for the three months ended
March 31, 1995 has been restated to reflect the aviation sales and services
segment as discontinued operations.
Certain other previously reported financial information has been reclassified
to conform to the current period's presentation.
2. DIVESTITURES
In March 1996, the Company sold its royalty interests in U.S. properties for
$23.8 million based on an effective date of January 1, 1996. The Company
recorded the resulting gain of $4.1 million in other operating revenues.
In March 1996, the Company executed an agreement with Deminex Colombia
Petroleum GmbH ("Deminex") providing Deminex the right to earn a 50% interest
in the El Pinal, Guayabo A and B, and Las Amelias contract areas of Colombia.
Deminex has paid approximately $13 million into an escrow account that will be
released to the Company upon receiving the approval from Ecopetrol and the
Ministry of Mines. The escrow amount has been recorded as a current
receivable at March 31, 1996.
In March 1995, Crusader Limited ("Crusader"), a 49.9% owned affiliate of the
Company, completed the sale of Saracen Minerals for proceeds of $14.3
million. This sale resulted in a net gain to the Company of
approximately $3.8 million, which is included in equity in earnings of
affiliate.
3. PETROLEUM PRICE RISK MANAGEMENT
In the normal course of business, the Company enters into financial and
commodity market transactions for purposes other than trading to manage its
exposure to commodity price risk. As a result of such transactions to date,
the Company has set the price benchmark on approximately 33% of its projected
Colombian oil production for the last nine months of 1996 at a weighted
average West Texas Intermediate ("WTI") benchmark price of $17.69 per barrel.
In addition, the Company has purchased WTI benchmark call options on a total
of 200,000 barrels for various delivery dates in April and May 1996 in order
to retain the opportunity to participate in prices above $19.72 per barrel.
In anticipation of entering into a forward oil sale, the Company purchased
from a creditworthy counterparty call options to retain the ability to benefit
from future WTI price increases above $20.42 per barrel. The volumes and
expiration dates on the call options coincide with the volumes and delivery
dates of the forward oil sale, which has delivery terms of 58,425 barrels per
month through March 1997 and 254,136 barrels per month from April 1997 to
March 2000. During the three months ended March 31, 1996, the Company
recorded an unrealized gain of $2.1 million as other income related to the
change in the fair market value of the call options. Future fluctuations in
the fair market value of the call options will continue to affect other income
as noncash adjustments.
4. COMMITMENTS AND CONTINGENCIES
Continued development of the Cusiana and Cupiagua fields (the "Fields") in
Colombia, including drilling and construction of additional production
facilities, will require significant capital. In 1995 and early 1996,
Carigali-Triton Operating Company ("CTOC") discovered gas with its first three
wells on Block A-18 in the Malaysia-Thailand Joint Development Area in the
Gulf of Thailand. Further exploration and development activities on Block
A-18, as well as exploratory drilling in other countries, will also require
substantial capital. The Company's capital budget for the year ending
December 31, 1996 is approximately $260 million, excluding capitalized
interest, of which approximately $157 million relates to the Fields, $34
million relates to Block A-18, $40 million relates to the Company's
exploration and drilling program in other parts of the world and $29 million
relates to capital contributions to Oleoducto Central S.A. ("OCENSA").
Capital requirements for full field development of the Fields are expected to
continue at substantial levels into 1997 and capital requirements for
exploration and development relating to Block A-18 are expected to increase
significantly into 1998.
The Company expects to meet capital needs in the future with a combination of
some or all of the following: the Company's revolving credit facility, cash
flow from its Colombian operations, cash on hand and marketable securities,
asset sales, and the issuance of debt and equity securities. As a result of
certain modifications to the indenture relating to the 1997 Notes effected in
November 1995, the Company's indebtedness limitation was increased to permit
the Company to incur total indebtedness (excluding certain permitted
indebtedness) of up to 25% of the sum of its indebtedness and market
capitalization of its capital stock.
GUARANTEES
At March 31, 1996, the Company had guaranteed loans of approximately $6.1
million for a Colombian pipeline company in which the Company has an ownership
interest and guaranteed performance of $7.6 million in future exploration
expenditures in various countries. These commitments are backed by letters of
credit and bank guarantees.
REGULATORY MATTERS
The Company has been advised that the Department of Justice has concluded its
inquiry into the Company's 1989-1990 operations in Indonesia without taking
any action against the Company. The Company continues to cooperate with a
parallel inquiry by the Securities and Exchange Commission (the "Commission").
The Commission's enforcement staff has offered to recommend settlement of any
charges the Commission might assert against the Company on a "consent decree"
basis in which the Company would pay a civil monetary penalty of up to
$350,000. The Company is engaged in discussions with the staff regarding the
staff's proposal. The Company continues to believe that the outcome of the
inquiry will not have a material adverse effect on its operations or
consolidated financial condition.
LITIGATION
The Company is subject to litigation that is incidental to its business, none
of which is expected to have a material adverse effect on the Company's
operations or consolidated financial condition.
<PAGE>
5. TRITON ENERGY CORPORATION FINANCIAL INFORMATION
TEC has ceased filing periodic reports with the Commission. TEC's 9 3/4%
Senior Subordinated Discount Notes and 1997 Senior Subordinated Discount Notes
remain outstanding and are fully guaranteed by Triton Energy Limited. The
following table sets forth certain summarized financial information of
TEC and its subsidiaries (in thousands):
<TABLE>
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MARCH 31, DECEMBER 31,
1996 1995
---------- -------------
Current assets $ 115,043 $ 118,784
Noncurrent assets 731,960 705,383
---------- -------------
Total $ 847,003 $ 824,167
---------- -------------
Current liabilities $ 42,300 $ 33,186
Noncurrent liabilities 543,184 544,956
Stockholders' equity 261,519 246,025
---------- -------------
Total $ 847,003 $ 824,167
---------- -------------
</TABLE>
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THREE MONTHS ENDED
MARCH 31,
1996 1995
-------------------- --------
Sales and other operating revenues $ 35,781 $19,751
Operating income 12,155 1,188
Other income (expense), net (111) 1,236
-------------------- --------
Earnings from continuing operations before
income taxes 12,044 2,424
Income tax expense 693 2,777
-------------------- --------
11,351 (353)
Loss from discontinued operations --- (1,202)
-------------------- --------
Net earnings (loss) $ 11,351 $(1,555)
-------------------- --------
</TABLE>
<PAGE>
6. CERTAIN FACTORS THAT COULD AFFECT FUTURE OPERATIONS
Certain statements in this report, including statements of the Company's and
management's expectations, intentions, plans and beliefs, including those
contained in or implied by "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and these Notes to Condensed Consolidated
Financial Statements, are forward-looking statements, as defined in Section
21D of the Securities Exchange Act of 1934, that are dependent on certain
events, risks and uncertainties that may be outside the Company's control.
These forward-looking statements include statements of management's plans and
objectives for the Company's future operations and statements of future
economic performance; information regarding drilling schedules, expected or
planned production or transportation capacity, the future construction or
upgrades of pipelines (including costs), when the Cusiana and Cupiagua fields
might become self-financing, future production of the Cusiana and Cupiagua
fields, the negotiation of a gas contract and commencement of production in
Malaysia-Thailand, the Company's capital budget and future capital
requirements, the Company's meeting its future capital needs, the Company's
realization of its deferred tax asset, the level of future expenditures for
environmental costs and the outcome of regulatory and litigation matters; and
the assumptions described in this report underlying such forward-looking
statements. Actual results and developments could differ materially from
those expressed in or implied by such statements due to a number of factors,
including those described in the context of such forward-looking statements,
as well as those presented below.
CERTAIN FACTORS RELATING TO THE OIL AND GAS INDUSTRY
The Company's strategy is to focus its exploration activities on what the
Company believes are relatively high-potential prospects. No assurance can be
given that the Company will be successful in its exploration activities.
Oil prices have been subject to significant fluctuations during the past
several decades. The Company expects that levels of production maintained by
the member nations of the Organization of Petroleum Exporting Countries and
other major oil-producing countries, and the actions of oil traders, will
continue to be major determinants of crude oil price movements in the near
term. It is impossible to predict future oil price movements with any
certainty.
The Company's oil and gas business is subject to all of the operating risks
normally associated with the exploration for and production of oil and gas,
including blowouts, cratering, pollution, earthquakes, labor disruptions and
fires, each of which could result in damage to or destruction of oil and gas
wells, formations, production facilities or properties, or in personal injury.
In accordance with customary industry practices, the Company maintains
insurance coverage limiting financial loss resulting from certain of these
operating hazards. Losses and liabilities arising from uninsured or
underinsured events would reduce revenues and increase costs to the Company.
The Company's oil and gas business is also subject to laws, rules and
regulations in the countries in which it operates, which generally pertain to
production control, taxation, environmental and pricing concerns, and other
matters relating to the petroleum industry.
The Company is subject to extensive environmental laws and regulations. These
laws regulate the discharge of oil, gas or other materials into the
environment and may require the Company to remove or mitigate the
environmental effects of the disposal or release of such materials at various
sites. The Company does not believe that its environmental risks are
materially different from those of comparable companies in the oil and gas
industry. Nevertheless, no assurance can be given that environmental laws and
regulations will not, in the future, adversely affect the Company's results of
operations, cash flows or financial position. Pollution and similar
environmental risks generally are not fully insurable.
CERTAIN FACTORS RELATING TO INTERNATIONAL OPERATIONS
The Company derives substantially all of its consolidated revenues from
international operations. Risks inherent in international operations include
loss of revenue, property and equipment from such hazards as expropriation,
nationalization, war, insurrection and other political risks; trade protection
measures; risks of increases in taxes and governmental royalties; and
renegotiation of contracts with governmental entities; as well as changes in
laws and policies governing operations of other companies. Other risks
inherent in international operations are the possibility of realizing economic
currency exchange losses when transactions are completed in currencies other
than United States dollars and the Company's ability to freely repatriate its
earnings under existing exchange control laws. To date, the Company's
international operations have not been materially affected by these risks.
COMPETITION
The Company encounters strong competition from major oil companies
(including government-owned companies), independent operators and other
companies for favorable oil and gas concessions, licenses, production sharing
contracts and leases, drilling rights and markets. Additionally, the
governments of certain countries in which the Company operates may from time
to time give preferential treatment to their nationals. The oil and gas
industry as a whole also competes with other industries in supplying the
energy and fuel requirements of industrial, commercial and individual
consumers.
<PAGE>
MARKETS
Crude oil, natural gas, condensate and other oil and gas products generally
are sold to other oil and gas companies, government agencies and other
industries. The availability of ready markets for oil and gas that might be
discovered by the Company and the prices obtained for such oil and gas depend
on many factors beyond the Company's control, including the extent of local
production and imports of oil and gas, the proximity and capacity of pipelines
and other transportation facilities, fluctuating demands for oil and gas, the
marketing of competitive fuels, and the effects of governmental regulation of
oil and gas production and sales. Pipeline facilities do not exist in certain
areas of exploration and, therefore, any actual sales of discovered oil or gas
might be delayed for extended periods until such facilities are constructed.
CERTAIN FACTORS RELATING TO COLOMBIA
The Company is a participant in significant oil and gas discoveries located in
the Llanos Basin in the foothills of the Andes Mountains, approximately 160
kilometers (100 miles) northeast of Bogata, Colombia. The Company owns
interests in three contiguous areas known as the Santiago de las Atalayas
("SDLA"), Tauramena and Rio Chitamena contract areas. Well results to date
indicate that significant oil and gas deposits lie across the Cusiana and
Cupiagua fields.
Largely due to complex geology, drilling of wells in the Cusiana and Cupiagua
fields has been comparatively difficult, lengthy in duration and expensive.
The Company believes that considerable progress has been achieved in reducing
the time and expenditures required to drill and complete wells in the Cusiana
and Cupiagua fields based on experience gained from initial wells drilled.
Although there can be no assurance, the Company believes that the experience
gained in the area to date will allow the operator to continue to reduce the
time and expenditures required to drill and complete wells in the area.
However, because the Company is not the operator of these contract areas, the
Company does not control the timing or manner of these operations.
Full development of reserves in the Cusiana and Cupiagua fields will take
several years and require additional drilling and extensive production
facilities, which in turn will require significant additional capital
expenditures, the ultimate amount of which cannot be predicted. Pipelines
connect the major producing fields in Colombia to export facilities and to
refineries. These pipelines are in the process of being upgraded and expanded
to accommodate production from the Cusiana and Cupiagua fields.
Guerrilla activity in Colombia has from time to time disrupted the operation
of oil and gas projects and increased costs. Although the Colombian
government, the Company and its partners have taken steps to improve security
and improve relations with the local population, there can be no assurance
that attempts to reduce or prevent guerrilla activity will be successful or
that such activity will not disrupt operations in the future.
Numerous Colombian government officials, including the President of Colombia,
are the subjects of investigations and allegations that claim they have
accepted illegal campaign contributions. These circumstances have led to
speculation as to whether these officials will remain in office. The
President of Colombia has stated that any such illicit contributions were made
without his knowledge. In response to the allegations, the leadership of the
opposition Conservative Party withdrew its support of the government, and
certain cabinet ministers and ambassadors and a high-ranking military officer
resigned. Any changes in the holders of significant government offices could
have adverse consequences on the Company's relationship with the Colombian
national oil company and the Colombian government's ability to control
guerrilla activities, and could exacerbate the factors relating to foreign
operations discussed above.
At the same time, Colombia is among 31 nations whose progress in stemming the
production and transit of illegal drugs is subject to annual certification by
the President of the United States. In March 1996, the President of the
United States announced that Colombia would neither be certified nor granted a
national interest waiver. The consequences of the failure to receive
certification generally include the following: all bilateral aid, except
anti-narcotics and humanitarian aid, will be suspended; the Export-Import Bank
of the United States ("EXIM") and the Overseas Private Investment Corporation
will not approve financing for new projects in Colombia, although currently
approved EXIM financings are not expected to be affected; U.S. representatives
at multilateral lending institutions will be required to vote against all loan
requests from Colombia, although such votes will not constitute vetoes; and
the President of the United States and Congress retain the right to apply
future trade sanctions.
CERTAIN FACTORS RELATING TO MALAYSIA-THAILAND
The Company is a partner in a significant gas exploration project located in
the upper Malay Basin in the Gulf of Thailand approximately 450 kilometers
northeast of Kuala Lumpur and 750 kilometers south of Bangkok. The Company is
a contractor under a production sharing contract covering Block A-18 of the
Malaysia-Thailand Joint Development Area. Test results for the initial
exploratory wells indicate that significant gas deposits lie under the block.
Development of gas production is in the early planning stages but is expected
to take several years and require the drilling of additional wells and the
installation of production facilities, which will require significant
additional capital expenditures, the ultimate amount of which cannot be
predicted. Pipelines also will be required to be connected between Block A-18
and ultimate markets. The terms on which any gas produced from the Company's
contract area in Malaysia-Thailand may be sold may be affected adversely by
the present monopoly gas purchase and transportation conditions in both
Thailand and Malaysia, including the Thai national oil company's monopoly in
transportation within Thailand and its territorial waters.
LITIGATION
The outcome of litigation and its impact on the Company are difficult to
predict due to many uncertainties, such as jury verdicts, the application of
laws to various factual situations, the actions that may or may not be taken
by other parties and the availability of insurance. In addition, in certain
situations, such as environmental claims, one defendant may be responsible, or
potentially responsible, for the liabilities of other parties. Moreover,
circumstances could arise under which the Company may elect to settle claims
at amounts that exceed the Company's expected liability for such claims in
order to avoid costly litigation. Judgments or settlements could, therefore,
exceed any reserves.
7. SUBSEQUENT EVENT
In April 1996, the Company received $7.6 million resulting from settlement of
litigation in which the Company was plaintiff.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
LIQUIDITY, CAPITAL REQUIREMENTS AND FUNDING ALTERNATIVES
Cash, cash equivalents and marketable securities totaled $75 million and
$95.5 million at March 31, 1996 and December 31, 1995, respectively. Working
capital was $70.8 million at March 31, 1996, a decrease of $14.8 million from
December 31, 1995.
The Company's capital expenditures and other capital investments were
$54.9 million for the three months ended March 31, 1996, primarily for
exploration and development of the Cusiana and Cupiagua fields (the "Fields")
in Colombia and Block A-18 in the Malaysia-Thailand Joint Development Area in
the Gulf of Thailand. The capital spending program for the three months ended
March 31, 1996 was funded with cash flow from operations ($17.2 million), net
proceeds from marketable securities ($18 million) and asset sales ($25.5
million). During the first quarter of 1996, the Company borrowed
approximately $45 million against a credit line supported by a guarantee of
the Export-Import Bank of the United States. The proceeds were used primarily
to reduce the Company's long-term revolving credit facility.
Continued development of the Fields, including drilling and construction
of additional production facilities, will require significant capital. In
1995 and early 1996, Carigali-Triton Operating Company ("CTOC") discovered gas
on its first three wells on Block A-18 in the Malaysia-Thailand Joint
Development Area in the Gulf of Thailand. Further exploration and development
activities on Block A-18, as well as exploratory drilling in other countries,
also will require substantial capital. The Company's capital budget for the
year ending December 31, 1996 is approximately $260 million, excluding
capitalized interest, of which approximately $157 million relates to the
Fields, $34 million relates to Block A-18, $40 million relates to the
Company's exploration and drilling program in other parts of the world and $29
million relates to capital contributions to Oleoducto Central S.A. ("OCENSA").
Capital requirements for full field development of the Fields are expected to
continue at substantial levels into 1997, and capital requirements for
exploration and development relating to Block A-18 are expected to increase
significantly into 1998.
In December 1994, the Company, along with other investors, formed an
independent company, OCENSA, to own, expand, finance and operate a pipeline
system from the Fields to the Caribbean port of Covenas. The Company's
ownership percentage is 9.6%. OCENSA's capitalization plan contemplates an
ultimate capital structure of approximately 30% equity from the Company and
other investors and 70% debt. OCENSA has raised significant amounts of debt
in separate tranches supported by various agreements with the Company or its
partners as the case may be (relating, in particular, to tariffs on each
partner's throughput). The Company assisted OCENSA in raising one such
tranche for $65 million in April 1996 and another tranche for $60 million in
1995, which are supported by the Company's tariff commitments for its share of
production from the Fields. The Company has no further obligation to assist
OCENSA in obtaining additional debt financing. Based on OCENSA's current
plan, the Company believes OCENSA should not need to incur additional
indebtedness to complete expansion of the pipeline system; however, no
assurance can be given that OCENSA will not need to borrow additional amounts.
The Company expects to meet capital needs in the future with a
combination of some or all of the following: the Company's revolving credit
facility, cash flow from its Colombian operations, cash on hand and marketable
securities, asset sales, and the issuance of debt and equity securities. As
a result of certain modifications to the indenture relating to the 1997 Notes
effected in November 1995, the Company's indebtedness limitation was increased
to permit the Company to incur total indebtedness (excluding certain permitted
indebtedness) of up to 25% of the sum of its indebtedness and market
capitalization of its capital stock.
RESULTS OF OPERATIONS
The Company reported net earnings of $11.4 million (before
preference dividends) in 1996, compared with a net loss of $1.6 million
in the 1995 period. The improved 1996 results reflected increased production
in Colombia, higher oil prices and a gain on the sale of the Company's
royalty interests in U.S. properties.
Sales volumes and average price realized were as follows:
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THREE MONTHS ENDED
MARCH 31,
---------------------------
1996 1995
------------------- ------
Sales volumes
Oil (MBbls) 1,541 1,209
Gas (MMcf) 527 234
Forward oil sale (MBbls delivered) 175 ---
Weighted average price realized:
Oil (per Bbl) $ 18.03 $15.79
Gas (per Mcf) 1.25 1.61
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Sales and Other Operating Revenues
Revenues in Colombia increased by $15.7 million in 1996 primarily due to
higher production ($11.3 million) and higher oil prices resulting from
batching of Cusiana crude that began in mid-1995 and more favorable market
conditions ($4.4 million). Sales volumes in Colombia, including barrels
delivered under the forward oil sale, increased from 910,000 barrels in 1995
to 1,638,000 barrels in 1996 even though the Company received 213,000 fewer
barrels in 1996 as reimbursement of pre-commerciality costs related to the
Cusiana Field. Sales from the Company's oil properties in France, which were
sold in August 1995, were $3.6 million.
Other operating revenues in 1996 included a gain of $4.1 million
resulting from the sale of the Company's royalty interests in U.S. properties
for $23.8 million based on an effective date of January 1, 1996.
Costs and Expenses
Operating expenses increased $1.5 million in 1996, while depreciation,
depletion and amortization increased $1.7 million. Higher production in
Colombia increased operating expenses by $4.2 million and depreciation,
depletion and amortization by $2 million. The Company's operating costs per
equivalent barrel were $5.55 and $8.48 in 1996 and 1995, respectively. The
1995 results included operating expenses and depletion for Triton France of
$2.4 million and $.6 million, respectively.
General and administrative expenses increased $1.9 million in 1996
primarily due to higher personnel costs. Capitalized general and
administrative costs were $5.6 million and $4.9 million in 1996 and 1995,
respectively.
Other Income and Expenses
Gross interest expense increased by $1.6 million in 1996 due to higher
debt outstanding. Capitalized interest increased from $3.8 million in 1995 to
$5.2 million in 1996 due to construction of support equipment and facilities
in the Fields and greater exploration activities.
Equity in earnings (loss) of affiliate decreased in 1996 primarily due to
a net gain to the Company of $3.8 million realized on the sale of Saracen
Minerals by Crusader Limited in 1995.
Other income in 1996 included a $2.1 million noncash benefit representing
the change in fair market value of call options purchased in anticipation of a
forward oil sale in May 1995, and foreign exchange gains of $1 million,
primarily on deferred tax liabilities in Colombia. Other income in 1995
included $1.9 million received from the settlement of a lawsuit.
Income Taxes
Statement of Financial Accounting Standards No. 109 ("SFAS 109"),
"Accounting for Income Taxes," requires that the Company make projections
about the timing and scope of certain future business transactions in order to
estimate recoverability of deferred tax assets primarily resulting from the
expected utilization of net operating loss carryforwards ("NOLs"). Changes in
the timing or nature of actual or anticipated business transactions,
projections and income tax laws can give rise to significant adjustments to
the Company's deferred tax expense or benefit that may be reported from time
to time. For these and other reasons, compliance with SFAS 109 may result in
significant differences between tax expense for income statement purposes and
taxes actually paid.
The income tax provision for 1996 decreased $2.1 million, compared with
1995, primarily due to an increased deferred tax benefit in the United States
of $3.3 million related to anticipated future utilization of net operating
loss carryforwards. Foreign tax expense in 1996 increased $.9 million from
1995, mainly due to the Company's Colombian operations.
Petroleum Price Risk Management
In the normal course of business, the Company enters into financial and
commodity market transactions for purposes other than trading to manage its
exposure to commodity price risk. As a result of such transactions to date,
the Company has set the price benchmark on approximately 33% of its projected
Colombian oil production for the last nine months of 1996 at a weighted
average West Texas Intermediate ("WTI") benchmark price of $17.69 per barrel.
In addition, the Company has purchased WTI benchmark call options on a total
of 200,000 barrels for various delivery dates in April and May 1996 in order
to retain the opportunity to participate in prices above $19.72 per barrel.
In anticipation of entering into a forward oil sale, the Company
purchased from a creditworthy counterparty call options to retain the ability
to benefit from future WTI price increases above $20.42 per barrel. The
volumes and expiration dates on the call options coincide with the volumes and
delivery dates of the forward oil sale, which has delivery terms of 58,425
barrels per month through March 1997 and 254,136 barrels per month from April
1997 to March 2000. During the three months ended March 31, 1996, the Company
recorded an unrealized gain of $2.1 million in other income related to the
change in the fair market value of the call options. Future fluctuations in
the fair market value of the call options will continue to affect other income
as noncash adjustments.
Certain Factors That Could Affect Future Operations
Certain statements in this report, including statements of the Company's
and management's expectations, intentions, plans and beliefs, are
forward-looking statements, as defined in Section 21D of the Securities
Exchange Act of 1934, that are dependent on certain events, risks and
uncertainties that may be outside the Company's control. These
forward-looking statements include statements of management's plans and
objectives for the Company's future operations and statements of future
economic performance; information regarding drilling schedules, expected or
planned production or transportation capacity, the future construction or
upgrades of pipelines (including costs), when the Cusiana and Cupiagua fields
might become self-financing, future production of the Cusiana and Cupiagua
fields, the negotiation of a gas contract and commencement of production in
Malaysia-Thailand, the Company's capital budget and future capital
requirements, the Company's meeting its future capital needs, the Company's
realization of its deferred tax asset, the level of future expenditures for
environmental costs and the outcome of regulatory and litigation matters; and
the assumptions described in this report underlying such forward-looking
statements. Actual results and developments could differ materially from
those expressed in or implied by such statements due to a number of factors,
including those described in the context of such forward-looking statements
and in the Notes to Condensed Consolidated Financial Statements.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company has been advised that the Department of Justice has concluded its
Foreign Corrupt Practices Act ("FCPA") inquiry into the Company's 1989-1990
operations in Indonesia without taking any action against the Company. The
Company continues to cooperate with a parallel inquiry by the Securities and
Exchange Commission (the "Commission"). The Commission's enforcement staff
has offered to recommend settlement of any charges the Commission might assert
against the Company on a "consent decree" basis in which the Company would pay
a civil monetary penalty of up to $350,000. The Company has not yet accepted
this proposed settlement because it does not believe any of the payments in
question violated the FCPA. Moreover, the Company believes, given its
management and compliance procedures now in place, that there should be no
implication that there is any reason to believe the Company would commit any
FCPA violations. The Company is continuing, however, to negotiate with the
Staff in hopes of resolving this matter amicably. In any event, the Company
does not believe that the outcome of the inquiry will have a material adverse
effect on its operations or consolidated financial condition.
ITEM 4. RESULTS OF VOTES OF SECURITY HOLDERS
On March 25, 1996, the stockholders of the Company's predecessor, Triton
Energy Corporation, a Delaware corporation ("TEC"), approved the merger of a
wholly owned subsidiary of the Company with and into TEC (the
"Reorganization"). Pursuant to the Reorganization, the Company became the
parent holding company of TEC and each share of Common Stock, par value $1.00,
and 5% Convertible Preferred Stock of TEC outstanding on March 25, 1996, was
converted into one Ordinary Share, par value $.01, and one 5% Convertible
Preference Share, respectively, of the Company. At the Meeting, 26,392,196
votes were cast for the Reorganization, 713,718 votes were cast against the
Reorganization and there were 180,072 abstentions and no broker non-votes.
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits: The following documents are filed as part of this Quarterly
Report on Form 10-Q:
1. Exhibits required to be filed by Item 601 of Regulation S-K. (Where
the amount of securities authorized to be issued under any of Triton Energy
Limited's and any of its subsidiaries' or its affiliate Crusader's long-term
debt agreements does not exceed 10% of the Company's assets, pursuant to
paragraph (b)(4) of Item 601 of Regulation S-K, in lieu of filing such as
exhibits, the Company hereby agrees to furnish to the Commission upon request
a copy of any agreement with respect to such long-term debt.)
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4.1 Specimen Share Certificate of Ordinary Shares, $0.01 par value, of the Company. (1)
4.2 Rights Agreement dated as of March 25, 1996, between Triton Energy Limited and
Chemical Bank, as Rights Agent, including, as Exhibit A thereto, Resolutions
establishing the Junior Preference Shares. (1)
4.3 Form of Debt Securities. (2)
4.4 Proposed Form of Senior Indenture. (2)
4.5 Proposed Form of Senior Subordinated Indenture. (2)
4.6 Resolutions authorizing the Company's 5 % Convertible Preference Shares. (3)
10.1 Amended and Restated Retirement Income Plan. (4)
10.2 Amended and Restated Supplemental Executive Retirement Income Plan. (5)
10.3 1981 Employee Non-Qualified Stock Option Plan. (6)
10.4 Amendment No. 1 to the 1981 Employee Non-Qualified Stock Option Plan. (7)
10.5 Amendment No. 2 to the 1981 Employee Non-Qualified Stock Option Plan. (6)
10.6 Amendment No. 3 to the 1981 Employee Non-Qualified Stock Option Plan. (4)
10.7 1985 Stock Option Plan. (8)
10.8 Amendment No. 1 to the 1985 Stock Option Plan. (6)
10.9 Amendment No. 2 to the 1985 Stock Option Plan. (4)
10.10 Amended and Restated 1986 Convertible Debenture Plan. (4)
10.11 1988 Stock Appreciation Rights Plan. (9)
10.12 1989 Stock Option Plan. (10)
10.13 Amendment No. 1 to the 1989 Stock Option Plan. (6)
10.14 Amendment No. 2 to the 1989 Stock Option Plan. (4)
10.15 Second Amended and Restated 1992 Stock Option Plan . (18)
10.16 Form of Amended and Restated Employment Agreement. (5)
10.17 Amended and Restated 1985 Restricted Stock Plan. (4)
10.18 First Amendment to 1985 Amended and Restated Restricted Stock Plan. (11)
10.19 Second Amendment to Amended and Restated 1985 Restricted Stock Plan. (18)
10.20 Executive Life Insurance Plan. (12)
10.21 Long Term Disability Income Plan. (12)
10.22 Amended and Restated Retirement Plan for Directors. (8)
10.23 Amended and Restated Indenture dated as of March 25, 1996 among Triton Energy
Limited, Triton Energy Corporation and Chemical Bank, with respect to the issuance
of Senior Subordinated Discount Notes due 1997. (18)
10.24 Amended and Restated Senior Subordinated Indenture by and among Triton Energy
Limited, Triton Energy Corporation and United States Trust Company of New York,
dated as of March 25, 1996. (18)
10.25 Contract for Exploration and Exploitation for Santiago de Atalayas I with an
effective date of July 1, 1982, between Triton Colombia, Inc., and Empresa
Colombiana De Petroleos. (8)
10.26 Contract for Exploration and Exploitation for Tauramena with an effective date of July
4, 1988, between Triton Colombia, Inc. and Empresa Colombiana De Petroleos. (9)
10.27 Summary of Assignment legalized by Public Instrument No. 1255 dated September 15,
1987 (Assignment is in Spanish language). (9)
10.28 Summary of Assignment legalized by Public Instrument No. 1602 dated June 11,
1990 (Assignment is in Spanish language). (9)
10.29 Summary of Assignment legalized by Public Instrument No. 2586 dated September 9,
1992 (Assignment is in Spanish language). (9)
10.30 401(K) Savings Plan. (4)
10.31 Contract between Malaysia-Thailand and Joint Authority and Petronas Carigali
SDN.BHD. and Triton Oil Company of Thailand relating to Exploration and Produc-
tion of Petroleum for Malaysia-Thailand Joint Development Area Block A-18. (13)
10.32 Credit Agreement between Triton Energy Corporation and Banque Paribas Houston
Agency dated as of March 28, 1995, together with related form of revolving credit
note. (14)
10.33 First Amendment to Credit Agreement between Triton Energy Corporation and Banque
Paribas Houston Agency dated May 16, 1995. (15)
10.34 Security Agreement between Triton Energy Corporation and Banque Paribas Houston
Agency. (14)
10.35 Second Amendment to Credit Agreement and First Amendment to Security Agreement
between Triton Energy Corporation and Banque Paribas Houston Agency dated August
11, 1995. (5)
10.36 Third Amendment to Credit Agreement between Triton Energy Corporation and Banque
Paribas Houston Agency dated September 29, 1995. (5)
10.37 Consent, Waiver and Guaranty among Triton Energy Limited, Triton Energy
Corporation and Bank Paribas Houston Agency dated as of March 25, 1996. (18)
10.38 Triton Crude Purchase Agreement between Triton Colombia, Inc. and Oil Co., LTD.
dated May 25, 1995. (16)
10.39 Credit Agreement among Triton Colombia, Inc., Triton Energy Corporation,
NationsBank, N.A. (Carolinas) and Export-Import Bank of the United States. (11)
10.40 Amendment No. 1 to Credit Agreement among Triton Colombia, Inc., Triton Energy
Corporation, NationsBank, N.A. (Carolinas) and Export-Import Bank of the United
States. (11)
10.41 Amendment No. 2 to Credit Agreement among Triton Colombia, Inc., Triton Energy
Corporation, NationsBank, N.A. (Carolinas) and Export-Import Bank of the United
States. (18)
10.42 Agreement and Plan of Merger among Triton Energy Corporation, Triton Energy
Limited and TEL Merger Corp. (11)
11.1 Computation of Earnings per Share. (18)
12.1 Computation of Ratio of Earnings to Fixed Charges. (18)
12.2 Computation of Ratio of Earnings to Combined Fixed Charges and Preference
Dividends. (18)
27.1 Financial Data Schedule. (18)
99.1 Rio Chitamena Association Contract. (17)
99.2 Rio Chitamena Purchase and Sale Agreement. (17)
99.3 Integral Plan - Cusiana Oil Structure. (17)
99.4 Letter Agreements with co-investor in Colombia. (17)
99.5 Colombia Pipeline Memorandum of Understanding. (17)
99.6 Amended and Restated Oleoducto Central S.A. Agreement dated as of March 31,
1995. (15)
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(1) Previously filed as an exhibit to Triton Energy Corporation's Registration
Statement on Form 8-A dated March 25, 1996 and incorporated herein by reference.
(2) Previously filed as an exhibit to Triton Energy Corporation's Registration Statement
on Form S-3 (No. 33-69230) and incorporated herein by reference.
(3) Previously filed as an exhibit to the Company's and Triton Energy Corporation's
Registration Statement on Form S-4 (No. 333-923) and incorporated herein by
Reference.
(4) Previously filed as an exhibit to Triton Energy Corporation's Quarterly Report on
Form 10-Q for the quarter ended November 30, 1993 and incorporated by
reference herein.
(5) Previously filed as an exhibit to Triton Energy Corporation's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1995 and incorporated herein
by reference.
(6) Previously filed as an exhibit to Triton Energy Corporation's Annual Report
on Form 10-K for the fiscal year ended May 31, 1992 and incorporated herein
by reference.
(7) Previously filed as an exhibit to Triton Energy Corporation's Annual Report
on Form 10-K for the fiscal year ended May 31, 1989 and incorporated herein
by reference.
(8) Previously filed as an exhibit to Triton Energy Corporation's Annual Report
on Form 10-K for the fiscal year ended May 31, 1990 and incorporated herein
by reference.
(9) Previously filed as an exhibit to Triton Energy Corporation's Annual Report
on Form 10-K for the fiscal year ended May 31, 1993 and incorporated by
reference herein.
(10) Previously filed as an exhibit to Triton Energy Corporation's Quarterly Report
on Form 10-Q for the quarter ended November 30, 1988 and incorporated by
reference herein.
(11) Previously filed as an exhibit to Triton Energy Corporation's Annual Report
on Form 10-K for the year ended December 31, 1995 and incorporated herein
by reference.
(12) Previously filed as an exhibit to Triton Energy Corporation's Annual Report on
Form 10-K for the fiscal year ended May 31, 1991 and incorporated herein
by reference.
(13) Previously filed as an exhibit to Triton Energy Corporation's current report on
Form 8-K dated April 21, 1994 and incorporated by reference herein.
(14) Previously filed as an exhibit to Triton Energy Corporation's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1995 and incorporated herein
by reference.
(15) Previously filed as an exhibit to Triton Energy Corporation's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1995 and incorporated herein
by reference.
(16) Form 8-K dated May 26, 1995 and incorporated herein by reference.
(17) Previously filed as an exhibit to Triton Energy Corporation's current report
on Form 8-K/A dated July 15, 1994 and incorporated herein by reference.
(18) Filed herewith.
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<PAGE>
(b) Reports on Form 8-K
On February 9, 1996, Triton Energy Corporation filed a Current Report on
Form 8-K relating to the public release of Triton Energy Corporation's
results of operations for the year ended December 31, 1995.
SIGNATURES
PART II. OTHER INFORMATION
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TRITON ENERGY LIMITED
By: /s/ Peter Rugg
Peter Rugg
Senior Vice President and Chief Financial Officer
Date: May 13, 1996
Exhibit 10.15
TRITON ENERGY LIMITED
SECOND AMENDED AND RESTATED
1992 STOCK OPTION PLAN
This Plan amends and restates the 1992 Stock Option Plan, initially
adopted by Triton Energy Corporation in November 1992, as amended and restated
by Triton Energy Corporation in November 1993, and as assumed by the Company
in connection with the merger of a subsidiary of the Company with and into
Triton Energy Corporation in March 1996. Capitalized terms used herein are
defined in Article I.
To the extent permitted under Rule 16b-3 and any applicable law or
regulation, the amendments effected hereby shall apply to all outstanding
Stock Options previously granted under the Plan; provided that, to the extent
that any such amendment to any previously granted Stock Option would have an
Adverse Consequence for a Participant, such amendment shall not so apply
unless specifically consented to by the Participant.
The Plan, as amended and restated, shall be effective as of April 9,,
1996, subject to shareholder approval of the amendments effected hereby,
except as provided herein and except for Discretionary Amendments which do not
require shareholder approval.
PURPOSE
The purpose of the Plan is to help the Company and its Subsidiaries
attract and retain Employees, Directors and Advisors and to provide such
persons with a proprietary interest in the Company through the granting of
Incentive Stock Options and Nonqualified Stock Options which will:
(a) increase the interest of the Employees, Directors and
Advisors in the Company's welfare;
(b) furnish an incentive to the Employees, Directors and
Advisors to continue their services for the Company or its Subsidiaries; and
(c) provide a means through which the Company or its
Subsidiaries may attract able persons to enter its employ or serve as
Directors or Advisors.
With respect to Reporting Participants, the Plan and transactions under
the Plan (except as otherwise contemplated hereby) are intended to comply with
all applicable conditions of Rule 16b-3. To the extent that any provision of
the Plan or action by the Committee fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by the
Committee.
ARTICLE I
Definitions
For the purpose of this Plan, unless the context requires otherwise, the
following terms shall have the meanings indicated:
1.1 "Adverse Consequence" means (i) the loss of qualification of a
Stock Option held by a Reporting Participant for special treatment under Rule
16b-3 or the commencement of a new holding period under such rule or (ii) the
disqualification of an Incentive Stock Option for treatment as such under the
Code.
1.2 "Advisor" means any person performing services for the Company or
any Subsidiary of the Company, with or without compensation, to whom the
Company chooses to grant Stock Options in accordance with the Plan, provided
that bona fide services must be rendered by such person and such services
shall not be rendered in connection with the offer or sale of securities in a
capital-raising transaction.
1.3 "Board" means the Board of Directors of the Company as
constituted from time to time.
1.4 "Cause" means an act or acts involving a felony, fraud, willful
misconduct, the commission of any act that causes or reasonably may be
expected to cause substantial injury to the Company, or other good cause. The
term "other good cause" shall include, but shall not be limited to, habitual
impertinence, a pattern of conduct that tends to hold the Company up to
ridicule in the community, conduct disloyal to the Company, conviction of any
crime of moral turpitude, and substantial dependence, as judged by the
Committee, on alcohol or any controlled substance. To the extent that a
Participant is a party to a written employment agreement with the Company or
any Subsidiary that contains a provision setting forth consequences for
termination for cause and a definition of cause, such definition shall
control with respect to Stock Options.
1.5 "Change in Control" means the occurrence of any of the following
events: (i) there shall be consummated (x) any consolidation or merger of the
Company in which the Company is not the continuing or surviving corporation or
pursuant to which the Company's Ordinary Shares would be converted into cash,
securities or other property, other than a merger of the Company in which the
holders of the Company's Ordinary Shares immediately prior to the merger would
represent at least a majority of the common stock or ordinary shares of the
surviving corporation immediately after the merger, or (y) any sale, lease,
exchange or other transfer (excluding transfer by way of pledge or
hypothecation), in one transaction or a series of related transactions, of
all, or substantially all, of the assets of the Company, (ii) the shareholders
of the Company approve any plan or proposal for the liquidation or dissolution
of the Company, (iii) any "person" (as such term is defined in Section 3(a)(9)
or Section 13(d)(3) under the 1934 Act) or any "group" (as such term is used
in Rule 13d-5 promulgated under the 1934 Act), other than the Company or any
successor of the Company or any Subsidiary or any employee benefit plan of the
Company or any Subsidiary (including such plan's trustee), becomes, without
the prior approval of the Board, a beneficial owner for purposes of Rule 13d-3
promulgated under the 1934 Act, directly or indirectly, of securities of the
Company representing 25.0% or more of the Company's then outstanding
securities having the right to vote in the election of Directors of the
Company, or (iv) during any period of two consecutive years, individuals who,
at the beginning of such period constituted the entire Board, cease for any
reason (other than death) to constitute a majority of the Directors of the
Company, unless the election, or the nomination for election, by the Company's
shareholders, of each new Director of the Company was approved by a vote of at
least two-thirds of the Directors of the Company then still in office who were
Directors of the Company at the beginning of the period.
1.6 "Code" means the Internal Revenue Code of 1986, as amended.
1.7 "Committee" means the committees appointed or designated by the
Board in accordance with Section 2.1 of the Plan.
1.8 "Company" means Triton Energy Limited, a Cayman Islands company.
1.9 "controlled substance" means a drug, immediate precursor, or
other substance listed in Schedules I-V of the Federal Comprehensive Drug
Abuse Prevention and Control Act of 1970, as amended.
1.10 "Date of Grant" means the effective date on which a Stock Option
is awarded to an Employee, Director or Advisor as set forth in the Stock
Option Agreement.
1.11 "Director" means a member of the Board.
1.12 "Disability" of a Participant shall be deemed to occur whenever
a Participant is rendered unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to
last for a continuing period of not less than 12 months.
1.13 "Discretionary Amendment" means any amendment to the Plan that
does not require shareholder approval.
1.14 "Employee" means an employee of the Company or of any Subsidiary.
1.15 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
1.16 "Fair Market Value" of an Ordinary Share means (i) the closing
price per share on the principal stock exchange on which the Ordinary Shares
are traded, or (ii) the mean between the closing or average (as the case may
be) bid and asked prices per Ordinary Share on the over-the-counter market,
whichever is applicable.
1.17 "Incentive Stock Option" means an option to purchase Ordinary
Shares granted to a Participant and which is intended to be treated as an
"incentive stock option" under Section 422 of the Code.
1.18 "1934 Act" means the Securities Exchange Act of 1934, as
amended.
1.19 "Non-discretionary Stock Option" means a Nonqualified Stock
Option granted to a Non-Employee Director under Article IV.
1.20 "Non-Employee Director" means a Director of the Company who is
not an Officer or Employee.
1.21 "Nonqualified Stock Option" means any Stock Option that does not
qualify as an Incentive Stock Option.
1.22 "Officer" means an officer of the Company or any Subsidiary.
1.23 "Ordinary Shares" means the Ordinary Shares, par value $.01 per
share, of the Company or in the event that the outstanding Ordinary Shares are
hereafter changed into or exchanged for shares or other securities of the
Company or another issuer, such other shares or securities.
1.24 "Participant" means any Employee, Director or Advisor who is, or
who is proposed to be, a recipient of a Stock Option.
1.25 "Plan" means this Triton Energy Limited Second Amended and
Restated 1992 Stock Option Plan, as amended from time to time.
1.26 "Reporting Participant" means a Participant whose transactions
in the equity securities of the Company give rise to potential liability under
Section 16(b) of the 1934 Act.
1.27 "Retirement" of a Participant shall be deemed to be retirement
after reaching (i) age 65 or (ii) age 55 and having completed at least 10
years of service with the Company.
1.28 "Rule 16b-3" means Rule 16b-3 promulgated under the 1934 Act, as
amended from time to time, or any successor provision.
1.29 "Section 162(m)" means Section 162(m) of the Code and the
regulations promulgated thereunder from time to time.
1.30 "Section 162(m) Exception" means the exception under Section
162(m) for "qualified performance-based compensation."
1.31 "Stock Options" means any and all Incentive Stock Options and
Nonqualified Stock Options granted pursuant to the Plan.
1.32 "Stock Option Agreement" means an agreement between the Company
and a Participant with respect to one or more of the Stock Options.
1.33 "Subsidiary" means any corporation in an unbroken chain of
corporations beginning with the Company if, at the time of granting of the
Stock Option, each of the corporations other than the last corporation in the
unbroken chain owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in the chain,
and "Subsidiaries" means more than one of any such corporations.
ARTICLE II
Administration; Eligibility
2.1 Administration. The Plan shall be administered by a committee
appointed by the Board, consisting of at least two Directors; provided that,
(i) with respect to any Stock Option that is granted to a Reporting
Participant, such committee shall consist of at least such number of Directors
as are required from time to time by Rule 16b-3, and each such committee
member shall qualify as a "disinterested person" under Rule 16b-3; and (ii)
with respect to any Stock Option that is also intended to satisfy the
requirements of the Section 162(m) Exception, such committee shall consist of
at least such number of Directors as are required from time to time to satisfy
the Section 162(m) Exception, and each such committee member shall qualify as
an "outside director" within the meaning of Section 162(m). Any member of the
committee may be removed at any time, with or without cause, by resolution of
the Board. Any vacancy occurring in the membership of the committee may be
filled by appointment by the Board.
The Committee shall select one of its members to act as its Chairman, and
shall make such rules and regulations for its operation as it deems
appropriate. A majority of the Committee shall constitute a quorum and the
act of a majority of the members of the Committee present at a meeting at
which a quorum is present shall be the act of the Committee. Subject to the
terms hereof, the Committee shall have complete discretion and authority to
(i) designate from time to time the persons to whom Stock Options will be
granted, (ii) interpret the Plan, (iii) prescribe, amend, and rescind any
rules and regulations necessary or appropriate for the administration of the
Plan, to determine the terms, details and provisions of each Stock Option
Agreement, (iv) modify or amend any Stock Option Agreement or waive any
conditions or restrictions applicable to any Stock Option or the exercise
thereof, and (v) make such other determinations and, subject to the terms of
the Plan, take such other action as it deems necessary or advisable; provided
that, without the approval of shareholders (by vote or consent of shareholders
representing a majority of the shares present at a meeting and entitled to
vote), the Committee shall not amend or modify any outstanding Stock Option to
decrease the exercise price thereof. In this regard, the Committee shall
consider and give appropriate weight to input from representatives of
management of the Company regarding the contributions or potential
contributions to the Company of certain of the Participants or potential
Participants. Except as provided below, any interpretation, determination, or
other action made or taken by the Committee shall be final, binding, and
conclusive on all interested parties, including the Company and all
Participants.
With respect to restrictions ("mandated restrictions") in the Plan that
are based on the requirements of Rule 16b-3, Section 422 of the Code, the
Section 162(m) Exception, the rules of any exchange upon which the Company's
securities are listed, or any other applicable law, rule or restriction, to
the extent that any such mandated restrictions are no longer applicable, the
Committee shall have the discretion and authority to grant Stock Options that
are not subject to such mandated restrictions and/or to waive any such
mandated restrictions with respect to outstanding Stock Options.
2.2 Eligibility. Any Employee (including an Employee who is also a
Director or an Officer), Director (subject to the limits provided herein) and
Advisor whose judgment, initiative, and efforts contributed or may be expected
to contribute to the successful performance of the Company is eligible to
participate in the Plan; provided that only Employees shall be eligible to
receive Incentive Stock Options. The Committee's determinations under the
Plan (including without limitation determinations of which persons, if any,
are to receive Stock Options, the form, amount and timing of such Stock
Options, the terms and provisions of such Stock Options and the agreements
evidencing same) need not be uniform and may be made by it selectively among
Employees, Directors and/or Advisors who receive, or are eligible to receive,
Stock Options under the Plan.
ARTICLE III
Shares Subject to Plan
The Committee may not grant Stock Options under the Plan for more than
4,700,000 shares of Common Stock of the Company (as may be adjusted in
accordance with Article XI or XII hereof), and no Participant shall be
eligible to receive more than 50% of such shares. Shares to be distributed
and sold may be made available from either authorized but unissued Ordinary
Shares or Ordinary Shares held by the Company in its treasury. Shares that by
reason of the expiration or unexercised termination of a Stock Option are no
longer subject to purchase may be reofferred under the Plan.
ARTICLE IV
Non-Employee Directors' Automatic Stock Options
4.1 Eligibility. Only Non-Employee Directors of the Company shall
be eligible to receive grants of the Stock Options provided under this Article
IV.
4.2 Grant of Stock Options. Throughout the term of this Plan, on
May 15 of each year, and, effective March 1, 1995, if a person is first
appointed or elected as a Non-Employee Director other than at an annual
meeting of shareholders of the Company then on the date of such appointment or
election, the Committee shall grant to each Non-Employee Director of the
Company a Nonqualified Stock Option to purchase 15,000 Ordinary Shares. The
grant of Stock Options under this Article IV shall be evidenced by Stock
Option Agreements setting forth the total number of shares subject to the
Stock Option, the option exercise price, the term of the Stock Option and such
other terms and provisions as are consistent with the Plan.
4.3 Option Exercise Price. The exercise price for a Stock Option
granted under this Article IV shall be equal to 100% of the Fair Market Value
of an Ordinary Share on the Date of Grant. Notwithstanding anything to the
contrary in this Section 4.3, the exercise price of each Stock Option granted
pursuant to this Article IV shall not be less than the par value of an
Ordinary Share.
4.4 Option Period. The option period for each Stock Option granted
under this Article IV will terminate ten years from the Date of Grant. No
Stock Option granted under this Article IV may be exercised at any time after
its term.
4.5 Payment. Full payment for shares purchased upon exercise of a
Stock Option granted under this Article IV shall be made either in (i) cash,
(ii) by certified or cashier's check, (iii) if permitted by the Committee, by
Ordinary Shares, (iv) if permitted by the Committee, and if permitted under
applicable law, by cash or certified or cashier's check for the par value of
the shares plus a promissory note for the balance of the purchase price, which
note shall provide for full personal liability of the maker and shall contain
such other terms and provisions as the Committee may determine, including
without limitation the right to repay the note partially or wholly with
Ordinary Shares, or (v) by delivery of a copy of irrevocable instructions from
the Participant to a broker or dealer, reasonably acceptable to the Company,
to sell certain of the shares purchased upon exercise of the Stock Option or
to pledge them as collateral for a loan and promptly deliver to the Company
the amount of sale or loan proceeds necessary to pay such purchase price. If
any portion of the purchase price or a note given at the time of exercise is
paid in Ordinary Shares, those shares shall be valued at the then Fair Market
Value.
4.6 Exercise of Stock Option. Except only as specifically provided
elsewhere in this Plan, each Stock Option granted under this Article IV shall
be exercisable in the following cumulative installments:
First installment. Up to 33-1/3% of the total optioned shares at any
time after one (1) year following the Date of Grant.
Second installment. Up to an additional 33-1/3% of the total optioned
shares at any time after two (2) years following the Date of Grant.
Third installment. Up to an additional 33-1/3% of the total optioned
shares at any time after three (3) years following the Date of Grant.
If an installment covers a fractional share, such installment will be
rounded off to the next highest share, except for the final installment, which
will be for the balance of the total optioned shares. No Stock Option granted
under the Plan may be exercised at any time after ten years from the Date of
Grant.
Stock Options may not be exercised, nor may shares be issued under a
Stock Option (i) until the Plan has been approved by the shareholders of the
Company, if necessary to comply with Rule 16b-3 promulgated under the 1934 Act
or with the applicable rules or regulations of any stock exchange or
inter-dealer quotation system on which the Common Stock is listed or quoted or
(ii) if any necessary listing of the shares on a stock exchange or any
registration under state or federal securities laws required under the
circumstances has not been accomplished.
ARTICLE V
Employees' and Advisors' Stock Options
5.1 Eligibility. The Committee shall, from time to time, select
the particular Employees (including any Employee who is also a Director or
Officer) and Advisors to whom the Stock Options provided under this Article V
are to be granted.
5.2 Grant of Stock Options. All grants of Stock Options under this
Article V shall be awarded by the Committee at such times and for such amounts
as the Committee may determine. In the discretion of the Committee, any grant
to an Employee may be in the form of an Incentive Stock Option. The grant of
Stock Options shall be evidenced by Stock Option Agreements setting forth the
total number of shares subject to each Stock Option, the option exercise
price, the term of the Stock Option, and such other terms and provisions as
are consistent with the Plan.
5.3 Option Exercise Price. The exercise price for a Stock Option
granted under this Article V shall be determined by the Committee and shall be
an amount not less than 100% of the Fair Market Value per Ordinary Share on
the Date of Grant. Notwithstanding anything to the contrary in this Section
5.3, the exercise price of each Stock Option granted under the Plan shall not
be less than the par value per share of an Ordinary Share.
5.4 Option Period. The option period for each Stock Option granted
under this Article V will begin and terminate on the respective dates
specified by the Committee but may not terminate later than ten years from the
Date of Grant. No Stock Option granted under the Plan may be exercised at any
time after its term. The Committee may provide that Stock Options granted
under this Article V may be exercised in installments and upon such terms,
conditions and restrictions as it may determine.
5.5 Payment. Full payment for shares purchased upon exercise of a
Stock Option shall be made in (i) cash, (ii) by certified or cashier's check,
(iii) if permitted by the Committee, by Ordinary Shares, (iv) if permitted by
the Committee, and if permitted under applicable law, by cash or certified or
cashier's check for the par value of the shares plus a promissory note for the
balance of the purchase price, which note shall provide for full personal
liability of the maker and shall contain such other terms and provisions as
the Committee may determine, including without limitation the right to repay
the note partially or wholly with Ordinary Shares, or (v) by delivery of a
copy of irrevocable instructions from the Participant to a broker or dealer,
reasonably acceptable to the Company, to sell certain of the shares purchased
upon exercise of the Stock Option or to pledge them as collateral for a loan
and promptly deliver to the Company the amount of sale or loan proceeds
necessary to pay such purchase price. If any portion of the purchase price or
a note given at the time of exercise is paid in Ordinary Shares, those shares
shall be valued at the then Fair Market Value.
5.6 Exercise of Stock Option. Stock Options granted under the Plan
may be exercised during the option period, at such times and in such amounts,
in accordance with the terms and conditions and subject to such restrictions
as are set forth herein and in the applicable Stock Option Agreements. Except
as otherwise contained herein, Stock Options may not be exercised, nor may
shares be issued under a Stock Option (i) until the Plan has been approved by
the shareholders of the Company, if necessary to comply with Rule 16b-3 or
with the applicable rules or regulations of any stock exchange or inter-dealer
quotation system on which the Ordinary Shares are listed or quoted or (ii) if
any necessary listing of the shares on a stock exchange or any registration
under state or federal securities laws required under the circumstances has
not been accomplished.
Subject to the provisions of Section 2.1, the foregoing paragraph and
unless the Committee determines otherwise, the Stock Options granted hereunder
shall be exercisable in the following cumulative installments:
First installment. Up to 25% of the total optioned shares at any time
after one (1) year following the Date of Grant.
Second installment. Up to an additional 25% of the total optioned
shares at any time after two (2) years following the Date of Grant.
Third installment. Up to an additional 25% of the total optioned
shares at any time after three (3) years following the Date of Grant.
Fourth installment. Up to an additional 25% of the total optioned
shares at any time after four (4) years following the Date of Grant.
Notwithstanding the foregoing, the Committee shall have the right to
accelerate the time at which any Stock Option granted under this Article V
shall become exercisable. If an installment covers a fractional share, such
installment will be rounded off to the next highest share, except the final
installment, which will be for the balance of the total optioned shares. No
Stock Option granted under the Plan may be exercised at any time after ten
years from the Date of Grant.
Subject to such administrative regulations as the Committee may from time
to time adopt, a Stock Option will be deemed exercised for purposes of the
Plan when (i) written notice of exercise has been received by the Company
(which notice shall set forth the number of Ordinary Shares with respect to
which the Stock Option is to be exercised and the date of exercise thereof)
and (ii) payment of the Option Exercise Price is received by the Company in
accordance with Section 5.5 above; provided that, with respect to a cashless
exercise of any Stock Option (in accordance with clause (v) of Section 5.5
above), such Stock Option will be deemed exercised for purposes of the Plan on
the date of sale of the Ordinary Shares received upon exercise.
ARTICLE VI
Limitations on Incentive Stock Options
Notwithstanding the terms of Article V hereof, the following provisions
of this Article VI shall apply to all Incentive Stock Options granted under
the Plan.
6.1 Stock Ownership Limitation. In the case of an Incentive Stock
Option, the Stock Option Agreement shall include provisions that may be
necessary to assure that the option is an incentive stock option under the
Code. No Incentive Stock Option may be granted to an Employee who owns more
than 10% of the total combined voting power of all classes of shares of the
Company or its Subsidiaries. This limitation will not apply if the option
price is at least 110% of the fair market value of the Ordinary Shares on the
Date of Grant and the option is not exercisable more than five years from the
Date of Grant.
6.2 Option Period. Notwithstanding the provisions of Sections 4.4
and 5.4 hereof, if an Employee owns or is deemed to own (by reason of the
attribution rules of Section 424(d) of the Code) more than 10% of the combined
voting power of all classes of shares of the Company (or any Subsidiary) and
an Incentive Stock Option is granted to such Employee, the term of such
Incentive Stock Option (to the extent required by the Code at the time of
grant) shall be no more than five years from the Date of Grant.
6.3 Limitation on Exercise of Incentive Stock Options. To the
extent required by the Code for incentive stock options, the exercise of
Incentive Stock Options granted under the Plan shall be subject to the
$100,000 calendar year limit as set forth in Section 422(d) of the Code.
6.4 Limitation on Incentive Stock Option Characterization. To the
extent that any Stock Option fails to qualify as an Incentive Stock Option,
such Stock Option will be considered a Nonqualified Stock Option.
ARTICLE VII
Termination of Employment or Service
In the event a Participant who is an Employee of the Company or any
Subsidiary shall cease to be employed by the Company or a Subsidiary, or a
Participant who is a Director or Advisor, shall cease to serve as a Director
or Advisor, for any reason other than death, retirement, Disability or for
cause, (i) the Committee shall have the ability to accelerate the vesting of
the Participant's Stock Option (other than a Non-discretionary Stock Option)
in its sole discretion, and (ii) such Participant's Stock Option shall be
exercisable (to the extent exercisable on the date of termination of
employment or service as a Director or Advisor, or, if the Committee, in its
discretion, has accelerated the vesting of such Stock Option, to the extent
exercisable following such acceleration) (a) if such Stock Option is an
Incentive Stock Option, at any time within three months after the date of
termination of employment, unless by its terms the Stock Option expires
earlier; or (b) if such Stock Option is a Nonqualified Stock Option, at any
time within one year after the date of termination of employment or service as
a Director or Advisor, unless by its terms the Stock Option expires earlier or
unless the Committee agrees, in its sole discretion (except with respect to
Non-discretionary Stock Options), to further extend the term of such
Nonqualified Stock Option; provided that the term of any such Nonqualified
Stock Option shall not be extended beyond its initial term. In addition, a
Participant's Stock Option may be exercised as follows in the event such
Participant ceases to serve as an Employee, Director or Advisor due to death,
disability, retirement or for cause:
(a) Death. Except as otherwise limited by the Committee at the
time of the grant of a Stock Option, if a Participant dies while employed by
the Company or a Subsidiary, or while serving as a Director or Advisor, or
within three months after ceasing to be an Employee, Director or Advisor, his
Stock Option shall become fully exercisable on the date of his death and
shall expire 12 months thereafter, unless by its terms it expires sooner or
the Committee agrees, in its sole discretion, to further extend the term of
such Stock Option (other than an Incentive Stock Option); provided that the
term of any such Stock Option shall not be extended beyond its initial term.
During such period, the Stock Option may be fully exercised, to the extent
that it remains unexercised on the date of death, by the Participant's
personal representative or by the distributees to whom the Participant's
rights under the Stock Option shall pass by will or by the laws of descent
and distribution.
(b) Retirement. If a Participant ceases to be employed by the
Company or a Subsidiary, or ceases to serve as a Director or Advisor, as a
result of retirement, (i) the Committee shall have the ability to accelerate
the vesting of the Participant's Stock Option (other than a Non-discretionary
Stock Option, which shall automatically be accelerated) in its sole
discretion, and (ii) the Participant's Stock Option shall be exercisable (to
the extent exercisable on the effective date of such retirement or, if the
vesting of such Stock Option has been accelerated, to the extent exercisable
following such acceleration) (a) if such Stock Option is an Incentive Stock
Option, at any time three months after the effective date of such retirement,
unless by its terms the Stock Option expires earlier, and (b) if such Stock
Option is a Nonqualified Stock Option, at any time within one year after the
effective date of such retirement, unless by its terms the Stock Option
expires sooner or the Committee agrees, in its sole discretion (except with
respect to Non-discretionary Stock Options), to further extend the term of
such Nonqualified Stock Option; provided that the term of any such
Nonqualified Stock Option shall not be extended beyond its initial term.
(c) Disability. If a Participant ceases to be employed by the
Company or a Subsidiary, or ceases to serve as a Director or Advisor, as a
result of Disability, the Participant's Stock Option shall become fully
exercisable and shall expire 12 months thereafter, unless by its terms it
expires sooner or, unless the Committee agrees, in its sole discretion, to
extend the term of such Stock Option (other than an Incentive Stock Option or
Non-discretionary Stock Option); provided that the term of any Stock Option
shall not be extended beyond its initial term.
(d) Cause. If a Participant ceases to be employed by the Company
or a Subsidiary, or ceases to serve as a Director or Advisor, because the
Participant is terminated for Cause, the Participant's Stock Option shall
automatically expire unless the Committee otherwise agrees in its sole
discretion.
ARTICLE VIII
Amendment or Discontinuance
The Plan may be amended or discontinued by the Board, or, if the Board
has specifically delegated this authority to the Committee, by the Committee,
without the approval of the shareholders or Participants; provided that no
amendment shall be made without approval of the shareholders of the Company if
such approval is required under the Code, Rule 16b-3, the requirements of any
exchange upon which the Company's securities are listed, or any other
applicable law or regulation. In addition, no termination or amendment of the
Plan may, without the consent of the Participant to whom any Stock Option has
theretofore been granted, adversely affect the rights of such Participant with
respect to such Stock Option. The Board may not amend the provisions of
Article IV more than once during any six month period unless to comply with
changes in the Code or ERISA, or any rules or regulations promulgated
thereunder. In addition, notwithstanding the foregoing, neither the Board nor
the Committee may substitute new Stock Options for previously granted Stock
Options where such new Stock Options would have a lower exercise price than
such previously granted Stock Options unless the shareholders of the Company
approve such substitution.
ARTICLE IX
Effect of the Plan
Neither the adoption of this Plan nor any action of the Board or the
Committee shall be deemed to give any Officer or Employee any right to be
granted a Stock Option to purchase or receive Ordinary Shares of the Company
or any other rights except as may be evidenced by a Stock Option Agreement, or
any amendment thereto, duly authorized by the Committee and executed on behalf
of the Company and then only to the extent and upon the terms and conditions
expressly set forth therein.
ARTICLE X
Term
The Plan shall be submitted to the Company's shareholders for their
approval; however, Stock Options may be granted under the Plan prior to the
time of shareholder approval. Unless sooner terminated by action of the
Board, the Plan will terminate on the 15th day of September, 2003. Stock
Options under the Plan may not be granted after that date, but Stock Options
granted before that date will continue to be effective in accordance with
their terms and conditions.
ARTICLE XI
Capital Adjustments
If at any time while the Plan is in effect or unexercised Stock Options
are outstanding there shall be any increase or decrease in the number of
issued and outstanding Ordinary Shares through the declaration of a share
dividend or through any recapitalization resulting in a stock split,
combination, or exchange of Ordinary Shares, then and in such event:
(i) An appropriate adjustment shall be made in the maximum
number of Ordinary Shares then subject to being awarded under grants pursuant
to the Plan, to the end that the same proportion of the Company's issued and
outstanding Ordinary Shares shall continue to be subject to being so awarded;
(ii) An appropriate adjustment shall be made in the number of
Ordinary Shares subject to being awarded to each Non-Employee Director of the
Company under Article IV, to the end that the same proportion of the
Company's issued and outstanding Ordinary Shares shall continue to be subject
to being so awarded; and
(iii) Appropriate adjustments shall be made in the number of
Ordinary Shares and the exercise price per share thereof then subject to
purchase pursuant to each such Stock Option previously granted and
unexercised, to the end that the same proportion of the Company's issued and
outstanding Ordinary Shares in each instance shall remain subject to purchase
at the same aggregate exercise price.
Any fractional shares resulting from any adjustment made pursuant to this
Article XI shall be rounded to the nearer whole share for the purposes of such
adjustment. Except as otherwise expressly provided herein, the issuance by
the Company of shares of any class, or securities convertible into shares of
any class, either in connection with direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number of or exercise price of Ordinary Shares then subject to
outstanding Stock Options granted under the Plan.
ARTICLE XII
Recapitalization, Merger and Consolidation
(a) The existence of this Plan and Stock Options granted
hereunder shall not affect in any way the right or power of the Company or
its shareholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger, share exchange or consolidation of
the Company, or any issue of bonds, debentures, preferred or prior preference
shares ranking prior to or otherwise affecting the Ordinary Shares or the
rights thereof (or any rights, options or warrants to purchase same), or the
dissolution or liquidation of the Company, or any sale or transfer of all or
any part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
(b) Subject to any required action by the shareholders, if the
Company shall be the surviving or resulting corporation in any merger, share
exchange or consolidation, any outstanding Stock Option granted hereunder
shall pertain to and apply to the securities or rights (including cash,
property or assets) to which a holder of the number of Ordinary Shares
subject to the Stock Option would have been entitled.
(c) In the event of any merger, share exchange or consolidation
pursuant to which the Company is not the surviving or resulting corporation,
there shall be substituted for each Ordinary Share subject to the unexercised
portions of such outstanding Stock Option that number of shares of each class
of shares or other securities or that amount of cash, property or assets of
the surviving or consolidated company which were distributed or distributable
to the shareholders of the Company in respect of each Ordinary Share held by
them, such outstanding Stock Options to be thereafter exercisable for such
shares, securities, cash or property in accordance with their terms.
Notwithstanding the foregoing, however, all such Stock Options may be
cancelled by the Board as of the effective date of any such reorganization,
merger or consolidation, or of any proposed sale of substantially all of the
assets of the Company, or of any dissolution or liquidation of the Company,
by giving notice to each holder thereof or his personal representative of its
intention to do so and by permitting the purchase during the thirty (30) day
period next preceding such effective date of any or all of the shares subject
to such outstanding Stock Options, whether or not vested in accordance with
their original terms.
(d) In the event of a Change in Control of the Company, then,
notwithstanding any other provision in the Plan to the contrary, all
unmatured installments of Stock Options outstanding shall thereupon
automatically be accelerated and exercisable in full.
(e) In case the Company shall, at any time while any Stock
Option under this Plan shall be in force and remain unexpired, (i) sell all
or substantially all of its property, or (ii) dissolve, liquidate, or wind up
its affairs, then each Participant may thereafter receive upon exercise
thereof (in lieu of each Ordinary Share which such Participant would have
been entitled to receive) the same kind and amount of any securities or
assets as may be issuable, distributable or payable upon any such sale,
dissolution, liquidation, or winding up with respect to each Ordinary Share.
In the event that the Company shall, at any time prior to the expiration of
any Stock Option make any partial distribution of its assets in the nature of
a partial liquidation, whether payable in cash or in kind (but excluding the
distribution of a cash dividend payable out of retained earnings or earned
surplus and designated as such), then in such event the exercise prices then
in effect with respect to each option shall be reduced, as of the payment
date of such distribution, in proportion to the percentage reduction in the
tangible book value of the Ordinary Shares (determined in accordance with
generally accepted accounting principles) resulting by reason of such
distribution; provided, that in no event shall any adjustment of exercise
prices in accordance with the terms of the Plan result in any exercise prices
being reduced below the par value per Ordinary Share.
(f) Upon the occurrence of each event requiring an adjustment of
the exercise price and/or the number of shares purchasable pursuant to Stock
Options granted pursuant to the terms of this Plan, the Committee shall mail
forthwith to each Participant a copy of its computation of such adjustment
which shall be conclusive and shall be binding upon each such Participant.
ARTICLE XIII
Options in Substitution for Stock Options
Granted by Other Corporations
Stock Options may be granted under the Plan from time to time in
substitution for stock options held by employees of a corporation who become
or are about to become Employees of the Company or a Subsidiary as the result
of a merger or consolidation of the employing corporation with the Company or
a Subsidiary, the acquisition by either of the foregoing of stock of the
employing corporation as the result of which it becomes a Subsidiary or a sale
of substantially all of the assets of the employing corporation. The terms
and conditions of the substitute options so granted may vary from the terms
and conditions set forth in this Plan to such extent as the Committee at the
time of grant may deem appropriate to conform, in whole or in part, to the
provisions of the options in substitution for which they are granted.
ARTICLE XIV
Miscellaneous Provisions
14.1 Transferability of Stock Options.
(a) Incentive Stock Options. Incentive Stock Options may not be
transferred or assigned other than by will or the laws of descent and
distribution and may be exercised during the lifetime of the Participant only
by the Participant or the Participant's legally authorized representative, and
each Stock Option Agreement in respect of an Incentive Stock Option shall so
provide. The designation by a Participant of a beneficiary will not
constitute a transfer of the Stock Option. The Company may waive or modify
any limitation contained in this Section 14.1 that is not required for
compliance with Section 422 of the Code.
(b) Nonqualified Stock Options.
(1) Participants Other Than Reporting Participants. With
respect to Nonqualified Stock Options granted hereunder to any Participant
who is not a Reporting Participant, the Committee may, in its sole
discretion, provide in any Stock Option Agreement (or in an amendment to any
existing Stock Option Agreement) such provisions regarding transferability of
the Nonqualified Stock Options as the Committee, in its sole discretion,
deems appropriate.
(2) Reporting Participants. Except as may be specified by the
Committee in accordance with the following paragraph, a Nonqualified Stock
Option granted to a Reporting Participant may not be transferred or assigned
other than by will or the laws of descent and distribution or pursuant to the
terms of a qualified domestic relations order, as defined by the Code or
Title I of ERISA, or the rules thereunder. The designation by a Reporting
Participant of a beneficiary will not constitute a transfer of the Stock
Option.
The Committee may, in its sole discretion, provide in any Stock
Option Agreement (or in an amendment to any existing Stock Option Agreement)
that Nonqualified Stock Options granted hereunder to a Reporting Participant
may be transferred to members of the Reporting Participant's immediate
family, trusts for the benefit of such immediate family members and
partnerships in which such immediate family members are the only partners,
provided that there cannot be any consideration for the transfer. The
Committee may waive or modify any limitation contained in this Section
14.1(b)(2) that is not required for compliance with Rule 16b-3.
14.2 Investment Intent. The Company may require that there be
presented to and filed with it by any Participant(s) under the Plan, such
evidence as it may deem necessary to establish that the Stock Options granted
or the Ordinary Shares to be purchased or transferred are being acquired for
investment and not with a view to their distribution.
14.3 No Right to Continue Employment. Nothing in the Plan or the
grant of any Stock Option confers upon any Employee the right to continue in
the employ of the Company or interferes with or restricts in any way the right
of the Company to discharge any Employee at any time (subject to any contract
rights of such Employee).
14.4 Shareholders' Rights. The holder of a Stock Option shall have
none of the rights or privileges of a shareholder except with respect to
shares which have been actually issued.
14.5 Tax Withholding.
(a) Whenever Ordinary Shares are to be issued in satisfaction of
a Stock Option granted hereunder, the Company shall have the right to require
the Participant to remit to the Company an amount sufficient to satisfy
federal, state, local or other withholding tax requirements (whether so
required to secure for the Company an otherwise available tax deduction or
otherwise) prior to the delivery of any certificate or certificates for such
shares.
(b) When a Participant is required to pay to the Company an
amount required to be withheld under applicable tax laws in connection with a
Stock Option, such payment may be made (i) in cash, (ii) by check, (iii) if
permitted by the Committee, by delivery to the Company of Ordinary Shares
already owned by the Participant having a Fair Market Value on the date the
amount of tax to be withheld is to be determined (the "Tax Date") equal to
the amount required to be withheld, (iv) through the withholding by the
Company ("Company Withholding") of a portion of the Ordinary Shares acquired
upon the exercise of the Stock Options (provided that, with respect to any
Stock Option held by a Reporting Participant, at least six months has elapsed
between the Date of Grant of such Stock Option and the exercise involving tax
withholding) having a Fair Market Value on the Tax Date equal to the amount
required to be withheld, or (v) in any other form of valid consideration, as
permitted by the Committee in its discretion; provided that a Reporting
Participant shall not be permitted to satisfy his or her withholding
obligation through Company Withholding unless required to do so by the
Committee, in its sole discretion. The Committee may waive or modify any
limitation contained in this Section that is not required for compliance with
Rule 16b-3.
(c) As a condition to the issuance of Ordinary Shares covered by
any Incentive Stock Option, the party exercising such Stock Option shall give
a written representation to the Company, which is satisfactory in form and
substance to its counsel and upon which the Company may reasonably rely, that
he or she will report to the Company any disposition of such shares prior to
the expiration of the holding periods specified by Section 422(a)(1) of the
Code. If and to the extent that the realization of income in such a
disposition imposes upon the Company federal, state, local or other
withholding tax requirements, or any such withholding is required to secure
for the Company an otherwise available tax deduction, the Company shall have
the right to require that the recipient remit to the Company an amount
sufficient to satisfy those requirements; and the Company may require as a
condition to the issuance of Ordinary Shares covered by an Incentive Stock
Option that the party exercising such Stock Option give a satisfactory
written representation promising to make such a remittance.
14.6 Indemnification of Board and Committee. No member of the
Board or the Committee, nor any Officer or Employee of the Company acting on
behalf of the Board or the Committee, shall be personally liable for any
action, determination, or interpretation taken or made in good faith with
respect to the Plan, and all members of the Board or the Committee and each
and any Officer or Employee of the Company acting on their behalf shall, to
the extent permitted by law, be fully indemnified and protected by the Company
in respect of any such action, determination or interpretation.
14.7 Government Regulations. Notwithstanding any of the provisions
hereof, or of any written agreements evidencing Stock Options granted
hereunder, the obligation of the Company to sell and deliver shares shall be
subject to all applicable laws, rules and regulations and to such approvals by
any government agencies or national securities exchanges as may be required.
The Participant shall agree not to exercise any Stock Option, and the Company
shall not be obligated to issue any shares, if the exercise thereof or if the
issuance of shares shall constitute a violation by the Participant or the
Company of any provision of any law or regulation of any governmental
authority.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
effective as of the 9th day of April, 1996.
TRITON ENERGY LIMITED
By: /s/ Robert B. Holland, III
Robert B. Holland, III
Sr. Vice President, General Counsel
and Secretary
Attest:
/s/Tamera D. Gibson
Tamera D. Gibson, Asst. Secretary
Exhibit 10.19
TRITON ENERGY LIMITED
AMENDED AND RESTATED RESTRICTED STOCK PLAN
SECOND AMENDMENT
This Second Amendment to the Triton Energy Limited Amended and Restated
Restricted Stock Plan (this "Amendment") is executed by Triton Energy Limited,
a Cayman Islands company ("Triton"), as of the effective date specified below.
R E C I T A L S:
A. Triton's predecessor, Triton Energy Corporation, a Delaware
corporation ("Triton Delaware"), adopted the Triton Energy Corporation Amended
and Restated Restricted Stock Plan (as amended to date, the "Plan") in 1993,
the purpose of which is to encourage ownership of shares by employees of
Triton and its subsidiaries and to provide incentives for the employees to
promote the success of the business of Triton and its subsidiaries;
B. Pursuant to an Agrement and Plan of Merger among Triton, Triton
Delaware and a subsidiary of Triton, which was effected on March 25, 1996,
Triton assumend the rights and obligations of Triton Delaware under the Plan,
and Triton's Ordinary Shares, par value $.01 per share ("Ordinary Shares"),
became issuable pursuant to the terms of the Plan;
C. The Plan is intended to qualify as an employee stock purchase plan
within the meaning of Section 423 of the Internal Revenue Code of 1986, as
amended;
D. Triton desires to amend the Plan to increase the number of
Ordinary Shares issuable pursuant to the Plan, and the shareholders of Triton
approved such an amendment at Trtion's Annual Meeting of Shareholders held on
May 7, 1996, and to effect certain other amendments;
NOW, THEREFORE, in accordance with Section 1.7 of the Plan, the Plan is
amended in the following respects:
1. The name of the Plan is changed to "Triton Energy Limited Amended and
Restated Restricted Stock Plan" and the definition of "Plan" contained therein
shall be deemed amended accordingly.
2. All references in the Plan to "the Company" shall be deemed to be
references to Triton Energy Limited, a Cayman Islands company. All references
to "Common Stack" shall be deemed to be references to Ordinary Shares, par
value $.01 per share, of Triton Energy Limited.
3.The first sentence of Section 1.4. of the Plan is amended in its
entirety to read as follows:
"The maximum aggregate number of Ordinary Shares subject to the Plan
shall be 100,000."
Except as amended by the provisions of this Amendment, all other
provisions of the Plan remain in full force and effect.
IN WITNESS WHEREOF, Triton Energy Limited has caused this Amendment to be
executed by its duly authorized officer as of this 7th day of May, 1996.
TRITON ENERGY LIMITED
By:/s/ Robert B. Holland, III
Robert B. Holland, III
Sr. Vice President, General Counsel
and Secretary
Exhibit 10.23
TRITON ENERGY CORPORATION,
as Issuer
TRITON ENERGY LIMITED
as Guarantor
AND
CHEMICAL BANK,
as Trustee
____________________________
AMENDED AND RESTATED INDENTURE
Dated as of November 13, 1992
as amended and restated as of July 1, 1993
and March 25, 1995
____________________________
$240,000,000
Senior Subordinated Discount Notes due 1997
<PAGE>
CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 6.02; 6.07; 6.08
Section 311(a)&(b) . . . . . . . . . . . . . . . . 6.02; 6.10
Section 311(a),(b),(c) . . . . . . . . . . . . . . . . . . 6.02
Section 312(a) . . . . . . . . . . . . . . . . . . . . . 7.01
Section 312(a),(b),(c) . . . . . . . . . . . . . . . . . . 7.02
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . 7.03
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . 7.03; 7.04
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 7.03
Section 314(a) . . . . . . . . . . . . . . . . . . .7.04; 10.08
(a)(4)1 . . . . . . . . . . . . . . . . . . . . . . . 0.17
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 1.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 1.04
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 1.04
Section 315(a),(b),(c),(d) . . . . . . . . . . . . . . . . 6.01
Section 315(a),(b),(c),(d),(e) . . . . . . . . . . . . . . 9.03
Section 315(b) . . . . . . . . . . . . . . . . . . . . . . 6.04
Section 316(a)(last sentence) . . . . . . . . . . . . . . . 1.10
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . 5.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . 5.03
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 5.04
(b) . . . . . . . . . . . . . . . . . . . . . . . . .10.03
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . 1.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 1.10
Note: The Cross-Reference Table shall not for any purpose be deemed
to be part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . 16
ARTICLE I
Definitions and Other Provisions of General Application . 17
SECTION 1.01. Definitions . . . . . . . . . . . . . . 17
Acquired Indebtedness . . . . . . . . . . . 17
Affiliate . . . . . . . . . . . . . . . . . 17
Agent . . . . . . . . . . . . . . . . . . . 18
Asset Sale . . . . . . . . . . . . . . . . . 18
Average Quoted Price . . . . . . . . . . . . 18
Board of Directors . . . . . . . . . . . . . 18
Business Day . . . . . . . . . . . . . . . . 18
Capital Stock . . . . . . . . . . . . . . . 19
Capitalized Lease Obligation . . . . . . . . 19
Cash Equivalents . . . . . . . . . . . . . . 19
Change in Control . . . . . . . . . . . . . 19
Colombian Assets . . . . . . . . . . . . . . 19
Company . . . . . . . . . . . . . . . . . . 20
Company Order . . . . . . . . . . . . . . . 20
Consolidated Net Income . . . . . . . . . . 20
Consolidated Net Worth . . . . . . . . . . . 20
Corporate Trust Office . . . . . . . . . . . 20
Currency Agreement . . . . . . . . . . . . . 20
Default . . . . . . . . . . . . . . . . . . 20
Designated Senior Indebtedness . . . . . . . 20
Exchange Act . . . . . . . . . . . . . . . . 21
Federal Bankruptcy Code . . . . . . . . . . 21
GAAP . . . . . . . . . . . . . . . . . . . . 21
Guarantee . . . . . . . . . . . . . . . . . 21
Guarantee . . . . . . . . . . . . . . . . . 21
Guarantor . . . . . . . . . . . . . . . . . 21
Holder or Securityholder . . . . . . . . . . 21
Indebtedness . . . . . . . . . . . . . . . . 22
Indenture . . . . . . . . . . . . . . . . . 22
Intercompany Agreement . . . . . . . . . . . 22
Interest Rate Agreements . . . . . . . . . . 22
Internal Revenue Code . . . . . . . . . . . 22
Investment . . . . . . . . . . . . . . . . . 22
Issue Price . . . . . . . . . . . . . . . . 23
Joint Venture . . . . . . . . . . . . . . 23
Legal Holiday . . . . . . . . . . . . . . 23
Lien . . . . . . . . . . . . . . . . . . . 23
Make-Whole Premium . . . . . . . . . . . . 23
Material Subsidiary . . . . . . . . . . . 23
Net Cash Proceeds . . . . . . . . . . . . 23
Non-payment Default . . . . . . . . . . . 24
Officers' Certificate . . . . . . . . . . 24
Oil and Gas Reserve Estimate . . . . . . . 24
Opinion of Counsel . . . . . . . . . . . . 24
Original Issue Discount . . . . . . . . . 24
Paying Agent . . . . . . . . . . . . . . . 24
Payment Default . . . . . . . . . . . . . 25
Permitted Indebtedness . . . . . . . . . . 25
Permitted Investments . . . . . . . . . . 26
Person . . . . . . . . . . . . . . . . . . 26
Preferred Stock . . . . . . . . . . . . . 26
Principal or Principal Amount . . . . . . 26
Quoted Price . . . . . . . . . . . . . . . 26
Redeemable Stock . . . . . . . . . . . . . 26
Redemption Date . . . . . . . . . . . . . 27
Redemption Price . . . . . . . . . . . . . 27
Registrar . . . . . . . . . . . . . . . . 27
Restricted Subsidiary . . . . . . . . . . 27
SEC . . . . . . . . . . . . . . . . . . . 27
Securities . . . . . . . . . . . . . . . . 27
Senior Indebtedness of the Company . . . . 27
Senior Indebtedness of the Guarantor . . . 28
Special Subsidiaries . . . . . . . . . . . 28
Standard Yield . . . . . . . . . . . . . . 28
Stated Maturity . . . . . . . . . . . . . 29
Subsidiary . . . . . . . . . . . . . . . . 29
TIA or Trust Indenture Act . . . . . . . . 29
Treasury Yield . . . . . . . . . . . . . . 29
Triton Colombia . . . . . . . . . . . . . 29
Trustee . . . . . . . . . . . . . . . . . 30
Voting Stock . . . . . . . . . . . . . . . 30
Wholly-owned Subsidiary . . . . . . . . . 30
SECTION 1.02. Other Definitions . . . . . . . 30
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act . . . . . . . . 30
SECTION 1.04. Compliance Certificates and Opinions 31
SECTION 1.05. Form of Documents Delivered to Trustee 31
SECTION 1.06. Acts of Holders . . . . . . . . . . . 32
SECTION 1.07. Notices, etc. to Trustee, Company and
Guarantor . . . . . . . . . . . . 33
SECTION 1.08. Notice to Holders of Securities; Waiver 33
SECTION 1.09. Language of Notices . . . . . . . . . 34
SECTION 1.10. Conflict with Trust Indenture Act . . 34
SECTION 1.11. Effect of Headings and Table of Contents 34
SECTION 1.12. Successors and Assigns . . . . . . . . 34
SECTION 1.13. Separability Clause . . . . . . . . . . . 34
SECTION 1.14. Benefits of Indenture . . . . . . . . . . 34
SECTION 1.15. Governing Law . . . . . . . . . . . . . . 34
SECTION 1.16. Submission to Jurisdiction . . . . . . . 35
SECTION 1.17. Legal Holidays . . . . . . . . . . . . . 35
ARTICLE II
The Securities . . . . . . . 35
SECTION 2.01. Forms Generally . . . . . . . . . . . . 35
SECTION 2.02. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . 36
SECTION 2.03. Temporary Securities . . . . . . . . . 38
SECTION 2.04. Registration, Transfer and Exchange. . 38
SECTION 2.05. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . 40
SECTION 2.06. Persons Deemed Owners . . . . . . . . . 41
SECTION 2.07. Cancellation . . . . . . . . . . . . . 41
SECTION 2.08. Computation of Original Issue Discount 41
ARTICLE III
Redemption of Securities . . . . . . 42
SECTION 3.01. Right of Redemption . . . . . . . . . . . 42
SECTION 3.02. Applicability of Article. . . . . . . . . 42
SECTION 3.03. Election to Redeem; Notice to Trustee . . 42
SECTION 3.04. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . 42
SECTION 3.05. Notice of Redemption . . . . . . . . . . 42
SECTION 3.06. Deposit of Redemption Price. . . . . . . 43
SECTION 3.07. Securities Payable on Redemption Date. . 43
SECTION 3.08. Securities Redeemed in Part . . . . . . . 44
ARTICLE IV
Satisfaction and Discharge . . . . . 44
SECTION 4.01. Discharge of Liability on Securities . . 44
SECTION 4.02. Repayment to the Company . . . . . . . . 45
ARTICLE V
Defaults and Remedies . . . . . . . 45
SECTION 5.01. Events of Default. . . . . . . . . . 45
SECTION 5.02. Acceleration of Maturity; Rescission . 48
<PAGE>
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . 48
SECTION 5.04. Trustee May File Proofs of Claim . . 49
SECTION 5.05. Trustee May Enforce Claims without
Possession of Securities . . . . . 50
SECTION 5.06. Application of Money Collected . . . . 50
SECTION 5.07. Limitations on Suits . . . . . . . . . 51
SECTION 5.08. Unconditional Right of Holders to Receive
Payment . . . . . . . . . . . . . . . 51
SECTION 5.09. Restoration of Rights and Remedies . . 52
SECTION 5.10. Rights and Remedies Cumulative . . . . 52
SECTION 5.11. Delay or Omission Not Waiver . . . . . 52
SECTION 5.12. Control by Holders of Securities . . . 52
SECTION 5.13. Waiver of Past Defaults . . . . . . . . 53
SECTION 5.14. Waiver of Stay or Extension Laws . . . 53
ARTICLE VI
Trustee . . . . . . . . . 53
SECTION 6.01. Rights of Trustee . . . . . . . . . . . 53
SECTION 6.02. Individual Rights of Trustee . . . . . 55
SECTION 6.03. Trustee's Disclaimer . . . . . . . . . 55
SECTION 6.04. Notice of Default. . . . . . . . . . . 55
SECTION 6.05. Compensation and Indemnity . . . . . . 55
SECTION 6.06. Replacement of Trustee . . . . . . . . 56
SECTION 6.07. Successor Trustee by Merger, Etc. . . . 57
SECTION 6.08. Eligibility; Disqualification . . . . . 57
SECTION 6.09. Money Held in Trust . . . . . . . . . . 57
SECTION 6.10. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . 57
ARTICLE VII
Holders' Lists and Reports by Trustee,
Company and the Guarantor . . . . . 58
SECTION 7.01. Company and Guarantor to Furnish Trustee
Names and Addresses of Holders . . . 58
SECTION 7.02. Preservation of Information; Communications
to Holders . . . . . . . . . . . . . 58
SECTION 7.03. Reports by Trustee . . . . . . . . . . 58
SECTION 7.04. Reports by Company and the Guarantor . 59
<PAGE>
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease 60
SECTION 8.01. Company or Guarantor May Consolidate, Etc.,
Only on Certain Terms . . . . . . . . 60
SECTION 8.02. Successor Person Substituted for Company 61
ARTICLE IX
Amendments . . . . . . . . 61
SECTION 9.01. Supplemental Indentures without Consent of
Holders . . . . . . . . . . . . . . . 61
SECTION 9.02. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . 62
SECTION 9.03. Execution of Supplemental Indentures . 63
SECTION 9.04. Effect of Supplemental Indentures . . 63
SECTION 9.05. Conformity with Trust Indenture Act . . 63
SECTION 9.06. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . 64
ARTICLE X
Covenants . . . . . . . . . 64
SECTION 10.01. Payment of Securities . . . . . . . . . 64
SECTION 10.02. Maintenance of Office or Agency . . . . 64
SECTION 10.03. Money for Security Payments to Be Held in
Trust . . . . . . . . . . . . . . . . 65
SECTION 10.04. Corporate Existence . . . . . . . . . . 66
SECTION 10.05. Payment of Taxes and Other Claims . . . 66
SECTION 10.06. Maintenance of Properties and Insurance 67
SECTION 10.07. Limitation on Indebtedness . . . . . . 67
SECTION 10.08. Limitation on Restricted Payments . . . 69
SECTION 10.09. Limitation Upon Other Senior Subordinated
Indebtedness . . . . . . . . . . . . 72
SECTION 10.10. Limitation on Liens . . . . . . . . . . 72
SECTION 10.11. Limitation on Transactions with
Affiliates . . . . . . . . . . . . . 72
SECTION 10.12. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries . 73
SECTION 10.13. Purchase of Securities Upon Change in
Control . . . . . . . . . . . . . . . 74
SECTION 10.14. Intentionally omitted. . . . . . . . . 77
SECTION 10.15. Limitation on Guaranties . . . . . . . 77
SECTION 10.16. Disposition of Proceeds of Asset Sales 78
SECTION 10.17. Compliance Certificates . . . . . . . . 83
<PAGE>
SECTION 10.18. SEC Reports and Reports to
Securityholders . . . . . . . . . . 84
ARTICLE XI
Subordination of Securities . . . . . 84
SECTION 11.01. Securities Subordinate to Senior
Indebtedness of the Company . . . . . 84
SECTION 11.02. Payment Over of Proceeds Upon Dissolution,
etc. . . . . . . . . . . . . . . . . 85
SECTION 11.03. Suspension of Payment When Senior
Indebtedness of the Company in Default.87
SECTION 11.04. Payment Permitted if No Default . . . . 88
SECTION 11.05. Subrogation to Rights of Holders of Senior
Indebtedness of the Company . . . . . 88
SECTION 11.06. Provisions Solely to Define Relative
Rights . . . . . . . . . . . . . . . 89
SECTION 11.07. Trustee to Effectuate Subordination . . 89
SECTION 11.08. No Waiver of Subordination Provisions . 89
SECTION 11.09. Notice to Trustee . . . . . . . . . . . 90
SECTION 11.10. Reliance on Judicial Order or Certificate
of Liquidating Agent . . . . . . . . 91
SECTION 11.11. Rights of Trustee as a Holder of Senior
Indebtedness of the Company; Preservation
of Trustee's Rights . . . . . . . . . 91
SECTION 11.12. Article Applicable to Paying Agents . . 91
SECTION 11.13. No Suspension of Remedies . . . . . . . 91
SECTION 11.14. Trustee's Relation to Senior Indebtedness
of the Company . . . . . . . . . . . 92
ARTICLE XII
Defeasance and Covenant Defeasance . . 92
SECTION 12.01. Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . 92
SECTION 12.02. Defeasance and Discharge . . . . . . . 92
SECTION 12.03. Covenant Defeasance . . . . . . . . . . 93
SECTION 12.04. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . 93
SECTION 12.05. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions . . . . . . . 96
SECTION 12.06. Reinstatement . . . . . . . . . . . . . . 97
<PAGE>
ARTICLE XIII
Guarantees . . . . . . . . 97
SECTION 13.01. Guarantee . . . . . . . . . . . . . . . 97
SECTION 13.02. Subrogation . . . . . . . . . . . . . . 98
SECTION 13.03. Execution and Delivery of Guarantees . 99
SECTION 13.04. Agreement to Subordinate . . . . . . . 99
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Note: The Table of Contents shall not for any purposes be deemed to be a
part of the Indenture.
<PAGE>
AMENDED AND RESTATED INDENTURE dated as of November
13, 1992, as amended and restated as of March 25,1996 (this
"Indenture"), among TRITON ENERGY CORPORATION, a Delaware corporation, as
issuer (the "Company"), TRITON ENERGY LIMITED, a Cayman Islands company,
as guarantor (the "Guarantor"), and CHEMICAL BANK, a banking corporation
organized and existing under the laws of the State of New York, as
Trustee (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee are parties to the
Indenture dated as of November 13, 1992 (as amended by the Supplemental
Indenture, dated as of July 1, 1993, the Second Supplemental Indenture, dated
as of August 16, 1993, the Third Supplemental Indenture, dated as of May 12,
1995 and the Fourth Supplemental Indenture, dated as of November 16, 1995
(the "Fourth Supplemental Indenture"));
WHEREAS, the Company has duly authorized the creation of an
issue of its Senior Subordinated Discount Notes due 1997 (hereinafter called
the "Securities"), of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the execution
and delivery of this Indenture;
WHEREAS, the Board of Directors of the Company has adopted a
resolution of its Board of Directors authorizing the Company to enter into
this Indenture;
WHEREAS, the Guarantor desires to make the Guarantees
provided herein;
WHEREAS, the Board of Directors of the Guarantor has adopted
a resolution of its Board of Directors authorizing the Guarantor to enter into
this Indenture;
WHEREAS, the Company has requested the Trustee and the
Trustee has agreed to join in the execution of this Indenture in accordance
with the terms of Section 9.02 of the Indenture, and as contemplated by the
Fourth Supplemental Indenture, and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual
agreements herein contained, the Company, the Guarantor and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
Holders from time to time of the Securities as follows:
<PAGE>
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computations
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States as of the date hereof;
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(e) the expressions "date of this Indenture", "date hereof",
"date as of which this Indenture is dated" and "date of the execution and
delivery of this Indenture" and other expressions of similar import refer to
the effective date of the original execution and delivery of this Indenture,
viz. as of November 13, 1992.
Certain terms, used principally in Articles V, VI, X, XI and XII, are
defined in those Articles.
"Acquired Indebtedness" means Indebtedness of a person (i)
existing at the time such person becomes a Subsidiary or (ii) assumed in
connection with the acquisition of assets from a person, other than
Indebtedness incurred in connection with, or in contemplation of, such person
becoming a Subsidiary or such acquisition, as the case may be.
"Affiliate" means, as applied to any person, any other person
directly or indirectly controlling, controlled by, or under common
control with, that person, or any other person that owns, directly or
indirectly, 5% or more of such person's Capital Stock. For the purposes of
this definition, "control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as applied to
any person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of that person,
whether through the ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, authenticating
agent or co-registrar.
"Asset Sale" means any conveyance, transfer, lease or other
disposition (including, without limitation, by way of merger or
consolidation), directly or indirectly, in any consecutive 12-month period, in
one or a series of related transactions, of (i) any of the Capital Stock of
any Subsidiary or Special Subsidiary (other than the primary issuance and sale
by a Subsidiary or Special Subsidiary of the Capital Stock of such Subsidiary
or Special Subsidiary and other than the sale and issuance of directors'
qualifying shares), (ii) all or substantially all of the properties and assets
of any division or line of business of the Guarantor or any of its
"significant subsidiaries" (as defined in Regulation S-X promulgated by the
SEC under the Exchange Act), or (iii) any other assets of the Guarantor or any
of its Subsidiaries or Special Subsidiaries outside of the ordinary course of
business; provided, however, that with respect to a Special Subsidiary, clause
(iii) above shall only apply to the extent that the Guarantor actually
receives by dividend any of the net proceeds directly attributable thereto.
For the purpose of this definition, the term "Asset Sale" shall not include
any conveyance, transfer, lease or disposition of properties or assets of the
Guarantor (A) the gross proceeds of which do not exceed $1,000,000, (B) that
is governed by Article VIII or (C) which involves any transfer of Capital
Stock, property or assets of a Subsidiary or Special Subsidiary to the
Guarantor or any other Subsidiary or of the Guarantor to a Restricted
Subsidiary.
"Average Quoted Price" means the average of Quoted Prices of
a security for 30 consecutive trading days ending on the last full trading day
prior to the time of determination set by the Guarantor, which shall be any
date no later than 10 days prior to the proposed incurrence of Indebtedness.
"Board of Directors" means either the Board of Directors of
the Company or the Guarantor, as the case may be, or any authorized committee
of either such Board.
"Business Day" means, for any place of payment, each Monday,
Tuesday, Wednesday, Thursday, or Friday which is not a day on which banking
institutions in The City of New York are authorized or obligated by law or
executive order to close.
<PAGE>
"Capital Stock" means, as applied to any person, any and all
shares, interests, participations, rights or other equivalents (however
designated) of such person's capital stock whether now outstanding or issued
after the date of this Indenture except for Redeemable Stock.
"Capitalized Lease Obligation" means, as applied to any
person, any obligation relating to any lease of any property (whether real,
personal or mixed) by that person as lessee which, in conformity with GAAP,
is required tobe accounted for as a capital lease on the balance sheet of
that person.
"Cash Equivalents" means money, checks, demand deposit
accounts, certificates of deposit or acceptances with a maturity of 180 days
or less of any financial institution that is a member of the Federal Reserve
System having combined capital and surplus and undivided profits of not less
than $300,000,000, commercial paper with a maturity of 180 days or less issued
by a corporation (except an Affiliate of the Guarantor) organized under the
laws of any state of the United States of America or the District of Columbia
and rated at least A-1 by Standard & Poor's Corporation and at least P-1 by
Moody's Investors Service, Inc. and other instruments or investments of
equivalent liquidity and safety.
"Change in Control" of the Guarantor means the occurrence of
any of the following: (i) any person other than the Guarantor, any Subsidiary
of the Guarantor, any Special Subsidiary or any employee benefit plan of
either the Guarantor or any Subsidiary of the Guarantor or any Special
Subsidiary, files a Schedule 13D or 14D-1 under the Exchange Act (or any
successor schedule, form or report) disclosing that such person has become the
beneficial owner of 40% or more of the total combined voting power of the
common stock and other voting Capital Stock of the Guarantor entitled to
immediately vote in the election of directors, (ii) there shall be consummated
any consolidation or merger of the Guarantor (a) in which the Guarantor is not
the continuing or surviving corporation, or (b) pursuant to which the common
stock of the Guarantor would be converted into cash, securities or other
property, in each case other than a consolidation or merger of the Guarantor
in which the holders of the Guarantor's common stock immediately prior to the
consolidation or merger have, directly or indirectly, at least a majority of
the common equity of the continuing or surviving corporation immediately after
the consolidation or merger, or (iii) all or substantially all of the
Guarantor's assets are sold to any person.
"Colombian Assets" means (i) the Capital Stock of Triton
Colombia, (ii) the Capital Stock of any Subsidiary of Triton Colombia, (iii)
the shares, interests, participations, rights or other equivalent means of
ownership owned by the Guarantor or a Subsidiary of the Guarantor in any Joint
Venture, provided such Joint Venture owns, directly or indirectly, oil and gas
properties or other property interests or rights to oil and gas production in
the Santiago de las Atalayas and the Tauramena contract areas in Colombia,
(iv) the Capital Stock of any Subsidiary of the Guarantor (other than Triton
Colombia and its Subsidiaries) that owns, directly or indirectly, oil and gas
properties or other property interests or rights to oil and gas properties in
the Santiago de las Atalayas and the Tauramena contract areas in Colombia and
(v) assets, tangible and intangible, of the Guarantor or any Subsidiary or
Joint Venture referred to in clauses (i) through (iv) of this definition that
are located in or pertain directly to the operations of the Guarantor or any
of its Subsidiaries in the Santiago de las Atalayas and the Tauramena contract
areas in Colombia.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"Company Order" means a written request or order signed in
the name of the Company or the Guarantor, as the case may be, by the Chairman
of the Board, a Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company or the Guarantor, as the case may be, and delivered to the
Trustee.
"Consolidated Net Income" of the Guarantor means, for any
period taken as one accounting period, the net income (or loss) of the
Guarantor on a consolidated basis for such period determined in conformity
with GAAP.
"Consolidated Net Worth" means, as at any date of
determination, the consolidated stockholders' equity of the Guarantor as
determined in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee in
New York, New York at which at any particular time its corporate trust
business shall be principally administered, which office at the date hereof is
located at 55 Water Street, Room 1820, New York, New York 10041.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Guarantor or any of its Subsidiaries or the Special Subsidiaries
against fluctuations in currency values.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
<PAGE>
"Designated Senior Indebtedness" means (i) all Indebtedness
under the Company's bank agreements that constitutes Senior Indebtedness of
the Company, (ii) Indebtedness under that certain revolving credit facility
contemplated to be entered into by the Company with Morgan Guaranty Trust
Company of New York and certain other lenders, and (iii) any other Senior
Indebtedness of the Company which, at the time of determination, has an
aggregate principal amount outstanding of at least $10,000,000 and is
specifically designated by the Company in the instrument evidencing such
Senior Indebtedness of the Company as "Designated Senior Indebtedness".
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Federal Bankruptcy Code" means the Bankruptcy Reform Act of
1978, codified at Title 11 of the United States Code, as amended from time to
time.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the
date of this Indenture.
"Guarantee" means, as applied to any obligation, (i) a
guaranty (other than by endorsement of negotiable instruments for collection
in the ordinary course of business), direct or indirect, in any manner, of any
part or all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the practical effect of which is to assure in any way
the payment or performance (or payment of damages in the event of
non-performance) of any part or all of such obligation, including, without
limiting the foregoing, the payment of amounts drawn down by letters of
credit.
"Guarantee" means any guarantee of the Guarantor endorsed on
a Security authenticated and delivered pursuant to this Indenture and shall
include the guarantee set forth in Exhibit B hereto.
"Guarantor" means the person named as the "Guarantor" in the
first paragraph of this Indenture until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter, "Guarantor" shall mean such successor corporation.
"Holder" or "Securityholder" means the person in whose name a
Security is registered on the Registrar's books, and the word "majority," used
in connection with the terms "Holder" or "Securityholder", shall signify the
"majority in Principal Amount" whether or not so expressed.
<PAGE>
"Indebtedness" of any person means, without duplication, with
respect to any person, any indebtedness, whether or not contingent, in respect
of borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements with respect
thereto) or representing the balance deferred and unpaid of the purchase price
of any property (including pursuant to Capitalized Lease Obligations and any
conditional sale or other title retention agreement), except any such balance
that constitutes an accrued expense or trade payable, if and to the extent any
of the foregoing indebtedness would appear as a liability upon a balance sheet
of such person prepared in accordance with GAAP (but does not include
contingent liabilities which appear only in a footnote to a balance sheet),
and Indebtedness shall also include, to the extent not otherwise included, the
guaranty of items which would be included within this definition and
obligations in respect of Currency Agreements, the notional amount with
respect to Interest Rate Agreements and the liquidation value of Preferred
Stock (except that Indebtedness shall not include Preferred Stock of the
Guarantor or Preferred Stock of the Company).
"Indenture" means this Indenture as originally executed
(including all exhibits thereto) or as it may be amended or supplemented from
time to time by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof, including, for all purposes of
this instrument and any such supplemental indenture, the provisions of the TIA
that are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively.
"Intercompany Agreement" means an intercompany agreement
substantially in the form attached as Exhibit C to this Indenture.
"Interest Rate Agreements" means the obligations of any
person pursuant to any interest rate swap agreement, interest rate collar
agreement or
other similar agreement or arrangement designed to protect such person or any
of its Subsidiaries against fluctuations in interest rates.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, or any successor federal income tax laws.
"Investment" means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business, which
are recorded as accounts receivable on the balance sheet of any person) or
other extension of credit or capital contribution to (by means of any transfer
of cash or other property to others or any payment for property or services
for the account or use of others), or any purchase or acquisition of Capital
Stock, bonds, notes, debentures or other securities issued by, any other
person.
<PAGE>
"Issue Price" of any Security means, in connection with the
original issuance of such Security, the initial issue price at which the
Security is sold as set forth on the face of the Security.
"Joint Venture" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form,
provided that, as to any such arrangement in corporate form, such corporation
shall not, as to any person of which such corporation is a Subsidiary, be
considered to be a Joint Venture to which such person is a party.
"Legal Holiday" means for any place of payment, a day which
is not a Business Day at such place of payment.
"Lien" means any mortgage, lien, security interest, charge or
encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to
give any security interest).
"Make-Whole Premium" means, with respect to any Security, an
amount equal to the excess, if any, of (a) over (b), where (a) equals the
present value of the Principal Amount of such Security, discounted on a
semiannual bond equivalent basis from November 13, 1997 to the Redemption
Date at a per annum interest rate equal to the lower of (x) the Standard Yield
applicable to the Redemption Date for which the determination is being made
plus 100 basis points and (y) the Treasury Yield for such Redemption Date plus
100 basis points, and (b) equals the Issue Price plus the accrued Original
Issue Discount of such Security to the Redemption Date.
"Material Subsidiary" means, at the time of determination,
any Subsidiary or Special Subsidiary of the Guarantor that (a) accounted for
more than 5% of the consolidated revenues of the Guarantor for the most
recently completed fiscal year of the Guarantor or its predecessor or (b) was
the owner of more than 5% of the consolidated assets of the Guarantor as at
the end of such fiscal year, all as shown on the consolidated financial
statements of the Guarantor or its predecessor for such fiscal year.
"Net Cash Proceeds" means, with respect to any Asset Sale,
the proceeds thereof in the form of cash or Cash Equivalents including
payments in respect of deferred payment obligations when received in the form
of cash or Cash Equivalents (except to the extent that such obligations are
financed or sold with recourse to the Guarantor or any Subsidiary) net of (i)
brokerage commissions and other reasonable fees and expenses (including fees
and expenses of counsel and investment bankers) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale, (iii)
payments made to retire Indebtedness where payment of such Indebtedness is
required in connection with such Asset Sale and (iv) appropriate amounts to be
provided by the Guarantor or any Subsidiary, as the case may be, as a reserve,
in accordance with GAAP, against any liabilities associated with such Asset
Sale and retained by the Guarantor or any Subsidiary, as the case may be,
after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale.
"Non-payment Default" means any event (other than a Payment
Default) the occurrence of which entitles one or more persons to accelerate
the maturity of any Designated Senior Indebtedness.
"Officers' Certificate" means a certificate signed, in the
case of the Company, by two officers of the Company, and, in the case of the
Guarantor, by two officers of the Guarantor. Each Officers' Certificate
(other than certificates provided pursuant to TIA Section 314(a)(4)) shall
include the statements provided for in TIA Section 314(e).
"Oil and Gas Reserve Estimate" means, on an after-tax basis,
the standardized measure of discounted future net cash inflows relating to
proved oil and gas reserves as calculated in accordance with Statement of
Financial Accounting Standards No. 69, as in effect on the date hereof, as
adjusted for any (i) back-in interests or interest equalization and
unitization arrangements with third parties and (ii) acquisitions, transfers
or dispositions of interests in such reserves since the date as of which such
standardized measure has been calculated (it being understood that in the case
of any acquisition the right to include such estimates shall be dependent upon
the availability of such estimate from a nationally recognized engineering
firm).
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. Such counsel may be an employee of
or counsel to the Company, the Guarantor or the Trustee. Each such Opinion of
Counsel shall include the statements provided for in TIA Section 314(e).
"Original Issue Discount" of any Security means the
difference between the Issue Price and the Principal Amount of the Security as
set forth on the face of the Security.
"Paying Agent" means any person authorized by the Company to
pay the Principal Amount, Issue Price, premium (if any), accrued Original
Issue Discount, Redemption Price, Change in Control Purchase Price, Asset Sale
Offer Price, or interest (if any), on any Securities on behalf of the Company.
<PAGE>
"Payment Default" means any default in the payment of
principal, premium, if any, or interest, if any, on any Designated Senior
Indebtedness beyond any applicable grace period with respect thereto.
"Permitted Indebtedness" means (i) the Securities and the
Guarantees; (ii) Indebtedness of the Company or any of its Subsidiaries or
Special Subsidiaries outstanding on December 15, 1993; (iii) obligations
pursuant to Interest Rate Agreements or Currency Agreements; (iv) with respect
to any assets acquired or constructed after the date hereof (including
unimproved real property acquired prior to the date hereof), Indebtedness
under Capitalized Lease Obligations and purchase money mortgages; (v)
Indebtedness of the Guarantor or any Subsidiary in respect of trade letters of
credit and standby letters of credit incurred in the ordinary course of
business in an aggregate amount not to exceed $25,000,000 at any time
outstanding; (vi) loans or advances from a Subsidiary to the Guarantor or
another Subsidiary, provided that the obligation of the obligor of such
Indebtedness is subject to an Intercompany Agreement; (vii) indebtedness of
the Guarantor or any Subsidiary consisting of (A) guaranties, indemnities or
obligations in respect of purchase price adjustments in connection with the
acquisition or disposition of assets and (B) guaranties of the Indebtedness of
a Restricted Subsidiary, provided, however, that (I) to the extent such
transaction involves an Affiliate, the obligation of the guarantor of such
guarantee is subject to an Intercompany Agreement, (II) such guarantee is
subordinated to the Securities and the Guarantees, and the agreement governing
the guarantee includes subordination provisions substantially similar to those
set forth in Article XI and Article XIII to the same extent as if the
Securities were Senior Indebtedness of the Company and the Guarantees were
Senior Indebtedness of the Guarantor and (III) such incurrence of the
guarantee is otherwise permitted under Section 10.08; (viii) any obligation or
liability of the Guarantor or any Subsidiary in respect of leasehold interests
assigned by the Guarantor or such Subsidiary to any other person; (ix)
Indebtedness of the Guarantor to any Restricted Subsidiary, provided,
however, that (I) the obligation of the obligor of such Indebtedness is
subject to an Intercompany Agreement, (II) such Indebtedness is subordinated
to the Securities and the Guarantees, and the agreement governing such
Indebtedness includes subordination provisions substantially similar to those
set forth in Article XI and Article XIII to the same extent as if the
Securities were Senior Indebtedness of the Company and the Guarantees were
Senior Indebtedness of the Guarantor and (III) such incurrence of
Indebtednessis otherwise permitted under Section 10.08; and (x) any renewals,
extensions, substitutions, refinancings or replacements of any Indebtedness,
including any successive extensions, renewals, substitutions, refinancings or
replacements so long as the aggregate amount of Indebtedness represented
thereby is not increased by such renewal, extension, substitution, refinancing
or replacement unless otherwise permitted herein, such renewal, extension,
substitution, refinancing or replacement does not reduce the average life to
stated maturity or the stated maturity of such Indebtedness and, if the
Indebtedness being renewed, extended, substituted, refinanced or replaced is
Indebtedness of the Guarantor, such renewal, extension, substitution,
refinancing or replacement shall be Indebtedness of the Guarantor; and (xi)
additional Indebtedness (including Acquired Indebtedness) having a principal
amount outstanding at issuance or at the date of assumption not to exceed
$100,000,000, at any time outstanding.
"Permitted Investments" means (i) transactions reflected as
debits and credits on the books and records of the Guarantor and entered into
in the ordinary course of business, consistent with past practices, in
connection with the Guarantor's cash management system and ongoing cost and
reimbursement arrangements among the Guarantor and its Restricted
Subsidiaries, all in accordance with GAAP, (ii) Investments in Restricted
Subsidiaries, and (iii) Investments in an aggregate amount not exceeding
$20,000,000 outstanding at any time.
"Person" means any individual, corporation, partnership,
Joint Venture, association, joint-stock company, trust, unincorporated
organization or government or agency or political subdivision thereof.
"Preferred Stock" means, with respect to any person, any and
all shares, interests, participations or other equivalents (however
designated) of such person's preferred or preference stock, whether now
outstanding or issued after the date hereof, which is preferred as to the
payment of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation of such person, and includes, without limitation, all
classes and series of preferred or preference stock.
"Principal" or "Principal Amount" of a Security means the
principal amount payable at Stated Maturity as set forth on the face of the
Security.
"Quoted Price" means the last reported sales price (or, if no
sales prices are reported, the average of the high and low bid prices on the
last preceding trading day) of a security on the New York Stock Exchange
Composite Tape or such other international, national or regional stock
exchange upon which the common stock is listed, or, if the shares of common
stock or comparable common equity stock are not listed on an international,
national or regional stock exchange, as quoted on the National Association of
Securities Dealers Automated Quotation System or the National Quotation Bureau
Incorporated or similar quotation system. In the absence of one or more such
quotations, the Guarantor shall be entitled to determine the Quoted Price on
the basis of such quotations as it considers appropriate.
"Redeemable Stock" means any equity security that by its
terms or otherwise is required to be redeemed prior to the Stated Maturity of
the Securities, or is redeemable at the option of the holder thereof at any
time prior to the Stated Maturity of the Securities.
"Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrar" means an office or agency of the Company where
Securities may be presented for registration of transfer or for exchange.
"Restricted Subsidiary" means any person of which at least
90% of the total voting power of outstanding shares of Capital Stock entitled
(without regard to the occurrence of any contingency which does or may suspend
or dilute the voting rights of such stock) to vote in the election of
directors, managers or trustees thereof is at such time owned or controlled by
the Guarantor directly or through one or more of the other Subsidiaries of the
Guarantor or a combination thereof, provided, however, that Triton Colombia
shall be deemed a Restricted Subsidiary for all purposes of this definition
and Indenture for as long as the Guarantor shall retain the beneficial
ownership of any of its Capital Stock having the right to vote on matters
brought before shareholders generally, and provided, further, that a Special
Subsidiary shall be deemed a Restricted Subsidiary at such time as it becomes
at least 90% owned in accordance with this definition.
"SEC" means the Securities and Exchange Commission.
"Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture.
"Senior Indebtedness of the Company" shall mean (i) the
principal of and premium, if any, and interest on and all other monetary
obligations of every kind or nature due on or in connection with any
Indebtedness of the Company (other than as otherwise provided in this
definition), whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Securities, and (ii) Indebtedness
outstanding or hereafter incurred under the Company's bank agreements.
Notwithstanding the foregoing, Senior Indebtedness of the Company shall not
include (a) the principal of and premium, if any, and interest on and all
other monetary obligations of every kind or nature due on or in connection
with any Indebtedness of the Company to a Subsidiary or any other Affiliate of
the Company or any of such Affiliate's subsidiaries, (b) Indebtedness that is
subordinate or junior in right of payment to any Indebtedness of the
Company,(c) Indebtedness that, when incurred, was without recourse to the
Company, (d) any liability for federal, state, local or other taxes owed or
owing by the Company, (e) that portion of any Indebtedness which at the time
of issuance is issued in violation of the Indenture, (f) Indebtedness that is
represented by Redeemable Stock, (g) amounts owing under leases (other than
any Capitalized Lease Obligations), or (h) all amounts owed (except to banks
and other financing institutions) for goods, materials or services purchased
in the ordinary course of business or for compensation to employees.
"Senior Indebtedness of the Guarantor" shall mean (i) the
principal of and premium, if any, and interest on and all other monetary
obligations of every kind or nature due on or in connection with any
Indebtedness of the Guarantor (other than as otherwise provided in this
definition), whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment the Guarantees and (ii) Indebtedness
outstanding or hereafter incurred under the Guarantor's bank agreements.
Notwithstanding the foregoing, Senior Indebtedness of the Guarantor shall not
include (a) the principal of and premium, if any, and interest on and all
other monetary obligations of every kind or nature due on or in connection
with any Indebtedness of the Guarantor to a Subsidiary or any other Affiliate
of the Guarantor or any of such Affiliate's subsidiaries, (b) Indebtedness
that is subordinate or junior in right of payment to any Indebtedness of the
Guarantor,(c) Indebtedness that, when incurred, was without recourse to the
Guarantor, (d) any liability for federal, state, local or other taxes owed or
owing by the Guarantor, (e) that portion of any Indebtedness which at the time
of issuance is issued in violation of the Indenture, (f) Indebtedness that is
represented by Redeemable Stock, (g) amounts owing under leases (other than
any Capitalized Lease Obligations), or (h) all amounts owed (except to banks
and other financing institutions) for goods, materials or services purchased
in the ordinary course of business or for compensation to employees.
"Special Subsidiaries" means Triton Canada Resources Ltd.,
Triton Europe p.l.c., Crusader Limited, New Zealand Petroleum Company Limited
and Aero Services International, Inc.
"Standard Yield" means 5.93%, if a Security is redeemed on or
before November 1, 1993, 5.39%, if redeemed after November 1, 1993 and on or
before November 1, 1994, 4.84%, if redeemed after November 1, 1994 and on or
before November 1, 1995, 4.37%, if redeemed after November 1, 1995 and on or
before November 1, 1996, and 3.49%, if redeemed after November 1, 1996 and
prior to the Stated Maturity.
"Stated Maturity," when used with respect to any Security,
means the date specified in such Security as the fixed date on which an amount
equal to the Principal of such Security is due and payable.
"Subsidiary" means any person of which at least 50% of the
total voting power of outstanding shares of Capital Stock entitled (without
regard to the occurrence of any contingency which does or may suspend or
dilute the voting rights of such stock) to vote in the election of directors,
managers or trustees thereof is at such time owned or controlled, by any
person directly or through one or more of the other Subsidiaries of that
person or a combination thereof, provided, however, that Triton Colombia shall
be deemed a Subsidiary of the Guarantor for all purposes of this definition
and Indenture for as long as the Guarantor shall retain the beneficial
ownership of any of its Capital Stock having the right to vote on matters
brought before shareholders generally, and provided, further, that for
purposes of this definition, the term Subsidiaries shall not include any
Special Subsidiary until such time as it becomes a Restricted Subsidiary.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act
of 1939, as amended (15 U.S. Code Sections 77aaa-77bbb), as in effect on the
date this Indenture was executed; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, "TIA" or "Trust
Indenture Act" shall mean, to the extent required by such amendment, the Trust
Indenture Act of 1939, as so amended.
"Treasury Yield" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by and published in the most recent Federal Reserve Statistical
Release H.15 (519) which has become publicly available at least two Business
Days prior to the applicable Redemption Date (or, if such Statistical Release
is no longer published, any publicly available source of similar data)) most
nearly equal to the then remaining average life of the Securities; provided,
that if the average life of the Securities is not equal to the constant
maturity of a United States Treasury security for which a weekly average yield
is given, the Treasury Yield shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average
yields of United States Treasury securities for which such yields are given,
except that if the average life of the Securities is less than one year, the
weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year shall be used.
"Triton Colombia" means Triton Colombia, Inc., one of the
Guarantor's wholly-owned Subsidiaries.
<PAGE>
"Trustee" means the party named as such in the first
paragraph of this Indenture until a successor replaces it in accordance with
the provisions of this Indenture, and thereafter means such successor.
"Voting Stock" means the Capital Stock of any class or kind
ordinarily (without regard to the occurrence of any contingency) having the
power to vote for the election of directors of the Company or the Guarantor.
"Wholly-owned Subsidiary" means, with respect to any person,
any Subsidiary of such person, all of the outstanding shares of Capital Stock
having the right to participate in the residual equity of such Subsidiary
(other than qualifying shares required to be owned by directors) of which are
owned directly by such person or a wholly-owned Subsidiary of such person.
SECTION 1.02. Other Definitions.
Defined in
Term Section
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.06(a)
"Asset Sale Amount" . . . . . . . . . . . . . . . . . . . . . . 10.16(c)
"Asset Sale Offer" . . . . . . . . . . . . . . . . . . . . . . 10.16(c)
"Asset Sale Offer Date" . . . . . . . . . . . . . . . . . . . . 10.16(c)
"Asset Sale Offer Notice" . . . . . . . . . . . . . . . . . . 10.16(e)
"Asset Sale Offer Price" . . . . . . . . . . . . . . . . . . . 10.16(c)
"Asset Sale Purchase Date" . . . . . . . . . . . . . . . . . . 10.17(d)
"Asset Sale Purchase Notice" . . . . . . . . . . . . . . . . . 10.16(f)
"Change in Control Purchase Notice" . . . . . . . . . . . . . . 10.13(c)
"Change in Control Purchase Date" . . . . . . . . . . . . . . . 10.13(a)
"Change in Control Purchase Price" . . . . . . . . . . . . . . 10.13(a)
"Covenant defeasance" . . . . . . . . . . . . . . . . . . . . . . .12.03
"Defeasance" . . . . . . . . . . . . . . . . . . . . . . . . . . .12.02
"Deficiency" . . . . . . . . . . . . . . . . . . . . . . . . . 10.16(c)
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . 5.01
"Excess Proceeds" . . . . . . . . . . . . . . . . . . . . . . . 10.16(b)
"Payment Blockage Period" . . . . . . . . . . . . . . . . . . . 11.03(b)
"Permitted Junior Securities" . . . . . . . . . . . . . . . 11.02(c)(1)
"Restricted Payments" . . . . . . . . . . . . . . . . . . . . . . 10.08
"Security Register" . . . . . . . . . . . . . . . . . . . . . . . . 2.04
"U.S. Government Obligations" . . . . . . . . . . . . . . . . . . .12.04
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
<PAGE>
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a
Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or
any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by SEC rule
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.04. Compliance Certificates and Opinions. Upon
any application or request by the Company or the Guarantor to the Trustee to
take any action under any provision of this Indenture, the Company or the
Guarantor, as the case may be, shall furnish to the Trustee such certificates
and opinions as may be required under the Trust Indenture Act and an Officers'
Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such
documents or any of them is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
SECTION 1.05. Form of Documents Delivered to Trustee. In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such person, or that
they be so certified or covered by only one document, but one such person may
certify or give an opinion with respect to some matters and one or more other
such persons as to other matters, and any such person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or
the Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company or the Guarantor, as the case may be, stating that the
information with respect to such factual matters is in the possession of the
Company or the Guarantor, as the case may be, unless such counsel knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture or any Security, they may, but need
not, be consolidated and form one instrument.
SECTION 1.06. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or both are delivered to the Trustee and, where it is hereby
expressly required, to the Company or the Guarantor. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
person of a Security, shall be sufficient for any purpose of this Indenture
and (subject to Section 315 of the Trust Indenture Act) conclusive in favor of
the Trustee, the Company and the Guarantor, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any person of any
such instrument or writing may be proved in any reasonable manner which
the Trustee deems sufficient and in accordance with such reasonable rules as
the Trustee may determine; and the Trustee may in any instance require further
proof with respect to any of the matters referred to in this Section.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, the Company or the Guarantor in reliance
thereon, whether or not notation of such action is made upon such Security.
(d) The ownership of Securities shall be proved by the
Security Register.
SECTION 1.07. Notices, etc. to Trustee, Company and
Guarantor. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, the Company or the Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trustee Administration Department, or
(2) the Company by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company, addressed to the attention of its Treasurer, which address is 6688 N.
Central Expressway, Suite 1400, Dallas, Texas 75206-9926, or at any other
address previously furnished in writing to the Trustee by the Company, or
(3) the Guarantor by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Guarantor, addressed to the attention of its Treasurer, which address is
Caledonian House, Mary Street, P.O. Box 1043, George Town, Grand Cayman,
Cayman Islands, or at any other address previously furnished in writing
to the Trustee by the Guarantor.
SECTION 1.08. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture, where
this Indenture provides for notice to Holders of Securities of any event, such
notice shall be sufficiently given to Holders of Securities if in writing and
mailed, first-class postage prepaid, to each Holder of a Security affected by
such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice.
In any case where notice to Holders of Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Security shall affect the sufficiency of
such notice with respect to other Holders of Securities given as provided
herein. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given or provided. In the case by
reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders of Securities shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 1.09. Language of Notices. Any request, demand,
authorization, direction, notice, consent, election or waiver required or
permitted under this Indenture shall be in the English language, except that,
if the Company so elects, any published notice may be in an official language
of the country of publication.
SECTION 1.10. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with any duties under any
required provision of the Trust Indenture Act imposed hereon by Section 318(c)
thereof, such required provision shall control.
SECTION 1.11. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.12. Successors and Assigns. All covenants and
agreements in this Indenture by the Company or the Guarantor shall bind the
successors and assigns of the Company or the Guarantor, respectively, whether
so expressed or not.
SECTION 1.13. Separability Clause. In case any provision in
this Indenture or any Security shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.14. Benefits of Indenture. Nothing in this
Indenture or any Security express or implied, shall give to any person, other
than the parties hereto, any Registrar, any Paying Agent and their successors
hereunder and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.15. Governing Law. This Indenture and the
Securities shall be governed by and construed in accordance with the laws of
the State of New York as applied to agreements made or instruments entered
into and, in each case, performed in said state, without regard to principles
of conflicts of laws.
<PAGE>
SECTION 1.16. Submission to Jurisdiction. The Guarantor
hereby irrevocably submits to the jurisdiction of the courts of the State of
New York and of the courts of the United States of America having jurisdiction
in the State of New York for the purpose of any legal action or proceeding in
any such court with respect to, or arising out of, this Indenture, the
Securities or the Guarantees. The Guarantor designates and appoints Triton
Energy Corporation, 6688 North Central Expressway, Suite 1400, Dallas, Texas
75206-9926, Attention: Robert B. Holland, III and its successors as the
Guarantor's lawful agent in the United States of America upon which may be
served, and which may accept and acknowledge, for and on behalf of the
Guarantor all process in any action, suit or proceedings that may be brought
against the Guarantor in any of the courts referred to in this Section, and
agrees that such service of process, or the acceptance or acknowledgement
thereof by said agent, shall be valid, effective and binding in every respect;
provided, however, that if said agency shall cease for any reason whatsoever,
the Guarantor hereby designates and appoints, without power of revocation, the
Secretary of State of the State of New York to serve as its agent for service
of process. Nothing contained in this Section 1.16 shall limit the right of
the Holders of the Securities or any of them to take proceedings against the
Guarantor in any other court of competent jurisdiction nor, by virtue of
anything contained herein, shall the taking of proceedings in one or more
jurisdictions preclude the taking or proceedings in any other jurisdiction
whether concurrently or not.
SECTION 1.17. Legal Holidays. In any case where any
Redemption Date, Change in Control Purchase Date, Asset Sale Purchase Date,
date for payment of interest on overdue amounts or Stated Maturity shall be a
Legal Holiday at any place of payment, then (notwithstanding any other
provision of this Indenture, any Security other than a provision in any
Security that specifically states that such provision shall apply in lieu of
this Section) payment need not be made at such place of payment on such date,
but may be made on the next succeeding day that is a Business Day at such
place of payment with the same force and effect as if made on the Redemption
Date, Change in Control Purchase Date, Asset Sale Purchase Date, date for
payment of interest on overdue amounts or Stated Maturity, and such time for
the period from and after such Redemption Date, Change in Control Purchase
Date, Asset Sale Purchase Date, date for payment of interest on overdue
amounts or Stated Maturity.
ARTICLE II
The Securities
SECTION 2.01. Forms Generally. The Securities and the
Trustee's certificate of authentication shall be in substantially the forms
set forth in Exhibit A, which is a part of this Indenture, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. Any portion of
the text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
The Guarantees to be endorsed on the Securities shall be in
substantially the forms set forth in Exhibit B, which is a part of this
Indenture, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Guarantees as evidenced by their execution of the
Guarantees.
The terms and provisions contained in the form of the
Securities and Guarantees endorsed thereon, annexed hereto as Exhibits A and
B, shall constitute, and are hereby expressly made, a part of this Indenture.
To the extent applicable, the Company, the Guarantor and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
The definitive Securities and Guarantees shall be printed,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities and Guarantees, as evidenced by their
execution of such Securities and Guarantees.
SECTION 2.02. Execution, Authentication, Delivery and
Dating. Securities shall be executed on behalf of the Company by its Chairman
of the Board, one of its Vice Chairmen, its President, its Treasurer or one of
its Vice Presidents under its corporate seal reproduced thereon and attested
by its Secretary or one of its Assistant Secretaries and the Guarantees shall
be executed on behalf of the Guarantor by its Chairman of the Board, one of
its Vice Chairmen, its President, its Treasurer or one of its Vice Presidents
under its corporate seal reproduced thereon and attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these officers on
the Securities or the Guarantees, as applicable, may be manual or facsimile.
<PAGE>
Securities or Guarantees bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company or the Guarantor, as applicable, shall bind the Company or the
Guarantor, as applicable, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Securities having endorsed thereon Guarantees or did not hold such
offices at the date of such Securities or Guarantees.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company having endorsed thereon Guarantees executed by the Guarantor to the
Trustee for authentication and, provided that a resolution from the Board of
Directors of the Company, a resolution from the Board of Directors of the
Guarantor, Officers' Certificate or supplemental indenture or indentures with
respect to such Securities and Guarantees and a Company Order for the
authentication and delivery of such Securities and Guarantees endorsed thereon
has been delivered to the Trustee, the Trustee in accordance with the Company
Order and subject to the provisions hereof and of such Securities and
Guarantees shall authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication.
No Security or Guarantee endorsed thereon shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided in the form of Security attached hereto as Exhibit A executed by
or on behalf of the Trustee by the manual signature of one of its authorized
officers. All Securities outstanding as of March 25, 1996 shall be deemed to
have endorsed thereon a Guarantee in the form of the Guarantee attached hereto
as Exhibit B. Such certificate upon any Security shall be conclusive
evidence,and the only evidence, that such Security has been duly authenticated
and delivered hereunder.
In case the Company or the Guarantor, pursuant to Article
VIII, shall be consolidated or merged with or into any other person or shall
convey, transfer, lease or otherwise dispose of all or substantially all of
its properties and assets to any person and the successor person resulting
from such consolidation, or surviving such merger, or into which the Company
or the Guarantor, as the case may be, shall have been merged, or the successor
person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article VIII, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance, transfer, lease
or other disposition may, from time to time, at the request of the successor
person, be exchanged for other securities executed in the name of the
successor person with such changes in phraseology and form as may be
appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like Principal Amount; and the Trustee,
upon Company Order of the successor person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of
a successor person pursuant to this Section in exchange or substitution for or
upon registration of transfer of any Securities, such successor person, at the
option of any Holder but without expense to such Holder, shall provide for the
exchange of all Securities at the time outstanding held by such Holder for
Securities authenticated and delivered in such new name.
SECTION 2.03. Temporary Securities. Pending the preparation
of definitive Securities, the Company may execute and deliver to the Trustee
and, upon Company Order, the Trustee shall authenticate and deliver, in the
manner provided in Section 2.02, temporary Securities in lieu thereof which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, having
endorsed thereon Guarantees duly executed by the Guarantor, substantially in
the form of the definitive Guarantees, and with such appropriate insertions,
omissions, substitutions and other variations as the officers of the Company
executing such Securities and the officers of the Guarantor executing such
Guarantees may determine, as conclusively evidenced by their execution of such
Securities and Guarantees, respectively.
If temporary Securities are issued, the Company shall cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities containing terms and provisions that are
identical to those of any temporary Securities, such temporary Securities
shall be exchangeable for such definitive Securities upon surrender of such
temporary Securities at the office or agency of the Company designated
pursuant to Section 10.02 without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor, a like Principal Amount of definitive Securities of
authorized denominations containing identical terms and provisions, having
endorsed thereon Guarantees executed by the Guarantor. Unless otherwise
provided in or pursuant to this Indenture, until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 2.04. Registration, Transfer and Exchange. With
respect to the Securities, the Company shall cause to be kept a register (the
"Security Register") at the Corporate Trust Office which, subject to such
reasonable regulations as the Trustee may prescribe, the Company shall provide
for the registration of the Securities and of transfers of the Securities.
The Trustee is hereby initially appointed Registrar for the purpose of
registering Securities and transfers of Securities as herein provided, subject
to Section 10.02. In the event that the Trustee shall cease to be Registrar
with respect to the Securities, it shall have the right to examine the
Security Register at all reasonable times.
Upon surrender for registration of transfer of any Security
at any office or agency of the Company designated pursuant to Section 10.02,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Securities denominated as authorized in or pursuant to this Indenture, of a
like aggregate Principal Amount, having endorsed thereon a Guarantee executed
by the Guarantor bearing a number not contemporaneously outstanding and
containing identical terms and provisions.
At the option of the Holder, Securities may be exchanged for
other Securities containing identical terms and provisions, in any authorized
denominations, and of a like aggregate Principal Amount, each such Security
having endorsed thereon a Guarantee executed by the Guarantor, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive, each Security having endorsed thereon a
Guarantee executed by the Guarantor.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company
evidencing the same debt and entitling the Holders thereof to the same
benefits under this Indenture as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar duly executed,
by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange, or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 2.02, 2.03, this 2.04, or
9.06 not involving any transfer.
Except as otherwise provided in or pursuant to this
Indenture, the Company shall not be required (i) to issue, register the
transfer of or exchange any Securities during a period beginning at the
opening of business 15 days before the day of the selection for redemption of
Securities under Section 3.03 and ending at the close of business on the day
of such selection, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except in the case of
any Security to be redeemed in part, the portion thereof not to be redeemed,
or (iii) to issue, register the transfer of or exchange any Security which, in
accordance with its terms, has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 2.05. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security is surrendered to the Trustee, subject
to the provisions of this Section 2.05, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security
containing identical terms and of like Principal Amount, having endorsed
thereon a Guarantee executed by the Guarantor and bearing a number not
contemporaneously outstanding.
If there be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and, upon the
Company's request the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Security, a new
Security containing identical terms and of like principal amount, having
endorsed thereon a Guarantee executed by the Guarantor and bearing a number
not contemporaneously outstanding.
Notwithstanding the foregoing provisions of this Section
2.05, in case any mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute a separate obligation
of the Company and of the Guarantor with respect to the Guarantee endorsed
thereon, whether or not the destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
<PAGE>
The provisions of this Section, as amended or supplemented
pursuant to this Indenture, with respect to the Securities shall be exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 2.06. Persons Deemed Owners. Prior to due
presentment of a Security for registration of transfer, the Company, the
Guarantor, the Trustee and any agent of the Company, the Guarantor or the
Trustee may treat the person in whose name such Security is registered in the
Security Register as the owner of such Security for the purpose of receiving
payment of the Principal Amount, premium (if any), any Issue Price, accrued
Original Issue Discount, Redemption Price, Change in Control Purchase Price,
Asset Sale Offer Price, interest (if any) and any other required payment
hereunder with respect to such Security and for all other purposes whatsoever,
whether or not any payment with respect to such Security shall be overdue, and
neither the Company, nor the Guarantor, or the Trustee or any agent of the
Company, the Guarantor or the Trustee shall be affected by notice to the
contrary.
SECTION 2.07. Cancellation. All Securities surrendered for
payment, redemption, registration of transfer or exchange shall, if
surrendered to any person other than the Trustee, be delivered to the Trustee,
and any such Securities, as well as Securities surrendered directly to the
Trustee for any such purpose, shall be canceled promptly by the Trustee. The
Company or the Guarantor may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company or the Guarantor may have acquired in any manner whatsoever,
and all Securities so delivered shall be canceled promptly by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by or
pursuant to this Indenture. All canceled Securities held by the Trustee shall
be disposed of as directed by a Company Order or, in the absence of such
Company Order, in accordance with the Trustee's standard procedures.
SECTION 2.08. Computation of Original Issue Discount.
Except as otherwise provided in or pursuant to this Indenture, Original Issue
Discount on the Securities shall accrue at 12.50% per annum, on a semi-annual
bond equivalent basis using a 360-day year composed of twelve 30-day months,
commencing on the date of this Indenture.
<PAGE>
ARTICLE III
Redemption of Securities
SECTION 3.01. Right of Redemption. The Securities may be
redeemed, at the election of the Company, as a whole or from time to time in
part, at the Redemption Prices specified in the form of Security.
SECTION 3.02. Applicability of Article. Redemption of
Securities at the election of the Company or otherwise, as permitted or
required by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
SECTION 3.03. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities pursuant to Section 3.01
shall be evidenced by a resolution from the Board of Directors, a certified
copy of which is delivered to the Trustee. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by it (unless a shorter notice period shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the aggregate Principal Amount of Securities to be redeemed.
SECTION 3.04. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities are to be redeemed, the particular
Securities or portions thereof to be redeemed shall be selected not more than
60 days and not less than 30 days prior to the Redemption Date by the Trustee
from the outstanding Securities not previously called for redemption, either
pro rata, by lot or by another method the Trustee shall deem fair and
reasonable, and the aggregate Principal Amounts to be redeemed may be equal to
$1,000 or any integral multiple thereof in a minimum amounts of at
least $20,000,000 or otherwise pursuant to the terms of this Indenture.
The Trustee shall promptly notify the Company and the
Registrar in writing of the Securities selected for redemption and, in the
case of any Securities selected for partial redemption, the aggregate
Principal Amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the aggregate Principal Amount of such Security which has
been or is to be redeemed.
SECTION 3.05. Notice of Redemption. Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, at his address appearing in the Security Register.
<PAGE>
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all outstanding Securities are to be
redeemed, the identification (and, in the case of a Security to be redeemed in
part, the aggregate Principal Amount) of the particular Securities to be
redeemed;
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or portion thereof, and that
unless the Company shall default in payment of the Redemption Price, accrued
Original Issue Discount thereon shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(f) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(g) the CUSIP number, if any, relating to such Securities;
and
(h) in the case of a Security to be redeemed in part, the
aggregate Principal Amount of such Security to be redeemed and that after the
Redemption Date upon surrender of such Security, new Security or Securities in
the aggregate Principal Amount equal to the unredeemed portion thereof will be
issued.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at its request, by
the Trustee in the name and at the expense of the Company.
SECTION 3.06. Deposit of Redemption Price. On or prior to
any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust) an amount of money in same day funds (or New York Clearing
House funds if such deposit is made prior to the applicable Redemption Date)
sufficient to pay the Redemption Price of all the Securities or portions
thereof which are to be redeemed on that date.
SECTION 3.07. Securities Payable on Redemption Date. Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall
default in the payment of the Redemption Price) such Securities shall cease to
accrue Original Issue Discount. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the Issue Price thereof and premium (if
any), thereon shall, until paid, accrue Original Issue Discount from the
Redemption Date at the rate set forth in Section 2.08.
SECTION 3.08. Securities Redeemed in Part. Any Security
that is to be redeemed only in part shall be surrendered at the office or
agency of the Company maintained for such purpose pursuant to Section 10.02
(with, if the Company, the Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the Company, the Registrar or the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate Principal
Amount equal to and in exchange for the unredeemed portion of the Principal
Amount of the Security so surrendered.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01. Discharge of Liability on Securities. When
(i) the Company or the Guarantor delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.05) for
cancellation or (ii) all outstanding Securities have become due and payable
and the Company or the Guarantor deposits with the Trustee cash sufficient to
pay at Stated Maturity the Principal Amount of all outstanding Securities
(other than Securities replaced pursuant to Section 2.05), and if in either
case the Company or the Guarantor pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Sections 4.02 and 6.05, cease
to be of further effect. The Trustee shall, at the cost and expense of the
Company, join in the execution of a document prepared by the Company
acknowledging satisfaction and discharge of this Indenture on demand of the
Company accompanied by an Officer's Certificate and Opinion of Counsel, each
stating that all conditions precedent to the satisfaction and discharge of
this Indenture have been complied with.
<PAGE>
SECTION 4.02. Repayment to the Company. The Trustee and the
Paying Agent shall return to the Company, upon written request any money held
by them for the payment of any amount with respect to the Securities that
remains unclaimed for two years; provided, however, that the Trustee or such
Paying Agent, before being required to make any such return, may at the
expense of the Company cause to be published once in a newspaper of general
circulation in the City of New York or mail to each such Holder notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication or mailing,
any unclaimed money then remaining will be returned to the Company. After
return to the Company, Holders entitled to the money must look only to the
Company for payment as general creditors unless an applicable abandoned
property law designates another person.
ARTICLE V
Defaults and Remedies
SECTION 5.01. Events of Default. "Event of Default",
wherever used herein, means any one of the following events (whatever the
reason for such Event of Default and whether or not it shall be occasioned or
prohibited by the provisions of Article XI or be voluntary or involuntary or
be effected by the operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of the Principal Amount, Issue
Price, accrued Original Issue Discount, Redemption Price, Change in Control
Purchase Price, Asset Sale Offer Price or any other required payment under
this Indenture when the same becomes due and payable as herein provided,
whether at its Stated Maturity, upon redemption, upon declaration of
acceleration, when due for purchase by the Company or otherwise, whether or
not such payment shall be prohibited by this Indenture; or
(b) default in the performance, or breach, of any covenant
or agreement of the Company or the Guarantor hereunder (other than a default
in the performance, or breach, of a covenant or agreement that is specifically
dealt with elsewhere in this Section), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company and the Guarantor by the Trustee or to the
Company, the Guarantor and the Trustee by the Holders of at least 25% in
Principal Amount of the outstanding Securities a written notice specifying
such default or breach and stating that such notice is a "Notice of Default"
hereunder; or
<PAGE>
(c) (i) an event of default shall have occurred under any
mortgage, bond, indenture, loan agreement or other document evidencing any
issue of Indebtedness of the Company, the Guarantor or any other Material
Subsidiary (except for any Special Subsidiary less than 30% of the common
equity of which is directly or indirectly owned by the Company as of the date
of this Indenture) for money borrowed, which issue has an aggregate
outstanding principal amount of not less than $10,000,000, and such default
shall result in such Indebtedness becoming, whether by declaration or
otherwise, due and payable prior to the date on which it would otherwise
become due and payable or (ii) a default in any payment when due at final
maturity of any such Indebtedness; or
(d) final judgments or orders rendered against the Company,
the Guarantor or any other Material Subsidiary (except for any Special
Subsidiary less than 30% of the common equity of which is directly or
indirectly owned by the Company as of the date of this Indenture) which
require the payment in money, either individually or in an aggregate amount,
of more than $10,000,000 and such judgment or order shall remain unsatisfied
or unstayed for 60 consecutive days after such judgement or order becomes
final and nonappealable; or
(e) the entry of a decree or order by a court having
jurisdiction in the premises (i) for relief in respect of the Company, the
Guarantor or any other Material Subsidiary (except for any Special Subsidiary
less than 30% of the common equity of which is directly or indirectly owned by
the Company as of the date of this Indenture) in an involuntary case or
proceeding under, in the case of the Company or any other Material Subsidiary,
the Federal Bankruptcy Code or any other Federal or state bankruptcy,
insolvency, reorganization or similar law, or, in the case of the Guarantor,
any applicable bankruptcy, insolvency, reorganization or other similar law of
the Cayman Islands, or (ii) adjudging the Company, the Guarantor or any other
such Material Subsidiary a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company, the
Guarantor or any other such Material Subsidiary under, in the case of the
Company or any other Material Subsidiary, the Federal Bankruptcy Code or any
other applicable Federal or state law, or, in the case of the Guarantor, any
applicable bankruptcy, insolvency, reorganization or other similar law of the
Cayman Islands; or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company, the
Guarantor, or any other such Material Subsidiary or of any substantial part of
any of their properties, or ordering the winding up or liquidation of any of
their affairs, and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(f) the institution by the Company, the Guarantor or any
other Material Subsidiary (except for any Special Subsidiary less than 30% of
the common equity of which is directly or indirectly owned by the Company as
of the date of this Indenture) of a voluntary case or proceeding under, in the
case of the Company or any other Material Subsidiary, the Federal Bankruptcy
Code or any other applicable Federal or state law, or, in the case of the
Guarantor, any applicable bankruptcy, insolvency, reorganization or other
similar law of the Cayman Islands or any other case or proceedings to be
adjudicated a bankrupt or insolvent, or the consent by the Company, the
Guarantor or any other such Material Subsidiary to the entry of a decree or
order for relief in respect of the Company, the Guarantor or any other such
Material Subsidiary in any involuntary case or proceeding under, in the case
of the Company or any other Material Subsidiary, the Federal Bankruptcy Code
or any other applicable Federal or state law, or, in the case of the
Guarantor, any applicable bankruptcy, insolvency, reorganization or other
similar law of the Cayman Islands or to the institution of bankruptcy or
insolvency proceedings against the Company, the Guarantor or any other such
Material Subsidiary, or the filing by the Company, the Guarantor or any other
such Material Subsidiary of a petition or answer or consent seeking
reorganization or relief under, in the case of the Company or any other
Material Subsidiary, the Federal Bankruptcy Code or any other applicable
Federal or state law, or, in the case of the Guarantor, any applicable
bankruptcy, insolvency, reorganization or other similar law of the Cayman
Islands, or the consent by it to the filing of any such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of any of the
Company, the Guarantor or any other such Material Subsidiary or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due or taking of corporate action by
the Company, the Guarantor or any other such Material Subsidiary in
furtherance of any such action; or
(g) default by the Company or the Guarantor in the
performance or breach of the terms of Article VIII.
Each of the Company and the Guarantor shall deliver to the
Trustee, immediately after it becomes aware of the occurrence thereof, written
notice of (i) any Event of Default under this Section 5.01, or (ii) any event
which with the giving of notice or the lapse of time or both would become an
Event of Default under clause (b) or clause (c), its status and what action
the Company or the Guarantor is taking or proposes to take with respect
thereto.
<PAGE>
SECTION 5.02. Acceleration of Maturity; Rescission. If an
Event of Default with respect to the Securities (other than an Event of
Default specified in Section 5.01(e) or (f)) occurs and is continuing, the
Trustee or the Holders of at least a 25% in aggregate Principal Amount of the
Securities then outstanding, by written notice to the Company and the
Guarantor (and to the Trustee if such notice is given by Holders), may, and
the Trustee at the request of such Holders shall, declare the Issue Price and
accrued Original Issue Discount, and premium (if any), to be immediately due
and payable, as specified below. Upon a declaration of acceleration, such
amount shall be due and payable immediately after receipt by the Company and
the Guarantor of such written notice given hereunder. If an Event of Default
specified in Section 5.01(e) or 5.01(f) occurs and is continuing, then the
Issue Price and accrued Original Issue Discount on all of the Securities then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder. At any
time after such declaration of acceleration has been made and before a
judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
aggregate Principal Amount of the Securities outstanding, by written notice to
the Company, the Guarantor and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Company or the Guarantor has paid or deposited with
the Trustee a sum sufficient to pay
(i) all sums paid or advanced by the Trustee under
Section 6.05 and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and
(ii) the Issue Price, premium (if any), and accrued
Original Issue Discount on any Securities which have become due otherwise than
by such declaration of acceleration and overdue interest thereon (to the
extent of such overdue interest at the rate borne by the Securities); and
(b) the rescission would not conflict with any judgment or
and if all existing Events of Default, other than the non-payment of the Issue
Price and accrued Original Issue Discount which have become due solely by such
declaration of acceleration, have been cured or waived.
No such rescission shall affect any subsequent Default or
impair any right consequent thereon provided in Section 5.13.
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if an Event of Default
described in Section 5.01(a) occurs and is continuing, the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities, with
interest upon the overdue amounts and, to the extent that payment of such
interest shall be legally enforceable, upon overdue interest, at the rate
borne by the Securities; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company, the Guarantor or any other obligor upon
the Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company, the Guarantor or
any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to the Securities occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or the Securities or in aid of the
exercise of any power granted herein or therein, or to enforce any other
proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company, the Guarantor or any other obligor upon
the Securities or the property of the Company, the Guarantor or such other
obligor or their creditors, the Trustee (irrespective of whether the Principal
Amount, premium (if any), Issue Price, accrued Original Issue Discount,
Redemption Price, Change in Control Purchase Price, Asset Sale Offer Price,
interest (if any), or any other payment required to be made under this
Indenture in connection with the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company or the Guarantor for the
payment of any such amount) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities, of the Principal
Amount, premium (if any), Issue Price, accrued Original Issue Discount,
Redemption Price, Change in Control Purchase Price, interest (if any), or any
other payment required under this Indenture and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents or counsel) and of the
Holders of Securities allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly
to the Holders of Securities, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.05.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
of a Security any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Holder of a
Security in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims without Possession
of Securities. All rights of action and claims under this Indenture or any of
the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment,after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security in respect of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.05;
<PAGE>
SECOND: To the payment of the amounts then due and unpaid
upon the Securities for the Principal Amount, premium (if any), Issue Price,
accrued Original Issue Discount, Redemption Price, Change in Control Purchase
Price, Asset Sale Offer Price, interest (if any), or any other payment
required under this Indenture, as the case may be, ratably, without preference
or priority of any kind, according to the aggregate amounts due and payable on
such Securities;
THIRD: The balance, if any, to the Company.
SECTION 5.07. Limitations on Suits. No Holder of any
Securities shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in aggregate Principal
Amount at the time outstanding shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) 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 aggregate Principal Amount of the outstanding Securities;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture or any Security to affect, disturb or prejudice
the rights of any other Holders of Securities, or to obtain or to seek to
obtain priority or preference over any other Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all such Holders.
SECTION 5.08. Unconditional Right of Holders to Receive
Payment. Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the Amount, premium (if any), Issue Price, accrued Original
Discount, Redemption Price, Change in Control Purchase Price, Asset Sale Offer
Price, interest (if any), or any other required payment under this Indenture
with respect to such Security, on the respective due dates therefor specified
in such Security (or, in the case of redemption, on the Redemption Date or, in
the case of repayment at the option of such Holder as provided in or pursuant
to this Indenture, on the date such repayment is due) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
or affected without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Guarantor, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Trustee and each such Holder shall continue as though no such proceeding
had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as
otherwise provided in Section 2.05, no right or remedy herein conferred upon
or reserved to the Trustee or to each and every Holder of a Security is
intended to be exclusive of any other right or remedy, and every right and
remedy to the extent permitted by law, shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the
Trustee or to any Holder of a Security may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by such Holder, as the
case may be.
SECTION 5.12. Control by Holders of Securities. The Holders
of a majority in aggregate Principal Amount of the outstanding Securities
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, provided that
<PAGE>
(a) such direction shall not be in conflict with any rule of
law or with this Indenture or with the Securities, and
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults. The Holders of not
less than a majority in aggregate Principal Amount of the outstanding
Securities, by notice to the Trustee (and without notice to any other Holder)
on behalf of the Holders of all the Securities may waive any past Default
hereunder with respect to such Securities and its consequences, except
(a) an Event of Default described in Section 5.01(a), or
(b) a Default in respect of a covenant or provision that
under Section 9.02 cannot be modified or amended without the consent of the
Holder of each outstanding Security affected.
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 5.14. Waiver of Stay or Extension Laws. The Company
and the Guarantor each covenants that (to the extent that it may lawfully do
so) it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company and the Guarantor each
expressly waives (to the extent that it may lawfully do so) all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VI
Trustee
SECTION 6.01. Rights of Trustee. Subject to TIA Section
315(a) through (d):
(a) The Trustee may rely on any document believed by it to
be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
<PAGE>
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within
its rights or powers, provided that the Trustee's conduct does not constitute
negligence or bad faith.
(e) The Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Securityholders pursuant to this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction.
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company or the Guarantor, personally or by agent or attorney.
(h) The Trustee shall not be charged with knowledge of any
Default or Event of Default with respect to the Securities unless either (1) a
responsible officer of the Trustee assigned to the Corporate Trust Department
of the Trustee (or any successor division or department of the Trustee) shall
have actual knowledge of such Default or Event of Default or (2) written
notice of such Default or Event of Default shall have been given to the
Trustee by the Company or any other obligor on the Securities or by any Holder
of the Securities.
<PAGE>
(i) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture.
SECTION 6.02. Individual Rights of Trustee. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company, the Guarantor or their
respective Affiliates with the same rights it would have if it were not the
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to TIA Sections 310(b) and 311.
SECTION 6.03. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture, the
Securities or the Guarantees endorsed thereon. It shall not be accountable
for the Company's or the Guarantor's use of the proceeds from the Securities
and it shall not be responsible for any statement in the Securities or the
Guarantees endorsed thereon other than its certificate of authentication.
SECTION 6.04. Notice of Default. If a Default or an Event
of Default occurs and is continuing with respect to the Securities and if it
is known to the Trustee, the Trustee shall mail to each Holder of Securities
notice of the Default or Event of Default within 30 days after it occurs,
unless such Default or Event of Default has been cured.
SECTION 6.05. Compensation and Indemnity. The Company and
the Guarantor shall pay to the Trustee such compensation as shall be agreed
upon in writing for its services. The Company and the Guarantor shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
and advances incurred or made by it. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and counsel.
The Company and the Guarantor shall, jointly and severally,
indemnify the Trustee for, and hold it harmless against, any loss or liability
or expense incurred by it without negligence or bad faith on its part, in
connection with the administration of this Indenture and its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its powers
or duties hereunder. The Trustee shall notify the Company and the Guarantor
promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Company and the Guarantor shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Company or the Guarantor shall pay reasonable fees and expenses of
such counsel. Neither the Company nor the Guarantor need pay for any
settlements made without its consent. Neither the Company nor the Guarantor
need reimburse any expense or indemnify against any loss or liability incurred
by the Trustee through negligence or bad faith.
To secure the Company's and the Guarantor's payment
obligations in this Section 6.05, the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the Trustee, in its
capacity as Trustee, except money or property held in trust to pay the
Principal Amount, premium (if any), Issue Price, accrued Original Issue
Discount, Redemption Price, Change in Control Purchase Price, Asset Sale Offer
Price, interest (if any), and any other payment required to be made hereunder,
as the case may be, on particular Securities.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in Section 5.01(e) or (f), the
expenses and the compensation for the services will be intended to constitute
expenses of administration under any applicable Federal Bankruptcy Law.
The provisions of this Section 6.05 shall survive the
resignation or removal of the Trustee and the termination of this Indenture.
SECTION 6.06. Replacement of Trustee. A resignation or
removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section 6.06. The Holders of a majority in aggregate
Principal Amount of the Securities at the time outstanding may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee. The
Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 6.08;
(2) the Trustee is adjudged a bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes legally incapable of
acting.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Company shall promptly appoint,
by resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee to the Company and the Guarantor.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
<PAGE>
duties of the Trustee under this Indenture. The successor Trustee shall mail
a notice of its succession to Securityholders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 6.05.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, the Guarantor or the Holders of a majority in aggregate Principal
Amount of the Securities at the time outstanding may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.08, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
SECTION 6.07. Successor Trustee by Merger, Etc. If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or
national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be
the successor Trustee.
SECTION 6.08. Eligibility; Disqualification. This Indenture
shall always have a Trustee who satisfies the requirements of TIA Section
310(a)(1). The Trustee shall have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b) regarding
disqualification of a trustee upon acquiring a conflicting interest.
SECTION 6.09. Money Held in Trust. The Trustee shall not be
liable for interest on any money received by it except as the Trustee may
agree in writing with the Company or the Guarantor. Money held in trust by
the Trustee need not be segregated from other funds except to the extent
required by law.
SECTION 6.10. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b).
A Trustee who has resigned or been removed shall be subject
to TIA Section 311(a) to the extent indicated therein.
<PAGE>
ARTICLE VII
Holders' Lists and Reports by Trustee,
Company and the Guarantor
SECTION 7.01. Company and Guarantor to Furnish Trustee Names
and Addresses of Holders. In accordance with Section 312(a) of the Trust
Indenture Act, the Company and the Guarantor shall furnish or cause to be
furnished to the Trustee
(a) semiannually with respect to the Securities on April 1
and November 1 of each year, or not more than 15 days after each such date, a
list, in each case in such form as the Trustee may reasonably require, of the
names and addresses of Holders as of the applicable date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company or the Guarantor of
any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Registrar, no such list
shall be required to be furnished.
SECTION 7.02. Preservation of Information; Communications to
Holders. The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the
same, agrees with the Company, the Guarantor and the Trustee that neither the
Company, the Guarantor, the Trustee, any Paying Agent or any Registrar shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders of Securities in accordance with
Section 312 of the Trust Indenture Act, regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b)of the Trust Indenture Act.
SECTION 7.03. Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing
with the first May 15 following the first issuance of Securities, the Trustee
shall transmit, pursuant to Section 313(a) of the Trust Indenture Act, a brief
report dated as of such May 15 with respect to any of the events specified in
said Section 313(a) which may have occurred since the later of the immediately
preceding May 15 and the date of this Indenture.
<PAGE>
(b) The Trustee shall transmit the reports required by
Section 313(a) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in
the manner and to the persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act.
SECTION 7.04. Reports by Company and the Guarantor. The
Company and the Guarantor, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(1) file with the Trustee, within 15 days after the Company
or the Guarantor, as the case may be, is required to file the same with the
SEC, copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC may
from time to time by rules and regulations prescribe) which the Company or the
Guarantor, as the case may be, may be required to file with the SEC pursuant
to Section 13 or Section 15(d) of the Exchange Act; or, if the Company or the
Guarantor is not required to file information, documents or reports pursuant
to either of said Sections, then the Company or the Guarantor, as the case may
be, shall file with the Trustee, the SEC and send to each Holder, in
accordance with rules and regulations prescribed from time to time by the SEC,
such of the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Exchange Act in respect of
a security listed and registered on a national securities exchange as may be
prescribed from time to time by such rules and regulations;
(2) file with the Trustee and the SEC, in accordance with
rules and regulations prescribed from time to time by the SEC, such additional
information, documents and reports with respect to compliance by the Company
or the Guarantor, or both, with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and reports
required to be filed by the Company or the Guarantor pursuant to paragraphs
(1) and (2) of this Section as may be required by the TIA or the rules and
regulations prescribed from time to time by the SEC.
<PAGE>
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.01. Company or Guarantor May Consolidate, Etc.,
Only on Certain Terms. Except as set forth in the proviso below, nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Company or the Guarantor with or into any other
person or persons (whether or not affiliated with the Company or the
Guarantor), or successive consolidations or mergers in which the Company, the
Guarantor or their respective successor or successors shall be a party or
parties, or shall prevent any conveyance, transfer or lease of the property of
the Company or the Guarantor as an entirety or substantially as an entirety,
to any other person (whether or not affiliated with the Company or the
Guarantor); provided, however, that:
(1) in case the Company or the Guarantor shall consolidate
with or merge into another person or convey, transfer or lease its properties
and assets substantially as an entirety to any person, the entity formed by
such consolidation or into which the Company or the Guarantor is merged or the
person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company or the Guarantor substantially as an
entirety shall be, in the case of the Company, a corporation organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia, and, in the case of the Guarantor, a corporation or
partnership organized under the laws of the United States of America, any
state thereof or the District of Columbia or the Cayman Islands or any
political subdivision thereof, and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee) supplemental
hereto, executed by the successor person and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture the obligations of the Guarantor under the
Guarantees and this indenture, as the case may be;
(2) immediately after giving effect to such transaction, no
event which, after notice or lapse of time, would become a Default or Event of
Default, shall have occurred and be continuing;
(3) in the case of the Guarantor, the Guarantor or the
Successor person as the case may be, would have a pro forma liquidated Net
Worth after giving effect to the transaction at least equal to the
Consolidated Net Worth of the Guarantor prior to the transaction;
<PAGE>
(4) except in the case of a transaction involving a Special
Subsidiary, the Guarantor or the successor person, as the case may be, could
incur an additional $1.00 of Indebtedness pursuant to Section 10.07 (other
than Permitted Indebtedness) after giving effect to the transaction; and
(5) either the Company, the Guarantor or the successor
person shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 8.02. Successor Person Substituted for Company.
Upon any consolidation or merger or any conveyance, transfer or lease of the
properties and assets of the Company or the Guarantor substantially as an
entirety to any person in accordance with Section 8.01, the successor person
formed by such consolidation or into which the Company or the Guarantor is
merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company or the Guarantor under this Indenture, as the case may be, with the
same effect as if such successor person had been named as the Company or the
Guarantor, as the case may be, herein; and thereafter, except in the case of a
lease to another person, the predecessor person shall be released from all
obligations and covenants under this Indenture, the Securities and the
Guarantees.
ARTICLE IX
Amendments
SECTION 9.01. Supplemental Indentures without Consent of
Holders. Without the consent of any Holders of Securities, the Company, the
Guarantor (when authorized by or pursuant to a resolution from its respective
Board of Directors, a certified copy of which has been delivered to the
Trustee) and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to comply with Article VIII or Section 10.15; or
(2) to add to the covenants of the Company or the Guarantor
for the benefit of the Holders or to surrender any right or power herein
conferred upon the Company or the Guarantor; or
<PAGE>
(3) to evidence the succession of another person to the
Company or the Guarantor and the assumption by such successor of the covenants
of the Company herein and in the Securities or of the covenants of the
Guarantor herein, in the Securities and the Guarantees endorsed thereon; or
(4) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not adversely affect the
interests of the Holders of Securities in any material respect; or
(5) to make any other change that does not materially
adversely affect the interests of the Holders of any Securities then
outstanding.
SECTION 9.02. Supplemental Indentures with Consent of
Holders. With the consent of Holders of a majority of the aggregate Principal
Amount of the outstanding Securities, the Company, the Guarantor (when
authorized by or pursuant to a resolution from its respective Board of
Directors, a certified copy of which has been delivered to the Trustee) and
the Trustee may enter into an Indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities under this Indenture; provided,
however, that no such supplemental indenture, without the consent of the
Holder of each outstanding Security affected thereby, shall
(1) make any change to the Principal Amount of Securities
whose Holders must consent to an amendment, or
(2) reduce the Principal Amount, or change the Stated
Maturity, of any Security, or
(3) make any change to the manner or rate of accrual in
connection with the Original Issue Discount with respect to any Security, or
reduce the rate of interest in paragraph 1 of the Securities or change the
time for payment of the Principal Amount or other interest, if any, on any
Security, or
(4) reduce the Redemption Price, Change in Control Purchase
Price, Asset Sale Offer Price or any other required payment under this
Indenture, or
<PAGE>
(5) reduce the percentage in Principal Amount of the
outstanding Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
Defaults hereunder and their consequences) provided for in this Indenture, or
(6) modify any of the provisions of this Section, or Section
5.08 or Section 5.13, or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each outstanding Security affected thereby, except with respect to this
Section to increase any such percentage, or
(7) make any change that adversely affects the right to
require the Company to redeem or purchase the Securities in accordance with
the terms thereof and this Indenture or the Guarantor to guarantee the payment
of the Securities in accordance with the terms of the Guarantees and this
Indenture.
It shall not be necessary for any act of Holders of
Securities under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such act shall approve
the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. As a
condition to executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of a
Security theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
<PAGE>
SECTION 9.06. Reference in Securities to Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Guarantor
shall so determine, new Securities so modified as to conform, in the opinion
of the Trustee, the Company and the Guarantor, to any such supplemental
indenture may be prepared and executed by the Company, having Guarantees
endorsed thereon executed by the Guarantor and authenticated and delivered by
the Trustee in exchange for outstanding Securities.
ARTICLE X
Covenants
SECTION 10.01. Payment of Securities. The Company shall
duly and punctually pay the Principal Amount, premium (if any), Issue Price,
accrued Original Issue Discount, Redemption Price, Change in Control Purchase
Price, Asset Sale Offer Price and interest (if any), in accordance with the
terms of the Securities and this Indenture.
The Company shall pay interest on overdue amounts at the rate
set forth in paragraph 1 of the Securities as set forth in the form of
Security attached hereto as Exhibit A, and it shall pay interest on overdue
interest at the same rate compounded semiannually (to the extent that the
payment of such interest shall be legally enforceable), which interest on
overdue interest shall accrue from the date such amounts became overdue.
SECTION 10.02. Maintenance of Office or Agency. The Company
and the Guarantor will maintain in the Borough of Manhattan, New York, New
York an office or agency where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company or the Guarantor in respect of such Securities,
the Guarantees and this Indenture may be served. The Company and the
Guarantor will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company or the Guarantor shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee and each of the Company and the
Guarantor hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices
and demands.
<PAGE>
The Company and the Guarantor may also from time to time
designate one or more other offices or agencies where the Securities may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company or the Guarantor of their
respective obligations to maintain an office or agency in the Borough of
Manhattan, New York, New York for such purposes. The Company and the
Guarantor will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company and the Guarantor hereby initially designate the
Corporate Trust Office of the Trustee, located in the Borough of Manhattan,
New York, New York as such office of the Company and the Guarantor.
SECTION 10.03. Money for Security Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent, the
Company will, on or before each due date of payments in respect of any
Security, segregate and hold in trust for the benefit of the persons entitled
thereto a sum sufficient to pay such payment when so becoming due until such
sum shall be paid to such persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee of its action or failure so to act.
If the Company is acting as Paying Agent, the Company will on
or before the due date of payment in respect of any Security deposit with a
Paying Agent a sum in same day funds (or New York Clearing House funds if such
deposit is made prior to the date on which such deposit is required to be
made) sufficient to make such payment when so becoming due, such sum to be
held in trust for the benefit of the persons entitled to such payment and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of such action or any failure so to act.
If the Company is not acting as Paying Agent, the Company
will cause each Paying Agent other than the Trustee to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(a) hold all sums held by it for the payment in respect of
any such Security in trust for the benefit of the persons entitled thereto
until such sums shall be paid to such persons or otherwise disposed of as
herein provided;
(b) give the Trustee notice of any Default by the Company
(or any other obligor upon the Securities) in the payment in respect of any
such Security;
<PAGE>
(c) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all respects
with the provisions of this Indenture relating to the duties, rights and
obligations of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
SECTION 10.04. Corporate Existence. Subject to Article VIII
and Section 10.13, each of the Guarantor and the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and that of each Material Subsidiary that is or would be a
Subsidiary without regard to the exclusion of Special Subsidiaries from the
definition of Subsidiary set forth in the last proviso therein, in each case
in accordance with the organizational documents of the Guarantor, the Company
and each such Material Subsidiary, as the case may be, and the rights (charter
and statutory), licenses and franchises of the Guarantor, the Company and each
such Material Subsidiary, as the case may be; provided, however, that neither
the Guarantor nor the Company shall be required to preserve any such right,
license, franchise or corporate existence of a Material Subsidiary if the
preservation thereof is no longer desirable in the conduct of the business of
the Guarantor and its Subsidiaries taken as a whole and the loss thereof is
not adverse in any material respect to the Holders of Securities.
SECTION 10.05. Payment of Taxes and Other Claims. The
Guarantor will pay or discharge or cause to be paid or discharged before the
same shall become delinquent, (i) all material taxes, assessments and
governmental charges levied or imposed upon the Guarantor or any Subsidiary of
the Guarantor or upon the income, profits or property of the Guarantor or any
of its Subsidiaries, and (ii) all material lawful claims for labor, materials
and supplies which, if unpaid, might by law become a Lien upon the property of
the Guarantor or any of its Subsidiaries; provided, however, that the
Guarantor shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claims the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate provision has been made.
<PAGE>
SECTION 10.06. Maintenance of Properties and Insurance. The
Guarantor will cause all material properties owned by or leased to it or any
Material Subsidiary of the Guarantor and used or useful in the conduct of its
business or the business of such Material Subsidiary that is or would be a
Subsidiary without regard to the exclusion of Special Subsidiaries from the
definition of Subsidiary set forth in the last proviso therein to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Guarantor may be necessary, so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section 10.06 shall prevent the
Guarantor or any Material Subsidiary of the Guarantor from discontinuing the
use, operation ormaintenance of any of such properties or disposing of any of
them, if such discontinuance or disposal is, in the judgment of the Board of
Directors of the Guarantor or of the board of directors of the Material
Subsidiary concerned, or of an officer (or other agent employed by the
Guarantor or any of its Material Subsidiaries) of the Guarantor or such
Material Subsidiary having managerial responsibility for any such property,
desirable in the conduct of the business of the Guarantor or any Material
Subsidiary of the Guarantor, and if such discontinuance or disposal is not
adverse in any material respect to the Holders of Securities.
The Guarantor will provide or cause to be provided for itself
and each of its Material Subsidiaries that is or would be a Subsidiary without
regard to the exclusion of Special Subsidiaries from the definitions of
Subsidiary set forth in the last proviso therein, insurance (including
appropriate self-insurance) against loss or damage of the kinds customarily
insured against by corporations similarly situated and owning like properties,
including, but not limited to, products liability insurance and public
liability insurance with reputable insurers or with the government of the
United States of America or an agency or instrumentality thereof, in such
amounts with such deductibles and by such methods as shall be customary for
corporations similarly situated in the industry.
SECTION 10.07. Limitation on Indebtedness. The Guarantor
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, incur, create, assume, guarantee or in any other manner become
directly or indirectly liable or responsible for the payment of, any
Indebtedness (including any Acquired Indebtedness), other than Permitted
Indebtedness, unless at the time of such event (a) (i) any such Indebtedness
or Acquired Indebtedness (other than Senior Indebtedness of the Guarantor and
Senior Indebtedness of the Company) has no sinking fund or amortization
payment date or final maturity date prior to the Stated Maturity of the
Securities and (ii) in the case of Indebtedness subordinated in right of
payment to the Securities and the Guarantees thereof, the instrument
evidencing such Indebtedness shall include subordination provisions
substantially similar to those set forth in Articles XI and XIII as if the
Securities were Senior Indebtedness of the Company and the Guarantees were
Senior Indebtedness of the Guarantor with respect to such Indebtedness and (b)
after giving effect thereto and to any
acquisition being financed through the incurrence of such Indebtedness and to
any Acquired Indebtedness incurred or assumed therewith on a pro forma basis,
either (i) the ratio expressed as a percentage of (A) the Indebtedness of the
Guarantor and its Restricted Subsidiaries to (B) the sum of (1) the Oil and
Gas Reserve Estimate with respect to the Guarantor and the Restricted
Subsidiaries plus (2) the value of the Guarantor's direct or indirect
percentage ownership in publicly-held Subsidiaries (other than its Restricted
Subsidiaries) engaged in oil and gas exploration, development, production or
transportation and, without duplication, the Special Subsidiaries, in each
case based upon the Average Quoted Price of the common stock of such
Subsidiaries or Special Subsidiaries, shall not be greater than 40% or (ii)
the ratio expressed as a percentage of (A) the Indebtedness of the Guarantor
and its Restricted Subsidiaries to (B) the sum of (1) the Indebtedness of the
Guarantor and its Restricted Subsidiaries plus (2) the product of the number
of outstanding shares of the Guarantor's Capital Stock as of the date of
determination multiplied by the Average Quoted Price of such Capital Stock,
plus (3) the product of the number of outstanding shares of the Company's
Capital Stock (other than any shares held by the Guarantor or any Subsidiary)
as of the date of determination multiplied by the Average Quoted Price of such
Capital Stock, shall not be greater than 25%. For purposes of this
calculation, (i) a Subsidiary shall be considered publicly-held if there is a
Quoted Price available for its Capital Stock and (ii) the Oil and Gas Reserve
Estimate shall include, in connection with an acquisition, on a pro forma
basis the Oil and Gas Reserve Estimate, if any, of any acquired person and
shall be determined as of the end of the fiscal year of the Guarantor and, if
applicable, the acquired person, most recently concluded if then available,
but if not then available, the end of the previous fiscal year of the
Guarantor and, if applicable, the acquired person; provided, however, that the
Guarantor may, at its option, make such calculation utilizing a more recent
Oil and Gas Reserve Estimate in lieu of the Oil and Gas Reserve Estimate
referred to in the preceding clause if (a)
such estimate is prepared, to the extent of at least 85% of the quantities of
proven oil and gas reserves set forth in such estimate (which shall be
determined on the basis that six thousand cubic feet of gas equal one barrel
of oil), by a nationally recognized independent petroleum engineer, reasonably
satisfactory to the Trustee, (b) such Oil and Gas Reserve Estimate is
determined on a basis consistent with the estimate prepared at fiscal year
end, except that the oil and gas prices and currency prices utilized therein
shall be as of the date of such more recent estimate and (c) an officer
authorized by the Guarantor delivers to the Trustee a certificate to the
effect that such estimate has been prepared in accordance with the
requirements of this Indenture.
<PAGE>
SECTION 10.08. Limitation on Restricted Payments. The
Guarantor will not, and will not permit any Restricted Subsidiary to, directly
or indirectly:
(i) declare or pay any dividend on, or make any
distribution to holders of, any shares of the Guarantor's Capital Stock (other
than (A) the payment of a dividend within 60 days after the date of
declaration thereof, (B) dividends or distributions payable in shares of its
Capital Stock or in options, warrants or other rights to purchase such Capital
Stock and (C) dividends on Preferred Stock, which Preferred Stock by its terms
is not mandatorily redeemable or redeemable at the option of the holder
thereof prior to the Stated Maturity of the Securities, provided that the
dividend rate on such Preferred Stock on the date of its issuance shall not
exceed the yield to maturity on the Securities calculated on the basis of the
average Quoted Prices of the Securities for the 20 consecutive trading days
ending 5 days prior to the issuance of such Preferred Stock, but excluding
dividends or distributions payable in Redeemable Stock or in options, warrants
or other rights to purchase Redeemable Stock except for dividends on such
Redeemable Stock payable in shares of Redeemable Stock),
(ii) purchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Guarantor or any Affiliate thereof, or any
options, warrants or other rights to acquire such Capital Stock (other than
(A) redemption of Preferred Stock that is convertible into common stock,
provided that the Average Quoted Price of such common stock for the 30
consecutive trading days ending on the last full trading day prior to the date
of the notice of such redemption equals or exceeds 130% of the conversion
price of such Preferred Stock, (B) with respect to any Restricted Subsidiary,
purchases or redemptions pursuant to the Guarantor's Shareholders' Rights Plan
or purchases or redemptions in the ordinary course of business not to exceed
$10,000 a year, (C) in connection with a transaction whereby a Subsidiary or a
Special Subsidiary becomes a Restricted Subsidiary or a Subsidiary or a
Special Subsidiary is being merged with or into the Guarantor or a Restricted
Subsidiary in accordance with the terms of this Indenture), and (D) through
the issuance of Capital Stock of the Guarantor (other than Redeemable Stock),
(iii) make any principal payment on, or redeem,
repurchase, defease or otherwise acquire or retire for value, prior to any
scheduled principal payment, maturity, scheduled repayment or scheduled
sinking fund payment, any Indebtedness which is pari passu with, or is
subordinated in right of payment to, the prior payment of the Securities or to
the Guarantees, provided, however, that such Indebtedness may be refinanced so
long as such refinancing is pari passu with, or is subordinated in right of
payment to, the Indebtedness being refinanced and has an average life equal to
or greater than the Indebtedness being refinanced,
(iv) declare or pay any dividend or distribution on any
Capital Stock of any Subsidiary to any person (other than the Guarantor or a
Restricted Subsidiary) or purchase, redeem or otherwise acquire or retire for
value, any Capital Stock of any Subsidiary (other than with shares of Capital
Stock of the Guarantor (except Redeemable Stock)) held by any person (other
than the Guarantor or any of its Restricted Subsidiaries),
(v) incur, create or assume any guarantee of
Indebtedness of any Affiliate (other than guarantees of Indebtedness of a
Restricted Subsidiary by the Guarantor or guarantees of Indebtedness of the
Guarantor by any Subsidiary or guarantees of Indebtedness of any Subsidiary or
Special Subsidiary of the Guarantor by the Guarantor pursuant to a transaction
whereby any Subsidiary or Special Subsidiary would become a Restricted
Subsidiary, in each case unless otherwise prohibited by the terms of this
Indenture, including (a) the execution by the obligor of such obligation of an
Intercompany Agreement and (b) the inclusion of provisions in the guarantee
substantially similar to those set forth in Articles XI and XIII which
subordinate the guarantee to the Securities and the Guarantees to the same
extent as if the Securities were Senior Indebtedness of the Company and the
Guarantees were Senior Indebtedness of the Guarantor), or
(vi) make any Investment (other than as permitted in the
preceding clauses (ii) and (v) or a Permitted Investment) in any person, other
than an Investment in a Restricted Subsidiary or any Special Subsidiary which
becomes a Restricted Subsidiary in connection with such Investment, provided
that to the extent applicable (a) the obligation of the obligor in any such
Investment is subject to an Intercompany Agreement and (b) the inclusion of
provisions in the agreement governing the Investment substantially similar to
those set forth in Articles XI and XIII which subordinate the Investment to
the Securities and the Guarantees to the same extent as if the Securities were
Senior Indebtedness of the Company and the Guarantees were Senior Indebtedness
of the Guarantor
(such payments or other actions described in the foregoing clauses (i) through
(vi) are collectively referred to as "Restricted Payments") unless at the time
of and after giving effect to the proposed Restricted Payment (the amount of
any such Restricted Payment, if other than cash, being determined by the Board
of Directors, whose determination shall be evidenced by a resolution of the
Board of Directors) (I) no Default or Event of Default exists or occurs as a
result of such Restricted Payment, (II) the Guarantor could incur at least
$1.00 of additional Indebtedness in accordance with the provisions set forth
in Section 10.07 (including, in the case of Restricted Payments permitted in
the preceding clauses (ii), (v) and (vi), Permitted Indebtedness), and (III)
the aggregate amount expended for all Restricted Payments (excluding any
amount repaid, returned or discharged in respect of any Restricted Payment)
shall not exceed the sum of
(A) 50% of the aggregate cumulative Consolidated Net Income
of the Guarantor or its predecessor (calculated to exclude net income of
Subsidiaries that are not Restricted Subsidiaries and to exclude the after-tax
effect of the net income of any Subsidiary to the extent that such Subsidiary
is restricted or prohibited from declaring dividends) on a cumulative basis
during the period beginning on the first day following the last fiscal quarter
that ended prior to the date of this Indenture and ending on the last day of
the Guarantor's last fiscal quarter ending prior to the date of such proposed
Restricted Payment (or, if such aggregate cumulative Consolidated Net Income
shall be a loss, minus 100% of such loss) and 50% of the aggregate cumulative
dividends received by the Guarantor from any Subsidiary or Special Subsidiary
(other than a Restricted Subsidiary) during the same period plus
(B) the aggregate net proceeds received (including without
limitation, Indebtedness or redemption or repurchase obligations discharged,
repaid or otherwise satisfied upon any conversion of convertible Indebtedness
or Redeemable Stock into Capital Stock of the Guarantor or its predecessor)
after the date of this Indenture as capital contributions from the issuance of
Capital Stock other than Redeemable Stock;
provided, however, the failure to satisfy the conditions set forth in clauses
II or III above shall not prevent the Guarantor or any Restricted Subsidiary
from (y) making Restricted Payments not to exceed $5,000,000 in the aggregate
(excluding any amount repaid, returned or discharged in respect of any
Restricted Payment) which amount shall not reduce the amount of Restricted
Payments in clause III above or (z) making Restricted Payments necessary for
and directly related (as determined in good faith by the Board of Directors
and evidenced in a board resolution) to the development, transportation or
marketing of the oil and gas reserves of the Guarantor and its Restricted
Subsidiaries located in the Republic of Colombia which amount shall not reduce
the amount of Restricted Payments in clause III above, and that in each case
are not otherwise prohibited by the terms of this Indenture, provided,
further, however, no such Restricted Payments under clause (y) or (z) shall be
permitted if the condition set forth in clause (I) above is not satisfied.
<PAGE>
SECTION 10.09. Limitation Upon Other Senior Subordinated
Indebtedness. Neither the Guarantor nor the Company will incur, create,
assume, guarantee or in any other manner become directly or indirectly liable
with respect to or be responsible for, or permit to remain outstanding, any
Indebtedness (other than the Securities or the Guarantees) that is subordinate
or junior in right of payment to any Senior Indebtedness of the Company or
Senior Indebtedness of the Guarantor, unless such Indebtedness is also pari
passu with, or subordinate in right of payment to, the Securities and the
Guarantees pursuant to subordination provisions substantially similar to those
set forth in Articles XI and XIII.
SECTION 10.10. Limitation on Liens. The Guarantor will not,
and will not permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Lien of any kind upon any of their respective assets or
properties now owned or acquired after the date of this Indenture, or any
income or profits therefrom, securing any Indebtedness of the Guarantor that
is expressly by its terms subordinate or junior in right of payment to any
other Indebtedness of the Guarantor, unless the Guarantees are equally and
ratably secured, provided, however, that if such Lien securing such junior or
subordinated Indebtedness ceases to exist, such equal and ratable Lien for the
benefit of the Holders of the Guarantees shall cease to exist; provided,
further, that the Lien securing such subordinated or junior Indebtedness
shall be subordinated and junior to the Lien securing the Guarantees with the
same relative priority as such subordinated or junior Indebtedness shall have
with respect to the Guarantees.
For purposes of this Indenture, the Guarantees will be
considered equally and ratably secured with any other Lien if the Lien
securing the Guarantees is of at least equal priority and covers the same
property or assets as that Lien.
SECTION 10.11. Limitation on Transactions with Affiliates.
The Guarantor will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into any transaction or series of related
transactions (including, without limitation, the sale, purchase, exchange or
lease of assets, property or services) with any Affiliate (other than a
wholly-owned Subsidiary) of the Guarantor or any Subsidiary in an aggregate
amount greater than $1,000,000 unless (i) such transaction or series of
related transactions is on terms that are no less favorable to the Guarantor
or such Subsidiary, as the case may be, than those that would have been
available in a comparable transaction in an arm's-length transaction with an
unaffiliated third party and (ii) (A) with respect to any transaction or
series of related transactions involving aggregate payments in excess of
$1,000,000, but less than $10,000,000, the Guarantor delivers an Officer's
Certificate to the Trustee generally describing such transaction and
certifying that such transaction or transactions complies with clause (i)
above and (B) with respect to a transaction or series of transactions
involving aggregate payments equal to or greater than $10,000,000, such
transaction or transactions shall have received the approval of a majority of
the disinterested directors of the Board of Directors (as evidenced by a board
resolution by such disinterested directors, a certified copy of which has been
delivered to the Trustee).
SECTION 10.12. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries. The Guarantor will not, and will not
permit any of its Subsidiaries to, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of the Guarantor or any Subsidiary to (i) pay dividends or make any
other distributions on Capital Stock of any Subsidiary, (ii) pay any
Indebtedness owed to the Guarantor or any Subsidiary, (iii) make any
Investment in the Guarantor or any Subsidiary, or (iv) transfer any of its
property or assets to the Guarantor or any Subsidiary, except
(A) any encumbrance or restriction pursuant to an agreement
in effect at or entered into on the date hereof,
(B) any encumbrance or restriction with respect to a person
that was not a Subsidiary of the Company on the date hereof, in existence at
the time such person becomes a Subsidiary of the Guarantor or created on the
date it becomes a Subsidiary and not incurred in connection with, or in
contemplation of, such person becoming a Subsidiary,
(C) any encumbrance or restriction on the ability of any
Subsidiary to transfer any of its real property (and any improvements thereon)
acquired after the date hereof to the Guarantor or any Subsidiary that is
required by a lender to, or purchaser of any Indebtedness of, such Subsidiary
in connection with a financing of the acquisition of such property (and/or
construction of such improvements) by such Subsidiary permitted hereunder,
(D) any encumbrance or restriction pursuant to any agreement
that extends, refinances, renews or replaces any agreement containing any of
the restrictions described in the foregoing clauses (A) through (C), provided,
however, that the terms and conditions of any such restrictions are not
materially less favorable to the Holders of the Securities than those under or
pursuant to the agreement evidencing the Indebtedness so extended, refinanced,
renewed or replaced,
(E) encumbrances or restrictions arising under law,
(F) any encumbrance or restriction arising under customary
non-assignment provisions in installment purchase contracts, and
<PAGE>
(G) in the case of clause (iv) above, restrictions contained
in security agreements permitted by the Indenture securing Indebtedness
permitted by the Indenture to the extent such restrictions restrict the
transfer of property subject to such security agreements or any renewals,
extensions, substitutions, refinancings or replacements of such Indebtedness,
provided, however, that the terms and conditions of any such restrictions
shall not be materially less favorable to the Holders of the Securities than
those under or pursuant to the agreement evidencing the Indebtedness so
renewed, extended, substituted, refinanced, or replaced.
SECTION 10.13. Purchase of Securities Upon Change in
Control.
(a) If there shall have occurred a Change in Control,
Securities shall be purchased by the Company, at the option of the Holder
thereof, in whole or in part in integral multiples of aggregate Principal
Amount of $1,000, on a date that is not earlier than 45 days nor later than 60
days from the date the Change in Control Notice referred to below is given to
Holders or such later date as may be necessary for the Company and the
Guarantor to comply with requirements under the Exchange Act (such date, or
such later date, being the "Change in Control Purchase Date"), at a purchase
price in cash (the "Change in Control Purchase Price") equal to 101% of the
sum of the Issue Price plus accrued Original Issue Discount to the Change in
Control Purchase Date, subject to satisfaction by or on behalf of the Holder
of the requirements set forth in Section 10.13(c).
(b) Within 30 days following a Change in Control and prior
to the mailing of the Change in Control Notice to Holders provided for in
paragraph (c) below, the Guarantor and the Company covenant to either (1)
repay in full all Senior Indebtedness of the Guarantor and Senior Indebtedness
of the Company whose terms require such payment in connection with such event
or (2) obtain the requisite consent from holders of such Senior Indebtedness
not repaid in order to permit the repurchase of the Securities as provided for
in this Section 10.13. The Guarantor and the Company shall first comply with
this subsection (b) before the Company shall be required to repurchase the
Securities pursuant to this Section 10.13, and any failure to comply with this
subsection (b) shall constitute a Default in the performance of a covenant
for purposes of Section 5.01(b).
(c) Within 30 days after the occurrence of a Change in
Control, the Company shall give written notice of such Change in Control (a
"Change in Control Notice") and of its offer (the "Change in Control Offer")
to purchase Securities as specified herein to the Trustee and to each Holder
of the Securities at his address appearing on the Security Register, by
first-class mail, postage prepaid. The Trustee shall be under no obligation
to ascertain whether the Company is obligated to give a Change in Control
Notice. The Change in Control Notice shall contain all instructions and
materials necessary to enable such Holders to tender Securities, shall include
a form of Change in Control Purchase Notice to be completed by the Holder and
shall state or include:
(i) that a Change in Control has occurred and the
circumstances and events causing the Change in Control and the date such
Change in Control is deemed to have occurred for purposes of this Section
10.13(c);
(ii) the date by which a Holder must give a Change in
Control Purchase Notice;
(iii) the Change in Control Purchase Price;
(iv) the Change in Control Purchase Date;
(v) that any Security not purchased will continue to
accrue Original Issue Discount;
(vi) that Securities to be purchased shall, on the Change
in Control Purchase Date, become due and payable at the Change in Control
Purchase Price and from and after such date (unless the Company shall default
in the payment of the Change in Control Purchase Price) such Securities shall
cease to accrue Original Issue Discount;
(vii) (A) the most recently filed Annual Report on Form
10-K (including audited consolidated financial statements) of the Guarantor,
the most recent subsequently filed Quarterly Report on Form 10-Q, as
applicable, and any Current Report on Form 8-K of the Guarantor filed
subsequent to such Quarterly Report (or in the event the Guarantor is not
required to prepare any of the foregoing forms, the comparable information
required to be prepared by the Guarantor pursuant to Section 10.18), (B) a
description of any material developments in the Guarantor's business since the
latest annual or quarterly report filed with the Trustee pursuant to Section
7.04 and, if material, any appropriate pro forma financial information
(including but not limited to pro forma historical income, cash flow and
capitalization after giving effect to such Change in Control) and (C) such
other information, if any, concerning the business of the Guarantor which the
Guarantor in good faith believes will enable such Holders to make an informed
investment decision; and
(viii) the procedures a holder must follow to exercise
rights under this Section 10.13(c) and a brief description of those rights and
the procedures for withdrawing a Change in Control Purchase Notice.
<PAGE>
(d) Holders electing to have Securities purchased under
Section 10.13(a) will be required to surrender such Securities to the Paying
Agent specified in the Change of Control Notice at the address specified in
the notice by the close of business at least five Business Days prior to the
Change in Control Purchase Date. Holders will be entitled to withdraw their
election if such Paying Agent receives, at the close of business not later
than three Business Days prior to the Change in Control Purchase Date, a
telegram, telex, facsimile transmission or letter setting forth (i) the name
of the Holder, (ii) the certificate number of the Security in respect of
which such notice of withdrawal is being submitted, (iii) the aggregate
Principal Amount of the Securities delivered for purchase by the Holder as to
which his election is to be withdrawn, and (iv) a statement that such Holder
is withdrawing his election to have such Securities purchased. Each Paying
Agent will promptly return to the prospective Holders thereof any Securities
with respect to which a Change in Control Purchase Notice has been withdrawn
in compliance with this Indenture.
(e) Upon receipt by the Paying Agent specified in the Change
of Control Notice of a Change in Control Purchase Notice, the Holder of the
Security in respect of which such Change in Control Purchase Notice was given
shall (unless such Change in Control Purchase Notice is withdrawn pursuant to
Section 10.13(d)) thereafter be entitled to receive solely the Change in
Control Purchase Price with respect to such Security. Such Change in Control
Purchase Price shall be paid to such Holder promptly following the later of
the Business Day following the Change in Control Purchase Date (provided the
conditions in Section 10.13(c)) have been satisfied) and the time of delivery
of such Security to the relevant Paying Agent at the office of such Paying
Agent by the Holder thereof in the manner required by Section 10.13(c).
(f) On or prior to the Change in Control Purchase Date, the
Company shall deposit with the Paying Agent specified in the Change of Control
Notice (or if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 10.03) an amount of money in same day
funds (or New York Clearing House funds if such deposit is made prior to the
Change in Control Purchase Date) sufficient to pay the Change in Control
Purchase Price of all the Securities or portions thereof which are to be
purchased on that date.
(g) Any Security that is to be purchased only in part shall
be surrendered to the Paying Agent specified in the Change of Control Notice
at the office of such Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute, the Guarantor shall execute the Guarantee endorsed on, and
the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge, one or more new Securities of any authorized
denomination as requested by such Holder in the aggregate Principal Amount of
the Security so surrendered that is not purchased.
(h) The Company and the Guarantor shall comply with any
applicable tender offer rules then in effect, including Section 14(e) of the
Exchange Act and Rule 14e-1 promulgated thereunder, in connection with a
Change in Control Offer. In the event of any conflict between such tender
offer rules and the provisions set forth in this Section 10.13, such tender
offer rules shall control.
SECTION 10.14. Intentionally omitted.
SECTION 10.15. Limitation on Guaranties.
(a) The Guarantor will not permit any Subsidiary (other than
the Company), directly or indirectly, to assume, guarantee or in any other
manner become liable with respect to the payment of any Senior Indebtedness of
the Company or Senior Indebtedness of the Guarantor, unless (i) such
Subsidiarysimultaneously executes and delivers a supplemental indenture to
this Indenture providing for the guarantee of the payment of the Securities by
such Subsidiary, which guarantee shall include subordination provisions
substantially similar to those set forth in Article XI to the same extent as
the Securities are subordinated to Senior Indebtedness of the Company; and
(ii) such Subsidiary waives and will not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Guarantor or any other Subsidiary
as a result of such payment by such Subsidiary under its guarantee.
Notwithstanding the foregoing, any such guarantee by a Subsidiary of the
Securities shall provide by its terms that it shall be automatically and
unconditionally released and discharged upon the release or discharge of such
guarantee of payment of such Senior Indebtedness of the Company or Senior
Indebtedness of the Guarantor.
(b) The Guarantor will not permit any Subsidiary (other than
the Company), directly or indirectly, to assume, guarantee or in any other
manner become liable with respect to the payment of any Indebtedness which is
pari passu with or subordinated to the Securities, unless such Subsidiary
simultaneously executes and delivers a supplemental indenture to the Indenture
providing for a guarantee of the payment of the Securities by such Subsidiary;
provided, however, in the case of such Subsidiary's assumption, guarantee or
other liability with respect to Indebtedness subordinated to the Securities,
such assumption, guarantee or other liability shall be subordinated to such
Subsidiary's guarantee of the Securities to the same extent as such
Indebtedness is subordinated to the Securities; and provided, further, that
this Section 10.15(b) shall not be applicable to any guarantee, assumption or
other liability of any Subsidiary of the Company in existence on the date
hereof or that (i) existed at the time such person became a Subsidiary of the
Guarantor or its predecessor and (ii) was not incurred in connection with, or
in contemplation of, such person becoming a Subsidiary of the Guarantor or its
predecessor. Notwithstanding the foregoing, any such guarantee of the
Securities by a Subsidiary shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon the release or
discharge of such guarantee of such Indebtedness that is pari passu with or
subordinated to the Securities.
SECTION 10.16. Disposition of Proceeds of Asset Sales.
(a) The Guarantor will not, and will not permit any of its
Subsidiaries (excluding the Special Subsidiaries, Triton Air Holdings, Inc.
and their respective Subsidiaries) to, make any Asset Sale unless (i) such
Asset Sale is for not less than the fair market value of the assets or shares
sold (as determined by the Board of Directors and evidenced in a board
resolution, which determination shall be conclusive), (ii) at least 85% of the
consideration (not including the assumption of any Indebtedness by the
purchaser in connection with such Asset Sale) consists of cash and equivalents
and the fair market value (as determined in good faith by the Board of
Directors and evidenced in a board resolution, which determination shall be
conclusive) of debt and equity securities listed on any recognized securities
exchange or over-the-counter market (except (x) in the case of an Asset Sale
involving oil and gas properties being sold to persons other than Subsidiaries
by one or more Subsidiaries of the Guarantor or the Guarantor, the
consideration may consist solely or in part of oil and gas properties having a
fair market value at least equal to the fair market value of the assets
exchanged (as determined by the Board of Directors and evidenced by a board
resolution, which determination shall be conclusive), or (y) in the case of an
Asset Sale involving Aero Services International, Inc., the consideration need
not be in cash and may consist in whole or in part of a promissory note not to
exceed $10,000,000, or (z) in the case of a farm-out transaction consistent
with industry standards and otherwise in accordance with the terms of this
Indenture, including, but not limited to, Section 10.11) and (iii) as
otherwise set forth below.
(b) Within 12 months of any Asset Sale, the Guarantor or
such Subsidiary shall either (i) apply or cause the application of the Net
Cash Proceeds of such Asset Sale, or a portion thereof, to the permanent
repayment or prepayment of Senior Indebtedness of the Guarantor or Senior
Indebtedness of the Company or (ii) invest, or enter into a legally binding
agreement to invest, such Net Cash Proceeds, or a portion thereof, in
properties and assets to replace the properties and assets that were the
subject of the Asset Sale or in properties and assets that (as determined by
the Board of Directors and evidenced in a board resolution, which
determination shall be conclusive) will be used in the business of the
Guarantor or its Subsidiaries, as the case may be, existing on the date hereof
or in businesses the principal purposes of which are related to the
exploration, development, production or transportation of oil or gas,
provided, however, that in the event the Guarantor or any Subsidiary conveys,
transfers, leases or otherwise disposes of, directly or indirectly, any of its
Colombian Assets in a transaction or series of related transactions within any
consecutive 12-month period the effect of which is to reduce the Oil and Gas
Reserve Estimate of the Colombian Assets owned by the Guarantor and/or its
Subsidiaries by 50% or more (which value shall be determined by reference to
the most recently available Oil and Gas Reserve Estimate, or by any subsequent
estimate prepared by a nationally recognized petroleum engineering firm) or
such transaction reduces the Guarantor's direct and indirect net revenue
interest in either the Santiago de las Atalayas or Tauramena contract areas of
the Llanos Basin to less than 50% of such interest as of the date of this
Indenture, calculated to give effect to back-in interests of and equalization
and unitization arrangements with third parties, then the Guarantor or
Subsidiary shall apply the Net Cash Proceeds resulting from such transaction
and every transaction thereafter with respect to the Colombian Assets to
either (A) permanently repay or prepay Senior Indebtedness of the Guarantor or
Senior Indebtedness of the Company or (B) redeem the Securities in accordance
with the provisions of Article III (without regard to minimum principal amount
requirements) as if an optional redemption were being made, in each case
within 90 days of such transaction. If any such legally binding agreement to
invest any Net Cash Proceeds referred to in clause (ii) of the preceding
sentence is terminated, then the Guarantor may invest such Net Cash Proceeds,
prior to the end of such 12-month period or within 90 days from such
termination, whichever is later, in the business of the Guarantor and its
Subsidiaries as provided in clauses (i) and (ii) above. The amount of such
Net Cash Proceeds not applied, used or invested as set forth in such sentence
constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals
$10,000,000 or more, the Guarantor shall so notify the Trustee in writing and
the Company shall offer to purchase from all Holders of the Securities (an
"Asset Sale Offer"), and shall purchase from Holders accepting such Asset Sale
Offer on the date fixed for such Asset Sale Offer (the "Asset Sale Offer
Date"), the maximum amount (expressed in multiple integrals of aggregate
Principal Amount of $1,000) of Securities that may be purchased out of the
Excess Proceeds, in accordance with the procedures set forth in Section
10.16(e) (the "Asset Sale Amount"), at an offer price (the "Asset Sale Offer
Price") in cash in an amount equal to 100% of the Issue Price plus accrued
Original Issue Discount to the Asset Sale Offer Date, in accordance with the
procedures set forth in this Section. To the extent that the aggregate amount
of Securities tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds relating thereto (such shortfall constituting a "Deficiency"), then
the Guarantor may use such Deficiency, or a portion thereof, for general
corporate purposes. Upon completion of an Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero.
<PAGE>
(d) If the Company becomes obligated to make an Asset Sale
Offer pursuant to Section 10.16(c), Securities shall be purchased by the
Company, at the option of the Holder thereof, in whole or in part in integral
multiples of aggregate Principal Amount of $1,000, on a date that is not
earlier than 30 days nor later than 60 days from the date the Asset Sale Offer
Notice referred to in Section 10.16(e) below is given to Holders, or such
later date as may be necessary for the Company to comply with requirements
under the Exchange Act (such date, or such later date, being the "Asset Sale
Purchase Date"), subject to proration in the event the Asset Sale Offered
Price is less than the aggregate Asset Sale Offered Price of all Securities
tendered and to satisfaction by or on behalf of the Holder of the requirements
set forth in Section 10.16(f).
(e) Within 30 days after the date that the aggregate amount
of Excess Proceeds equals or exceeds $10,000,000, the Company shall give
written notice of the Offer (an "Asset Sale Offer Notice") to the Trustee and
to each Holder of the Securities, at his address appearing on the Security
Register, by first-class mail postage prepaid. The Trustee shall be under no
obligation to ascertain whether the Company is obligated to make an Asset Sale
Offer. The Asset Sale Offer Notice shall contain all instructions and
materials necessary to enable the Holders to tender Securities, shall include
a form of Asset Sale Purchase Notice to be completed by the Holder and shall
state or provide:
(i) that the Holder has the right to require the Company
to repurchase, subject to proration, such Holder's Securities at the Asset
Sale Offer Price and the date by which a Holder must give an Asset Sale
Purchase Notice;
(ii) the Asset Sale Offer Price;
(iii) the Asset Sale Purchase Date;
(iv) that any Security not purchased will continue to
accrue Original Issue Discount;
(v) that Securities to be purchased shall, on the Asset
Sale Purchase Date, become due and payable at the Asset Sale Offer Price and
from and after such date (unless the Company shall default in the payment of
the Asset Sale Offer Price) such Securities shall cease to accrue Original
Issue Discount;
(vi) that the Securities to be purchased are subject to
proration in the event the Asset Sale Amount is less than the aggregate Asset
Sale Offer Price of all Securities tendered;
<PAGE>
(vii) (A) the most recently filed Annual Report on Form
(including audited consolidated financial statements) of the Guarantor, the
most recent subsequently filed Quarterly Report on Form 10-Q, as applicable,
and any Current Report on Form 8-K of the Guarantor filed subsequent to such
Quarterly Report (or in the event the Guarantor is not required to prepare any
of the foregoing forms, the comparable information required to be prepared by
the Guarantor pursuant to Section 10.18), (B) a description of any material
developments in the Guarantor's business since the latest annual or quarterly
report filed with the Trustee pursuant to Section 7.04 and, if material, any
appropriate pro forma financial information (including, but not limited to,
pro forma historical income, cash flow and capitalization after giving effect
to such Asset Sale) and (C) such other information, if any, concerning the
business of the Guarantor which the Company in good faith believes will enable
such Holders to make an informed investment decision; and
(viii) the procedures a Holder must follow to exercise
rights under Section 10.16(c) and a brief description of those rights and the
procedures for withdrawing an Asset Sale Purchase Notice.
(f) A Holder may exercise its rights specified in Section
10.16(c) upon (i) delivery to the Paying Agent specified in the Asset Sale
Offer Notice of a written notice (an "Asset Sale Purchase Notice") at any time
prior to the close of business on the Asset Sale Purchase Date, but not later
than the close of business on the second Business Day next preceding the Asset
Sale Purchase Date, stating (A) the certificate number of the Security that
the Holder will tender to be purchased and (B) the portion of the aggregate
Principal Amount of the Security that the Holder will tender to be purchased,
which portion must be $1,000 or an integral multiple thereof, and (ii)
delivery of such Security to such Paying Agent at such office prior to, on or
after the Asset Sale Purchase Date (together with all necessary endorsements),
such delivery being a condition to receipt by the Holder of the Asset Sale
Offer Price therefor; provided that Securities to be purchased are subject to
proration in the event the Asset Sale Amount is less than the aggregate Asset
Sale Offer Price of all Securities tendered for purchase. If a Holder has
elected to deliver to the Company for purchase a portion of a Security, and if
the aggregate Principal Amount of such portion is $1,000 or an integral
multiple of $1,000, the Company shall, subject to proration, purchase such
portion from the Holder thereof pursuant to this Section 10.16. Provisions of
this Indenture that apply to the purchase of all of a Security also apply to
the purchase of a portion of such Security. Each Paying Agent shall promptly
notify the Company of the receipt by the former of any and all Asset Sale
Purchase Notices and any and all written notices of withdrawal thereof.
<PAGE>
(g) Upon receipt by the Paying Agent specified in the Asset
Sale Offer Notice of an Asset Sale Purchase Notice, the Holder of the Security
in respect of which such Purchase Notice was given shall (unless such Asset
Sale Purchase Notice is withdrawn pursuant to Section 10.16(k)) thereafter be
entitled to receive solely the Asset Sale Offered Price with respect to such
Security. Such Asset Sale Offered Price shall be paid to such Holder promptly
following the later of the Business Day following the Asset Sale Purchase Date
(provided the conditions in Section 10.16(f) have been satisfied) and the time
of delivery of such Security to the relevant Paying Agent at the office of
such Paying Agent by the Holder thereof in the manner required by Section
10.16(f).
(h) On or prior to the Asset Sale Purchase Date, the Company
or the Guarantor shall deposit with the Paying Agent specified in the Asset
Sale Offer Notice an amount of money in same day funds (or New York Clearing
House funds if such deposit is made prior to the Asset Sale Purchase Date)
sufficient to pay the aggregate Asset Sale Offered Price of, and accrued
Original Issue Discount on, all the Securities or portions thereof which are
to be purchased on that date.
(i) Any Security that is to be purchased only in part shall
be surrendered to the Paying Agent specified in the Asset Sale Offer Notice at
the office of such Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute, the Guarantor shall execute the Guarantee endorsed on, and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, one or more new Securities of any authorized denomination as
requested by such Holder in an aggregate principal amount equal to, and in
exchange for, the portion of the Principal Amount of the Security so
surrendered that is not purchased.
(j) The Company and the Guarantor shall comply with any
applicable tender offer rules then in effect, including Section 14(e) of the
Exchange Act and Rule 14e-1 promulgated thereunder, in connection with an
Asset Sale Offer. In the event of any conflict between such tender offer
rules and the provisions set forth in this Section 10.16, such tender offer
rules shall control.
(k) An Asset Sale Purchase Notice may be withdrawn before or
after delivery by the Holder to the relevant Paying Agent at the office of
such Paying Agent of the Security to which such Asset Sale Purchase Notice
relates, by means of a written notice of withdrawal (by facsimile transmission
or letter) received by such Paying Agent at such office not later than three
Business Days prior to the Asset Sale Purchase Date, specifying, as
applicable:
<PAGE>
(i) the certificate number of the Security in respect of
which such notice of withdrawal is being submitted;
(ii) the aggregate Principal Amount of the Securities
initially outstanding hereunder with respect to which such notice of
withdrawal is being submitted; and
(iii) the aggregate Principal Amount initially outstanding
hereunder of the Security that remains subject to the original Asset Sale
Purchase Notice and that has been or will be delivered for purchase by the
Company.
A written notice of withdrawal may be in the form set forth
in the preceding paragraph. Each Paying Agent will promptly return to the
prospective Holders thereof any Securities with respect to which a Purchase
Notice has been withdrawn in compliance with this Indenture.
(l) The Guarantor will not, and will not permit any
Subsidiary to, create or permit to exist or become effective any restriction
(other than restrictions existing under (i) Indebtedness as in effect on the
date of this Indenture or (ii) any Senior Indebtedness of the Guarantor
existing on the date of this Indenture or thereafter or Senior Indebtedness of
the Company existing on the date of this Indenture or thereafter) that would
materially impair the ability of the Company to make an Asset Sale Offer to
purchase the Securities upon an Asset Sale or, if such Asset Sale Offer is
made, to pay for the Securities tendered for purchase.
SECTION 10.17. Compliance Certificates.
(a) The Guarantor and the Company shall each deliver to the
Trustee, within 60 days after the end of each fiscal quarter (105 days after
the end of the last fiscal quarter of each year), an Officers' Certificate
stating whether or not the signers know of any Default or Event of Default
that occurred during such fiscal quarter. In the case of the Officers'
Certificate delivered within 105 days of the end of the Guarantor's and the
Company's fiscal year, such certificate shall contain a certification from the
principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Guarantor's and the
Company's respective compliance with all conditions and covenants under this
Indenture. For purposes of this Section 10.17(a), such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. If they do know of such a Default or Event of
Default, the certificate shall describe any such Default or Event of Default
and its status. The first certificate to be delivered pursuant to this
Section 10.17(a) shall be for the first fiscal quarter beginning after the
execution of this Indenture.
<PAGE>
(b) The Company and the Guarantor shall each deliver to the
Trustee within 120 days after the end of each fiscal year, a certificate
signed by the Guarantor's and the Company's independent certified public
accountants stating (i) that their audit examination has included a review of
the terms of this Indenture and the Securities as they relate to accounting
matters, and (ii) whether, during the course of their audit examination
anything came to their attention that caused them to believe that the Company
or the Guarantor failed to comply with the terms, covenants, provisions, or
conditions of the Indenture insofar as they relate to accounting matters and
describing the nature of any such areas of noncompliance.
SECTION 10.18. SEC Reports and Reports to Securityholders.
Within 15 days after the Guarantor files with the SEC copies of its annual
reports and other information, documents and reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which it is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act, the Guarantor shall file the same with the Trustee.
So long as the Securities remain outstanding, the Guarantor shall cause
quarterly reports (containing unaudited financial statements) for the first
three quarters of each fiscal year and annual reports (containing audited
financial statements and an opinion thereon by the Guarantors' independent
certified public accountants) which it would be required to file under Section
13 of the Exchange Act if it had a class of Securities listed on a national
securities exchange to be mailed to the Holders of Securities at their
addresses appearing in the register of Securities maintained by the Registrar
within 15 days of when such report would have been required to be filed under
Section 13 of the Exchange Act. The Guarantor also shall comply with the
other provisions of TIA Section 314(a).
ARTICLE XI
Subordination of Securities
SECTION 11.01. Securities Subordinate to Senior Indebtedness
of the Company. The Company covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article, the
indebtedness represented by the Securities and the payment of the Issue Price,
premium (if any), accrued Original Issue Discount, Redemption Price, Change in
Control Purchase Price, Asset Sale Offer Price or interest (if any), and any
other payments required hereunder, on each and all of the Securities are
hereby expressly made subordinate and subject in right of payment as provided
in this Article to the prior payment in full of all Senior Indebtedness of the
Company; provided, however, that the Securities, the Indebtedness represented
thereby and the payment of the Issue Price, premium (if any), accrued Original
Issue Discount, Redemption Price, Change in Control Purchase Price, Asset Sale
Offer Price or interest (if any), and any other payments required hereunder on
each and all of the Securities in all respects shall rank equally with, or
prior to, all existing and future indebtedness (including, without limitation,
Indebtedness) of the Company that is subordinated to Senior Indebtedness of
the Company.
This Article XI shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue
to hold Senior Indebtedness of the Company; and such provisions are made for
the benefit of the holders of Senior Indebtedness of the Company; and such
holders are made obligees hereunder and they or each of them may enforce such
provisions.
SECTION 11.02. Payment Over of Proceeds Upon Dissolution,
etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshaling of assets or liabilities of the
Company, then, and in any such event:
(1) the holders of Senior Indebtedness of the Company shall
be entitled to receive payment in full of all amounts due on or in respect of
all Senior Indebtedness of the Company, or provision shall be made for such
payment, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character (excluding securities of the
Company or any other corporation that are equity securities or are
subordinated in right of payment to all Senior Indebtedness of the Company,
that may at the time be outstanding, to substantially the same extent as, or
to a greater extent than, the Securities are so subordinated as provided in
this Article; such securities are hereinafter collectively referred to as
"Permitted Junior Securities") on account of the Principal Amount, premium (if
any), accrued Original Issue Discount, Redemption Price, Change in Control
Purchase Price, Asset Sale Offer Price or interest (if any), or any other
payment required hereunder, in connection with the Securities; and
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (excluding
Permitted Junior Securities), by set-off or otherwise, to which the Holders or
the Trustee would be entitled but for the provisions of this Article shall be
paid by the liquidating trustee or agent or other person making such payment
or distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Indebtedness of the
Company or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of
such Senior Indebtedness of the Company may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness of the Company held or represented by each, to the extent
necessary to make payment in full in cash equivalents or cash, of all Senior
Indebtedness of the Company remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness
of the Company; and
(3) if, notwithstanding the foregoing provisions of this
Section 11.02, the Trustee or the Holder of any Security shall have received,
subsequent to the occurrence of any of the events described in the preceding
clauses (a),(b), or (c) of this Section, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, in respect of Principal Amount, premium (if any), accrued Original
Issue Discount, Redemption Price, Change in Control Purchase Price, Asset Sale
Offer Price or interest (if any), or any other payment required hereunder on
the Securities before all Senior Indebtedness of the Company is paid in full
or payment thereof provided for, then and in such event such payment or
distribution (excluding Permitted Junior Securities) shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness of the Company remaining unpaid, to the extent necessary
to pay all Senior Indebtedness of the Company in full in cash equivalents,
cash or, as acceptable to the holders of Senior Indebtedness of the Company,
any other manner, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness of the Company.
The consolidation of the Company with, or the merger of the
Company with or into, another person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of its properties and
assets substantially as an entirety to another person upon the terms and
conditions set forth in Article VIII shall not be deemed a dissolution,
winding up, liquidation, reorganization, assignment for the benefit of
creditors or marshaling of assets and liabilities of the Company for the
purposes of this Section if the person formed by such consolidation or the
surviving entity of such merger or the person which acquires by conveyance,
transfer or lease such properties and assets substantially as an entirety, as
the case may be, shall, as a part of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions set forth in Article VIII.
<PAGE>
SECTION 11.03. Suspension of Payment When Senior
Indebtedness of the Company in Default.
(a) Unless Section 11.02 shall be applicable, upon (1) the
occurrence of a Payment Default and (2) receipt by the Trustee and the Company
from a holder or representative of holders of Designated Senior Indebtedness
of written notice of such occurrence, then no payment or distribution of any
assets of the Company of any kind or character (excluding Permitted Junior
Securities) shall be made by the Company on account of the Principal Amount,
Issue Price, premium (if any), accrued Original Issue Discount, Redemption
Price, Change in Control Purchase Price, Asset Sale Offer Price or interest
(if any), or any other payment required to be made hereunder or on account of
the purchase or redemption or other acquisition of Securities unless and until
such Payment Default shall have been cured or waived or shall have ceased to
exist or such Senior Indebtedness of the Company shall have been discharged or
paid in full, after which the Company shall resume making any and all required
payments in respect of the Securities, including any missed payments.
(b) Unless Section 11.02 shall be applicable, upon (1) the
occurrence of a Non-payment Default and (2) receipt by the Trustee and the
Company from a holder or representative of holders of Designated Senior
Indebtedness of written notice of such occurrence, no payment or distribution
of any assets of the Company of any character (excluding Permitted Junior
Securities) shall be made by the Company on account of the Principal Amount,
Issue Price, premium (if any), accrued Original Issue Discount, Redemption
Price, Change in Control Purchase Price, Asset Sale Offer Price or interest
(if any), or any other payments required to be made hereunder or on account of
the purchase or redemption or other acquisition of Securities for a period
("Payment Blockage Period") commencing on the earlier of the dates of receipt
by the Company or Trustee of such notice from a holder or representative of
holders of Designated Senior Indebtedness and ending upon the earlier of (x)
more than 179 days having elapsed since receipt of such written notice by the
Company or Trustee, whichever was earlier, (y) the date on which such
Non-payment Default shall have been cured or waived or shall have ceased to
exist or such Senior Indebtedness of the Company shall have been discharged or
paid in full or (z) the date on which such Payment Blockage Period shall have
been terminated by written notice to the Company or the Trustee from the
Designated Senior Indebtedness holder or representative initiating such
Payment Blockage Period, after which, in the case of clause (x), (y) or (z),
the Company shall resume making any and all required payments in respect of
the Securities, including any missed payments. Notwithstanding any other
provision of this Indenture, only one Payment Blockage Period may be commenced
with respect to the Securities within any 365-day period and no Non-payment
Default with respect to Designated Senior Indebtedness which existed or was
continuing on the date of the commencement of any Payment Blockage Period will
be, or can be, made the basis for the commencement of a second Payment
Blockage Period, whether or not within a period of 365 consecutive days,
unless such event of default shall have been cured or waived for a period of
not less than 90 consecutive days. In no event shall a Payment Blockage
Period extend beyond 179 days from the date of the receipt of the notice
referred to in clause (2)
hereof.
(c) In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, then and in such event
such payment shall be paid over and delivered forthwith to the Senior
Representative or other representative of the holders of the Designated Senior
Indebtedness or as a court of competent jurisdiction shall direct.
SECTION 11.04. Payment Permitted if No Default. Nothing
contained in this Article, elsewhere in this Indenture or in any of the
Securities shall prevent the Company, at any time except during the pendency
of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Company referred to in Section 11.02 or under the
conditions described in Section 11.03, from making payments at any time of the
Principal Amount, premium (if any), accrued Original Issue Discount,
Redemption Price, Change in Control Purchase Price, Asset Sale Offer Price or
interest (if any), on the Securities.
SECTION 11.05. Subrogation to Rights of Holders of Senior
Indebtedness of the Company. Subject to the payment in full of all Senior
Indebtedness of the Company, the Holders of the Securities shall be subrogated
(equally and ratably with the holders of all indebtedness of the Company which
by its express terms is subordinated to Senior Indebtedness of the Company to
the same extent as the Securities are subordinated and which is entitled to
like rights of subrogation) to the rights of the holders of such Senior
Indebtedness of the Company, from time to time, to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness of the Company until the Principal Amount, premium (if any),
accrued Original Issue Discount, Redemption Price, Change in Control Purchase
Price, Asset Sale Offer Price, interest (if any), and any other payment
required to be made hereunder in connection with the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to
the holders of Senior Indebtedness of the Company of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior
Indebtedness of the Company by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness of the Company, and the Holders of the Securities, be deemed to
be a payment or distribution by the Company to or on account of the Senior
Indebtedness of the Company.
<PAGE>
SECTION 11.06. Provisions Solely to Define Relative Rights.
The provisions of this Article are intended solely for the purpose of defining
the relative rights of the Holders of the Securities on the one hand and the
holders of Senior Indebtedness of the Company on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness of the Company and the Holders of the
Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the Principal Amount,
premium (if any), and accrued Original Issue Discount, Redemption Price,
Change in Control Purchase Price, Asset Sale Offer Price, interest (if any),
and any other payment required to be made hereunder in connection with the
Securities as and when the same shall become due and payable in accordance
with their terms; and (b) affect the relative rights against the Company of
the Holders of the Securities and creditors of the Company other than the
holders of Senior Indebtedness of the Company.
SECTION 11.07. Trustee to Effectuate Subordination. Each
Holder of a Security by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of the
Company whether in bankruptcy, insolvency, receivership proceedings, or
otherwise, the timely filing of a claim for the unpaid balance of the
indebtedness of Company owning to such Holder in the form required in such
proceedings and the causing of such claim to be approved.
SECTION 11.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein provided shall
at any time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company or by any act or failure to act, in good faith, by
any such holder, or by any non-compliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
(b) Without limiting the generality of Subsection (a) of
this Section, the holders of Senior Indebtedness of the Company may, at any
time and from time to time, without the consent of or notice to the Trustee or
the Holder of the Securities, without incurring responsibility to the Holders
of the Securities and without impairing or releasing the subordination
provided in this Article or the obligations hereunder of the Holders of the
Securities to the holders of Senior Indebtedness of the Company, do any one or
more of the following: (1) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness of the
Company or any instrument evidencing the same or any agreement under which
Senior Indebtedness of the Company is outstanding; (2) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness of the Company; (3) release any person liable in any
manner for the collection
or payment of Senior Indebtedness of the Company; and (4) exercise or refrain
from exercising any rights against the Company and any other person; provided,
however, that in no event shall any such actions limit the right of the
Holders of the Securities to take any action to accelerate the maturity of the
Securities pursuant to Article V of this Indenture or to pursue any rights or
remedies hereunder or under applicable laws if the taking of such action does
not otherwise violate the terms of this Article.
SECTION 11.09. Notice to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of
any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee
in respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness of
the Company or from any trustee, fiduciary or agent therefor; and, prior to
the receipt of any such written notice, the Trustee shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section at
least three Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the Principal Amount, premium (if any), or accrued Original Issue
Discount, Redemption Price, Change in Control Purchase Price, Asset Sale Offer
Price, interest (if any), and any other payment required to be made hereunder
in connection with any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the contrary which may
be received by it within three Business Days prior to such date.
(b) The Trustee shall be entitled to rely on the delivery to
it of a written notice to the Trustee and the Company by a person representing
himself to be a holder of Senior Indebtedness of the Company (or a trustee,
fiduciary or agent therefor). In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
person as a holder of Senior Indebtedness of the Company to participate in any
payment or distribution pursuant to this Article XI, the Trustee may request
such person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior Indebtedness of the Company held by such person,
the extent to which such person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such person under
this Article, and if such evidence is not furnished, the Trustee may defer any
payment to such person pending judicial determination as to the right of such
person to receive such payment.
SECTION 11.10. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness of the Company and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto
or to this Article.
SECTION 11.11. Rights of Trustee as a Holder of Senior
Indebtedness of the Company; Preservation of Trustee's Rights. The Trustee in
its individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness of the Company which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness of the Company, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
6.05. Notwithstanding anything contained herein to the contrary, the Trustee
is subject to TIA Section 310(b).
SECTION 11.12. Article Applicable to Paying Agents. In case
at any time any Paying Agent other than the Trustee shall have been appointed
by the Company and be then acting under this Indenture, the terms "Trustee" as
used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that this Section 11.12 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 11.13. No Suspension of Remedies. Nothing contained
in this Article shall limit the right of the Trustee or the Holders of
Securities to take any action to accelerate the maturity of the Securities
pursuant to Article V of this Indenture or to pursue any right or remedies
hereunder or under applicable law, subject to the rights, if any, under this
Article of the holders, from time to time, of Senior Indebtedness of the
Company.
SECTION 11.14. Trustee's Relation to Senior Indebtedness of
the Company. With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XI,
and no implied covenants or obligations with respect to the holders of Senior
Indebtedness of the Company shall be read into this Article XI against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company and the Trustee shall not be
liable to any holder of Senior Indebtedness of the Company if it shall
mistakenly pay over or deliver to Holders, the Company, or any other person
moneys or assets to which any holder of Senior Indebtedness of the Company
shall be entitled by virtue of this Article or otherwise.
ARTICLE XII
Defeasance and Covenant Defeasance
SECTION 12.01. Option to Effect Defeasance or Covenant
Defeasance. The Company or the Guarantor may, at its option by resolution of
its Board of Directors, a certified copy of which has been delivered to the
Trustee, at any time, with respect to the Securities, elect to have either
Section 12.02 or Section 12.03 be applied to all outstanding Securities upon
compliance with the conditions set forth below in this Article XII.
SECTION 12.02. Defeasance and Discharge. Upon the Company's
or the Guarantor's exercise under Section 12.01 of the option applicable to
this Section 12.02, the Company and the Guarantor shall each be deemed to have
been discharged from its obligations with respect to all outstanding
Securities and the Guarantees endorsed thereon on the date the conditions set
forth below are satisfied (hereinafter "defeasance"). For this purpose, such
defeasance means that the Company and the Guarantor shall be deemed to have
paid and discharged the entire indebtedness represented by the outstanding
Securities and the Guarantees endorsed thereon, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 12.05 and the
other Sections of this Indenture referred to in (A) and (B) below, and to have
satisfied all its other obligations under such Securities, the Guarantees
endorsed thereon and this Indenture (and the Trustee, on demand of and at the
expense of the Company shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of outstanding Securities
to receive,
<PAGE>
solely from the trust fund described in Section 12.04 and as more fully set
forth in such Section, payments in respect of the Principal Amount, premium
(if any) and accrued Original Issue Discount on such Securities when such
payments are due, (B) the Company's and the Guarantor's respective obligations
with respect to such Securities and the Guarantees endorsed thereon under
Sections 2.03, 2.04, 2.05, 10.02, and 10.04, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's and the
Guarantor's obligations in connection therewith and (D) this Article XII.
Subject to compliance with this Article XII, the Company or the Guarantor may
exercise its option under this Section 12.02 notwithstanding the prior
exercise of its option under Section 12.03 with respect to the Securities and
the Guarantees endorsed thereon.
SECTION 12.03. Covenant Defeasance. Upon the Company's or
the Guarantor's exercise under Section 12.01 of the option applicable to this
Section 12.03, the Company and the Guarantor shall be released from their
respective obligations under the covenants contained in Articles VIII and XI
and in Sections 10.07 through 10.16 with respect to the outstanding Securities
and the Guarantees endorsed thereon on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the
Securities and the Guarantees endorsed thereon shall thereafter be deemed to
be not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Securities and
the Guarantees endorsed thereon shall not be deemed outstanding for financial
accounting purposes). For this purpose, such covenant defeasance means that,
with respect to the outstanding Securities and the Guarantees endorsed
thereon, the Company and the Guarantor may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default under
Section 5.01(b) or Section 5.01(g), but, except as specified above, the
remainder of this Indenture and such Securities and the Guarantees endorsed
thereon shall be unaffected thereby. In addition, upon the Company's or the
Guarantor's exercise under Section 12.01 of the option applicable to Section
12.03, Sections 5.01(b) through 5.01(g) (other than Section 5.01(e) and
Section 5.01(f)) shall not constitute Events of Default.
SECTION 12.04. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application of either
Section 12.02 or Section 12.03 to the outstanding Securities and the
Guarantees endorsed thereon:
<PAGE>
(1) The Company or the Guarantor shall irrevocably have
deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 6.08 who shall agree to comply with the
provisions of this Article XII applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities,
(A) cash in U.S. Dollars in an amount, or (B) U.S. Government Obligations
(defined below) that through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, cash in U.S. Dollars in an amount,
or (C) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the Issue Price of (and premium, if any) and accrued Original
Issue Discount on the outstanding Securities on the Stated Maturity of such
Principal Amount (and premium, if any) or accrued Original Issue Discount and
(ii) any mandatory payments applicable to the outstanding Securities on the
day on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities; provided that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to said payments with respect to the Securities. For
this purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (y) obligations of a person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option
of the issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended), as custodian with respect to any such U.S. Government Obligation or
a specific payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
depository receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced by such depository
receipt;
<PAGE>
(2) In the case of an election under Section 12.02, the
Company or the Guarantor shall have delivered to the Trustee an Opinion of
Counsel in the United States stating that (x) the Company or the Guarantor has
received from, or there has been published by, the Internal Revenue Service a
ruling or (y) since the date of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of the outstanding
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred;
(3) In the case of an election under Section 12.03, the
Company or the Guarantor shall have delivered to the Trustee an Opinion of
Counsel in the United States to the effect that the Holders of the outstanding
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred;
(4) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such deposit
or, insofar as Section 5.01(e) or 5.01(f) is concerned, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(5) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or the
Guarantor is a party or by which it is bound;
(6) In the case of an election under either Section 12.02 or
12.03, the Company or the Guarantor shall have delivered to the Trustee an
Opinion of Counsel to the effect that after the 91st day following the
deposit, the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally;
(7) In the case of an election under either Section 12.02 or
12.03, the Company or the Guarantor shall have delivered to the Trustee an
Officers' Certificate stating that the deposit made by the Company or the
Guarantor, as the case may be, pursuant to its election under Section 12.02 or
12.03 was not made by the Company or the Guarantor, as the case may be, with
the intent of preferring the Holders over other creditors of the Company or
the Guarantor or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or the Guarantor or others; and
(8) The Company or the Guarantor shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel in the United
States, each stating that all conditions precedent provided for relating to
either the defeasance under Section 12.02 or the covenant defeasance under
Section 12.03 (as the case may be) have been complied with as contemplated by
this Section 12.04.
On and after the date the conditions set forth above are
satisfied, the United States dollars or U.S. Government Obligations so
deposited shall not be subject to the rights of the holders of Senior
Indebtedness of the Company or Senior Indebtedness of the Guarantor pursuant
to the provisions of Article XI.
SECTION 12.05. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other Miscellaneous Provisions. Subject to
the provisions of Section 4.02, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively, for purposes of this Section 12.05, the
"Trustee") pursuant to Section 12.04 in respect of the outstanding Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
of all sums due and to become due thereon in respect of the Principal Amount
(and premium, if any) and accrued Original Issue Discount, but such money need
not be segregated from other funds except to the extent required by law.
Money and U.S. Government Obligations so held in trust are not subject to
Article XI.
The Company and the Guarantor shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against
the cash or U.S. Government Obligations deposited pursuant to Section 12.04 or
the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the
outstanding Securities.
Anything in this Article XII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Order any money or U.S. Government Obligations held by it as provided in
Section 12.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
12.04(1)), are in excess of the amount thereof which would then be required to
be deposited to effect an equivalent defeasance or covenant defeasance.
SECTION 12.06. Reinstatement. If the Trustee or Paying
Agent is unable to apply any United States dollars or U.S. Government
Obligations in accordance with Section 12.02 or 12.03, as the case may be, by
reason of any order of judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's and the Guarantor's obligations under the Indenture and the
Securities and the Guarantees endorsed thereon shall be revived and reinstated
as though no deposit had occurred pursuant to Section 12.02 or 12.03, as the
case may be, until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with section 12.02 or 12.03, as the case
may be; provided, however, that, if the Company or the Guarantor makes any
payment of the Principal Amount (or premium, if any) or accrued Original Issue
Discount on any Security following the reinstatement of its obligations, the
Company or the Guarantor, as the case may be, shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE XIII
Guarantees
SECTION 13.01. Guarantee. The Guarantor hereby
unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee the due and prompt payment of the Principal Amount,
premium (if any), Issue Price, accrued Original Issue Discount, Redemption
Price, Change in Control Purchase Price, Asset Sale Offer Price, and interest
(if any), in accordance with the terms of the Securities and this Indenture.
In case of the failure of the Company punctually to pay any such Principal
Amount, premium (if any), Issue Price, accrued Original Issue Discount,
Redemption Price, Change in Control Purchase Price, Asset Sale Offer Price,
and interest (if any), in accordance with the terms of the Securities and this
Indenture, the Guarantor hereby agrees to cause any such payment to be made
promptly when and as the same shall become due and payable, and as if such
payment were made by the Company. The Guarantor hereby further agrees that
any amounts to be paid by the Guarantor under this Guarantee shall be paid
without deduction or withholding for any and all present and future
withholding taxes,levies, imposts and charges whatsoever imposed by or for the
account of the Cayman Islands or any political subdivision or taxing authority
thereof or therein, or if deduction or withholding of any such taxes, levies,
imposts or charges shall at any time be required by the Cayman Islands or any
such subdivision or authority, the Guarantor will (subject to compliance by
the Holder of such Security with any relevant administrative requirements) pay
such additional amount in respect of Principal Amount, premium (if any), Issue
Price, accrued Original Issue Discount, Redemption Price, Change in Control
Purchase Price, Asset Sale Offer Price, and interest (if any), in accordance
with the terms of the Securities and this Indenture, as may be necessary in
order that the net amounts paid to such Holder or the Trustee, as the case may
be, pursuant to this Guarantee, after such deduction or withholding, shall
equal the respective amounts of Principal Amount, premium (if any), Issue
Price, accrued Original Issue Discount, Redemption Price, Change in Control
Purchase Price, Asset Sale Offer Price, and interest (if any), in accordance
with the terms of the Securities and this Indenture, as specified in such
Security to which such Holder is entitled; provided, however, that the
foregoing shall not apply to any such tax, levy, impost or charge which would
not be payable or due but for the fact (i) the Holder of such Security is a
domiciliary, national or resident of, or engaging in business or maintaining a
permanent establishment or being physically present in, the Cayman Islands or
such political subdivision or otherwise having some connection with the Cayman
Islands other than the holding or ownership of such Security or the collection
of Principal Amount, premium (if any), Issue Price, accrued Original Issue
Discount, Redemption Price, Change in Control Purchase Price, Asset Sale Offer
Price, and interest (if any), in accordance with the terms of the Securities
and this Indenture, or the enforcement of such Security or this Guarantee or
(ii) where presentation is required, such Security was presented more than 30
days after the date such payment became due or was provided for, whichever is
later. The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of the Securities, any failure to enforce the
provisions of any Security or this Indenture, or any waiver, modification or
indulgence granted to the Company with respect thereto, by the Holder of any
Security or the Trustee, or any other circumstance which may otherwise
constitute a legal or equitable discharge of a surety or guarantor, provided,
however, that, notwithstanding the foregoing, no such waiver, modification or
indulgence shall, without the consent of the Guarantor, increase the principal
amount of the Securities or the interest rate (if any) thereon or increase any
premium payable upon redemption thereof. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in
the event of merger or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to any
Security or the indebtedness evidenced thereby required pursuant to the terms
of the Securities issued under this Indenture and all demands whatsoever, and
covenants that this Guarantee will not be discharged with respect to any
Security except by payment in full of the Principal Amount, premium (if any),
Issue Price, accrued Original Issue Discount, Redemption Price, Change in
Control Purchase Price, Asset Sale Offer Price, and interest (if any), in
accordance with the terms of the Securities and this Indenture.
SECTION 13.02. Subrogation. The Guarantor shall be
subrogated to all rights of the Holder of a Security against the Company in
respect of any amounts paid to such Holder by the Guarantor pursuant to the
provisions of this Guarantee; provided, however, that the Guarantor shall not
be entitled to enforce, or to receive any payments arising out of or based
upon, such right of subrogation until the Principal Amount, premium (if any),
Issue Price, accrued Original Issue Discount, Redemption Price, Change in
Control Purchase Price, Asset Sale Offer Price and interest (if any), in
accordance with the terms of the Securities and this Indenture, shall have
been paid in full.
SECTION 13.03. Execution and Delivery of Guarantees. To
evidence its guarantee set forth in Section 13.01, the Guarantor hereby agrees
to execute the Guarantee in a form established pursuant to Section 2.1, to be
endorsed on each Security authenticated and delivered by the Trustee. Each
such Guarantee shall be signed manually or by facsimile by a person duly
authorized thereto by Board Resolution of the Guarantor.
Guarantees bearing the facsimile signature of any individual
who was at any time an officer of the Guarantor shall bind the Guarantor,
notwithstanding that such individual shall have ceased to be an officer prior
to the authentication and delivery of the Securities upon which such
Guarantees are endorsed or was not an officer at the date of such Securities.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee endorsed thereon on behalf of the Guarantor.
SECTION 13.04. Agreement to Subordinate. The Guarantor
agrees, and each Securityholder by accepting a Security agrees, that all
payments pursuant to the Guarantee of the Guarantor are subordinated in right
of payment to the prior payment in full of all Senior Indebtedness of the
Guarantor, to the same extent and manner that all payments pursuant to the
Securities are subordinated in right of payment to the prior payment in full
of all Senior Indebtedness of the Company.
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
TRITON ENERGY CORPORATION
as Issuer
By: /s/Peter Rugg
Peter Rugg
Title: Senior Vice President
Attest:/s/Robert B. Holland, III
Robert B. Holland, III
Title: Secretary
TRITON ENERGY LIMITED
as Guarantor
By:/s/Peter Rugg
Peter Rugg
Title: Senior Vice President
Attest:/s/Robert B. Holland, III
Robert B. Holland, III
Title: Secretary
CHEMICAL BANK, as Trustee
By:/s/Greg McFarlane
Greg McFarlane
Title: Vice President
Attest:___________________
Title:
<PAGE>
STATE OF ________________________ )
) ss.:
COUNTY OF ______________________ )
On this _____ day of , 1995, before me personally came
____________________, to me known, who being by me duly sworn, did depose and
say that he resides at ____________________, that he is ____________________
of Triton Energy Corporation, a corporation described in and which executed
the above instrument; and that he signed his name thereto by authority of the
Board of Directors of said corporation.
_________________________
Notary Public
STATE OF ________________________ )
) ss.:
COUNTY OF ______________________ )
On this _____ day of , 1995, before me personally came
____________________, to me known, who being by me duly sworn, did depose and
say that he resides at ____________________, that he is __________________ of
________, a corporation described in and which executed the above instrument;
and that he signed his name thereto by authority of the Board of Directors of
said corporation.
_________________________
Notary Public
(Notarial Seal)
<PAGE>
STATE OF ________________________ )
) ss.:
COUNTY OF ______________________ )
On this _____ day of , 1995, before me personally came
____________________, to me known, who being by me duly sworn, did depose and
say that he resides at ____________________, that he is ______________ of
Chemical Bank, one of the entities described in and which executed the above
instrument; and that he signed his name thereto by authority of the Board of
Directors of Chemical Bank.
__________________________
Notary Public
(Notarial Seal)
<PAGE>
EXHIBIT A
[FORM OF FACE OF SECURITY]
FOR PURPOSES OF SECTIONS 1271 ET SEQ. OF THE INTERNAL REVENUE CODE, THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000 OF PRINCIPAL AMOUNT OF
THIS SECURITY IS $452.40, THE ISSUE DATE IS NOVEMBER 13, 1992 AND THE YIELD TO
MATURITY IS 12.5%.
TRITON ENERGY CORPORATION
Senior Subordinated Discount
Notes due 1997
No.
Issue Date: November 13, 1992
Issue Price: $547.60
(for each $1,000 Principal Amount)
Original Issue Discount: $452.40
(for each $1,000 Principal Amount)
Triton Energy Corporation, a Delaware corporation (the
"Company"), promises to pay to or registered assigns, the Principal
Amount of Dollars ($ ) on November 1, 1997.
This Security shall not bear interest except as specified on
the other side of this Security. Original Issue Discount will accrue as
specified on the other side of this Security.
<PAGE>
Additional provisions of this Security are set forth on
the other side of this Security.
Dated:
TRITON ENERGY CORPORATION
By:__________________________
Secretary
[SEAL]
By:___________________________
President
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities
referred to in the within-
mentioned Indenture.
CHEMICAL BANK
as Trustee
By:__________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE SIDE OF SECURITY]
Senior Subordinated Discount Note due 1997
1. Interest
This Security shall not bear interest, except that if the
Principal Amount hereof or any portion of such Principal Amount is not paid
when due (whether upon acceleration pursuant to Section 5.02 of the Indenture,
upon the date set for payment of the Redemption Price pursuant to paragraph 6
hereof, upon the date set for payment of the Change in Control Purchase Price
or other required payments pursuant to paragraph 8 hereof or upon the Stated
Maturity of this Security), then in each such case the overdue amount shall
bear interest at the rate of 12.5% per annum, compounded semiannually (to the
extent that the payment of such interest shall be legally enforceable), which
interest shall accrue from the date such overdue amount was due to the date
payment of such amount, including interest thereon, has been made or duly
provided for. All such interest shall be payable on demand.
Original Issue Discount (the difference between the Issue
Price and the Principal Amount of the Security), in the period during which
any of the Securities remains outstanding, shall accrue at 12.5% per annum, on
a semiannual bond equivalent basis using a 360-day year composed of twelve
30-day months, commencing on the Issue Date of this Security.
2. Method of Payment
Subject to the terms and conditions of the Indenture, Holders
must surrender Securities to a Paying Agent to collect payments in respect of
the Securities. The Company or the Guarantor will pay cash amounts in money
of the United States that at the time of payment is legal tender for payment
of public and private debts. However, the Company may make such cash payments
by check payable in such money.
3. Paying Agent and Registrar
Initially, Chemical Bank (the "Trustee"), will act as Paying
Agent and Registrar. The Company may appoint and change any Paying Agent or
Registrar without notice, other than notice to the Trustee. The Company or
any of its Subsidiaries or any of their Affiliates may act as Paying Agent or
Registrar.
<PAGE>
4. Indenture
The Company issued the Securities under an Indenture, dated
as of November 13, 1992 as amended by the supplement thereto dated July 1,
1993, the supplement thereto dated May 12, 1995 and the supplement thereto
dated November 16, 1995 (the "Indenture"), among the Company, the Guarantor
and the Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended. Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and holders are referred to the
Indenture and the Trust Indenture Act for a statement of those terms.
The Securities are general unsecured obligations of the
Company, limited to $240,000,000 aggregate Principal Amount.
5. Subordination
The Indebtedness represented by the Securities is expressly
subordinate and junior in right of payment, in the manner and to the extent
set forth in the Indenture, to the prior payment in full of all Senior
Indebtedness of the Company whether outstanding on the date of such Indenture
or thereafter created, incurred, assumed or guaranteed. Each Holder of a
Security by his acceptance hereof agrees and accepts to be bound by such
provisions.
6. Redemption at the Option of the Company
No sinking fund is provided for the Securities. The
Securities are redeemable as a whole, or from time to time in part, at any
time at the option of the Company, in a minimum amount of at least $20,000,000
aggregate Principal Amount or, if such aggregate Principal Amount outstanding
is less than $20,000,000, such smaller amount, for cash at a price equal to
the sum of the Issue Price plus accrued Original Issue Discount to the date of
redemption plus the Make-Whole Premium.
The Make-Whole Premium shall mean an amount equal to the
excess, if any, of (a) over (b), where (a) equals the present value of the
Principal Amount of a Security, discounted on a semiannual bond equivalent
basis from November 1, 1997 to the Redemption Date at a per annum interest
rate equal to the lower of (x) the Standard Yield set forth in the table below
applicable to the Redemption Date for which the determination is being made
plus 100 basis points and (y) the Treasury Yield for such Redemption Date plus
100 basis points and (b) the Issue Price plus accrued Original Issue
Discount to the Redemption Date.
<PAGE>
Standard Yield Period Standard Yield
From issuance to and
including November 1, 1993 5.93%
From November 2, 1993 to and
including November 1, 1994 5.39%
From November 2, 1994 to and
including November 1, 1995 4.84%
From November 2, 1995 to and
including November 1, 1996 4.37%
From November 2, 1996 to and
including October 31, 1997 3.49%
"Treasury Yield" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by and published in the most recent Federal Reserve Statistical
Release H.15 (519) which has become publicly available at least two Business
Days prior to the date fixed for prepayment (or, if such Statistical Release
is no longer published, any publicly available source of similar market data))
most nearly equal to the then remaining average life of the Securities;
provided, that if the average life of the Securities is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Yield shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the
weekly average yields of United States Treasury securities for which such
yields are given, except that if the average life of the Securities is less
than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
7. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder of Securities to
be redeemed at the Holder's registered address. If money sufficient to pay
the Redemption Price of all Securities to be redeemed on the Redemption Date
is deposited with the Paying Agent prior to or on the Redemption Date, on and
after such date Original Issue Discount ceases to accrue on such Securities or
portions thereof.
8. Offers to Repurchase the Securities by the Company
In certain circumstances described in the Indenture, the
Company may be required to make offers to repurchase the Securities.
<PAGE>
9. Denominations; Transfer; Exchange
The Securities are in registered form, without coupons, in
denominations of $1,000 of Principal Amount and integral multiples of $1,000.
A Holder may register the transfer of or exchange Securities in accordance
with the Indenture. The Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents and to pay any
taxes and fees required by law or permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities called for
redemption or any Securities in respect of which a notice of redemption, a
Change in Control Purchase Notice or a notice of repurchase by the Company or
has been given and not withdrawn (except, in the case of a Security to be
redeemed or purchased in part, as the case may be, the portion of the Security
not to be redeemed or purchased) or for a period of 30 days before the
Redemption Date.
10. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of this Security for all purposes.
11. Unclaimed Money
The Trustee and each Paying Agent shall each return to the
Company upon written request any money held by them for the payment of any
amount with respect to the Securities that remains unclaimed for two years;
provided, however, that the Trustee or any such Paying Agent, before being
required to make any such return, may at the expense of the Company cause to
be published once in a newspaper of general circulation in The City of New
York or mail to each such Holder notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days
from the date of such publication or mailing, any unclaimed money then
remaining will be returned to the Company. After return to the Company,
Holders entitled to the money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another
person.
12. Amendment; Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
at the time outstanding and (ii) certain defaults or noncompliance with
certain provisions may be waived with the written consent of the Holders of a
majority in aggregate Principal Amount of the Securities at the time
outstanding. Subject to certain exceptions set forth in the Indenture,
without the consent of any Holder, the Company, the Guarantor and the Trustee
may amend the Indenture or the Securities to cure any ambiguity, defect or
inconsistency, or to comply with Article VIII of the Indenture, to provide
for uncertificated Securities in addition to or in place of certificated
Securities or to make any change that does not adversely affect the rights of
any Holder of Securities.
13. Defaults and Remedies
Under the Indenture, Events of Default include, among
others,(i) default in payment of the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Change in Control Purchase Price,
Asset Sale Offer Price or any other payment required to be made under the
Indenture, when the same becomes due and payable; (ii) failure by the Company
or the Guarantor to comply with other agreements in the Indenture or the
Securities, subject to notice and lapse of time; and (iii) certain events of
bankruptcy or insolvency. If an Event of Default occurs and is continuing, the
Trustee, or the Holders of at least 25% in aggregate Principal Amount of the
Securities at the time outstanding, may declare all the Securities to be due
and payable immediately. Certain events of bankruptcy or insolvency are Events
of Default which will result in the Securities becoming due and payable
immediately upon the occurrence of such Events of Default.
Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable
indemnity or security. Subject to certain limitations, Holders of 25% in
aggregate Principal Amount of the Securities at the time outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default (except a
Default in payment of amounts specified in clause (i) above) if it determines
that withholding notice is in their interests.
14. Trustee Dealings with the Company and the Guarantor
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company, the Guarantor or their respective
Affiliates and may otherwise deal with the Company, the Guarantor or their
respective Affiliates with the same rights it would have if it were not
Trustee.
15. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or the Guarantor shall not have any liability for any obligations of
the Company or the Guarantor under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases
all such liability. The waiver and release are part of the consideration for
the issue of the Securities.
16. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee manually signs the Trustee's Certificate of Authentication on
the other side of this Security.
17. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (=
Uniform Gift to Minors Act).
18. Governing Law
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
The Company will furnish to any Holder of Securities upon
written request and without charge a copy of the Indenture which has in it the
text of this Security in larger type. Requests may be made to:
Triton Energy Corporation
6688 N. Central Expressway
Suite 1400
Dallas, Texas 75206
Attention of Corporate Secretary
<PAGE>
Exhibit B
GUARANTEE OF TRITON ENERGY LIMITED
19. Guarantee. For value received, Triton Energy Limited, a
company duly organized and existing under the laws of the Cayman Islands
(herein called the "Guarantor", which term includes any successor corporation
under the Indenture referred to in the Security upon which this Guarantee is
endorsed), hereby unconditionally guarantees to the Holder of the Security
upon which this Guarantee is endorsed the due and prompt payment of Principal
Amount, premium (if any), Issue Price, accrued Original Issue Discount,
Redemption Price, Change in Control Purchase Price, Asset Sale Offer Price and
interest (if any), in accordance with the terms of the Securities and this
Indenture. In case of the failure of Triton Energy Corporation, a corporation
duly organized and existing under the laws of the State of Delaware (herein
called the "Company", which term includes any successor corporation under such
Indenture) punctually to make any such payment of Principal Amount, premium
(if any), Issue Price, accrued Original Issue Discount, Redemption Price,
Change in Control Purchase Price, Asset Sale Offer Price and interest (if
any), in accordance with the terms of the Securities and this Indenture, the
Guarantor hereby agrees to cause any such payment to be made promptly when and
as the same shall become due and payable, and as if such payment were made by
the Company.
The Guarantor hereby further agrees that any amounts to be
paid by the Guarantor under this Guarantee shall be paid without deduction or
withholding for any and all present and future withholding taxes, levies,
imposts and charges whatsoever imposed by or for the account of the Cayman
Islands or any political subdivision or taxing authority thereof or therein,
or if deduction or withholding of any such taxes, levies, imposts or charges
shall at any time be required by the Cayman Islands or any such subdivision or
authority, the Guarantor will (subject to compliance by the Holder of such
Security with any relevant administrative requirements) pay such additional
amount in respect of Principal Amount, premium (if any), Issue Price, accrued
Original Issue Discount, Redemption Price, Change in Control Purchase Price,
Asset Sale Offer Price and interest (if any), in accordance with the terms of
the Securities and this Indenture, as may be necessary in order that the net
amounts paid to such Holder or the Trustee under such Indenture, as the case
may be, pursuant to this Guarantee, after such deduction or withholding, shall
equal the respective amounts of Principal Amount, premium (if any), Issue
Price, accrued Original Issue Discount, Redemption Price, Change in Control
Purchase Price, Asset Sale Offer Price and interest (if any), in accordance
with the terms of the Securities and this Indenture, as specified in such
Security to which such Holder or the Trustee is entitled; provided, however
that the foregoing shall not apply to any such tax, levy, impost or charge
which would not be payable or due but for the fact that (i) the Holder of such
Security is a domiciliary, national or resident of, or engaging in business or
maintaining a permanent establishment or being physically present in, the
Cayman Islands or such political subdivision or otherwise having some
connection with the Cayman Islands other than the holding or ownership of such
Security or the collection of Principal Amount, premium (if any), Issue Price,
accrued Original Issue Discount, Redemption Price, Change in Control Purchase
Price, Asset Sale Offer Price and interest (if any), in accordance with the
terms of the Securities and this Indenture, or the enforcement of such
Security or this Guarantee or (ii) where presentation is required, such
Security was presented more than 30 days after the date such payment became
due or was provided for, whichever is later.
The Guarantor hereby agrees that its obligations hereunder
shall be as if it were principal debtor and not merely surety, and shall be
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of such Security or such
Indenture, any failure to enforce the provisions of such Security or such
Indenture, or any waiver, modification or indulgence granted to the Company
with respect thereto, by the Holder of such Security or such Trustee, or any
other circumstance which may otherwise constitute a legal or equitable
discharge of a surety or guarantor, provided, however, that, notwithstanding
the foregoing, no such waiver, modification or indulgence shall, without the
consent of the Guarantor, increase the principal amount of such Security or
the interest rate thereon or increase any premium payable upon redemption
thereof. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to such Security or the indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Guarantee will not
be discharged except by payment in full of the principal of (and premium, if
any) and interest on such Security.
The Guarantor shall be subrogated to all rights of the Holder
of such Security against the Company in respect of any amounts paid to such
Holder by the Guarantor pursuant to the provisions of this Guarantee;
provided, however, that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of or based upon, such right of subrogation
until the principal of (and premium, if any) and interest on all Securities of
the same series issued under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantee of the
Guarantor, which is absolute and unconditional, of the due and punctual
payment of the principal of (and premium, if any) and interest on the Security
upon which this Guarantee is endorsed at the times, place and rate, and in the
cash or currency prescribed therein.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication of such Security shall have
been manually executed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such
Indenture shall have the meanings assigned to them in such Indenture.
20. Subordination. The Guarantor agrees, and each Security
holder by accepting a Security agrees, that all payments pursuant to the
Guarantee of the Guarantor are subordinated and junior in right of payment to
the prior payment in full of all Senior Indebtedness of the Guarantor, to the
same extent and manner that all payments pursuant to the Securities are
subordinated and junior in right of payment, in the manner and to the extent
set forth in the Indenture, to the prior payment in full of all Senior
Indebtedness of the Issuer, whether outstanding on the date of such Indenture
or thereafter created, incurred, assumed or guaranteed.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to
be signed in facsimile by a person duly authorized in that behalf.
[____________________________]
______________________________
Authorized Signatory
Dated the date on the face hereof.
<PAGE>
Exhibit 10.24
TRITON ENERGY CORPORATION,
AS ISSUER
TRITON ENERGY LIMITED,
AS GUARANTOR
AND
UNITED STATES TRUST COMPANY OF NEW YORK
AS TRUSTEE
AMENDED AND RESTATED SENIOR SUBORDINATED INDENTURE
DATED AS OF DECEMBER 15, 1993
AND AS AMENDED AND RESTATED ON March 25, 1996
<PAGE>
CROSS REFERENCE SHEET(1)
_______________
Provisions of Trust Indenture Act of 1939 and Amended and Restated
Indenture dated as of December 15, 1993 and amended and restated as of
March 25, 1996, among TRITON ENERGY CORPORATION, TRITON ENERGY LIMITED and
UNITED STATES TRUST COMPANY OF NEW YORK, Trustee:
Section of the Act Section of Indenture
310(a)(1), (2) and (5) 6.9
310(a)(3) and (4) . . . Inapplicable
310(b) . . . . . . . . 6.8 and 6.10(a), (b) and (d)
310(c) . . . . . . . . Inapplicable
311(a) . . . . . . . . 6.13
311(b) . . . . . . . . 6.13
311(c) . . . . . . . . Inapplicable
312(a) . . . . . . . . 4.1 and 4.2(a)
312(b) . . . . . . . . 4.2(a) and (b)(i) and (ii)
312(c) . . . . . . . . 4.2(c)
313(a) . . . . . . . . 4.4(a)(i), (ii), (iii), (iv), (v), (vi) and (vii)
313(a)(5) . . . . . . . Inapplicable
313(b)(1) . . . . . . . Inapplicable
313(b)(2) . . . . . . . 4.4(b)
313(c) . . . . . . . . 4.4(c)
313(d) . . . . . . . . 4.4(d)
314(a) . . . . . . . . 4.3
314(b) . . . . . . . . Inapplicable
314(c)(1) and (2) . . . 11.5
314(c)(3) . . . . . . . Inapplicable
314(d) . . . . . . . . Inapplicable
314(e) . . . . . . . . 11.5
314(f) . . . . . . . . Inapplicable
315(a), (c) and (d) . . 6.1
315(b) . . . . . . . . 5.8
315(e) . . . . . . . . 5.9
316(a)(1) . . . . . . . 5.7
316(a)(2) . . . . . . . Not required
316(a) (last sentence) 7.4
316(b) . . . . . . . . 5.4
317(a) . . . . . . . . 5.2
317(b) . . . . . . . . 3.5(a)
318(a) . . . . . . . . 11.7
________________________
(1) This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS . . . . . . . . . . . . . 14
SECTION 1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Accreted Amount . . . . . . . . . . . . . . . . . . . . . . . . .
14
Acquired Indebtedness . . . . . . . . . . . . . . . . . . . . . .
15
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
Asset Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
Asset Sale Amount . . . . . . . . . . . . . . . . . . . . . . .
15
Asset Sale Offer . . . . . . . . . . . . . . . . . . . . . . . . .
15
Asset Sale Offer Date . . . . . . . . . . . . . . . . . . . . . .
16
Asset Sale Offer Notice . . . . . . . . . . . . . . . . . . . . .
16
Asset Sale Offer Price . . . . . . . . . . . . . . . . . . . . . .
16
Asset Sale Purchase Date . . . . . . . . . . . . . . . . . . . . .
16
Asset Sale Purchase Notice . . . . . . . . . . . . . . . . . . . .
16
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . .
16
Average Quoted Price . . . . . . . . . . . . . . . . . . . . . . .
16
Bankruptcy Code . . . . . . . . . . . . . . . . . . . . . . . . .
16
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . .
16
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . .
16
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . .
16
Capitalized Lease Obligation . . . . . . . . . . . . . . . . . . .
17
Cash Equivalents . . . . . . . . . . . . . . . . . . . . . . . . .
17
Change in Control . . . . . . . . . . . . . . . . . . . . . . . .
17
Change in Control Notice . . . . . . . . . . . . . . . . . . . . .
17
Change in Control Offer . . . . . . . . . . . . . . . . . . . . .
17
Change in Control Purchase Date . . . . . . . . . . . . . . . . .
17
Change in Control Purchase Notice . . . . . . . . . . . . . . . .
18
Change in Control Purchase Price . . . . . . . . . . . . . . . . .
18
Colombian Assets . . . . . . . . . . . . . . . . . . . . . . . . .
18
Colombian Sale Redemption Price . . . . . . . . . . . . . . . . .
18
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18
Consolidated Net Income . . . . . . . . . . . . . . . . . . . . .
18
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . .
19
Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . .
19
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . .
19
Currency Agreement . . . . . . . . . . . . . . . . . . . . . . . .
19
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
Deficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
Excess Proceeds . . . . . . . . . . . . . . . . . . . . . . . . .
19
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . .
20
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Global Security . . . . . . . . . . . . . . . . . . . . . . . . .
20
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Holder of Securities . . . . . . . . . . . . . . . . . . . . . . .
20
Securityholder . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
Interest Rate Agreements . . . . . . . . . . . . . . . . . . . . .
21
Intercompany Agreement . . . . . . . . . . . . . . . . . . . . . .
21
Investment . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Joint Venture . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Make-Whole Premium . . . . . . . . . . . . . . . . . . . . . . . .
22
Material Subsidiary . . . . . . . . . . . . . . . . . . . . . . .
22
Net Cash Proceeds . . . . . . . . . . . . . . . . . . . . . . . .
22
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
1997 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . .
23
1997 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . .
23
Oil and Gas Reserve Estimate . . . . . . . . . . . . . . . . . . .
23
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . .
23
Original issue date . . . . . . . . . . . . . . . . . . . . . . .
24
Original issue discount . . . . . . . . . . . . . . . . . . . . .
24
Original Issue Discount Security . . . . . . . . . . . . . . . . .
24
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . .
24
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . .
25
Permitted Indebtedness . . . . . . . . . . . . . . . . . . . . . .
25
Permitted Investments . . . . . . . . . . . . . . . . . . . . . .
26
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . .
26
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . .
26
Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
Principal amount . . . . . . . . . . . . . . . . . . . . . . . . .
27
Quoted Price . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
Record date . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
"Redeemable Stock . . . . . . . . . . . . . . . . . . . . . . . .
27
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . .
27
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . .
27
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . .
27
Restricted Payment . . . . . . . . . . . . . . . . . . . . . . . .
28
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . .
28
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . .
28
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
Senior Indebtedness of the Guarantor . . . . . . . . . . . . . . .
28
Senior Indebtedness of the Issuer . . . . . . . . . . . . . . . .
29
Senior Subordinated Indebtedness . . . . . . . . . . . . . . . . .
29
Special Subsidiaries . . . . . . . . . . . . . . . . . . . . . . .
29
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . .
30
Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . .
30
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30
Treasury Yield . . . . . . . . . . . . . . . . . . . . . . . . . .
30
Triton Colombia . . . . . . . . . . . . . . . . . . . . . . . . .
30
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . .
30
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
31
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . .
31
U.S. Government Obligations . . . . . . . . . . . . . . . . . . .
31
vice president . . . . . . . . . . . . . . . . . . . . . . . . . .
31
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . .
31
Wholly-owned Subsidiary . . . . . . . . . . . . . . . . . . . . .
31
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . .
31
ARTICLE TWO
SECURITIES . . . . . . . . . . . . . .
32
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . .
32
SECTION 2.2 Form of Trustee's Certificate of Authentication . . .
32
SECTION 2.3 Amount Unlimited Issuable in Series . . . . . . . . .
33
SECTION 2.4 Authentication and Delivery of Securities . . . . . .
36
SECTION 2.5 Execution of Securities and Guarantees . . . . . . .
40
SECTION 2.6 Certificate of Authentication . . . . . . . . . . . .
40
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest . . . . . . . . . . . . . . . . . . . .
41
SECTION 2.8 Registration, Transfer and Exchange . . . . . . . . .
41
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . .
44
SECTION 2.10 Cancellation of Securities; Disposition Thereof . .
45
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . . . .
46
SECTION 2.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . .
46
<PAGE>
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE GUARANTOR . . . . . . .
47
SECTION 3.1 Payment of Principal and Interest . . . . . . . . . .
47
SECTION 3.2 Offices for Notices and Payments, etc. . . . . . . .
47
SECTION 3.3 No Interest Extension . . . . . . . . . . . . . . . .
47
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office .
47
SECTION 3.5 Provision as to Paying Agent . . . . . . . . . . . .
48
SECTION 3.6 Limitation on Indebtedness . . . . . . . . . . . . .
49
SECTION 3.7 Limitation on Restricted Payments . . . . . . . . . .
50
SECTION 3.8 Limitation on Transactions with Affiliates . . . . .
53
SECTION 3.9 Disposition of Proceeds of Asset Sales . . . . . . .
53
SECTION 3.10 Limitation on Liens . . . . . . . . . . . . . . . .
59
SECTION 3.11 Limitation Upon Other Senior Subordinated
Indebtedness . . . . . . . . . . . . . . . . . .
59
SECTION 3.12 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries . . . . . . .
59
SECTION 3.13 Limitation on Guaranties . . . . . . . . . . . . . .
61
SECTION 3.14 Purchase of Notes Upon Change in Control . . . . . .
62
SECTION 3.15 Payment of Taxes and Other Claims . . . . . . . . . 65
SECTION 3.16 Commission Reports and Reports to Holders of
Notes . . . . . . . . . . . . . . . . . . . . . .
65
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER, THE GUARANTOR AND THE TRUSTEE . . . . . . . .65
SECTION 4.1 Issuer and Guarantor to Furnish Trustee
Information as to Names and Addresses of
Securityholders . . . . . . . . . . . . . . . . .65
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists . . . . . . . . . . . . . . . . . . . . . .66
SECTION 4.3 Reports by the Issuer and Guarantor . . . . . . . . .67
SECTION 4.4 Reports by the Trustee . . . . . . . . . . . . . . 68
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT . . . . . . . . . . 70
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . .
70
SECTION 5.2 Acceleration of Maturity; Rescission . . . . . . . .
73
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . .
73
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . . .
74
SECTION 5.5 Trustee May Enforce Claims without Possession of
Notes . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 5.6 Application of Money Collected . . . . . . . . . . .
75
SECTION 5.7 Limitations on Suits . . . . . . . . . . . . . . . .
76
SECTION 5.8 Unconditional Right of Holders to Receive Payment . .
76
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . .
77
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . .
77
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . .
77
SECTION 5.12 Control by Holders of Notes . . . . . . . . . . . .
77
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . .
77
SECTION 5.14 Waiver of Stay or Extension Laws . . . . . . . . . .
78
SECTION 5.15 Notice of Defaults . . . . . . . . . . . . . . . . .
78
ARTICLE SIX
CONCERNING THE TRUSTEE . . . . . . . . . . .
78
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default . . . . . . . . . . . . 78
SECTION 6.2 Certain Rights of the Trustee . . . . . . . . . . . . 80
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof . . .81
SECTION 6.4 Trustee and Agents May Hold Securities;
Collections, etc. . . . . . . . . . . . . . . . . 81
SECTION 6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . 81
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim . . . . . . . . . . . . . . . . . 82
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate,
etc. . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 6.8 Qualification of Trustee; Conflicting Interests . . . 83
SECTION 6.9 Persons Eligible for Appointment as Trustee;
Different Trustees for Different Series . . . . . 83
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee . . . . . . . . . . . . . . . . . . . . . 84
SECTION 6.11 Acceptance of Appointment by Successor Trustee . . . 85
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business of Trustee . . . . . . . . . . . . . 86
SECTION 6.13 Preferential Collection of Claims Against the
Issuer. . . . . . . . . . . . . . . . . . . . . . 87
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . .87
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS . . . . . . . . 88
SECTION 7.1 Evidence of Action Taken by Securityholders . . . . . 88
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities . . . . . . . . . . . . . . . . . . 89
SECTION 7.3 Holders to be Treated as Owners . . . . . . . . . . . 89
SECTION 7.4 Securities Owned by Issuer and Guarantor Deemed
Not Outstanding . . . . . . . . . . . . . . . . 89
SECTION 7.5 Right of Revocation of Action Taken . . . . . . . . 90
SECTION 7.6 Record Date for Consents and Waivers . . . . . . . .
90
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES . . . . . . . . . . .
91
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders . . . . . . . . . . . . . . . . . 91
SECTION 8.2 Supplemental Indentures with Consent of
Securityholders . . . . . . . . . . . . . . . . . 93
SECTION 8.3 Effect of Supplemental Indenture . . . . . . . . . 95
SECTION 8.4 Documents to Be Given to Trustee . . . . . . . . . 95
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures . . . . . . . . . . . . . . . . . . .
95
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION .
96
SECTION 9.1 Issuer or Guarantor May Consolidate, etc., on
Certain Terms . . . . . . . . . . . . . . . . . .
96
SECTION 9.2 Successor Corporation to be Substituted . . . . . . .
97
SECTION 9.3 Opinion of Counsel to be Given Trustee . . . . . . .
98
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS . . . . . . .
98
SECTION 10.1 Satisfaction and Discharge of Indenture . . . . . .
98
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities . . . . . . . . . . . . . .
102
SECTION 10.3 Repayment of Moneys Held by Paying Agent . . . . . .
102
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years . . . . . . . . . . . . .
102
SECTION 10.5 Indemnity for U.S. Government Obligations . . . . .
103
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS . . . . . . . . . . .
103
SECTION 11.1 Partners, Incorporators, Stockholders, Officers
and Directors of Issuer and Guarantor Exempt
from Individual Liability . . . . . . . . . . . . 103
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities . . . . . . . .
103
SECTION 11.3 Successors and Assigns of Issuer and Guarantor
Bound by Indenture . . . . . . . . . . . . . . .
103
<PAGE>
SECTION 11.4 Notices and Demands on Issuer, Guarantor, Trustee
and Holders of Securities . . . . . . . . . . . . 103
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein . . . . . .
104
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays . .
105
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 . . . . . . . . . . . . . .
106
SECTION 11.8 GOVERNING LAW . . . . . . . . . . . . . . . . . . .
106
SECTION 11.9 Submission to Jurisdiction . . . . . . . . . . . . .
106
SECTION 11.10 Counterparts . . . . . . . . . . . . . . . . . . .
106
SECTION 11.11 Effect of Headings . . . . . . . . . . . . . . . .
107
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS . . . . . .
107
SECTION 12.1 Right of Redemption . . . . . . . . . . . . . . . .
107
SECTION 12.2 Applicability of Article . . . . . . . . . . . . . .
107
SECTION 12.3 Election to Redeem; Notice to Trustee . . . . . . .
107
SECTION 12.4 Selection by Trustee of Notes to Be Redeemed . . . .
107
SECTION 12.5 Notice of Redemption . . . . . . . . . . . . . . . .
107
SECTION 12.6 Deposit of Redemption Price . . . . . . . . . . . .
108
SECTION 12.7 Notes Payable on Redemption Date . . . . . . . . . .
109
SECTION 12.8 Notes Redeemed in Part . . . . . . . . . . . . . . .
109
ARTICLE THIRTEEN
SUBORDINATION . . . . . . . . . . . . . .
109
SECTION 13.1 Securities Subordinated to Senior Indebtedness of
the Issuer . . . . . . . . . . . . . . . . . . .109
SECTION 13.2 Reliance on Certificate of Liquidating Agent;
Further Evidence as to Ownership of Senior
Indebtedness of the Issuer . . . . . . . . . . .
113
SECTION 13.3 Payment Permitted If No Default . . . . . . . . . .
113
SECTION 13.4 Disputes with Holders of Certain Senior
Indebtedness of the Issuer . . . . . . . . . . .
114
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition .
114
SECTION 13.6 Trustee to Effectuate Subordination . . . . . . . .
115
SECTION 13.7 Rights of Trustee as Holder of Senior
Indebtedness of the Issuer . . . . . . . . . . .
115
SECTION 13.8 Article Applicable to Paying Agents . . . . . . . .
115
SECTION 13.9 Subordination Rights Not Impaired by Acts or
Omissions of the Issuer or Holders of Senior
Indebtedness of the Issuer . . . . . . . . . . .
115
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior
Indebtedness of the Issuer . . . . . . . . . . .116
ARTICLE FOURTEEN
GUARANTEES . . . . . . . . . . . . . .
116
SECTION 14.1 Guarantee . . . . . . . . . . . . . . . . . . . . .
116
SECTION 14.2 Subrogation . . . . . . . . . . . . . . . . . . . .
117
SECTION 14.3 Execution and Delivery of Guarantees . . . . . . . .
118
SECTION 14.4 Agreement to Subordinate . . . . . . . . . . . . . .
118
<PAGE>
AMENDED AND RESTATED INDENTURE
AMENDED AND RESTATED INDENTURE, dated as of December 15,
1993, and amended and restated as of March 25, 1996 (this "Indenture"),
among TRITON ENERGY CORPORATION, a Delaware corporation, as issuer (the
"Issuer"), TRITON ENERGY LIMITED, a Cayman Islands company, as guarantor
(the "Guarantor"), and UNITED STATES TRUST COMPANY OF NEW YORK, a New
York corporation, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issuance from time to
time of its unsecured senior subordinated debentures, notes or other evidences
of indebtedness to be issued in one or more series (the "Securities") up to
such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture; and
WHEREAS, the Issuer and the Trustee are parties to the Indenture
dated as of December 15, 1993 (as supplemented by the First Supplemental
Indenture, dated as of December 15, 1993 (the "First Supplemental Indenture")
and the Second Supplemental Indenture, dated as of May 12, 1995, and the Third
Supplemental Indenture, dated as of November 16, 1995 (the "Third Supplemental
Indenture")); and
WHEREAS, pursuant to the First Supplemental Indenture, the Issuer
has provided for the issuance of its 9-3/4% Senior Subordinated Discount Notes
due 2000 in the form attached hereto as Exhibit A and in the aggregate
principal amount of $170 million (the "Notes"), which Notes constitute the
only series of Securities heretofore issued pursuant to the Indenture; and
WHEREAS, the Board of Directors of the Issuer has adopted a Board
Resolution authorizing the Issuer to enter into this Indenture; and
WHEREAS, the Guarantor desires to make the Guarantees provided
herein; and
WHEREAS, the Board of Directors of the Guarantor has adopted a
Board Resolution authorizing the Guarantor to enter into this Indenture; and
WHEREAS, the Issuer has requested the Trustee and the Trustee has
agreed to join in the execution of this Indenture in accordance with the terms
of Section 8.2 of the Indenture, and as contemplated by the Third Supplemental
Indenture, and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual
agreements herein contained, the Issuer, the Guarantor and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
Holders from time to time of the Notes as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 For all purposes of this Indenture and of any
indenture supplemental hereto the following terms shall have the respective
meanings specified in this Section 1.1 (except as otherwise expressly provided
herein or in any indenture supplemental hereto or unless the context otherwise
clearly requires). All other terms used in this Indenture that are defined in
the Trust Indenture Act of 1939, including terms defined therein by reference
to the Securities Act of 1933, as amended (the "Securities Act"), shall have
the meanings assigned to such terms in said Trust Indenture Act of 1939 and in
said Securities Act as in force at the date of this Indenture (except as
otherwise expressly provided herein or in any indenture supplemental hereto or
unless the context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation.
The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. The expressions "date of this
Indenture", "date hereof", "date as of which this Indenture is dated" and
"date of execution and delivery of this Indenture" and other expressions of
similar import refer to the effective date of the original execution and
delivery of this Indenture, viz. as of December 15, 1993.
The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
"Accreted Amount" as of any date of determination prior to
December 15, 1996 means the sum of (a) the initial offering price of the Notes
and (b)the portion of the original issue discount per Note which shall have
been amortized with respect to such Note through such date, such original issue
discount to be so amortized at the rate of 9-3/4% per annum (such percentage
being expressed as a percentage of the sum of the initial offering price plus
previously amortized original issue discount) using semi-annual compounding of
such rate on each December 15 and June 15, commencing June 15, 1994, from the
date of issuance of the Notes through the date of determination. For any date
<PAGE>
on or after December 15, 1996, Accreted Amount shall mean 100% of the
principal amount of the Notes.
"Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Subsidiary or (ii) assumed in
connection with the acquisition of assets from a Person, other than Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition, as the case may be.
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with, that Person, or any other Person that owns, directly or indirectly, 5%
or more of such Person's Capital Stock. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as applied to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of that Person, whether through
the ownership of voting securities, by contract or otherwise.
"Asset Sale" means any conveyance, transfer, lease or other
disposition (including, without limitation, by way of merger or
consolidation), directly or indirectly, in any consecutive 12-month period,
in one or a series of related transactions, of (i) any of the Capital Stock
of any Subsidiary or Special Subsidiary (other than the primary issuance and
sale by a Subsidiary or Special Subsidiary of the Capital Stock of such
Subsidiary or Special Subsidiary and other than the sale and issuance of
directors' qualifying shares), (ii) all or substantially all of the properties
and assets of any division or line of business of the Guarantor or any of its
"significant subsidiaries" (as defined in Regulation S-X promulgated by the
Commission under the Exchange Act) or (iii) any other assets of the Guarantor
or any of its Subsidiaries or Special Subsidiaries outside of the ordinary
course of business; provided, however, that with respect to a Special
Subsidiary, clause (iii) above shall only apply to the extent the Guarantor
actually receives by dividend any of the net proceeds directly attributable
thereto. For the purpose of this definition, the term "Asset Sale" shall not
include any conveyance, transfer, lease or disposition of properties or assets
of the Guarantor (A) the gross proceeds of which do not exceed $1,000,000,
(B) that is permitted pursuant to Section 9.1 of the Indenture or (C) that
involves any transfer of Capital Stock, property or assets of a Subsidiary or
Special Subsidiary to the Guarantor or any other Subsidiary or of the
Guarantor to a Restricted Subsidiary.
"Asset Sale Amount" shall have the meaning set forth in Section
3.9(c).
"Asset Sale Offer" shall have the meaning set forth in Section
3.9(c).
<PAGE>
"Asset Sale Offer Date" shall have the meaning set forth in
Section
3.9(c).
"Asset Sale Offer Notice" shall have the meaning set forth in
Section 3.9(e).
"Asset Sale Offer Price" shall have the meaning set forth in
Section 3.9(c).
"Asset Sale Purchase Date" shall have the meaning set forth in
Section 3.9(d).
"Asset Sale Purchase Notice" shall have the meaning set forth in
Section 3.9(f).
"Authenticating Agent" shall have the meaning set forth in
Section
6.14.
"Average Quoted Price" means, with respect to any security, the
average of the Quoted Prices of such security for 30 consecutive trading days
ending on the last full trading day prior to the time of determination set by
the Guarantor, which shall be any date no later than 10 days prior to the
proposed incurrence of Indebtedness.
"Bankruptcy Code" means the United States Bankruptcy Code, 11
United States Code Sections 101 et seq., or any successor statute thereto.
"Board of Directors" means either the Board of Directors of the
Issuer or the Guarantor, as the case may be, or any committee of that Board
duly authorized to act on its behalf.
"Board Resolution" means one or more resolutions, certified by
the secretary or an assistant secretary of the Issuer or the Guarantor, as
the case may be, to have been duly adopted or consented to by the Board of
Directors and to be in full force and effect, and delivered to the Trustee.
"Business Day" means, with respect to any Security, unless
otherwise specified in a Board Resolution and an Officers Certificate with
respect to a particular series of Securities, a day that (a) in the Place of
Payment (or in any of the Places of Payment, if more than one) in which
amounts are payable, as specified in the form of such Security, and (b) in
the city in which the Corporate Trust Office is located, is not a day on
which banking institutions are authorized or required by law or regulation
to close.
"Capital Stock" means, as applied to any Person, any and all
shares, interests, participations, rights or other equivalents (however
<PAGE>
designated) of such Person's capital stock whether now outstanding or issued
after the date of the Indenture except for Redeemable Stock.
"Capitalized Lease Obligation" means, as applied to any Person,
any obligation relating to any property (whether real, personal or mixed) by
that Person as lessee which, in conformity with GAAP, is required to be
accounted for as a capital lease on the balance sheet of that Person.
"Cash Equivalents" means money, checks, demand deposit accounts,
certificates of deposit or acceptances with a maturity of 180 days or less of
any financial institution that is a member of the Federal Reserve System
having combined capital and surplus and undivided profits of not less than
$300,000,000, commercial paper with a maturity of 180 days or less issued by a
corporation (except an Affiliate of the Guarantor) organized under the laws of
any state of the United States of America or the District of Columbia and
rated at least A-1 by Standard & Poor's Corporation and at least P-1 by
Moody's Investors Service, Inc. and other instruments or investments of
equivalent liquidity and safety.
"Change in Control" of the Guarantor means the occurrence of any
of the following: (i) any Person other than the Guarantor, any Subsidiary of
the Guarantor, any Special Subsidiary or any employee benefit plan of either
the Guarantor or any Subsidiary of the Guarantor or any Special Subsidiary,
files a Schedule 13D or 14D-1 under the Exchange Act (or any successor schedule,
form or report) disclosing that such Person has become the beneficial owner of
40% or more of the total combined voting power of the common stock and other
voting Capital Stock of the Guarantor entitled to vote immediately in the
election of directors, (ii) there shall be consummated any consolidation or
merger of the Guarantor (a) in which the Guarantor is not the continuing or
surviving corporation or (b) pursuant to which the common stock of the
Guarantor would be converted into cash, securities or other property, in each
case other than a consolidation or merger of the Guarantor in which the holders
of the Guarantor's common stock immediately prior to the consolidation or merger
have, directly or indirectly, at least a majority of the common equity of the
continuing or surviving corporation immediately after the consolidation or
merger or (iii) all or substantially all the Guarantor's assets are sold to
any Person.
"Change in Control Notice" shall have the meaning set forth in
Section 3.14(c).
"Change in Control Offer" shall have the meaning set forth in
Section 3.14(c).
"Change in Control Purchase Date" shall have the meaning set
forth
in Section 3.14(a).
<PAGE>
"Change in Control Purchase Notice" shall have the meaning set
forth in Section 3.14(c).
"Change in Control Purchase Price" shall have the meaning set
forth in Section 3.14(a).
"Colombian Assets" means (i) the Capital Stock of Triton Colombia,
(ii) the Capital Stock of any Subsidiary of Triton Colombia, (iii) the shares,
interests, participations, rights or other equivalent means of ownership owned
by the Guarantor or a Subsidiary of the Guarantor in any Joint Venture,
provided such Joint Venture owns, directly or indirectly, oil and gas
properties or other property interests or rights to oil and gas production in
the Santiago de las Atalayas and the Tauramena contract areas in Colombia,
(iv) the Capital Stock of any Subsidiary of the Guarantor (other than Triton
Colombia and its Subsidiaries) that owns, directly or indirectly, oil and gas
properties or other property interests or rights to oil and gas properties in
the Santiago de las Atalayas and the Tauramena contract areas in Colombia and
(v) assets, tangible and intangible, of the Guarantor or any Subsidiary or
Joint Venture referred to in clauses (i) through (iv) of this definition that
are located in or pertain directly to the operations of the Guarantor or any
of its Subsidiaries in the Santiago de las Atalayas and the Tauramena
contract areas in Colombia.
"Colombian Sale Redemption Price" means (i) with respect to any
repurchase date prior to December 15, 1996, a price equal to 100% of Accreted
Amount of the Notes to be so redeemed plus the Make-Whole Premium, (ii) with
respect to any repurchase date on or after December 15, 1996 and before
December 15, 1997, a price equal to 100% of the principal amount of the Notes
to be so redeemed plus accrued and unpaid interest to the repurchase date plus
the Make-Whole Premium, and (iii) with respect to any repurchase date on or
after December 15, 1997, at the Redemption Price then applicable with respect
to an optional redemption pursuant to the terms of the Indenture plus accrued
and unpaid interest to the repurchase date.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
as amended, or, if at any time after the execution and delivery of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act of 1939, then the body performing
such duties on such date.
"Consolidated Net Income" of the Guarantor means, for any period
taken as one accounting period, the net income (or loss) of the Guarantor on a
consolidated basis for such period determined in conformity with GAAP.
<PAGE>
"Consolidated Net Tangible Assets" means the aggregate amount of
assets included on the most recent consolidated balance sheet of the Guarantor
and its Restricted Subsidiaries, less applicable reserves and other properly
deductible items and after deducting therefrom (a) all current liabilities and
(b) all goodwill, trade names, trademarks, patents, unamortized debt discount
and expense and other like intangibles, all in accordance with generally
accepted accounting principles consistently applied.
"Consolidated Net Worth" means, with respect to any Person, as at
any date of determination, the consolidated stockholders' equity (or like
balance sheet designation) of such Person as determined in accordance with
GAAP.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in New York, New York.
"Currency Agreement" means any foreign exchange contract,currency
swap agreement or other similar agreement or arrangement designed to protect
the Guarantor or any of its Subsidiaries or the Special Subsidiaries against
fluctuations in currency values.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Deficiency" shall have the meaning set forth in Section 3.9(c).
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or
include each Person who is then a Depositary hereunder, and, if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Global Securities of such series.
"Dollars" and the sign "$" means the coin and currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
"Excess Proceeds" shall have the meaning set forth in Section
3.9(b).
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Event of Default" means any event or condition specified as such
in Section 5.1
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the
date of the Indenture.
"Global Security" means a Security evidencing all or a part of a
series of Securities issued to the Depositary for such series in accordance
with Section 2.3 and bearing the legend prescribed in Section 2.4.
"guarantee" means, as applied to any obligation, (i) a guaranty
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part
or all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the practical effect of which is to assure in any
way the payment or performance (or payment of damages in the event of
non-performance) of any part or all of such obligation, including, without
limiting the foregoing, the payment of amounts drawn down by letters of
credit.
"Guarantee" means any guarantee of the Guarantor endorsed on a
Security authenticated and delivered pursuant to this Indenture and shall
include the guarantee set forth in Exhibit B hereto.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter,
"Guarantor" shall mean such successor corporation.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean, in the case of any Security, the Person in whose name such
Security is registered in the security register kept by the Issuer for that
purpose in accordance with the terms hereof.
"Indebtedness" of any Person means, without duplication, with
respect to any Person, any indebtedness, whether or not contingent, in respect
of borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements with respect
thereto) or representing the balance deferred and unpaid of the purchase price
<PAGE>
of any property (including pursuant to Capitalized Lease Obligations and any
conditional sale or other title retention agreement), except any such balance
that constitutes an accrued expense or trade payable, if and to the extent any
of the foregoing indebtedness would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP (but does not include
contingent liabilities which appear only in a footnote to a balance sheet),
and Indebtedness shall also include, to the extent not otherwise included,
the guaranty of items which would be included within this definition and
obligations in respect of Currency Agreements, the notional amount with
respect to Interest Rate Agreements and the liquidation value of Preferred
Stock (except that Indebtedness shall not include Preferred Stock of the
Guarantor or Preferred Stock of the Issuer).
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, including, for all purposes of this instrument and any
such supplement, the provisions of the Trust Indenture Act of 1939 that are
deemed to be a part of and govern this instrument and any such supplement,
respectively, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"Intercompany Agreement" means an intercompany agreement
substantially in the form attached as Exhibit C to this Indenture.
"Interest" means, when used with respect to non-interest bearing
Securities (including, without limitation, any Original Issue Discount
Security that by its terms bears interest only after maturity or upon default
in any other payment due on such Security), interest payable after maturity
(whether at stated maturity, upon acceleration or redemption or otherwise) or
after the date, if any, on which the Issuer becomes obligated to acquire a
Security, whether upon conversion, by purchase or otherwise.
"Interest Rate Agreements" means the obligations of any Person
pursuant to any interest rate swap agreement, interest rate collar agreement
or other similar agreement or arrangement designed to protect such Person or
any of its Subsidiaries against fluctuations in interest rates.
"Investment" means any direct or indirect advance, loan (other than
advances to customers in the ordinary course of business, which are recorded
as accounts receivable on the balance sheet of any Person) or other extension
of credit or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Capital Stock,
bonds, notes, debentures or other securities issued by, any other Person.
<PAGE>
"Issuer" means Triton Energy Corporation, a Delaware corporation,
and, subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer or the Guarantor, as the case may be, which is signed in the name of
the Issuer or the Guarantor, as the case may be, by the chairman of the Board
of Directors, the president or any vice president of the Issuer or the
Guarantor, as the case may be, and delivered to the Trustee.
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form, provided
that, as to any such arrangement in corporate form, such corporation shall
not, as to any Person of which such corporation is a Subsidiary, be
considered to be a Joint Venture to which such Person is a party.
"Lien" means any mortgage, lien, security interest, charge or
encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to
give any security interest).
"Make-Whole Premium" means, (I) at any time prior to December 15,
1996, the greater of (i) 1.0% of the Accreted Amount of such Note at such time
and (ii) the excess of (A) the present value at such time of the Redemption
Price of such Note as of any optional Redemption Date designated by the Issuer
and all cash interest which would be payable or would accrue thereon through
such Redemption Date, computed using a discount rate equal to the Treasury
Yield plus 100 basis points, over (B) the Accreted Amount of such Note at such
time or (II) at any time on or after December 15, 1996, the greater of (i)
1.0% of the principal amount of such Note plus accrued and unpaid interest
to such date and (ii) the excess of (A) the present value at such time of
the Redemption Price of such Note, computed as provided in clause (I)(ii)(A)
above, over (B) the principal amount of such Note and accrued and unpaid
interest thereon at such time.
"Material Subsidiary" means, at the time of determination, any
Subsidiary or Special Subsidiary of the Guarantor that (a) accounted for more
than five percent of the consolidated revenues of the Guarantor for the most
recently completed fiscal year of the Guarantor or its predecessor or (b) was
the owner of more than five percent of the consolidated assets of the
Guarantor as at the end of such fiscal year, all as shown on the consolidated
financial statements of the Guarantor or its predecessor for such fiscal
year.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such obligations are financed or
<PAGE>
sold with recourse to the Guarantor or any Subsidiary) net of (i) brokerage
commissions and other reasonable fees and expenses (including fees and
expenses of counsel and investment bankers) related to such Asset Sale, (ii)
provisions for all taxes payable as a result of such Asset Sale, (iii)
payments made to retire Indebtedness where payment of such Indebtedness is
required in connection with such Asset Sale and (iv) appropriate amounts to
be provided by the Issuer or any Subsidiary, as the case may be, as a
reserve, in accordance with GAAP, against any liabilities associated with
such Asset Sale and retained by the Guarantor or any Subsidiary, as the case
may be, after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale.
"Notes" means the Issuer's 9-3/4% Senior Subordinated Discount
Notes due 2000 in the aggregate principal amount of $170 million.
"1997 Guarantee" means the Guarantor's Guarantee in respect of
the 1997 Notes.
"1997 Notes" means the Issuer's 12 1/2% Senior Subordinated
Discount Notes due 1997 in the aggregate principal amount of $240 million.
"Officers' Certificate", means a certificate signed by the chairman
of the Board of Directors, the president, or any vice president and by the
treasurer, any assistant treasurer, the controller, any assistant controller,
the secretary or any assistant secretary of the Issuer, or the Guarantor, as
the case may be. Each such certificate shall include the statements provided
for in Section 11.5 if and to the extent required by the provisions of such
Section 11.5. One of the officers signing each of the Officers' Certificate
given pursuant to Section 4.3, shall be the principal executive, financial or
accounting officer of the Issuer and the Guarantor, respectively.
"Oil and Gas Reserve Estimate" means, on an after-tax basis, the
standardized measure of discounted future net cash inflows relating to proved
oil and gas reserves as calculated in accordance with Statement of Financial
Accounting Standards No. 69, as in effect on the date of this Indenture, as
adjusted for any (i) back-in interests or interest equalization and
unitization arrangements with third parties and (ii) acquisitions, transfers
or dispositions of interests in such reserves since the date as of which such
standardized measure has been calculated (it being understood that in the case
of any acquisition, the right to include such estimates shall be dependent
upon the availability of such estimate from a nationally recognized
engineering firm).
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of the Issuer or the Guarantor or by such other legal counsel who
<PAGE>
may be an employee of or counsel to the Issuer or the Guarantor and who shall
be reasonably satisfactory to the Trustee. Each such opinion shall include
the statements provided for in Section 11.5, if and to the extent required
by the provisions of such Section 11.5.
"Original issue date" of any Security (or portion thereof) means
the earlier of (a) the date of such Security or (b) the date of any Security
(or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original issue discount" of any debt security, including any
Original Issue Discount Security, means the difference between the principal
amount of such debt security and the initial issue price of such debt security
(as set forth in the case of an Original Issue Discount Security on the face
of such Security).
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant
to Article Five.
"Outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except:
(a) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities (other than Securities of any series as to which
the provisions of Article Ten hereof shall not be applicable), or
portions thereof, for the payment or redemption of which moneys or
U.S. Government Obligations (as provided for in Section 10.1) in the
necessary amount shall have been deposited in trust with the Trustee
or with any paying agent (other than the Issuer) or shall have
been set aside, segregated and held in trust by the Issuer for
the Holders of such Securities (if the Issuer shall act as its own
paying agent), provided that, if such Securities, or portions thereof,
are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a Person in whose hands such Security
is a legal, valid and binding obligation of the Issuer).
<PAGE>
In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding for such purposes shall be the portion of
the principal amount thereof that would be due and payable as of the date of
such determination (as certified by the Issuer to the Trustee) upon a
declaration of acceleration of the maturity thereof pursuant to Article Five.
"Periodic Offering" means an offering of Securities of a series
from time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the
issuance of such Securities.
"Permitted Indebtedness" means (i) the Notes and the Guarantees;
(ii) the 1997 Notes and the 1997 Guarantee; (iii) Indebtedness of the Issuer
or any of its Subsidiaries or Special Subsidiaries outstanding on the date of
the Indenture; (iv) obligations pursuant to Interest Rate Agreements or
Currency Agreements; (v) with respect to any assets acquired or constructed
after the date of this Indenture (including unimproved real property acquired
prior to the date of this Indenture), Indebtedness under Capitalized Lease
Obligations and purchase money mortgages; (vi) Indebtedness of the Guarantor
or any Subsidiary in respect of trade letters of credit and standby letters
of credit incurred in the ordinary course of business in an aggregate amount
not to exceed $25,000,000 at any time outstanding; (vii) loans or advances
from a Subsidiary to the Guarantor or another Subsidiary, provided that the
obligation of the obliger of such Indebtedness is subject to an Intercompany
Agreement; (viii) Indebtedness of the Guarantor or any Subsidiary consisting
of (A) guaranties, indemnities or obligations in respect of purchase price
adjustments in connection with the acquisition or disposition of assets and
(B) guarantees of the Indebtedness of a Restricted Subsidiary, provided,
however, that (I) to the extent such transaction involves an Affiliate, the
obligation of the guarantor of such guarantee is subject to an agreement
substantially in the form of the Intercompany Agreement, (II) such guarantee
is subordinated to the Notes and the Guarantees, and the agreement governing
the guarantee shall include subordination provisions substantially similar to
those set forth in the Indenture subordinating such guarantee to the Notes
and the Guarantees to the same extent as if the Notes were Senior Indebtedness
of the Issuer and the Guarantees were Senior Indebtedness of the Guarantor,
and (III) such incurrence of the guarantee is otherwise permitted under the
provisions of Section 3.7 of the Indenture; (ix) any obligation or liability
of the Guarantor or any Subsidiary in respect of leasehold interests assigned
by the Guarantor or such Subsidiary to any other Person; (x) Indebtedness of
the Guarantor to any Restricted Subsidiary, provided, however, that (I) the
<PAGE>
obligation of the obligor of such Indebtedness is subject to an Intercompany
Agreement, (II) such Indebtedness is subordinated to the Notes and the
Guarantees, and the agreement governing such Indebtedness shall include
subordination provisions substantially similar to those set forth in the
Indenture subordinating such Indebtedness to the Notes and the Guarantees
to the same extent as if the Notes were Senior Indebtedness of the Issuer
and the Guarantees were Senior Indebtedness of the Guarantor, and (III)
such incurrence of Indebtedness is otherwise permitted under the provisions
of Section 3.7 of the Indenture; (xi) any renewals, extensions, substitutions,
refinancings or replacements of any Indebtedness, including any successive
extensions, renewals, substitutions, refinancings or replacements so long as
the aggregate amount of Indebtedness represented thereby is not increased by
such renewal, extension, substitution, refinancing or replacement unless
otherwise permitted in the Indenture, such renewal, extension, substitution,
refinancing or replacement does not reduce the average life to stated
maturity or the stated maturity of such Indebtedness and, if the
Indebtedness being renewed, extended, substituted, refinanced orreplaced
is Indebtedness of the Guarantor, such renewal, extension, substitution,
refinancing or replacement shall be Indebtedness of the
Guarantor; and (xii) additional Indebtedness (including Acquired Indebtedness)
having a principal amount outstanding at issuance or at the date of assumption
not to exceed $100 million, at any time outstanding.
"Permitted Investments" means (i) transactions reflected as debits
and credits on the books and records of the Guarantor and entered into in the
ordinary course of business, consistent with past practices, in connection
with the Guarantor's cash management system and ongoing cost and reimbursement
arrangements among the Guarantor and its Restricted Subsidiaries, all in
accordance with GAAP, (ii) Investments in Restricted Subsidiaries, and (iii)
Investments in an aggregate amount not exceeding $20 million outstanding at
any time.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust,
estate, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of and interest, if
any, on the Securities of such series are payable as determined in accordance
withSection 2.3.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) or
such Person's preferred or preference stock whether now outstanding or issued
after the date of the Indenture, which is preferred as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
<PAGE>
liquidation of such Person, and includes, without limitation, all classes and
series of preferred or preference stock.
"Principal" of a debt security, including any Security, means the
amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect
to such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, if any, upon any redemption
at the option of the Issuer, upon any purchase or exchange at the option of
the Issuer or the holder of such debt security and upon any acceleration of
the maturity of such debt security).
"Principal amount" of a debt security, including any Security,
means the principal amount as set forth on the face of such debt security.
"Quoted Price" with respect to any security means the last
reported sales price (or, if no sales prices are reported, the average of the
high and low bid prices on the last preceding trading day) of such security on
the New York Stock Exchange Composite Tape or such other international,
national or regional stock exchange upon which such security is listed, or, if
such security is not listed on an international, national or regional stock
exchange, as quoted on the National Association of Securities Dealers
Automated Quotation System or the National Quotation Bureau Incorporated or
similar quotation system. In the absence of one or more such quotations,
the Board of Directors of the Guarantor shall be entitled to determine the
Quoted Price on the basis of such quotations or other information as it
considers appropriate.
"Record date" shall have the meaning set forth in Section 2.7.
"Redeemable Stock" means any equity security that by its terms or
otherwise is required to be redeemed prior to the Stated Maturity of the
Notes, or is redeemable at the option of the holder thereof at any time prior
to the Stated Maturity of the Notes.
"Redemption Date" when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to the
Indenture.
"Redemption Price" when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to the
Indenture.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee with direct responsibility for the
administration of this Indenture.
<PAGE>
"Restricted Payment" shall have the meaning set forth in Section
3.7.
"Restricted Subsidiary" means any Person of which at least 90% of
the total voting power of outstanding shares of Capital Stock entitled
(without regard to the occurrence of any contingency which does or may suspend
or dilute the voting rights of such stock) to vote in the election of directors,
managers or trustees thereof is at such time owned or controlled by the
Guarantor directly or through one or more of the other Subsidiaries of the
Guarantor or a combination thereof, provided, however, that Triton Colombia
shall be deemed a Restricted Subsidiary for all purposes of this definition
for as long as the Guarantor shall retain the beneficial ownership of any of
its Capital Stock having the right to vote on matters brought before
shareholders generally, and provided, further, that a Special Subsidiary shall
be deemed a Restricted Subsidiary at such time as it becomes at least 90% owned
in accordance with this definition.
"Securities Act" shall have the meaning set forth in Section 1.1.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture or, as the case may be, Securities that have been
authenticated and delivered pursuant to this Indenture.
"Senior Indebtedness of the Guarantor" shall mean (i) the
principal of and premium, if any, and interest on and all other monetary
obligations of every kind or nature due on or in connection with any
Indebtedness of the Guarantor (other than as otherwise provided in this
definition), whether outstanding on the date of the Indenture or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Guarantees, and (ii) Indebtedness
outstanding or incurred after the date of the Indenture under the Guarantor's
bank agreements. Notwithstanding the foregoing, Senior Indebtedness of the
Guarantor shall not include (a) the principal of and premium, if any, and
interest on and all other monetary obligations of every kind or nature due on
or in connection with any Indebtedness of the Guarantor to a Subsidiary or any
other Affiliate of the Guarantor or any of such Affiliate's subsidiaries, (b)
Indebtedness that is subordinate or junior in right of payment to any
Indebtedness of the Guarantor (including the 1997 Guarantees, as to which the
Guarantees shall rank pari passu in right of payment), (c) Indebtedness that,
when incurred, was without recourse to the Guarantor, (d) any liability for
federal, state, local or other taxes owed or owing by the Guarantor, (e) that
portion of any Indebtedness which at the time of issuance is issued in
violation of the Indenture, (f) Indebtedness that is represented by Redeemable
Stock, (g) amounts owing under leases (other than any Capitalized Lease
Obligations), or (h) all amounts owed (except to banks and other financing
institutions) for goods, materials or services purchased in the ordinary
course of business or for compensation to employees.
"Senior Indebtedness of the Issuer" shall mean (i) the principal of
and premium, if any, and interest on and all other monetary obligations of
every kind or nature due on or in connection with any Indebtedness of the
Issuer (other than as otherwise provided in this definition), whether
outstanding on the date of the Indenture or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Notes, and (ii) Indebtedness outstanding or incurred after the
date of the Indenture under the Issuer's bank agreements. Notwithstanding the
foregoing, Senior Indebtedness of the Issuer shall not include (a) the
principal of and premium, if any, and interest on and all other monetary
obligations of every kind or nature due on or in connection with any
Indebtedness of the Issuer to a Subsidiary or any other Affiliate of the
Issuer or any of such Affiliate's subsidiaries, (b) Indebtedness that is
subordinate or junior in right of payment to any Indebtedness of the Issuer
(including the 1997 Notes, as to which the Notes shall rank pari passu in
right of payment), (c) Indebtedness that, when incurred, was without recourse
to the Issuer, (d) any liability for federal, state, local or other taxes owed
or owing by the Issuer, (e) that portion of any Indebtedness which at the time
of issuance is issued in violation of the Indenture, (f) Indebtedness that is
represented by Redeemable Stock, (g) amounts owing under leases (other than
any Capitalized Lease Obligations), or (h) all amounts owed (except to banks
and other financing institutions) for goods, materials or services purchased
in the ordinary course of business or for compensation to employees.
"Senior Subordinated Indebtedness" means the Securities, the
Guarantees and any other Indebtedness of the Issuer or the Guarantor that
ranks pari passu with the Securities. Any Indebtedness of the Issuer or the
Guarantor that is subordinate or junior by its terms in right of payment to
any other Indebtedness of the Issuer or the Guarantor shall be subordinate to
Senior Subordinated Indebtedness unless the instrument creating or evidencing
the same or pursuant to which the same is outstanding specifically provides
that such Indebtedness (i) is to rank pari passu with other Senior
Subordinated Indebtedness and (ii) is not subordinated by its terms to any
Indebtedness of the Issuer or the Guarantor which is not Senior Indebtedness
of the Issuer or Senior Indebtedness of the Guarantor, respectively.
"Special Subsidiaries" means Triton Europe p.l.c., Crusader
Limited, New Zealand Petroleum Company Limited and Aero Services
International, Inc.
<PAGE>
"Stated Maturity" when used with respect to any Note, means the
date specified in such Note as the fixed date on which the principal of such
Note is due and payable.
"Subordinated Indebtedness" means the Securities, the Guarantees,
any other Senior Subordinated Indebtedness and any other Indebtedness that is
subordinate or junior in right of payment to Senior Indebtedness of the Issuer
or Senior Indebtedness of the Guarantor.
"Subsidiary" means any Person of which at least 50% of the total
voting power of outstanding shares of Capital Stock entitled (without regard
to the occurrence of any contingency which does or may suspend or dilute the
voting rights of such stock) to vote in the election of directors, managers or
trustees thereof is at such time owned or controlled, by any Person directly
or through one or more of the other Subsidiaries of that Person or a
combination thereof, provided, however, that Triton Colombia shall be deemed a
Subsidiary of the Guarantor for all purposes of this definition and the
Indenture for as long as the Guarantor shall retain the beneficial ownership of
any of its Capital Stock having the right to vote on matters brought before
shareholders generally, and provided, further, that for purposes of this
definition, the term Subsidiaries shall not include any Special Subsidiary
until such time as it becomes a Restricted Subsidiary.
"Treasury Yield" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by and published in the most recent Federal Reserve Statistical
Release H.15 (519) which has become publicly available at least two Business
Days prior to the applicable repurchase date (or, if such Statistical Release
is no longer published, any publicly available source of similar market data))
most nearly equal to the then remaining term of the Notes to the optional
Redemption Date designated for purposes of the calculation of the Make-Whole
Premium, provided that if such remaining term is not equal to the constant
maturity of a United States Treasury security for which a weekly average yield
is given, the Treasury Yield shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average
yields of United States Treasury securities for which such yields are given,
except that if such remaining term is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.
"Triton Colombia" means Triton Colombia, Inc., one of the
Guarantor's Wholly-owned Subsidiaries.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990, as in force at the date as of which this
Indenture is originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and, if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the trustee with respect to the Securities of such series.
"Unrestricted Subsidiary" means (a) any Subsidiary acquired or
organized after the date hereof, provided, however, that such Subsidiary shall
not be a successor, directly or indirectly, to any Restricted Subsidiary, and
(b) any Subsidiary substantially all the assets of which consist of stock or
other securities of a Subsidiary or Subsidiaries of the character described in
clause (a) of this paragraph, unless and until such Subsidiary shall have been
designated to be a Restricted Subsidiary pursuant to clause (b) of the
definition of "Restricted Subsidiary".
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(B).
"Vice president," when used with respect to the Issuer, the
Guarantor or the Trustee, means any vice president, regardless of whether
designated by a number or a word or words added before or after the title
"vice president."
"Voting Stock" means the Capital Stock of any class or kind
ordinarily (without regard to the occurrence of any contingency) having the
power to vote for the election of directors of the Issuer or the Guarantor.
"Wholly-owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person, all of the outstanding shares of Capital Stock
having the right to participate in the residual equity of such Subsidiary
(other than qualifying shares required to be owned by directors) of which are
owned directly by such Person or a wholly-owned Subsidiary of such Person.
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with generally accepted financial practice or as
otherwise provided in the terms of such series of Securities.
<PAGE>
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall
be substantially in such form (not inconsistent with this Indenture) as shall
be established by or pursuant to one or more Board Resolutions (as set forth
in a Board Resolution or, to the extent established pursuant to rather than
set forth in a Board Resolution, an Officers' Certificate detailing such
establishment) or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform
to general usage, all as may be determined by the officers executing such
Securities, as evidenced by their execution of such Securities. The Notes
shall be in the form attached hereto as Exhibit A.
The Guarantees to be endorsed on the Securities of each series
shall be in substantially such form as shall be established by or pursuant to
a Board Resolution of the Guarantor (as set forth in a Board Resolution or,
to the extent established pursuant to rather than set forth in a Board
Resolution, an Officers' Certificate detailing such establishment) or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto or rules of any securities
exchange or to conform to general usage, all as may be determined by the
person duly authorized thereto executing such Guarantees, all as evidenced
by such execution. The Guarantees shall be in the form attached hereto as
Exhibit B.
The definitive Securities and Guarantees shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
the Guarantees as evidenced by their execution of such Securities and the
Guarantees.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be
substantially as follows:
This is one of the Securities of the series designated herein
referred to in the within mentioned Indenture.
<PAGE>
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee
By______________________________
as Authorized Signatory
If at any time there shall be an Authenticating Agent appointed
with respect to any series of Securities, then the Securities of such series
shall bear, in addition to the Trustee's certificate of authentication, an
alternate Certificate of Authentication which shall be substantially as
follows:
This is one of the Securities of the series designated herein
referred to in the within mentioned Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee
By______________________________
as Authenticating Agent
By______________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and the
Securities of each such series shall rank equally and pari passu with the
Securities of each other series, but all Securities issued hereunder shall be
subordinate and junior in right of payment, to the extent and in the manner
set forth in Article Thirteen, to all Senior Indebtedness of the Issuer and
the related Guarantees shall be subordinate and junior in right of payment,
to the extent and in the manner set forth in Article Fourteen, to all Senior
Indebtedness of the Guarantor. There shall be established in or pursuant to
one or more Board Resolutions (and, to the extent established pursuant to
rather than set forth in a Board Resolution, in an Officers' Certificate
detailing such establishment) or established in one or more indentures
supplemental hereto, prior to the initial issuance of Securities of any
series:
<PAGE>
(1) the designation of the Securities of the series, which shall
distinguish the Securities of such series from the Securities of all
other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section
2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the Securities of
the series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which any such interest
shall accrue, on which any such interest shall be payable and on
which a record shall be taken for the determination of Holders to whom
any such interest is payable or the method by which such rate or rates
or date or dates shall be determined or both;
(5) the place or places where and the manner in which the
principal of, premium, if any, and interest, if any, on Securities of
the series shall be payable (if other than as provided in Section
3.2) and the office or agency for the Securities of the series
maintained by the Issuer pursuant to Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase or repay
Securities of the series, in whole or in part, at its option and the
period or periods within which, the price or prices (or the method by
which such price or prices shall be determined or both) at which, the
form or method of payment therefor if other than in cash and any
terms and conditions upon which and the manner in which (if different
from the provisions of Article Twelve) Securities of the series may be
so redeemed, purchased or repaid, in whole or in part pursuant to any
sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series in whole or in part pursuant to any
mandatory redemption, sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which the
price or prices (or the method by which such price or prices shall be
determined or both) at which, the form or method of payment therefor
if other than in cash and any terms and conditions upon which and the
manner in which (if different from the provisions of Article Twelve)
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
<PAGE>
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon acceleration of the maturity thereof;
(10) whether Securities of the series will be issuable as Global
Securities;
(11) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(12) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with
respect to the Securities of such series;
(13) any deleted, modified or additional events of default or
remedies or any deleted, modified or additional covenants with
respect to the Securities of such series;
(14) whether the provisions of Section 10.1(C) will be
applicable to Securities of such series;
(15) any provision relating to the issuance of Securities of
such series at an original issue discount (including, without
limitation, the issue price thereof, the rate or rates at which such
original issue discount shall accrete, if any, and the date or dates
from or to which or period or periods during which such original
issue discount shall accrete at such rate or rates);
(16) if other than Dollars, the foreign currency in which
payment of the principal of, premium, if any, and interest, if any,
on the Securities of such series shall be payable;
(17) if other than United States Trust Company of New York is to
act as Trustee for the Securities of such series, the name and
Corporate Trust Office of such Trustee;
(18) if the amounts of payments of principal of, premium, if
any, and interest, if any, on the Securities of such series are to
be determined with reference to an index, the manner in which such
amounts shall be determined; and
<PAGE>
(19) any other terms of the series.
All Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officers' Certificate referred to above or
as set forth in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution, such Officers' Certificate or in any such
indenture supplemental hereto.
Any such Board Resolution or Officers' Certificate referred to
above with respect to Securities of any series and the related Guarantees
filed with the Trustee on or before the initial issuance of the Securities of
such series and the related Guarantees shall be incorporated herein by
reference with respect to Securities of such series and the related
Guarantees and shall thereafter be deemed to be a part of the Indenture for
all purposes relating to Securities of such series and the related Guarantees
as fully as if such Board Resolution or Officers' Certificate were set forth
herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The Issuer
may deliver Securities of any series executed by the Issuer having endorsed
thereon Guarantees executed by the Guarantor to the Trustee for authentication
together with the applicable documents referred to below in this Section 2.4,
and the Trustee shall thereupon authenticate and deliver such Securities to,
or upon the order of the Issuer (contained in the Issuer Order referred to
below in this Section 2.4) or pursuant to such procedures acceptable to the
Trustee and to such recipients as may be specified from time to time by an
Issuer Order. The maturity date, original issue date, interest rate, if any,
and any other terms of the Securities of such series shall be determined by
or pursuant to such Issuer Order and procedures. If provided for in such
procedures and agreed to by the Trustee, such Issuer Order may authorize
authentication and delivery pursuant to oral instructions from the Issuer
or its duly authorized agent, which instructions shall be promptly confirmed
in writing. In authenticating the Securities of such series and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive (in the case of
subparagraphs (2), (3) and (4) below only at or before the time of the first
request of the Issuer to the Trustee to authenticate Securities of such
series) and (subject to Section 6.1) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities of such series are not
to be delivered to the Issuer, provided that, with respect to
Securities of a series subject to a Periodic Offering, (a) such Issuer
Order may be delivered by the Issuer to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver Securities of
such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount
established for such series, pursuant to an Issuer Order or pursuant
to procedures acceptable to the Trustee as may be specified from time
to time by an Issuer Order, (c) the maturity date or dates, original
issue date or dates, interest rate or rates, if any, and any other
terms of Securities of such series shall be determined by an Issuer
Order or pursuant to such procedures,(d) if provided for in such
procedures, such Issuer Order may authorize authentication and
delivery pursuant to oral or electronic instructions
from the Issuer or its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing and (e) after the
original issuance of the first Security of such series to be issued,
any separate request by the Issuer that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Issuer that it is in compliance with all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of such Securities;
(2) the Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities of such
series were established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities stating that the form or forms and terms of
the Securities have been established pursuant to Sections 2.1 and
2.3 and comply with this Indenture and covering such other matters as
the Trustee may reasonably request; and
(4) either an Opinion of Counsel, or a letter from legal counsel
addressed to the Trustee permitting it to rely on an Opinion of
Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series and the
related Guarantees have been duly authorized and established in
conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the
Securities of such series and the related Guarantees have been
duly authorized and established in conformity with the
provisions of this Indenture, and, in the case of an offering
that is not underwritten, certain terms of the Securities of
such series have been established pursuant to a Board Resolution,
an Officers' Certificate or a supplemental indenture in accordance
with this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer Order
shall have been established, all such terms will have been duly
authorized by the Issuer or the Guarantor, as the case may be, and
will have been established in conformity with the provisions of
this Indenture;
(c) when the Securities of such series have been executed bythe
Issuer and the Guarantees endorsed thereon have been executed
by the Guarantor and the Securities of such series have been
authenticated by the Trustee in accordance with the provisions of
this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this
Indenture and will be valid and legally binding obligations of
the Issuer and the Guarantor, respectively, enforceable in
accordance with their respective terms, and will be entitled to
the benefits of this Indenture; and
(d) the execution and delivery by the Issuer and the
Guarantor, as the case may be, of, and the performance by the
Issuer and the Guarantor, as the case may be, of its obligations
under, the Securities of such series and the Guarantees endorsed
thereon will not contravene any provision of applicable law or
the articles of incorporation or bylaws of the Issuer or the
Guarantor or any agreement or other instrument binding upon the
Issuer or the Guarantor or any of its Subsidiaries that is
material to the Guarantor and its Subsidiaries, considered as one
enterprise, or, to such counsel's knowledge after the inquiry
indicated therein (which shall be reasonable), any judgment, order
or decree of any governmental agency or any court having
jurisdiction over the Issuer, the Guarantor or any Subsidiary, and
no consent, approval or authorization of any governmental body or
agency is required for the performance by the Issuer and the
Guarantor of their respective obligations under the Securities and
the Guarantees, except such as are specified and have been
obtained and such as may be required by the securities or blue sky
laws of the various states in connection with the offer and sale
of the Securities.
In addition, if the authentication and delivery relates to a new
series of Securities created by an indenture supplemental hereto, such Opinion
of Counsel shall also state that all laws and requirements with respect to the
form and execution by the Issuer and the Guarantor of the supplemental
indenture with respect to the series of Securities have been complied with,
the Issuer and the Guarantor each has corporate power to execute and deliver
any such supplemental indenture and has taken all necessary corporate action
for those purposes and any such supplemental indenture has been executed and
delivered and constitutes the legal, valid and binding obligation of the
Issuer and the Guarantor enforceable in accordance with its terms.
In rendering such opinions, such counsel may qualify any opinions
as to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the State of
Texas and the federal law of the United States, upon opinions of other counsel
(copies of which shall be delivered to the Trustee), who shall be counsel
reasonably satisfactory to the Trustee, in which case the opinion shall state
that such counsel believes that both such counsel and the Trustee are entitled
so to rely. Such counsel may also state that, insofar as such opinion
involves factual matters, such counsel has relied, to the extent such counsel
deems proper, upon certificates of officers of the Issuer and its Subsidiaries
and certificates of public officials.
The Trustee shall have the right to decline to authenticate and
deliver any Securities of any series under this Section 2.4 if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken by the Issuer, or if the Trustee in good faith by its board of directors
or board of trustees, executive committee or a trust committee of directors or
trustees or Responsible Officers shall determine that such action would expose
the Trustee to personal liability to existing Holders or would adversely
affect the Trustee's own rights, duties or immunities under the Securities,
this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section 2.4 and the Issuer Order with respect to such series,
authenticate and deliver one or more Global Securities (and the Guarantor
shall execute the Guarantees endorsed thereon) that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series to be issued in the form of Global
Securities and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions, and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged
in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation.
SECTION 2.5 Execution of Securities and Guarantees. The
Securities shall be signed on behalf of the Issuer by the chairman of the
Board of Directors, the president, any vice president or the treasurer of
the Issuer, under its corporate seal which may, but need not, be attested
by its secretary or one of its assistant secretaries. The Guarantees shall
be signed on behalf of the Guarantor by the chairman of the Board of
Directors, the president, any vice president or the treasurer of the
Guarantor, under its corporate seal which may, but need not, be attested by
its secretary or one of its assistant secretaries. Such signatures may be
the manual or facsimile signatures of the present or any future such officers.
The seals of the Issuer and the Guarantor may be in the form of facsimiles
thereof and may be impressed, affixed, imprinted or otherwise reproduced on
the Securities and the Guarantees, respectively. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security
or Guarantee that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer or the Guarantor who shall have
signed any of the Securities or the Guarantees endorsed thereon shall cease to
be such officer before the Security or Guarantee so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security and the Guarantee endorsed thereon nevertheless may be authenticated
and delivered or disposed of as though the person who signed such Security or
Guarantee endorsed thereon had not ceased to be such officer of the Issuer or
the Guarantor, as the case may be; and any Security or Guarantee endorsed
thereon may be signed on behalf of the Issuer and the Guarantor, as the case
may be, by such persons as, at the actual date of the execution of such
Security or Guarantee, shall be the proper officers of the Issuer and the
Guarantor, as the case may be, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities
and Guarantees endorsed thereon as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized signatories, or its
Authenticating Agent, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. The execution of such certificate by
the Trustee or its Authenticating Agent upon any Security executed by the
Issuer shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is entitled to
the benefits of this Indenture. Each reference in this Indenture to
authenticationby the Trustee includes authentication by an agent appointed
pursuant to Section 6.14.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable in registered form
in denominations established as contemplated by Section 2.3 or, with respect
to the Securities of any series, if not so established, in denominations of
$1,000 and any integral multiple thereof. The Securities of each series shall
be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Issuer executing the same may
determine with the approval of the Trustee, as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest, if any, shall be payable on the dates, established as contemplated
by Section 2.3.
The Person in whose name any Security of any series is registered
at the close of business on any record date applicable to a particular series
with respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the
extent the Issuer shall default in the payment of the interest due on such
interest payment date for such series, in which case such defaulted interest
shall be paid to the Persons in whose names Outstanding Securities for such
series are registered (a) at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment
of such defaulted interest) established by notice given by mail by or on
behalf of the Issuer to the Holders of Securities not less than 15 days
preceding such subsequent record date or (b) as determined by such other
procedure as is mutually acceptable to the Issuer and the Trustee. The term
"record date" as used with respect to any interest payment date (except a date
for payment of defaulted interest) for the Securities of any series shall mean
the date specified as such in the terms of the Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a calendar month,
the fifteenth day of the next preceding calendar month or, if such interest
payment date is the fifteenth day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will
keep at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide
for the registration of Securities of each series and the registration of
transfer of Securities of such series. Each such register shall be in written
form in the English language or in any other form capable of being converted
into such form within a reasonable time. At all reasonable times such register
or registers shall be open for inspection and available for copying by the
Trustee.
Upon due presentation for registration of transfer of any Security
of any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series, maturity date, interest rate, if
any, and original issue date in authorized denominations for a like aggregate
principal amount, each such Security having endorsed thereon a Guarantee
executed by the Guarantor.
All Securities presented for registration of transfer shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing.
At the option of the Holder thereof, Securities of any series
(other than a Global Security, except as set forth below) may be exchanged for
a Security or Securities of such series having authorized denominations and an
equal aggregate principal amount, each such Security having endorsed thereon a
Guarantee executed by the Guarantor, upon surrender of such Securities to be
exchanged at the agency of the Issuer that shall be maintained for such
purpose in accordance with Section 3.2. All Securities surrendered upon any
exchange or registration of transfer provided for in this Indenture shall be
promptly cancelled and returned to the Issuer.
The Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer of Securities. No service charge shall be made for
any such transaction or for any exchange of Securities of any series as
contemplated by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing or publication of notice of redemption of
Securities of such series to be redeemed, (b) any Securities selected, called
or being called for redemption, in whole or in part, except, in the case of
any Security to be redeemed in part, the portion thereof not so to be redeemed
or (c) any Security if the Holder thereof has exercised his right, if any, to
require the Issuer to repurchase such Security in whole or in part, except the
portion of such Security not required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a part of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.4, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice
or becomes aware of such ineligibility, the Issuer's election pursuant to
Section 2.3 that such Securities be represented by one or more Global
Securities shall no longer be effective and the Issuer shall execute, and the
Trustee, upon receipt of an Issuer Order for the authentication and delivery
of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive registered form, having endorsed
thereon a Guarantee executed by the Guarantor, in any authorized denominations,
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such Securities in exchange for such Global
Security or Securities.
The Issuer may at any time and in its sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Securities.
In such event the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, shall authenticate and deliver, Securities of such series in
definitive registered form, having endorsed thereon a Guarantee executed by
the Guarantor, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such Securities, in exchange for such Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part
for Securities of the same series in definitive registered form, having
endorsed thereon a Guarantee executed by the Guarantor, on such terms as are
acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
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(i) to the Person specified by such Depositary, a new Security
or Securities of the same series, having endorsed thereon a
Guarantee or Guarantees executed by the Guarantor, of any authorized
denominations as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security, having a
Guarantee endorsed thereon, in a denomination equal to the difference,
if any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in
definitive registered form in authorized denominations, such Global Security
shall be cancelled by the Trustee or an agent of the Trustee. Securities in
definitive registered form issued in exchange for a Global Security pursuant
to this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Trustee or the Issuer or an agent of
the Issuer. The Trustee or such agent shall deliver at its office such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
All Securities issued upon any registration of transfer or
exchange of Securities shall be valid and legally binding obligations of the
Issuer, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver a new Security of the same
series, maturity date, interest rate, if any, and original issue date, having
endorsed thereon a Guarantee executed by the Guarantor, bearing a number or
other distinguishing symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substitute Security shall furnish to the Issuer, the Guarantor
and to the Trustee and any agent of the Issuer, the Guarantor or the Trustee
such security or indemnity as may be required by the Trustee or the Issuer or
the Guarantor or any such agent to indemnify and defend and to save each of
the Trustee, the Issuer and the Guarantor and any such agent harmless and, in
every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security and of the ownership thereof
and in the case of mutilation or defacement, shall surrender the Security to
the Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee or its agent) connected
therewith. In case any Security which has matured or is about to mature or
has been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer may instead of issuing a substitute
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated or defaced Security), if the applicant for
such payment shall furnish to the Issuer, the Guarantor and the Trustee and
any agent of the Issuer, the Guarantor or the Trustee such security or
indemnity as any of them may require to hold each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Issuer, the Guarantor and the Trustee and any agent of the Issuer, the
Guarantor or the Trustee evidence to the Trustee's satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer and the Guarantor with respect to the Guarantees
endorsed thereon, whether or not the destroyed, lost or stolen Security shall
be at any time enforceable by anyone and shall be entitled to all the benefits
of (but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities of
such series duly authenticated and delivered hereunder. All Securities shall
be held and owned upon the express condition that, to the extent permitted by
law, the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced, destroyed, lost or stolen Securities and shall
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof.
All Securities surrendered for payment, redemption, registration of transfer
or exchange, or for credit against any payment in respect of a sinking or
analogous fund, if surrendered to the Issuer, the Guarantor or any agent of
the Issuer or the Guarantor or the Trustee or any agent of the Trustee, shall
be delivered to the Trustee or its agent for cancellation or, if surrendered
to the Trustee, shall be cancelled by it; and no Securities shall be issued
in lieu thereof except as expressly permitted by any of the provisions of
this Indenture. The Trustee shall dispose of all cancelled Securities in
accordance with its standard procedures and shall deliver a certificate of
such disposition to the Company. If the Issuer or its Agent or the Guarantor
or its Agent shall acquire any of the Securities, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the Trustee or its
Agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Securities of such series, and having endorsed thereon Guarantees
duly executed by the Guarantor, substantially in the form of the definitive
Guarantees, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
and the Guarantor with the concurrence of the Trustee as evidenced by the
execution and authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities. Without unreasonable delay
the Issuer shall execute and shall furnish definitive Securities of such
series and thereupon temporary Securities of such series may be surrendered in
exchange therefor without charge at each office or agency to be maintained by
the Issuer for that purpose pursuant to Section 3.2 and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the
same series, having endorsed thereon Guarantees executed by the Guarantor and
having authorized denominations. Until so exchanged, the temporary Securities
of any series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless otherwise established pursuant to
Section 2.3.
SECTION 2.12 CUSIP Numbers. The Issuer in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE GUARANTOR
Sections 3.6 through and including 3.16 shall apply only to the
Notes unless otherwise specified in the supplemental indenture relating to any
series of Securities hereafter created.
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of, premium, if any, and interest, if any, on each of the
Securities at the place, at the respective times and in the manner provided in
the Securities.
SECTION 3.2 Offices for Notices and Payments, etc. So long as
any of the Securities are Outstanding, the Issuer and the Guarantor will
maintain in each Place of Payment, an office or agency where the Securities
may be presented for payment, an office or agency where the Securities may be
presented for registration of transfer and for exchange as provided in this
Indenture, and an office or agency where notices and demands to or upon the
Issuer or the Guarantor in respect of the Securities or of this Indenture may
be served. In case the Issuer or the Guarantor shall at any time fail to
maintain any such office or agency, or shall fail to give notice to the
Trustee of any change in the location thereof, presentation may be made and
notice and demand may be served in respect of the Securities or of this
Indenture at the Corporate Trust Office. Each of the Issuer and the
Guarantor hereby initially designates the Corporate Trust Office for each such
purpose and appoints the Trustee as registrar and paying agent and as the
agent upon whom notices and demands may be served with respect to the
Securities.
SECTION 3.3 No Interest Extension. In order to prevent any
accumulation of claims for interest after maturity thereof, the Issuer will
not directly or indirectly extend or consent to the extension of the time for
the payment of any claim for interest on any of the Securities and will not
directly or indirectly be a party to or approve any such arrangement by the
purchase or funding of said claims or in any other manner; provided, however,
that this Section 3.3 shall not apply in any case where an extension shall be
made pursuant to a plan proposed by the Issuer to the Holders of all
Securities of any series then Outstanding.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office.
The Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.5 Provision as to Paying Agent. (a) If the Issuer
shall appoint a paying agent other than the Trustee, it will cause such paying
agent to execute and deliver to the Trustee an instrument in which such paying
agent shall agree with the Trustee, subject to the provisions of this Section
3.5,
(1) that it will hold all sums held by it as such paying agent
for the payment of the principal of or interest, if any, on the
Securities (whether such sums have been paid to it by the Issuer or by
any other obligor on the Securities) in trust for the benefit of the
Holders of the Securities and the Trustee; and
(2) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities) to make any
payment of the principal of, premium, if any, or interest, if any,
on the Securities when the same shall be due and payable; and
(3) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on
or before each due date of the principal of or interest, if any, on the
Securities, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities a sum sufficient to pay such principal, premium, if
any, or interest, if any, so becoming due and will notify the Trustee of any
failure to take such action and of any failure by the Issuer (or by any other
obligor under the Securities) to make any payment of the principal of,
premium, if any, or interest, if any, on the Securities when the same shall
become due and payable.
(c) Anything in this Section 3.5 to the contrary
notwithstanding,the Issuer may, at any time, for the purpose of obtaining a
satisfaction and discharge of this Indenture, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by it, or any paying
agent hereunder, as required by this Section 3.5, such sums to be held by the
Trustee upon the trusts herein contained.
(d) Anything in this Section 3.5 to the contrary
notwithstanding, any agreement of the Trustee or any paying agent to hold
sums in trust as provided in this Section 3.5 is subject to Sections 10.3 and
10.4.
(e) Whenever the Issuer shall have one or more paying agents, it
will, on or before each due date of the principal of or interest, if any, on
any Securities, deposit with a paying agent a sum sufficient to pay the
principal, premium, if any, or interest, if any, so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium, if any, or interest, if any, and (unless such paying agent is the
Trustee) the Issuer will promptly notify the Trustee of its action or failure
so to act.
SECTION 3.6 Limitation on Indebtedness. The Guarantor will not,
and will not permit any of its Subsidiaries to, directly or indirectly, incur,
create, assume, guarantee or in any other manner become directly or indirectly
liable or responsible for the payment of, any Indebtedness (including any
Acquired Indebtedness), other than Permitted Indebtedness, unless at the time
of such event (a) (i) any such Indebtedness (other than Senior Indebtedness of
the Guarantor and Senior Indebtedness of the Issuer) has no sinking fund or
amortization payment date or final maturity date prior to the Stated Maturity
of the Notes and (ii) in the case of Indebtedness subordinated in right of
payment to the Notes or the Guarantees thereof, the instrument evidencing such
Indebtedness shall include subordination provisions substantially similar to
those set forth in Articles Thirteen and Fourteen subordinating such
Indebtedness to the Notes and the Guarantees, as the case may be, to the same
extent as if the Notes were Senior Indebtedness of the Issuer and the
Guarantees were Senior Indebtedness of the Guarantor, in each case, with
respect to such Indebtedness and (b) after giving effect thereto and to any
acquisition being financed through the incurrence of such Indebtedness
(including Acquired Indebtedness) on a pro forma basis, either (i) the ratio
expressed as a percentage of (A) the Indebtedness of the Guarantor and its
Restricted Subsidiaries to (B) the sum of (1) the Oil and Gas Reserve Estimate
with respect to the Guarantor and the Restricted Subsidiaries plus (2) the
value of the Guarantor's direct or indirect percentage ownership in
publicly-held Subsidiaries (other than its Restricted Subsidiaries) engaged in
oil and gas exploration, development, production or transportation and,
without duplication, the Special Subsidiaries, in each case based upon the
Average Quoted Price of the common stock of such Subsidiaries or Special
Subsidiaries, shall not be greater than 40% or (ii) the ratio expressed as a
percentage of (A) the Indebtedness of the Guarantor and its Restricted
Subsidiaries to (B) the sum of (1) the Indebtedness of the Guarantor and its
Restricted Subsidiaries plus (2) the product of the number of outstanding
shares of the Guarantor's Capital Stock as of the date of determination
multiplied by the Average Quoted Price of such Capital Stock plus (3) the
product of the numberof outstanding shares of the Issuer's Capital Stock
(other than any shares held by the Guarantor or any Subsidiary) as of the
date of determination multiplied by the Average Quoted Price of such Capital
Stock, shall not be greater than 25%. For purposes of this calculation, (i)
a Subsidiary shall be considered publicly-held if there is a Quoted Price
available for its Capital Stock and (ii) the Oil and Gas Reserve Estimate
shall include, in connection with an acquisition, on a pro forma basis the
Oil and Gas Reserve Estimate, if any, of any acquired Person and shall be
determined as of the end of the fiscal year of the Guarantor and, if
applicable, the acquired Person, most recently concluded if then available,
but if not then available, the end of the previous fiscal year of the
Guarantor and, if applicable, the acquired Person; provided,
however, that the Guarantor may, at its option, make such calculation
utilizing a more recent Oil and Gas Reserve Estimate in lieu of the Oil and
Gas Reserve Estimate referred to in the preceding clause if (a) such
estimate is prepared, to the extent of at least 85% of the quantities of
proven oil and gas reserves set forth in such estimate (which shall be
determined on the basis that six thousand cubic feet of gas equal one
barrel of oil), by a nationally recognized independent petroleum engineer,
(b) such Oil and Gas Reserve Estimate is determined on a basis consistent
with the estimate prepared at fiscal year end, except that the oil and gas
prices and currency prices utilized therein shall be as of the date of such
more recent estimate and (c) an officer authorized by the Guarantor delivers
to the Trustee a certificate to the effect that such estimate has been
prepared in accordance with the requirements of Section 3.6.
SECTION 3.7 Limitation on Restricted Payments. The Guarantor
will not, and will not permit any Restricted Subsidiary to, directly or
indirectly:
(i) declare or pay any dividend on, or make any distribution to
holders of, any shares of the Guarantor's Capital Stock (other than
(A) the payment of a dividend within 60 days after the date of
declaration thereof, (B) dividends or distributions payable in shares
of its Capital Stock or in options, warrants or other rights to
purchase such Capital Stock and (C) dividends on Preferred Stock, w
which Preferred Stock by its terms is not mandatorily redeemable or
redeemable at the option of the holder thereof prior to the Stated
Maturity of the Notes, provided that the dividend rate on such
Preferred Stock on the date of its issuance shall not exceed the yield
to maturity on the Notes calculated on the basis of the average Quoted
Prices of the Notes for the 20 consecutive trading days ending 5 days
prior to the issuance of such Preferred Stock, but excluding dividends
or distributions payable in Redeemable Stock or in options, warrants
or other rights to purchase Redeemable Stock except for dividends on
such Redeemable Stock payable in shares of Redeemable Stock),
(ii) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Guarantor or any Affiliate thereof, or any
options, warrants or other rights to acquire such Capital Stock
(other than (A) redemption of Preferred Stock that is convertible
into common stock, provided that the average Quoted Price of such
common stock for the 30 consecutive trading days ending on the last
full trading day prior to the date of the notice of such redemption
equals or exceeds 130% of the conversion price of such Preferred
Stock, (B) with respect to any Restricted Subsidiary, purchases or
redemptions pursuant to the Guarantor's Shareholders' Rights Plan
or purchases or redemptions in
<PAGE>
the ordinary course of business not to exceed $10,000 a year, (C) in
connection with a transaction whereby a Subsidiary or a Special
Subsidiary becomes a Restricted Subsidiary or a Subsidiary or a
Special Subsidiary is being merged with or into the Guarantor or a
Restricted Subsidiary in accordance with the terms of this Indenture,
and (D) through the issuance of Capital Stock of the Guarantor (other
than Redeemable Stock)),
(iii) make any principal payment on, or redeem, repurchase,
defease or otherwise acquire or retire for value, prior to any date
earlier than six months before any scheduled principal payment,
maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness which is subordinated in right of payment to, the prior
payment of the Notes or to the Guarantees, provided, however, that
such Indebtedness may be redeemed in connection with any refinancing
of such Indebtedness so long as the new Indebtedness incurred in such
refinancing is pari passu with, or is subordinated in right of payment
to, the Indebtedness being refinanced and has an average life equal to
or greater than the Indebtedness being refinanced,
(iv) declare or pay any dividend or distribution on any Capital
Stock of any Subsidiary to any Person (other than the Guarantor or a
Restricted Subsidiary) or purchase, redeem or otherwise acquire or
retire for value, any Capital Stock of any Subsidiary (other than with
shares of Capital Stock (except Redeemable Stock) of the Guarantor)
held by any Person (other than the Guarantor or any of its Restricted
Subsidiaries),
(v) incur, create or assume any guarantee of Indebtedness of any
Affiliate (other than guarantees of Indebtedness of a Restricted
Subsidiary by the Guarantor, guarantees of Indebtedness of the
Guarantor by any Subsidiary or guarantees of Indebtedness of any
Subsidiary or Special Subsidiary of the Guarantor by the Guarantor
pursuant to a transaction whereby any such Subsidiary or Special
Subsidiary becomes a Restricted Subsidiary, including, without
limitation, (a) the execution by the obligor of such obligation of an
Intercompany Agreement and (b) the inclusion of provisions in the
guarantee substantially similar to those set forth in Articles
Thirteen and Fourteen which subordinate such guarantee to the Notes
and the Guarantees to the same extent as if the Notes were Senior
Indebtedness of the Issuer and the Guarantees were Senior Indebtedness
of the Guarantor, in each case, with respect to such guarantee,
provided that such guarantee is not otherwise prohibited by the terms
of this Indenture), or
(vi) make any Investment (other than as permitted in the
preceding clauses (ii) and (v) or a Permitted Investment) in any
Person, other than an Investment in a Restricted Subsidiary or any
Special Subsidiary which becomes a Restricted Subsidiary in connection
with such Investment, provided that to the extent applicable (a) the
obligation of the obligor in any such Investment is subject to an
Intercompany Agreement and (b) the inclusion of provisions in the
agreement governing the Investment substantially similar to those set
forth in Articles Thirteen and Fourteen which subordinate the
Investment to the Notes and the Guarantees to the same extent as if
the Notes were Senior Indebtedness of the Issuer and the Guarantees
were Senior Indebtedness of the Guarantor,
(such payments or other actions described in the foregoing clauses (i) through
(vi) are collectively referred to as "Restricted Payments") unless at the time
of and after giving effect to the proposed Restricted Payment (the amount of
any such Restricted Payment, if other than cash, as determined by the Board of
Directors, whose determination shall be evidenced by a Board Resolution) (I)
no Default or Event of Default exists or occurs as a result of such Restricted
Payment, (II) the Guarantor could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in accordance with the
provisions set forth in Section 3.6 (provided that in the case of Restricted
Payments permitted in the preceding clauses (ii), (v) and (vi), the Guarantor
could incur at least $1.00 of additional Indebtedness, including Permitted
Indebtedness) and (III) the aggregate amount expended for all Restricted
Payments (excluding any amount repaid, returned or discharged in respect of
any Restricted Payment) shall not exceed the sum of:
(A) 50% of the aggregate cumulative Consolidated Net Income of the
Guarantor or its predecessor (calculated to exclude net income of
Subsidiaries that are not Restricted Subsidiaries and to exclude the
after-tax effect of the net income of any Subsidiary to the extent
that such Subsidiary is restricted or prohibited from declaring
dividends) on a cumulative basis during the period beginning on the
first day following the last fiscal year that ended prior to the
date of this Indenture and ending on the last day of the Guarantor's
last fiscal quarter ending prior to the date of such proposed
Restricted Payment (or, if such aggregate cumulative Consolidated Net
Income shall be a loss, minus 100% of such loss) and 50% of the
aggregate cumulative dividends received by the Guarantor from any
Subsidiary or Special Subsidiary (other than a Restricted Subsidiary)
during the same period, plus
(B) the aggregate net proceeds received (including, without
limitation, Indebtedness or redemption or repurchase obligations
discharged, repaid or otherwise satisfied upon any conversion of
convertible Indebtedness or Redeemable Stock into Capital Stock of
the Guarantor or its predecessor) after the date of this Indenture
as capital contributions from the issuance of Capital Stock other
than Redeemable Stock;
provided, however, the failure to satisfy the conditions set forth in clauses
(II) or (III) (but not (I)) above shall not prevent the Guarantor or any
Restricted Subsidiary from (y) making Restricted Payments not to exceed
$5,000,000 in the aggregate (excluding any amount repaid, returned or
discharged in respect of any Restricted Payment) which amount shall be in
addition to any amounts paid under clause (III) above, or (z) making
Restricted Payments necessary for and directly related (as determined in good
faith by the Board of Directors and evidenced in a Board Resolution, which
determination shall be conclusive) to the development, transportation or
marketing of the oil and gas reserves of the Guarantor and its Restricted
Subsidiaries located in the Republic of Colombia, which amounts shall be in
addition to any amounts paid under clause (III) above, and that in each
case are not otherwise prohibited by the terms of this Indenture.
SECTION 3.8 Limitation on Transactions with Affiliates. The Guarantor
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into any transaction or series of related transactions
(including, without limitation, the sale, purchase, exchange or lease of
assets, property or services) with any Affiliate (other than a wholly-owned
Subsidiary) of the Guarantor or any Subsidiary in an aggregate amount greater
than $1,000,000 unless (i) such transaction or series of related transactions
is on terms that are no less favorable to the Guarantor or such Subsidiary, as
the case may be, than those that would have been available in a comparable
arm's-length transaction with an unaffiliated third party and (ii) (A) with
respect to any transaction or series of related transactions involving
aggregate payments in excess of $1,000,000, but less than $10,000,000, the
Guarantor delivers an Officer's Certificate to the Trustee generally
describing such transaction and certifying that such transaction or
transactions complies with clause (i) above and (B) with respect to a
transaction or series of transactions involving aggregate payments equal
to or greater than $10,000,000, such transaction or transactions shall
have received the approval of a majority of the disinterested directors of
the Board of Directors (as evidenced by a
Board Resolution by such disinterested directors, a certified copy of which
has been delivered to the Trustee).
SECTION 3.9 Disposition of Proceeds of Asset Sales. (a) The
Guarantor will not, and will not permit any of its Subsidiaries (excluding the
Special Subsidiaries, Triton Air Holdings, Inc. and their respective
Subsidiaries) to, make any Asset Sale unless (i) such Asset Sale is for not
less than the fair market value of the assets or shares sold (as determined by
the Board of Directors and evidenced in a Board Resolution, which
determination shall be conclusive), (ii) at least 85% of the consideration (not
including the assumption of any Indebtedness by the purchaser in connection
with such Asset Sale) consists of cash and Cash Equivalents and the fair market
value (as determined in good faith by the Board of Directors and evidenced in a
Board Resolution, which determination shall be conclusive) of debt and equity
securities listed on any recognized securities exchange or traded in any
recognized over-the-counter market, except (x) in the case of an Asset Sale
involving oil and gas properties being sold to Persons other than Subsidiaries
by one or more Subsidiaries of the Guarantor or the Guarantor, the
consideration may consist solely or in part of oil and gas properties having a
fair market value at least equal to the fair market value of the assets
exchanged (as determined by the Board of Directors and evidenced by a Board
Resolution, which determination shall be conclusive), (y) in the case of an
Asset Sale involving Aero Services International, Inc., the consideration need
not be for cash and may consist in whole or in part of a promissory note not
to exceed $10,000,000, and (z) the Guarantor may enter into farm-out
transactions consistent with industry standards and otherwise in accordance
with the terms of this Indenture, including, but not limited to, Section 3.8,
and (iii) as otherwise set forth below.
(b) Within 12 months of any Asset Sale, the Guarantor or such
Subsidiary shall either (i) apply or cause the application of the Net Cash
Proceeds of such Asset Sale, or a portion thereof, to the permanent repayment
or prepayment of Senior Indebtedness of the Issuer or Senior Indebtedness of
the Guarantor or the 1997 Notes or (ii) invest, or enter into a legally
binding agreement to invest, such Net Cash Proceeds, or a portion thereof,
in properties and assets to replace the properties and assets that were the
subject of such Asset Sale or in properties and assets that (as determined by
the Board of Directors and evidenced in a Board Resolution, which
determination shall be conclusive) will be used in the business of the
Guarantor or its Subsidiaries, as the case may be, existing on the date of
this Indenture or in businesses the principal purposes of which are related to
the exploration, development, production or transportation of oil or gas,
provided, however, that in the event the Guarantor or any Subsidiary conveys,
transfers, leases or otherwise disposes of, directly or indirectly, any of its
Colombian Assets in a transaction or series of related transactions within any
consecutive 12-month period the effect of which is to reduce the Oil and Gas
Reserve Estimate of the Colombian Assets owned by the Guarantor and/or its
Subsidiaries by 50% or more (which value shall be determined by reference to
the most recently available Oil and Gas Reserve Estimate, or by any subsequent
estimate prepared by a nationally recognized petroleum engineering firm) or
such transaction reduces the Guarantor's direct and indirect net revenue
interest in either the Santiago de las Atalayas or Tauramena contract areas of
the Llanos Basin to less than 50% of such interest as of the date of this
Indenture, calculated to give effect to back-in interests of and equalization
and unitization arrangements with third parties, then the Guarantor or such
Subsidiary shall apply the Net Cash Proceeds resulting from such transaction
and every transaction thereafter with respect to the Colombian Assets to
either (A) permanently repay or prepay Senior Indebtedness of the Issuer or
Senior Indebtedness of the Guarantor or the 1997 Notes or (B) redeem the
Notes at a price equal to the Colombian Sale Redemption Price and otherwise
in accordance with the provisions of Article Twelve as if an optional
redemption were being made, in each case within 90 days of such transaction.
If any such legally binding agreement to invest any Net Cash Proceeds
referred to in clause (ii) of the preceding sentence is terminated, then the
Guarantor may invest such Net Cash Proceeds, prior to the
end of such 12-month period or within 90 days from such termination, whichever
is later, in the business of the Guarantor and its Subsidiaries as provided in
clauses (i) and (ii) above. The amount of such Net Cash Proceeds not applied,
used or invested as set forth above constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals
$10,000,000 or more, the Guarantor shall so notify the Trustee in writing and
the Issuer shall offer to purchase from all Holders of the Notes (an "Asset
Sale Offer"), and shall purchase from Holders accepting such Asset Sale Offer
on the date fixed for such Asset Sale Offer (the "Asset Sale Offer Date"), the
maximum amount (expressed in integral multiples of aggregate principal amount
of $1,000) of Notes that may be purchased out of the Excess Proceeds, in
accordance with the procedures set forth in Section 3.9(e) (the "Asset Sale
Amount"), at an offer price (the "Asset Sale Offer Price") in cash in an
amount equal to 100% of the Accreted Amount thereof on any Asset Sale Offer
Date prior to December 15, 1996 or 100% of the principal amount thereof plus
accrued and unpaid interest, if any, to any Asset Sale Offer Date on or after
December 15, 1996, in accordance with the procedures set forth in Section
3.9(e). To the extent that the aggregate amount of Notes tendered pursuant to
an Asset Sale Offer is less than the Excess Proceeds relating thereto (such
shortfall constituting a "Deficiency"), then the Guarantor may use such
Deficiency, or a portion thereof, for general corporate purposes. Upon
completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset
at zero.
(d) If the Issuer becomes obligated to make an Asset Sale Offer
pursuant to Section 3.9(c), Notes shall be purchased by the Issuer, at the
option of the Holder thereof, in whole or in part in integral multiples of
aggregate principal amount of $1,000, on a date that is not earlier than 30
days nor later than 60 days from the date the Asset Sale Offer Notice referred
to in Section 3.9(e) below is given to Holders, or such later date as may be
necessary for the Issuer to comply with requirements under the Exchange Act
(such date, or such later date, being the "Asset Sale Purchase Date"), subject
to proration in the event the Asset Sale Amount is less than the aggregate
Asset Sale Offer Price of all Notes tendered and to satisfaction by or on
behalf of the Holder of the requirements set forth in Section 3.9(f).
(e) Within 30 days after the date that the aggregate amount of
Excess Proceeds equals or exceeds $10,000,000, the Issuer shall give written
notice of the offer (an "Asset Sale Offer Notice") to the Trustee and to each
Holder of the Notes, at their addresses appearing in the Note register, by
first-class mail postage prepaid. The Trustee shall be under no obligation to
ascertain whether the Issuer is obligated to make an Asset Sale Offer. The
Asset Sale Offer Notice shall contain all instructions and materials necessary
to enable the Holders to tender Notes, shall include a form of Asset Sale
Purchase Notice (as defined in Section 3.9(f)) to be completed by the Holder
and shall state or provide:
(i) that the Holder has the right to require the Issuer to
repurchase, subject to proration, such Holder's Notes at the Asset
Sale Offer Price and the date by which a Holder must give an Asset
Sale Purchase Notice;
(ii) the Asset Sale Offer Price;
(iii) the Asset Sale Purchase Date;
(iv) that any Note not purchased will continue to accrue original
issue discount and interest, as applicable;
(v) that Notes to be purchased shall, on the Asset Sale Purchase
Date, become due and payable at the Asset Sale Offer Price and from
and after such date (unless the Issuer shall default in the payment
of the Asset Sale Offer Price) such Notes shall cease to accrue
original issue discount and interest, as applicable;
(vi) that the Notes to be purchased are subject to proration in
the event the Asset Sale Amount is less than the aggregate Asset
Sale Offer Price of all Notes tendered;
(vii) (A) the Guarantor's most recently filed Annual Report on
Form 10-K (including audited consolidated financial statements), the
Guarantor's most recent subsequently filed Quarterly Report on Form
10-Q, as applicable, and any Current Report on Form 8-K of the
Guarantor filed subsequent to such Quarterly Report (or, if the
Guarantor is not required to file any of the foregoing forms, the
comparable information required to be prepared by the Guarantor
pursuant to Section 4.3), (B) a description of any material
developments in the Guarantor's business since its latest annual or
quarterly report filed with the Trustee pursuant to Section 4.3 and,
if material, any appropriate pro forma financial information
(including, but not limited to, pro forma historical income, cash flow
and capitalization after giving effect to such Asset Sale) and (C)
such other information, if any, concerning the business of the
Guarantor which the Issuer in good faith believes will enable such
Holders to make an informed investment decision; and
(viii) the procedures a Holder must follow to exercise rights
under Section 3.9(c) and a brief description of those rights and the
procedures for withdrawing an Asset Sale Purchase Notice.
(f) A Holder may exercise its rights specified in Section 3.9(c)
upon (i) delivery to the Paying Agent specified in the Asset Sale Offer Notice
of a written notice (an "Asset Sale Purchase Notice") at any time prior to the
close of business on the Asset Sale Purchase Date, but not later than the
close of business on the second Business Day next preceding the Asset Sale
Purchase Date, stating (A) the certificate number of the Note that the Holder
will tender to be purchased and (B) the portion of the aggregate principal
amount of the Note that the Holder will tender to be purchased, which portion
must be $1,000 or an integral multiple thereof, and (ii) delivery of such Note
to such Paying Agent at such office prior to or on or after the Asset Sale
Purchase Date (together with all necessary endorsements), such delivery being
a condition to receipt by the Holder of the Asset Sale Offer Price therefor;
provided that Notes to be purchased are subject to proration in the event the
Asset Sale Amount is less than the aggregate Asset Sale Offer Price of all
Notes tendered for purchase. If a Holder has elected to deliver to the Issuer
for purchase a portion of a Note, and if the aggregate principal amount of
such portion is $1,000 or an integral multiple thereof, the Issuer shall,
subject to proration, purchase such portion from the Holder thereof pursuant
to this Section 3.9. Provisions of this Indenture that apply to the purchase
of all of a Note also apply to the purchase of a portion of such Note. Each
Paying Agent shall promptly notify the Issuer of the receipt by the former of
any and all Asset Sale Purchase Notices and any and all written notices of
withdrawal thereof.
(g) Upon receipt by the Paying Agent specified in the Asset Sale
Offer Notice of an Asset Sale Purchase Notice, the Holder of the Note in
respect of which such Asset Sale Purchase Notice was given shall (unless such
Asset Sale Purchase Notice is withdrawn pursuant to Section 3.9(k)) thereafter
be entitled to receive solely the Asset Sale Offer Price with respect to such
Note. Such Asset Sale Offer Price shall be paid to such Holder promptly
following the later of the Business Day following the Asset Sale Purchase Date
(provided the conditions in Section 3.9(f) have been satisfied) and the time
of delivery of such Note to the relevant Paying Agent at the office of such
Paying Agent by the Holder thereof in the manner required by Section 3.9(f).
(h) On or prior to 11:00 a.m., New York City time, on the Asset
Sale Purchase Date, the Issuer or the Guarantor shall deposit with the Paying
Agent specified in the Asset Sale Offer Notice (or if the Issuer is acting as
<PAGE>
its own Paying Agent, segregate and hold in trust as provided in Section 6.5)
an amount of money in same day funds (or New York Clearing House funds if such
deposit is made prior to the Asset Sale Purchase Date) sufficient to pay the
aggregate Asset Sale Offered Price of all the Notes or portions thereof which
are to be purchased on that date.
(i) Any Note that is to be purchased only in part shall be
surrendered to the Paying Agent specified in the Asset Sale Offer Notice at
the office of such Paying Agent (with, if the Issuer or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the
Issuer shall execute, the Guarantor shall execute the Guarantee endorsed
on, and the Trustee shall authenticate and deliver to the Holder of such
Note, without service charge, one or more new Notes of any authorized
denomination as requested by such Holder in an aggregate principal amount
equal to, and in exchange for, the portion of the principal amount of the
Note so surrendered that is not purchased.
(j) The Issuer and the Guarantor shall comply with any applicable
tender offer rules then in effect, including Section 14(e) of the Exchange Act
and Rule 14e-1 promulgated thereunder, in connection with an Asset Sale Offer.
In the event of any conflict between such tender offer rules and the
provisions set forth in this Section 3.9, such tender offer rules shall control.
(k) An Asset Sale Purchase Notice may be withdrawn before or
after delivery by the Holder to the relevant Paying Agent at the office of
such Paying Agent of the Note to which such Asset Sale Purchase Notice relates,
by means of a written notice of withdrawal (by facsimile transmission or letter)
received by such Paying Agent at such office not later than three Business
Days prior to the Asset Sale Purchase Date, specifying, as applicable:
(i) the certificate number of the Note in respect of which such
notice of withdrawal is being submitted;
(ii) the aggregate principal amount of the Notes initially
outstanding hereunder with respect to which such notice of withdrawal
is being submitted; and
(iii) the aggregate principal amount initially outstanding
hereunder of the Note that remains subject to the original Asset Sale
Purchase Notice and that has been or will be delivered for purchase
by the Issuer.
A written notice of withdrawal may be in the form set forth in the preceding
paragraph. Each Paying Agent will promptly return to the prospective Holders
thereof any Notes with respect to which an Asset Sale Purchase Notice has been
withdrawn in compliance with this Indenture.
(l) The Guarantor will not, and will not permit any Subsidiary
to, create or permit to exist or become effective any restriction (other than
restrictions existing under (i) Indebtedness as in effect on the date of this
Indenture or (ii) any Senior Indebtedness of the Issuer existing on the date
of this Indenture or thereafter or any Senior Indebtedness of the Guarantor
existing on the date of this Indenture or thereafter) that would materially
impair the ability of the Issuer to make an Asset Sale Offer to purchase the
Notes upon an Asset Sale or, if such Asset Sale Offer is made, to pay for the
Notes tendered for purchase.
SECTION 3.10 Limitation on Liens. The Guarantor will not, and
will not permit any of its Subsidiaries to, create, incur, assume or suffer to
exist any Lien of any kind upon any of their respective assets or properties
now owned or acquired after the date of this Indenture, or any income or
profits therefrom, securing any Indebtedness of the Guarantor that is
expressly by its terms subordinate or junior in right of payment to any other
Indebtedness of the Guarantor, unless the Guarantees are equally and ratably
secured, provided, however, that if such Lien securing such junior or
subordinated Indebtedness ceases to exist, such equal and ratable Lien for the
benefit of the Holders of the Guarantees shall cease to exist; provided,
further, that the Lien securing such subordinated or junior Indebtedness shall
be subordinated and junior to the Lien securing the Guarantees with the same
relative priority as such subordinated or junior Indebtedness shall have with
respect to the Guarantees.
For purposes of this Indenture, the Guarantees will be considered
equally and ratably secured with any other Lien if the Lien securing the
Guarantees is of at least equal priority and covers the same property or
assets as such other Lien.
SECTION 3.11 Limitation Upon Other Senior Subordinated
Indebtedness. Neither the Issuer nor the Guarantor will incur, create,
assume, guarantee or in any other manner become directly or indirectly liable
with respect to or be responsible for, or permit to remain outstanding, any
Indebtedness (other than the Notes, the Guarantees, the 1997 Notes or the 1997
Guarantees) that is subordinate or junior in right of payment to any Senior
Indebtedness of the Issuer or Senior Indebtedness of the Guarantor, unless
such Indebtedness is also pari passu with, or subordinate in right of payment
to, the Notes and the Guarantees pursuant to subordination provisions
substantially similar to those set forth in Articles Thirteen and Fourteen.
SECTION 3.12 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries. The Guarantor will not, and will not
permit any of its Subsidiaries to, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of the Guarantor or any Subsidiary to (i) pay dividends or make any
other distributions on Capital Stock of any Subsidiary, (ii) pay any
Indebtedness owed to the Guarantor or any Subsidiary, (iii) make any Investment
in the Guarantor or any Subsidiary, or (iv) transfer any of its property or
assets to the Guarantor or any Subsidiary, except
(A) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the date of this Indenture,
(B) any encumbrance or restriction with respect to a Person that
was not a Subsidiary of the Issuer on the date of this Indenture, in
existence at the time such Person becomes a Subsidiary of the
Guarantor or created on the date it becomes a Subsidiary and not
incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary,
(C) any encumbrance or restriction on the ability of any
Subsidiary to transfer any of its real property (and any improvements
thereon) acquired after the date of this Indenture, to the Guarantor
or any Subsidiary that is required by a lender to, or purchaser of any
Indebtedness of, such Subsidiary in connection with a financing of
the acquisition of such property (and/or construction of such
improvements) by such Subsidiary permitted under this Indenture,
(D) any encumbrance or restriction pursuant to any agreement that
extends, refinances, renews or replaces any agreement containing any
of the restrictions described in the foregoing clauses (A) through
(C), provided, however, that the terms and conditions of any such
restrictions are not materially less favorable to the Holders of the
Notes than those under or pursuant to the agreement evidencing the
Indebtedness so extended, refinanced, renewed or replaced,
(E) encumbrances or restrictions arising under law,
(F) any encumbrance or restriction arising under customary
non-assignment provisions in installment purchase contracts, and
(G) in the case of clause (iv) above, restrictions contained in
security agreements permitted by this Indenture securing Indebtedness
permitted by this Indenture to the extent such restrictions restrict
the transfer of property subject to such security agreements or any
renewals, extensions, substitutions, refinancings or replacements of
such Indebtedness, provided, however, that the terms and conditions
of any such restrictions shall not be materially less favorable to
the Holders of the Notes than those under or pursuant to the
agreement evidencing the Indebtedness so renewed, extended,
substituted refinanced, or replaced.
SECTION 3.13 Limitation on Guaranties. (a) The Guarantor will
not permit any Subsidiary (other than the Issuer), directly or indirectly, to
assume, guarantee or in any other manner become liable with respect to the
payment of any Senior Indebtedness of the Issuer or Senior Indebtedness of the
Guarantor, unless (i) such Subsidiary simultaneously executes and delivers a
supplemental indenture to this Indenture providing for the guarantee of the
payment of the Notes by such Subsidiary, which guarantee shall include
subordination provisions substantially similar to those set forth in Article
Thirteen to the same extent as the Notes are subordinated to Senior
Indebtedness of the Issuer; and (ii) such Subsidiary waives and will not in
any manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the
Guarantor or any other Subsidiary as a result of such payment by such
Subsidiary under its guarantee. Notwithstanding the foregoing, any such
guarantee by a Subsidiary of the Notes shall provide by its terms that it
shall be automatically and unconditionally released and discharged upon the
release or discharge of such guarantee of payment of such Senior Indebtedness
of the Issuer or such Senior Indebtedness of the Guarantor.
(b) The Guarantor will not permit any Subsidiary (other than the
Issuer), directly or indirectly, to assume, guarantee or in any other manner
become liable with respect to the payment of any Indebtedness which is pari
passu with or subordinated to the Notes, unless such Subsidiary simultaneously
executes and delivers a supplemental indenture to this Indenture providing for
a guarantee of the payment of the Notes by such Subsidiary; provided, however,
in the case of such Subsidiary's assumption, guarantee or other liability with
respect to Indebtedness subordinated to the Notes, such guarantee, assumption
or other liability shall be subordinated to such Subsidiary's guarantee of the
Notes to the same extent as such Indebtedness is subordinated to the Notes;
and provided, further, that this Section 3.13(b) shall not be applicable to any
guarantee, assumption or other liability of any Subsidiary of the Guarantor in
existence on the date of this Indenture or that (i) existed at the time such
Person became a Subsidiary of the Guarantor or its predecessor and (ii) was
not incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary of the Guarantor or its predecessor. Notwithstanding the
foregoing, any such guarantee of the Notes by a Subsidiary shall provide by its
terms that it shall be automatically and unconditionally released and discharged
upon the release or discharge of such guarantee of such Indebtedness that is
pari passu with or subordinated to the Notes.
SECTION 3.14 Purchase of Notes Upon Change in Control. (a) If
there shall have occurred a Change in Control, Notes shall be purchased by the
Issuer, at the option of the Holder thereof, in whole or in part in integral
multiples of aggregate principal amount of $1,000, on a date that is not
earlier than 45 days nor later than 60 days from the date the Change in
Control Notice referred to in paragraph (c) below is given to Holders or such
later date as may be necessary for the Issuer and the Guarantor to comply with
requirements under the Exchange Act (such date, or such later date, being the
"Change in Control Purchase Date"), at a purchase price in cash (the "Change
in Control Purchase Price") equal to 101% of the Accreted Amount thereof on
any Change in Control Purchase Date prior to December 15, 1996 or 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to any
Change in Control Purchase Date on or after December 15, 1996, subject to
satisfaction by or on behalf of the Holder of the requirements set forth in
Section 3.14(c).
(b) Within 30 days following a Change in Control and prior to the
mailing of the Change in Control Notice to Holders provided for in paragraph
(c) below, the Issuer and the Guarantor covenant to either (1) repay in full
all Senior Indebtedness of the Guarantor and Senior Indebtedness of the Issuer
the terms of which require such payment in connection with such event or (2)
obtain the requisite consent from holders of such Senior Indebtedness not
repaid in order to permit the repurchase of the Notes as provided for in this
Section 3.14. The Issuer and the Guarantor shall first comply with this
subsection (b) before the Issuer shall be required to repurchase the Notes
pursuant to this Section 3.14, and any failure to comply with this subsection
(b) shall constitute a Default in the performance of a covenant for purposes
of Section 5.1(b).
(c) Within 30 days after the occurrence of a Change in Control,
the Issuer shall give written notice of such Change in Control (a "Change in
Control Notice") and of its offer (the "Change in Control Offer") to purchase
Notes as specified herein to the Trustee and to each Holder of the Notes at
its address appearing on the Note register, by first-class mail, postage
prepaid. The Trustee shall be under no obligation to ascertain whether the
Issuer is obligated to give a Change in Control Notice. The Change in Control
Notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes, shall include a form of written notice to be completed
by Holders electing to have Notes purchased under Section 3.14(a) (a "Change in
Control Purchase Notice") and shall state or include:
(i) that a Change in Control has occurred and the circumstances
and events causing the Change in Control and the date such Change in
Control is deemed to have occurred for purposes of this Section
3.14(c);
(ii) the date by which a Holder must give a Change in Control
Purchase Notice;
(iii) the Change in Control Purchase Price;
(iv) the Change in Control Purchase Date;
(v) that any Note not purchased will continue to accrue original
issue discount and interest, as applicable;
(vi) that Notes to be purchased shall, on the Change in Control
Purchase Date, become due and payable at the Change in Control
Purchase Price and from and after such date (unless the Issuer shall
default in the payment of the Change in Control Purchase Price) such
Notes shall cease to accrue original issue discount and interest,
as applicable;
(vii) (A) the Guarantor's most recently filed Annual Report on
Form 10-K (including audited consolidated financial statements),
the Guarantor's most recent subsequently filed Quarterly Report on
Form 10-Q, as applicable, and any Current Report on Form 8-K of the
Guarantor filed subsequent to such Quarterly Report (or, if the
Guarantor is not required to file any of the foregoing forms, the
comparable information required to be prepared by the Guarantor
pursuant to Section 4.3), (B) a description of any material
developments in the Guarantor's business since its latest annual or
quarterly report filed with the Trustee pursuant to Section 4.3 and,
if material, any appropriate pro forma financial information
(including but not limited to pro forma historical income, cash flow
and capitalization after giving effect to such Change in Control)
and (C) such other information, if any, concerning the business of the
Guarantor which the Guarantor in good faith believes will enable such
Holders to make an informed investment decision; and
(viii) the procedures a holder must follow to exercise rights
under this Section 3.14(c) and a brief description of those rights
and the procedures for withdrawing a Change in Control Purchase
Notice.
(d) Holders electing to have Notes purchased under Section
3.14(a) will be required to deliver a Change in Control Purchase Notice and
surrender such Notes to the Paying Agent specified in the Change of Control
Notice at the address specified in the notice by the close of business at
least five Business Days prior to the Change in Control Purchase Date.
Holders will be entitled to withdraw their election if such Paying Agent
receives, at the close of business not later than three Business Days prior to
the Change in Control Purchase Date, a telegram, telex, facsimile transmission
or letter setting forth (i) the name of the Holder, (ii) the certificate
number of the Note in respect of which such notice of withdrawal is being
submitted, (iii) the aggregate principal amount of the Notes delivered for
purchase by the Holder as to which its election is to be withdrawn, and (iv)
a statement that such Holder is withdrawing its election to have such Notes
purchased. Each Paying Agent will promptly return to the prospective Holders
thereof any Notes with respect to which a Change in Control Purchase Notice
has been withdrawn in compliance herewith.
(e) Upon receipt by the Paying Agent specified in the Change of
Control Notice of a Change in Control Purchase Notice, the Holder of the Note
in respect of which such Change in Control Purchase Notice was given shall
(unless such Change in Control Purchase Notice is withdrawn pursuant to
Section 3.14(d)) thereafter be entitled to receive solely the Change in
Control Purchase Price with respect to such Note. Such Change in Control
Purchase Price shall be paid to such Holder promptly following the later of
the Business Day following the Change in Control Purchase Date (provided the
conditions in Section 3.14(d) have been satisfied) and the time of delivery
of such Note to the relevant Paying Agent at the office of such Paying Agent
by the Holder thereof in the manner required by Section 3.14(c).
(f) On or prior to 11:00 a.m., New York City time, on the Change
in Control Purchase Date, the Issuer shall deposit with the Paying Agent
specified in the Change of Control Notice (or if the Issuer is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 6.5) an
amount of money in same day funds (or New York Clearing House funds if such
deposit is made prior to the Change in Control Purchase Date) sufficient to
pay the Change in Control Purchase Price of all the Notes or portions thereof
which are to be purchased on that date.
(g) Any Note that is to be purchased only in part shall be
surrendered to the Paying Agent specified in the Change of Control Notice at
the office of such Paying Agent (with, if the Issuer or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Issuer
shall execute, the Guarantor shall execute the Guarantee endorsed on, and the
Trustee shall authenticate and deliver to the Holder of such Note, without
service charge, one or more new Notes of any authorized denomination as
requested by such Holder in the aggregate principal amount of the Note so
surrendered that is not purchased.
(h) The Issuer and the Guarantor shall comply with any applicable
tender offer rules then in effect, including Section 14(e) of the Exchange Act
and Rule 14e-1 promulgated thereunder, in connection with a Change in Control
Offer. In the event of any conflict between such tender offer rules and the
provisions set forth in this Section 3.14, such tender offer rules shall
control.
<PAGE>
SECTION 3.15 Payment of Taxes and Other Claims. The Guarantor
will pay or discharge or cause to be paid or discharged before the same shall
become delinquent, (i) all material taxes, assessments and governmental
charges levied or imposed upon the Guarantor or any Subsidiary of the Guarantor
or upon the income, profits or property of the Guarantor or any of its
Subsidiaries, and (ii) all material lawful claims for labor, materials and
supplies which, if unpaid, might by law become a Lien upon the property of the
Guarantor or any of its Subsidiaries; provided, however, that the Guarantor
shall not be required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claims the amount, applicability or
validity of which is being contested in good faith by appropriate
proceedings and for which adequate provision has been made.
SECTION 3.16 Commission Reports and Reports to Holders of Notes.
Within 15 days after the Guarantor files with the Commission copies of its
annual reports and other information, documents and reports (or copies of such
portions of any of the foregoing as the Commission may by rules and
regulations prescribe) which it is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act, the Guarantor shall file
the same with the Trustee. So long as the Notes remain outstanding, the
Guarantor shall cause quarterly reports (containing unaudited financial
statements) for the first three quarters of each fiscal year and annual
reports (containing audited financial statements and an opinion thereon by
the Guarantor's independent certified public accountants) which it would be
required to file under Section 13 of the Exchange Act if it had a class of
securities listed on a national securities exchange to be mailed to the
Holders of Notes at their addresses appearing in the register of Notes
maintained by the registrar within 15 days of when such report would have
been required to be filed under Section 13 of the Exchange Act. The
Guarantor also shall comply with the other provisions of Section 314(a) of
the Trust Indenture Act of 1939.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER, THE GUARANTOR AND THE TRUSTEE
SECTION 4.1 Issuer and Guarantor to Furnish Trustee Information
as to Names and Addresses of Securityholders. The Issuer and the Guarantor
and any other obligor on the Securities covenant and agree that they will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of
the Securities of each series:
(a) semiannually and not more than 15 days after each
January 1 and July 1, and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer or the
Guarantor of any such request,
provided that if and so long as the Trustee shall be the registrar
for such series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of Securities (i) contained in the most recent list furnished to
it as provided in Section 4.1, and (ii) received by it in the capacity of
registrar or paying agent for such series, if so acting. The Trustee may
destroy any list furnished to it as provided in Section 4.1 upon receipt of a
new list so furnished.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to
the Trustee reasonable proof that each such applicant has owned a Security for
a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities of a particular series (in which case the applicants must
all hold Securities of such series) or with Holders of all Securities with
respect to their rights under this Indenture or under such Securities and such
application is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at its
election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.2, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or of all Securities, as the
case may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section 4.2, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Holders of
Securities, as the case may be, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2 a copy of the form of proxy
or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of such series or of all Securities, as the case may be, or
would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for
a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met, and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such Securityholders
with reasonable promptness after the entry of such order and the renewal of
such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding
the same, agrees with the Issuer and the Trustee that neither the Issuer, the
Guarantor nor the Trustee nor any agent of the Issuer, the Guarantor or the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in
accordance with the provisions of subsection (b) of this Section 4.2,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under such subsection (b).
SECTION 4.3 Reports by the Issuer and Guarantor. The Issuer and
the Guarantor each covenants:
(a) to file with the Trustee, within 15 days after the Issuer or
the Guarantor, as the case may be, is required to file the same with
the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Issuer or the Guarantor may be
required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Issuer or the Guarantor
is not required to file information, documents or reports pursuant to
either of such Sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a debt security listed
and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Issuer or the Guarantor, or both, with
the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30
days after the filing thereof with the Trustee, in the manner and to
the extent provided in Section 4.4(c), such summaries of any
information, documents and reports required to be filed by the Issuer
or the Guarantor pursuant to subsections (a) and (b) of this Section
4.3 as may be required to be transmitted to such Holders by rules and
regulations prescribed from time to time by the Commission; and
(d) furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his knowledge of the
Issuer's or the Guarantor's compliance with all conditions and
covenants under this Indenture. For purposes of this subsection (d),
such compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Indenture.
SECTION 4.4 Reports by the Trustee. (a) Within 60 days after
January 1 of each year commencing with the year 1994, the Trustee shall
transmit by mail to the Holders of Securities, as provided in subsection (c)
of this Section 4.4, a brief report dated as of such January 1 with respect
to any of the following events which may have occurred within the last 12
months (but if no such event has occurred within such period, no report
need be transmitted):
(i) any change to its eligibility under Section 6.9 and its
qualification under Section 6.8;
(ii) the creation of, or any material change to, a relationship
specified in paragraph (1) through (10) of Section 310(b) of the
Trust Indenture Act of 1939;
(iii) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the
date of such report and for the reimbursement of which it claims or
may claim a lien or charge, prior to that of the Securities of any
series, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate
not more than 1/2 of 1% of the principal amount of all Securities
Outstanding on the date of such report;
(iv) the amount, interest rate, if any, and maturity date of all
other indebtedness owing by the Issuer or the Guarantor (or by any
other obligor on the Securities) to the Trustee in its individual
capacity on the date of such report, with a brief description of any
property held as collateral security therefor, except any
indebtedness based upon a creditor relationship arising in any manner
described in Section 311(b) of the Trust Indenture Act of 1939;
(v) any change to the property and funds, if any, physically in
the possession of the Trustee (as such) on the date of such report;
(vi) any additional issue of Securities which the Trustee has
not previously reported; and
(vii) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Securities, except action
in respect of a default, notice of which has been or is to be
withheldby it in accordance with the provisions of Article Five.
(b) The Trustee shall transmit to the Securityholders of each
series, as provided in subsection (c) of this Section 4.4, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee, as such, since the date of the last report transmitted pursuant to
the provisions of subsection (a) of this Section 4.4 (or if no such report has
yet been so transmitted, since the date of this Indenture) for the
reimbursement of which it claims or may claim a lien or charge prior to that
of the Securities of such series on property or funds held or collected by it
as Trustee and which it has not previously reported pursuant to this
subsection (b), except that the Trustee shall not be required (but may elect)
to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of all Securities Outstanding
at such time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by
mail:
(i) to all Holders of Securities, as the names and
addresses of such Holders appear upon the registry books of the
Issuer; and
(ii) to all other Persons to whom such reports are
required to be transmitted pursuant to Section 313(c) of the
Trust Indenture Act of 1939.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and the Guarantor
and be filed by the Trustee with each stock exchange upon which the Securities
of any applicable series are listed and also with the Commission. The Issuer
agrees to promptly notify the Trustee with respect to any series when and as
the Securities of such series become admitted to trading on any national
securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default. "Event of Default", wherever used
herein with respect to the Notes, means any one of the following events
(whatever the reason for such Event of Default and whether or not it shall be
occasioned or prohibited by the provisions of Article Thirteen or otherwise):
(a) default in the payment of any installment of interest on the
Notes as and when the same becomes due and payable, and continuance
of such default for a period of 30 days; or
(b) default in the payment of the principal of the Notes,
Redemption Price, Change in Control Purchase Price, Colombian Sale
Redemption Price or Asset Sale Offer Price when the same becomes due
and payable as provided in this Indenture, whether at its Stated
Maturity, upon redemption, upon declaration of acceleration, when due
for purchase by the Issuer or otherwise, whether or not such payment
shall be prohibited by this Indenture; or
(c) default in the performance, or breach, of any covenant or
agreement of the Issuer or the Guarantor under this Indenture (other
than a default in the performance, or breach, of a covenant or
agreement that is specifically dealt with elsewhere in this Section
5.1), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to
the Issuer and the Guarantor by the Trustee or to the Issuer, the
Guarantor and the Trustee by the Holders of at least 25% in
principal amount of the outstanding Notes a written notice specifying
such default or breach and stating that such notice is a "Notice
of Default"; or
(d) (i) an event of default shall have occurred under any
mortgage, bond, indenture, loan agreement or other document
evidencing any issue of Indebtedness of the Issuer, the Guarantor or
any other Material Subsidiary (except for any Special Subsidiary less
than 30% of the common equity of which is directly or indirectly
owned by the Issuer as of the date of this Indenture) for money
borrowed, which issue has an aggregate outstanding principal amount
of not less than $10,000,000, and such default shall result in such
Indebtedness becoming, whether by declaration or otherwise, due and
payable prior to the date on which it would otherwise become due and
payable or (ii) a default in any payment when due at final maturity
of any such Indebtedness; or
(e) final judgments or orders rendered against the Issuer, the
Guarantor or any other Material Subsidiary (except for any Special
Subsidiary less than 30% of the common equity of which is directly or
indirectly owned by the Issuer as of the date of this Indenture)
which require the payment in money, either individually or in an
aggregate amount, of more than $10,000,000 and such judgment or order
shall remain unsatisfied or unstayed for 60 consecutive days after
such judgement or order becomes final and nonappealable; or
(f) the entry of a decree or order by a court having
jurisdiction in the premises (i) for relief in respect of the Issuer,
the Guarantor or any other Material Subsidiary (except for any
Special Subsidiary less than 30% of the common equity of which is
directly or indirectly owned by the Issuer as of the date of this
Indenture) in an involuntary case or proceeding under, in the case
of the Issuer or any other Material Subsidiary, the Bankruptcy Code
or any other federal or state bankruptcy, insolvency, reorganization
or similar law, or, in the case of the Guarantor, any applicable
bankruptcy, insolvency, reorganization or similar law of the Cayman
Islands or (ii) adjudging the Issuer, the Guarantor or any other such
Material Subsidiary a bankrupt or insolvent, or seeking reorganization,
arrangement,adjustment or composition of or in respect of the
Issuer, the Guarantor or any other such Material Subsidiary under, in
the case ofthe Issuer or any other Material Subsidiary, the Bankruptcy
Code or any other applicable federal or state law, or, in the case of
the Guarantor, any applicable bankruptcy, insolvency or other similar
law of the Cayman Islands; or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Issuer, the Guarantor or any other such Material
Subsidiary or of any substantial part of any of their
properties, or Ordering the winding up or liquidation of any of their
affairs, and the continuance of any such decree or order unstayed and
in effect for a period of 60 consecutive days; or
(g) the institution by the Issuer, the Guarantor or any other
Material Subsidiary (except for any Special Subsidiary less than
30% of the common equity of which is directly or indirectly owned by the
Issuer as of the date of this Indenture) of a voluntary case or proceeding
under, in the case of the Issuer or any other Material Subsidiary, the
Bankruptcy Code or any other applicable federal or state law, or, in the case
of the Guarantor, any applicable bankruptcy, insolvency or other similar law
of the Cayman Islands, or any other case or proceedings to be adjudicated a
bankrupt or insolvent, or the consent by the Issuer, the Guarantor or any
other such Material Subsidiary to the entry of a decree or order for relief in
respect of the Issuer, the Guarantor or any other such MaterialSubsidiary in
any involuntary case or proceeding under, in the case ofthe Issuer or any
other Material Subsidiary, the Bankruptcy Code or any other applicable federal
or state law, or, in the case of the Guarantor, any applicable bankruptcy,
insolvency or other similar law of the Cayman Islands, or to the institution
of bankruptcy or insolvency proceedings against the Issuer, the Guarantor or
any such other Material Subsidiary, or the filing by the Issuer, the Guarantor
or any such other Material Subsidiary of a petition or answer or consent
seeking reorganization or relief under, in the case of the Issuer or any other
Material Subsidiary, the Bankruptcy Code or any other applicable federal or
state law, or, in the case of the Guarantor, any applicable bankruptcy,
insolvency or other similar law of the Cayman Islands, or the consent by it to
the filing of any such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Issuer, the Guarantor or any
other such Material Subsidiary or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as they
become due or taking of corporate action by the Issuer, the Guarantor or any
other such Material Subsidiary in furtherance of any such action; or
(h) default by the Issuer or the Guarantor in the performance or
breach of the terms of Article Nine.
Each of the Issuer and the Guarantor shall deliver to the
Trustee, immediately after it becomes aware of the occurrence thereof, written
notice of (i) any Event of Default under this Section 5.1, or (ii) any event
which with the giving of notice or the lapse of time or both would become an
Event of Default under clause (c) or clause (d), its status and what action the
Issuer or the Guarantor is taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission. If an Event of
Default with respect to the Notes (other than an Event of Default specified in
Section 5.1(f) or 5.1(g)) occurs and is continuing, the Trustee or the Holders
of at least a 25% in aggregate principal amount of the Notes then outstanding,
by written notice to the Issuer and the Guarantor (and to the Trustee if such
notice is given by Holders), may, and the Trustee at the request of such
Holders shall, declare the Notes and the accrued interest thereon (or, prior
to December 15, 1996, the Accreted Amount) to be immediately due and payable,
as specified below. Upon a declaration of acceleration, such amount shall be
due and payable immediately after receipt by the Issuer and the Guarantor of
such written notice given hereunder. If an Event of Default specified in
Section 5.1(f) or 5.1(g) occurs and is continuing, then the Notes and the
accrued interest thereon (or, prior to December 15, 1996, the Accreted Amount)
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. At any
time after such declaration of acceleration has been made and before a
judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
aggregate principal amount of the Notes outstanding, by written notice to the
Issuer, the Guarantor and the Trustee, may rescind and annul such declaration
and its consequences if:
(a) the Issuer or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(i) all sums paid or advanced by the Trustee under Section 6.6
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and
(ii) the amounts payable in respect of any Notes which have
become due otherwise than by such declaration of acceleration and
overdue interest thereon (to the extent of such overdue interest at
the rate borne by the Notes); and
(b) the rescission would not conflict with any judgment or
decree and if all existing Events of Default, other than the non-payment of
the principal amount or Accreted Amount of the Notes which have become due
solely by such declaration of acceleration, have been cured or waived.
No such rescission shall affect any subsequent Default or impair
any right consequent thereon provided in Section 5.13.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee. The Issuer covenants that if an Event of Default described in
Section 5.1(a) or 5.1(b) occurs and is continuing, the Issuer will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such Notes,
the whole amount then due and payable on such Notes, with interest upon the
overdue amounts and, to the extent that payment of such interest shall be
legally enforceable, upon overdue interest, at the rate borne by the Notes;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Issuer, the Guarantor or any other obligor upon
the Notes and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Issuer, the Guarantor or any
other obligor upon the Notes, wherever situated.
If an Event of Default with respect to the Notes occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Notes by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or the Notes or in aid of the exercise of any
power granted herein or therein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer, the Guarantor or any other obligor upon the
Notes or the property of the Issuer, the Guarantor or such other obligor or
their creditors, the Trustee (irrespective of whether the principal amount of
the Notes, premium, if any, accreted original issue discount, Redemption
Price, Change in Control Purchase Price, Colombian Sale Redemption Price, Asset
Sale Offer Price, interest, if any, or any other payment required to be made
under this Indenture in connection with the Notes shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Issuer or the Guarantor for the
payment of any such amount) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Notes, of the principal
amount of the Notes, premium, if any, accreted original issue
discount, Redemption Price, Change in Control Purchase Price,
Colombian Sale Redemption Price, Asset Sale Offer Price, interest, if
any, or any other payment required to be made under this Indenture and
to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders of
Notes allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby
authorized by each Holder of Notes to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders of Notes, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a
Note any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder of a Note in any such
proceeding.
SECTION 5.5 Trustee May Enforce Claims without Possession of
Notes. All rights of action and claims under this Indenture or any of the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery or judgment, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, shall be
for the ratable benefit of each and every Holder of a Note in respect of which
such judgment has been recovered.
SECTION 5.6 Application of Money Collected. Any money collected
by the Trustee pursuant to this Article shall be applied in the following
order, upon presentation of the Notes and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.6;
SECOND: To the payment of the amounts then due and unpaid upon
the Notes for the principal amount of the Notes, premium, if any,
accreted original issue discount, Redemption Price, Change in
Control Purchase Price, Colombian Sale Redemption Price, Asset Sale
Offer Price, interest, if any, or any other payment required to
be made under this Indenture, as the case may be, ratably,
without preference or priority of any kind, according to the aggregate
amounts due and payable on such Notes;
THIRD: The balance, if any, to the Issuer.
SECTION 5.7 Limitations on Suits. No Holder of any Notes shall
have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in aggregate principal
amount of the Notes at the time outstanding shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) 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 aggregate principal amount of the outstanding Notes;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture or any Note to affect, disturb or prejudice the
rights of any other Holders of Notes, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Payment.
Notwithstanding any other provision in this Indenture, the Holder of any Note
shall have the right, which is absolute and unconditional, to receive payment
of the principal amount, premium, if any, accreted original issue discount,
Redemption Price, Change in Control Purchase Price, Colombian Sale Redemption
Price, Asset Sale Offer Price, interest, if any, or any other payment required
to be made under this Indenture with respect to such Note, on the respective
due dates therefor specified in such Note (or, in the case of redemption, on
the Redemption Date or, in the case of repayment at the option of such Holder
as provided in or pursuant to this Indenture, on the date such repayment is
due) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired or affected without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies. If the Trustee
or any Holder of a Note has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Issuer, the Guarantor, the
Trustee and each such Holder shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and each such
Holder shall continue as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative. Except as
otherwise provided in Section 2.9, no right or remedy herein conferred upon or
reserved to the Trustee or to each and every Holder of a Note is intended to
be exclusive of any other right or remedy, and every right and remedy to the
extent permitted by law, shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Five or by law to the Trustee or
to any Holder of a Note may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by such Holder, as the case may be.
SECTION 5.12 Control by Holders of Notes. The Holders of a
majority in aggregate principal amount of the outstanding Notes shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee, provided that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture or with the Notes, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults. The Holders of not less
than a majority in aggregate principal amount of the outstanding Notes, by
notice to the Trustee, on behalf of the Holders of all the Notes may waive any
past Default hereunder with respect to such Notes and its consequences, except
<PAGE>
(a) an Event of Default described in Section 5.1(a) or 5.1(b),
or
(b) a Default in respect of a covenant or provision that under
Section 8.2 cannot be modified or amended without the consent of the
Holder of each outstanding Note affected.
Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer and
the Guarantor each covenants that (to the extent that it may lawfully do so)
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Issuer and the Guarantor each
expressly waives (to the extent that it may lawfully do so) all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 5.15 Notice of Defaults. If a Default or an Event of
Default occurs and is continuing with respect to the Notes and if it is known
to the Trustee, the Trustee shall mail to each Holder of Notes notice of the
Default or Event of Default within 30 days after it occurs and is known to
have occurred by the Trustee, unless such Default or Event of Default has
been cured.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with
respect to such series, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture. In case an Event of Default
with respect to the Securities of a series has occurred (which has not been
cured or waived) the Trustee shall exercise with respect to such series of
Securities such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect
to the Securities of any series and after the curing or waiving of all
such Events of Default with respect to such series which may have
occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such statements, certificates
or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
madein good faith by a Responsible Officer or Responsible Officers of the
Trustee,unless it shall be proved that the Trustee was negligent in
ascertaining thepertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Article Five relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture.
None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section
6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of the Issuer or the
Guarantor mentioned herein shall be sufficiently evidenced by an Officers'
Certificate or Issuer Order (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a Board Resolution;
(c) the Trustee may consult with counsel of its selection and
any advice of such counsel promptly confirmed in writing shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance thereon
in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture (including, without limitation, pursuant to Article Five), unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a condition
to proceeding; the reasonable expenses of every such investigation shall be paid
by the Issuer or the Guarantor or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Issuer or the Guarantor upon demand;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder;
(h) The Trustee shall not be charged with knowledge of any
default or Event of Default with respect to a series of Securities unless
either (i) a Responsible Officer of the Trustee assigned to the Corporate
Trust Office of the Trustee (or any successor division or department of the
Trustee) shall have actual knowledge of such default or Event of Default or
(ii) written notice of such default or Event of Default shall have been given
to the Trustee by the Issuer or the Guarantor or any other obligor on such
series of Securities or by any Holder of Securities of such series; and
(i) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer or the Guarantor, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or sufficiency of this
Indenture, of the Securities or of any prospectus used to sell the Securities.
The Trustee shall not be accountable for the use or application by the Issuer
of any of the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections,
etc. The Trustee or any agent of the Issuer, the Guarantor or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not the Trustee or
such agent and, subject to Sections 6.8 and 6.13, may otherwise deal with the
Issuer and the Guarantor and receive, collect, hold and retain collections
from the Issuer and the Guarantor with the same rights it would have if it were
not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the
extent required by mandatory provisions of law. Neither the Trustee nor any
agent of the Issuer or the Guarantor or the Trustee shall be under any
liability for interest on any moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its
Prior Claim. The Issuer and the Guarantor covenant and agree to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such
compensation as shall be agreed to in writing between the Issuer, the
Guarantor and the Trustee (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) and the Issuer
and the Guarantor covenant and agree to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad
faith. The Issuer and the Guarantor also covenant to indemnify the Trustee
and each predecessor Trustee for, and to hold it harmless against, any and
all loss, liability, damage, claim or expense, including taxes (other than
taxes based on the income of the Trustee), incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim or liability in the premises. The obligations of
the Issuer and the Guarantor under this Section 6.6 to compensate and
indemnify the Trustee and each predecessor Trustee and to
pay or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture or the
resignation or removal of the Trustee and shall not be subordinate to the
payment of Senior Indebtedness of the Issuer and Senior Indebtedness of the
Guarantor pursuant to Article Thirteen and Article Fourteen, respectively.
Such additional indebtedness shall be a senior claim to that of the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Securities,
and the Securities are hereby subordinated to such senior claim. When the
Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.1 or in connection with Article Five hereof,
the expenses (including the reasonable fees and expenses of its counsel) and
the compensation for the service in connection therewith are intended to
constitute expenses of administration under any bankruptcy law. The
provisions of this Section 6.6 shall survive the resignation or removal of
the Trustee and the termination of this Indenture.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate,
etc. Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered
or omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting Interests.
This Indenture shall always have a Trustee who satisfies the requirements of
Section 310(a)(1) of the Trust Indenture Act of 1939. The Trustee shall have
a combined capital and surplus of at least $25,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply
with Section 310(b) of the Trust Indenture Act of 1939 regarding
disqualification of a trustee upon acquiring a conflicting interest.
SECTION 6.9 Persons Eligible for Appointment as Trustee;
Different Trustees for Different Series. The Trustee for each series of
Securities hereunder shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any state or the
District of Columbia having a combined capital and surplus of at least
$25,000,000, and which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by federal, state or
District of Columbia authority, or a corporation or other Person permitted to
act as trustee by the Commission. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. No obligor upon the Securities or any Affiliate of
such obligor shall serve as trustee upon the Securities. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 6.9, the Trustee shall resign immediately in the manner and with
the effect specified in Section 6.10.
A different Trustee may be appointed by the Issuer for any series
of Securities prior to the issuance of such Securities. If the initial
Trustee for any series of Securities is to be a trustee other than United
States Trust Company of New York, the Issuer, the Guarantor and such Trustee
shall, prior to the issuance of such Securities, execute and deliver an
indenture supplemental hereto, which shall provide for the appointment of such
Trustee as Trustee for the Securities of such series and shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee.
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all series of Securities
by giving written notice of resignation to the Issuer. Upon receiving such
notice of resignation, the Issuer shall promptly appoint a successor trustee
or trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may,
subject to the provisions of Article Five, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 6.8 with respect to any series of Securities
after written request therefor by the Issuer or the Guarantor or
by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.9 and shall fail to
resign after written request therefor by the Issuer or the
Guarantor or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a
bankrupt or insolvent, or a receiver or liquidator of the Trustee
or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such
series by written instrument, in duplicate, executed by order of the Board of
Directors one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions
of Article Five, any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months may on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee with respect to such series. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities of each series then Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer
and the Guarantor the evidence provided for in Section 7.1 of the action in
that regard taken by the Securityholders. If no successor trustee shall have
been so appointed with respect to any series and have accepted appointment
within 30 days after the delivery of such evidence of removal, the Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Securityholder who has been a bona fide Holder of
a Security or Securities of the applicable series for at least six months may,
subject to the provisions of Article Five, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall become
effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and the Guarantor and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all rights, powers, duties
and obligations with respect to such series of its predecessor hereunder, with
like effect as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer, the Guarantor or of the
successor trustee, upon payment of its charges then unpaid, the trustee
ceasing to act shall, subject to Section 10.4, pay over to the successor
trustee all moneys at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor trustee all such rights,
powers, duties and obligations. Upon request of any such successor trustee,
the Issuer and the Guarantor shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or
collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities
of one or more (but not all) series, the Issuer, the predecessor Trustee and
each successor trustee with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect
to the Securities of any series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such trustees co-trustees of the same
trust and that each such trustee shall be trustee of a trust or trusts under
separate indentures.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6.11 unless at the time
of such acceptance such successor trustee shall be qualified under the
provisions of Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Issuer shall give notice thereof to the
Holders of Securities of each series affected, by mailing such notice to such
Holders at their addresses as they shall appear on the registry books. If the
Issuer fails to give such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the
provisions of Section 6.8 and eligible under the provisions of Section 6.9,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee
may adopt the certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate
of the Trustee shall have; provided, that the right to adopt the certificate
of authentication of any predecessor Trustee or to authenticate Securities of
any series in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the
Issuer. The Trustee shall comply with Section 311(a) of the Trust Indenture
Act of 1939, excluding any creditor relationship listed in Section 311(b) of
the Trust Indenture Act of 1939. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act of 1939 to the
extent indicated therein.
SECTION 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument
in writing, appoint with the approval of the Issuer an authenticating agent
(the "Authenticating Agent") which shall be authorized to act on behalf of
the Trustee to authenticate Securities, including Securities issued upon
exchange, registration of transfer, partial redemption or pursuant to Section
2.9. Securities of each such series authenticated by such Authenticating
Agent shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee. Whenever
reference is made in this Indenture to the authentication and delivery of
Securities of any series by the Trustee or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent for such series
and a Certificate of Authentication executed on behalf of the Trustee by
such Authenticating Agent. Such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States
of America or of any state or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and
surplus of at least $25,000,000 (determined as provided in Section 6.9 with
respect to the Trustee) and subject to supervision or examination by federal
or state authority.
Any corporation into which any Authenticating Agent may be merged
or converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the Trustee and to
the Issuer. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect
to one or more series of Securities, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and the Issuer
shall provide notice of such appointment to all Holders of Securities of such
series in the manner and to the extent provided in Section 11.4. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent. The Issuer agrees to pay to the Authenticating Agent
for such series from time to time reasonable compensation. The Authenticating
Agent for the Securities of any series shall have no responsibility or
liability for any action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in
favor of the Trustee, the Issuer and the Guarantor, if made in the manner
provided in this Article Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in the following
manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Where such execution
is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute sufficient proof of the
authority of the person executing the same.
(b) The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the
Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the
Trustee may deem and treat the Person in whose name any Security shall be
registered upon the Security register for such series as the absolute owner of
such Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and, subject
to the provisions of this Indenture, interest, if any, on such Security and
for all other purposes; and neither the Issuer nor the Guarantor nor the
Trustee nor any agent of the Issuer, the Guarantor or the Trustee shall be
affected by any notice to the contrary.
SECTION 7.4 Securities Owned by Issuer and Guarantor Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer, by the Guarantor, by any Affiliate of the Issuer or the
Guarantor or by any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver only Securities which a Responsible
Officer of the Trustee knows are so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not the
Issuer or the Guarantor or any other obligor upon the Securities or any
Affiliate of the Issuer or the Guarantor or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer and the Guarantor
shall furnish to the Trustee promptly an Officers' Certificate listing and
identifying all Securities, if any, known by the Issuer or the Guarantor to be
owned or held by or for the account of any of the above-described Persons; and,
subject to Sections 6.1 and 6.2, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article Seven, revoke such action so
far as concerns such Security provided that such revocation shall not become
effective until three Business Days after such filing. Except as aforesaid,
any such action taken by the Holder of any Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such
Security and of any Securities issued in exchange or substitution therefor or
on registration of transfer thereof, irrespective of whether or not any
notation in regard thereto is made upon any such Security. Any action taken
by the Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon
the Issuer, the Guarantor, the Trustee and the Holders of all the Securities
affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer
may, but shall not be obligated to, establish a record date for the purpose of
determining the Persons entitled to (i) waive any past default with respect to
the Securities of such series in accordance with Article Five of the
Indenture, (ii) consent to any supplemental indenture in accordance with Section
8.2 of the Indenture or (iii) waive compliance with any term, condition or
provision of any covenant hereunder. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and any such Persons, shall
be entitled to waive any such past default, consent to any such supplemental
indenture or waive compliance with any such term, condition or provision,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 180th day after such
record date, any such waiver or consent previously given shall automatically
and without further action by any Holder be cancelled and of no further
effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a Board Resolution (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), the Guarantor, when authorized by a
Board Resolution and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act of 1939 as in force at the date of
the execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another Person to the Issuer or
the Guarantor, or successive successions, and the assumption by the
successor Person of the covenants, agreements and obligations of the
Issuer or the Guarantor pursuant to Article Nine;
(c) to add to the covenants of the Issuer or of the Guarantor such
further covenants, restrictions, conditions or provisions as the
Issuer, the Guarantor and the Trustee shall consider to be for the
protection of the Holders of all or any series of Securities (and if
such covenants, restrictions, conditions or provisions are to be for
the protection of less than all series of Securities, stating that
the same are expressly being included solely for the protection of
such series) and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however,
that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for
a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of
Default or may limit the remedies available to the Trustee upon such
an Event of Default or may limit the right of the Holders of a
majority in aggregate principal amount of the Securities of such
series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained
herein or in any supplemental indenture, or to make any other
provisions as the Issuer may deem necessary or desirable, provided,
however, that no such action shall materially adversely affect the
interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any series
or the form of Guarantees as permitted by Sections 2.1 and 2.3;
(f) to provide for the issuance of Securities of any series in
coupon form (including Securities registrable as to principal only)
and to provide for exchangeability of such Securities for the
Securities issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(g) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act of
1939, or under any similar federal statute hereafter enacted, and
to add to this Indenture such other provisions as may be expressly
permitted by the Trust Indenture Act of 1939, excluding, however, the
provisions referred to in Section 316(a)(2) of the Trust Indenture Act
of 1939 as in effect at the date as of which this instrument was
executed or any corresponding provision provided for in any similar
federal statute hereafter enacted; or
(h) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than United States Trust Company of New
York as Trustee for a series of Securities and to add to or change
any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder
by more than one Trustee, pursuant to the requirements of Section
6.9 hereof;
(i) subject to Section 8.2 hereof, to add to or modify the
provisions hereof as may be necessary or desirable to provide for the
denomination of Securities in foreign currencies which shall not
adversely affect the interests of the Holders of the Securities in
any material respect;
(j) to modify the covenants or Events of Default of the Issuer
or the Guarantor solely in respect of, or add new covenants or Events
of Default of the Issuer or the Guarantor that apply solely to,
Securities not Outstanding on the date of such supplemental
indenture; and
(k) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 6.11.
The Trustee is hereby authorized to join with the Issuer and
the Guarantor in the execution of any such supplemental indenture, to
make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property thereunder, but the Trustee shall
not be obligated to enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of
the Securities then Outstanding, notwithstanding any of the
provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures with Consent of
Securityholders. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than a majority in aggregate principal amount of the
Securities then Outstanding of any series affected by such supplemental
indenture, the Issuer, when authorized by a Board Resolution (which resolution
may provide general terms or parameters for such action and may provide that
the specific terms of such action may be determined in accordance with or
pursuant to an Issuer Order), the Guarantor, when authorized by a Board
Resolution, and the Trustee may, from time to time and at any time, enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of such series; provided, that no such supplemental
indenture shall (a) extend the stated final maturity of the principal of any
Security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest, if any, thereon (or, in the case of an
Original Issue Discount Security, reduce the rate of accretion of original
issue discount thereon), or reduce or alter the method of computation of any
amount payable on redemption, repayment or purchase by the Issuer thereof
(or the time at which any such redemption, repayment or purchase may be made),
or make the principal thereof (including any amount in respect of original
issue discount), or interest, if any, thereon payable in any coin or currency
other than that provided in the Securities or in accordance with the terms of
the Securities, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof or the amount thereof provable in bankruptcy in each case
pursuant to Article Five, or impair or affect the right of any Securityholder
to institute suit for the payment thereof or, if the Securities provide
therefor, any right of repayment or purchase at the option of the
Securityholder or change in any manner adverse to the interests of the
Holders of any Securities the terms and conditions of the obligations of the
Guarantor in respect of the guarantee of the due and punctual payment of the
principal thereof (and premium, if any) and interest, if any, thereon, in
each case without the consent of the Holder of each Security so affected, or
(b) reduce the aforesaid percentage of Securities of any series, the consent
of the Holders of which is required for any such supplemental indenture,
without the consent of the Holders of each Security so affected. No consent
of any Holder of any Security shall be necessary under this Section 8.2 to
permit the Trustee, the Issuer and the Guarantor to execute supplemental
indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant,
Event of Default or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of Holders of Securities of such
series, with respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series.
Upon the request of the Issuer and the Guarantor, accompanied by a
copy of a resolution of the Boards of Directors of the Issuer and the
Guarantor (which resolutions may provide general terms or parameters for such
action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) certified by
the secretary or an assistant secretary of the Issuer and the Guarantor,
respectively, authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of the
Holders of the Securities as aforesaid and other documents, if any, required
by Section 7.1, the Trustee shall join with the Issuer and the Guarantor in
the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may at its discretion,
but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section 8.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution by the Issuer, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of this
Section 8.2, the Issuer (or the Trustee at the request and expense of the
Issuer) shall give notice thereof to the Holders of then Outstanding
Securities of each series affected thereby, as provided in Section 11.4.
Any failure of the Issuer to give such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and shall be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee,
the Issuer, the Guarantor and the Holders of Securities of each series
affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall
be and shall be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, shall be entitled to
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this
Article Eight complies with the applicable provisions of this Indenture
and that all conditions precedent to the execution and delivery of such
supplemental indenture have been satisfied.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Eight may bear a notation in form approved by the Trustee for such
series as to any matter provided for by such supplemental indenture or as to
any action taken by Securityholders. If the Issuer, the Guarantor or the
Trustee shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee, the Issuer and the Guarantor, to any
modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Issuer, the Guarantees thereon may be
executed by the Guarantor and such Securities may be authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION
SECTION 9.1 Issuer or Guarantor May Consolidate, etc., on Certain
Terms. Subject to the provisions of Section 9.2, nothing contained in this
Indenture or in any of the Notes shall prevent any consolidation or merger of
the Issuer or the Guarantor with or into any other Person or Persons (whether
or not affiliated with the Issuer or the Guarantor), or successive
consolidations or mergers in which the Issuer or the Guarantor or their
respective successor or successors shall be a party or parties, or shall
prevent any sale, lease, exchange or other disposition of all or substantially
all the property and assets of the Issuer or the Guarantor to any other Person
(whether or not affiliated with the Issuer or the Guarantor) authorized to
acquire and operate the same; provided, however, the Issuer and the Guarantor
each hereby covenants and agrees, that any such consolidation, merger, sale,
lease, exchange or other disposition shall be upon the conditions that (a) the
Person (if other than the Issuer or the Guarantor) formed by or surviving any
such consolidation or merger, or to which such sale, lease, exchange or other
disposition shall have been made, shall be, in the case of the Issuer, a
corporation or partnership organized under the laws of the United States of
America, any state thereof or the District of Columbia, and, in the case of
the Guarantor, a corporation or partnership organized under the laws of the
United States of America, any state thereof or the District of Columbia or the
Cayman Islands or any political subdivision thereof; (b) the due and punctual
payment of the principal of and interest, if any, on all the Notes, according
to their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed by the Issuer
or the due and punctual performance of the Guarantees and the due and punctual
performance and observance of the covenants and conditions of this Indenture
to be performed by the Guarantor, as the case may be, shall be expressly
assumed, by supplemental indenture satisfactory in form to the Trustee
executed and delivered to the Trustee, by the Person (if other than the Issuer
or the Guarantor) formed by such consolidation, or into which the Issuer shall
have been merged, or by the Person which shall have acquired or leased such
property; (c) immediately after giving effect to such consolidation, merger,
sale, lease, exchange or other disposition, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; (d) in the case of the
Guarantor, the Person (whether the Guarantor or such other Person) formed by
or surviving any such consolidation or merger, or to which such sale, lease,
exchange or other disposition shall have been made, would have a pro forma
Consolidated Net Worth after giving effect to the transaction at least equal
to the Consolidated Net Worth of the Guarantor prior to the transaction; and
(e) except in the case of a transaction involving a Special Subsidiary, the
Person (whether the Guarantor or such other Person) formed by or surviving
any such consolidation or merger, or to which such sale, lease, exchange or
other disposition shall have been made, could incur an additional $1.00 of
Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.6
after giving effect to the transaction.
SECTION 9.2 Successor Corporation to be Substituted. In case of
any such consolidation or merger or any sale, conveyance or lease of all or
substantially all of the property of the Issuer or the Guarantor and upon the
assumption by the successor Person, by supplemental indenture executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of, premium, if any, and interest, if
any, on all of the Securities and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Issuer
or the due and punctual performance of the Guarantees and the due and
punctual performance and observance of the covenants and conditions of this
Indenture to be performed by the Guarantor, as the case may be, such
successor Person shall succeed to and be substituted for the Issuer or the
Guarantor, as the case may be, with the same effect as if it had been named
herein as the party of the first part, and the Issuer or the Guarantor
(including any intervening successor to the Issuer or the Guarantor which
shall have become the obligor hereunder) shall be relieved of any further
obligation under this Indenture and the Securities or the Guarantees, as
the case may be; provided, however, that in the case of a sale, lease,
exchange or other disposition of the property and assets of the Issuer or
the Guarantor (including any such intervening successor), the Issuer or
the Guarantor (including any such intervening successor) shall continue to
be liable on its obligations under this Indenture and the Securities and
the Guarantees to the extent, but only to the extent, of liability to pay
the principal of and interest, if any, on the Securities at the time,
places and rate prescribed in this Indenture and the Securities.
Such successor Person thereupon may cause to be signed, and may issue either
in its own name or in the name of the Issuer or the Guarantor, any or all of
the Securities or Guarantees issuable hereunder which theretofore shall not
have been signed by the Issuer or the Guarantor and delivered to the
Trustee; and, upon the order of such successor Person instead of the Issuer
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the officers of
the Issuer to the Trustee for authentication, and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities and Guarantees so issued
shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such
Securities and Guarantees had been issued at the date of the execution
hereof.
In case of any such consolidation or merger or any sale, lease,
exchange or other disposition of all or substantially all of the property and
assets of the Issuer or the Guarantor, such changes in phraseology and form
(but not in substance) may be made in the Securities and the Guarantees,
thereafter to be issued, as may be appropriate.
SECTION 9.3 Opinion of Counsel to be Given Trustee. The Trustee,
subject to Sections 6.1 and 6.2, shall receive an Officers' Certificate and
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, lease, exchange or other disposition and any such assumption complies
with the provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (a) If at
any time (i) the Issuer or the Guarantor shall have paid or caused to be paid
the principal of, premium, if any, and interest, if any, on all the Securities
Outstanding (other than Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.9) as and when
the same shall have become due and payable, or (ii) the Issuer or the
Guarantor shall have delivered to the Trustee for cancellation all Securities
theretofore authenticated (other than Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section
2.9); and if, in any such case, the Issuer or the Guarantor shall also pay
or cause to be paid all other sums payable hereunder by the Issuer
(including all amounts payable to the Trustee pursuant to Section 6.6),
then this Indenture shall cease to be of further effect, and the Trustee,
on demand of the Issuer accompanied by an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent relating
to the satisfaction and discharge contemplated by this provision have been
complied with, and at the cost and expense of the Issuer, shall execute
proper instruments acknowledging such satisfaction and discharging this
Indenture. The Issuer and the Guarantor agree to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred, and to compensate the Trustee for any services thereafter reasonably
and properly rendered, by the Trustee in connection with this Indenture or the
Securities.
(b) If at any time (i) the Issuer or the Guarantor shall have
paid or caused to be paid the principal of, premium, if any, and interest, if
any, on all the Securities of any series Outstanding (other than Securities of
such series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9) as and when the same shall have
become due and payable, or (ii) the Issuer or the Guarantor shall have
delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated (other than any Securities of such series which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9), or (iii) in the case of any series of Securities
with respect to which the exact amount described in clause (B) below can be
determined at the time of making the deposit referred to in such clause (B),
(A) all the Securities of such series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or by their terms are to
become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and (B) the Issuer or the Guarantor shall have
irrevocably deposited or caused to be deposited with the Trustee as funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of Securities of such series, cash in an amount (other
than moneys repaid by the Trustee or any paying agent to the Issuer in
accordance with Section 10.4) or non-callable, non-prepayable bonds, notes,
bills or other similar obligations issued or guaranteed by the United States
government or any agency thereof the full and timely payment of which are
backed by the full faith and credit of the United States ("U.S. Government
Obligations"), maturing as to principal and interest, if any, at such times
and in such amounts as will insure the availability of cash, or a combination
thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (1) the principal of, premium, if any, and
interest, if any, on all Securities of such series on each date that such
principal of, premium, if any, or interest, if any, is due and payable, and
(2) any mandatory sinking fund payments on the dates on which such payments
are due and payable in accordance with the terms of the Indenture and the
Securities of such series; then the Issuer and the Guarantor shall be deemed
to have paid and discharged the entire indebtedness on all the Securities of
such series and the Guarantees endorsed thereon on the date of the deposit
referred to in clause (B) above and the provisions of this Indenture with
respect to the Securities of such series and the Guarantees endorsed thereon
shall no longer be in effect (except, in the case of clause (iii) of this
Section 10.1(b), as to (I) rights of registration of transfer and exchange of
Securities of such series, (II) rights of substitution of mutilated, defaced,
destroyed, lost or stolen Securities of such series, (III) rights of Holders
of Securities of such series to receive payments of principal thereof and
premium, if any, and interest, if any, thereon upon the original stated due
dates therefor (but not upon acceleration), and remaining rights of the
Holders of Securities of such series to receive mandatory sinking fund
payments thereon, if any, when due, (IV) the rights, obligations, duties and
immunities of the Trustee hereunder, (V) the rights of the Holders of
Securities of such series as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them and (VI) the
obligations of the Issuer and the Guarantor under Section 3.2 with respect to
Securities of such series and the Guarantees endorsed thereon) and the
Trustee, on demand of the Issuer accompanied by an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent contemplated
by this provision have been complied with, and at the cost and expense of the
Issuer, shall execute proper instruments acknowledging the same.
(c) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 2.3. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities with respect to
which the exact amount described in subparagraph (A) below can be determined
at the time of making the deposit referred to in such subparagraph (A), the
Issuer and the Guarantor shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of such a series and the Guarantees
endorsed thereon on the 91st day after the date of the deposit referred to in
subparagraph (A) below, and the provisions of this Indenture with respect to
the Securities of such series and the Guarantees endorsed thereon shall no
longer be in effect (except as to (i) rights of registration of transfer and
exchange of Securities of such series, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities of such series, (iii) rights of
Holders of Securities of such series to receive payments of principal thereof,
premium, if any, and interest, if any, thereon upon the original stated due
dates therefor (but not upon acceleration), and remaining rights of the
Holders of Securities of such series to receive mandatory sinking fund
payments, if any, (iv) the rights, obligations, duties and immunities of the
Trustee hereunder, (v) the rights of the Holders of Securities of such series
as beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them and (vi) the obligations of the Issuer
and the Guarantor under Section 3.2 with respect to Securities of such series)
and the Trustee, on demand of the Issuer or the Guarantor accompanied by an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this
provision have been complied with, and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging the same, if
(A) with reference to this provision the Issuer or the Guarantor
has irrevocably deposited or caused to be irrevocably deposited with
the Trustee as funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of Securities of
such series (1) cash in an amount, or (2) U.S. Government
Obligations, maturing as to principal and interest, if any, at such
times and in such amounts as will insure the availability of cash,
or (3) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay (I) the principal of, premium, if any, and interest,
if any, on all Securities of such series on each date that such
principal or interest, if any, is due and payable, and (II) any
mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Issuer or the Guarantor is a party or by which it is bound; and
(C) the Issuer or the Guarantor has delivered to the Trustee an
Opinion of Counsel based on the fact that (1) the Issuer or the
Guarantor has received from, or there has been published by, the
Internal Revenue Service a ruling or (2), since the date hereof,
there has been a change in the applicable United States federal
income tax law, in either case to the effect that, and such opinion
shall confirm that, the Holders of the Securities of such series
will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit, defeasance and discharge and
will be subject to Federal income tax on the same amount and in
the same manner and at the same times, as would have been the case
if such deposit, defeasance and discharge had not occurred.
(d) In addition to the foregoing and provided the exact amount
described in subparagraph (i) below can be determined at the time of making
the deposit referred to in such subparagraph (i), the Issuer and the
Guarantor shall be deemed to be, and shall be, released from its obligations
under the covenants contained in Sections 3.6 through 3.14 and Articles Nine
and Thirteen hereof on the 91st day after the date of the deposit referred
to in subparagraph (i) below, and the Issuer's and the Guarantor's
respective obligations under all Notes, the Guarantees endorsed thereon and
this Indenture with respect to Sections 3.6 through 3.14 and Articles Nine
and Thirteen hereof shall thereafter be deemed to be discharged for the
purposes of any direction, waiver, consent or declaration (and the
consequences of any thereof) in connection therewith but shall continue in
full force and effect for all other purposes hereunder, and the Trustee,
on demand of the Issuer or the Guarantor accompanied by an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent contemplated by this provision have been complied
with, and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging the same, if
(i) with reference to this provision the Issuer or the Guarantor
has irrevocably deposited or caused to be irrevocably deposited with
the Trustee as funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Notes (A)
cash in an amount, or (B) U.S. Government Obligations, maturing as to
principal and interest, if any, at such times and in such amounts as
will insure the availability of cash, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay the principal of, accreted
original issuer discount, and interest, if any, on all Notes on each
date that such principal, accreted original issue discount or
interest, if any, is due and payable; and
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Issuer is a party or by which it is bound; and
(iii) the Issuer or the Guarantor has delivered to the Trustee an
Opinion of Counsel to the effect that, and such opinion shall confirm
that, the Holders of the Notes will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on
the same amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had not
occurred.
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.4, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Section 10.1
shall be held in trust, and such moneys and all moneys from such U.S.
Government Obligations shall be applied by it to the payment, either
directly or through any paying agent (including the Issuer acting as its
own paying agent), to the Holders of the particular Securities of such
series for the payment or redemption of which such moneys and U.S.
Government Obligations have been deposited with the Trustee, of all sums due
and to become due thereon for principal and interest, if any, but such
moneys and U.S. Government Obligations need not be segregated from other
funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability
with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of, premium, if any, or
interest, if any, on any Security of any series and not applied but remaining
unclaimed for two years after the date upon which such principal, premium, if
any, or interest, if any, shall have become due and payable, shall, upon the
written request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such paying agent and
the Holder of the Securities of such series shall, unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer for any payment which such
Holder may be entitled to collect, and all liability of the Trustee or any
paying agent with respect to such moneys shall thereupon cease.
SECTION 10.5 Indemnity for U.S. Government Obligations. The
Issuer and the Guarantor shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 10.1 or the principal or interest
received in respect of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and
Directors of Issuer and Guarantor Exempt from Individual Liability. No
recourse under or upon any obligation, covenant or agreement contained in this
Indenture, or in any Security or Guarantee, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such or against
any past, present or future stockholder, officer or director, as such, of the
Issuer, the Guarantor or any partner of the Issuer or the Guarantor or of any
successor, either directly or through the Issuer, the Guarantor or any
successor, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities having endorsed thereon a Guarantee by the
Holders thereof and as part of the consideration for the issue of the
Securities and the Guarantees.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities. Nothing in this Indenture or in the
Securities or in the Guarantees, expressed or implied, shall give or be
construed to give to any Person, other than the parties hereto and their
successors and the Holders of the Senior Indebtedness of the Issuer and the
Senior Indebtedness of the Guarantor and the Holders of the Securities, any
legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions
being for the sole benefit of the parties hereto and their successors and
of the Holders of the Securities.
SECTION 11.3 Successors and Assigns of Issuer and Guarantor Bound
by Indenture. All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Issuer or the Guarantor
shall bind its successors and assigns, whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Guarantor, Trustee
and Holders of Securities. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by the Trustee
or by the Holders of Securities to or on the Issuer or the Guarantor, or as
required pursuant to the Trust Indenture Act of 1939, may be given or served
by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed, in the case of the Issuer (until
another address of the Issuer is filed by the Issuer with the Trustee), to
Triton Energy Corporation, 6688 North Central Expressway, Suite 1400,
Dallas, Texas 75206-9926, Attention: Chairman of the Board, and in the
case of the Guarantor (until another address of the Guarantor is filed by
the Guarantor with the Trustee), to Caledonian House, Mary Street, P.O.
Box 1043, George Town, Grand Cayman, Cayman Islands. Any notice,
direction, request or demand by the Issuer or the Guarantor or any Holder
of Securities to or upon the Trustee shall be deemed to have
been sufficiently given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Trustee is filed by the Trustee
with the Issuer) to United States Trust Company of New York, 114 West
47th Street, New York, New York 10036, Attention: Corporate Trust
Department.
Where this Indenture provides for notice to Holders of Securities,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder entitled thereto, at his last address as it appears in the Security
register. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be sufficient notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer or the Guarantor to the Trustee to take any action under any of the
provisions of this Indenture, or as required pursuant to the Trust Indenture
Act of 1939, the Issuer or the Guarantor shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture (other
than a certificate provided pursuant to Section 4.3(d)) and delivered to the
Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
opinion as to whether or not such covenant or condition has been complied
with, and (d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer
or the Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any certificate, statement or opinion of counsel
may be based, insofar as it relates to factual matters, on information with
respect to which is in the possession of the Issuer or the Guarantor, upon the
certificate, statement or opinion of or representations by an officer or
officers of the Issuer or the Guarantor, as the case may be, unless such
counsel knows that the certificate, statement or opinion or representations
with respect to the matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer
or the Guarantor or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Issuer or the
Guarantor, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If
the date of maturity of principal of or interest, if any, on the Securities of
any series or the date fixed for redemption, purchase or repayment of any such
Security shall not be a Business Day, then payment of interest, if any,
premium, if any, or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made
on the date of maturity or the date fixed for redemption, purchase or
repayment, and, in the case of payment, no interest shall accrue for the
period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included herein by any of Sections 310
to 317, inclusive, or is deemed applicable to this Indenture by virtue of the
provisions, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 11.8 GOVERNING LAW. THIS INDENTURE, EACH SECURITY AND
EACH GUARANTEE SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF
NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS.
SECTION 11.9 Submission to Jurisdiction. The Guarantor hereby
irrevocably submits to the jurisdiction of the courts of the State of New York
and of the courts of the United States of America having jurisdiction in the
State of New York for the purpose of any legal action or proceeding in any
such court with respect to, or arising out of, this Indenture, the Notes or
the Guarantees. The Guarantor designates and appoints Triton Energy
Corporation, 6688 North Central Expressway, Suite 1400, Dallas, Texas
75206-9926, Attention: Robert B. Holland, III and its successors as the
Guarantor's lawful agent in the United States of America upon which may be
served, and which may accept and acknowledge, for and on behalf of the
Guarantor all process in any action, suit or proceedings that may be
brought against the Guarantor in any of the courts referred to in this
Section, and agrees that such service of process, or the acceptance or
acknowledgement thereof by said agent, shall be valid, effective
and binding in every respect; provided, however, that if said agency shall
cease for any reason whatsoever, the Guarantor hereby designates and appoints,
without power of revocation, the Secretary of State of the State of New York
to serve as its agent for service of process. Nothing contained in this
Section 11.9 shall limit the right of the Holders of the Notes or any of them
to take proceedings against the Guarantor in any other court of competent
jurisdiction nor, by virtue of anything contained herein, shall the taking of
proceedings in one or more jurisdictions preclude the taking or proceedings
in any other jurisdiction whether concurrently or not.
SECTION 11.10 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.11 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Right of Redemption. The Notes may be redeemed, at
the election of the Issuer, as a whole or from time to time in part, at the
Redemption Prices specified in the form of Note.
SECTION 12.2 Applicability of Article. Redemption of Notes at
the election of the Issuer or otherwise, as permitted or required by any
provision of this Indenture, shall be made in accordance with such provision
and this Article Twelve.
SECTION 12.3 Election to Redeem; Notice to Trustee. The election
of the Issuer to redeem any Notes pursuant to Section 12.1 shall be evidenced
by a Board Resolution, a certified copy of which is delivered to the Trustee.
In case of any redemption at the election of the Issuer, the Issuer shall, at
least 60 days prior to the Redemption Date fixed by it (unless a shorter
notice period shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the aggregate principal amount of Notes to be
redeemed.
SECTION 12.4 Selection by Trustee of Notes to Be Redeemed. If
less than all the Notes are to be redeemed, the particular Notes or portions
thereof to be redeemed shall be selected not more than 60 days and not less
than 30 days prior to the Redemption Date by the Trustee from the outstanding
Notes not previously called for redemption, either pro rata, by lot or by
another method the Trustee shall deem fair and reasonable, and the aggregate
principal amounts to be redeemed may be equal to $1,000 or any integral
multiple thereof.
The Trustee shall promptly notify the Issuer in writing of the
Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the aggregate principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Notes shall relate, in the
case of any Note redeemed or to be redeemed only in part, to the portion of
the aggregate principal amount of such Note which has been or is to be
redeemed.
SECTION 12.5 Notice of Redemption. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Notes to be
redeemed, at its address appearing in the Note register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all outstanding Notes are to be redeemed, the
identification (and, in the case of a Note to be redeemed in part,
the aggregate principal amount to be redeemed) of the particular
Notes to be redeemed;
(d)that on the Redemption Date the Redemption Price together with
accrued interest to the Redemption Date will become due and payable
upon each such Note or portion thereof, and that unless the Issuer
shall default in payment of the Redemption Price and accrued
interest, interest thereon shall cease to accrue on and after said
date;
(e) the place or places where such Notes are to be surrendered
for payment of the Redemption Price;
(f) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(g) the CUSIP number, if any, relating to such Notes; and
(h) in the case of a Note to be redeemed in part, the aggregate
principal amount of such Note to be redeemed and that after the
Redemption Date upon surrender of such Note, new Note or Notes in the
aggregate principal amount equal to the unredeemed portion thereof
will be issued.
Notice of redemption of Notes to be redeemed at the election of the
Issuer shall be given by the Issuer or, at its request, by the Trustee in the
name and at the expense of the Issuer.
SECTION 12.6 Deposit of Redemption Price. On or prior to 11:00
a.m., New York City time, on any Redemption Date, the Issuer shall deposit
with the Trustee or with a Paying Agent (or, if the Issuer is acting as its
own Paying Agent, segregate and hold in trust) an amount of money in same day
funds (or New York Clearing House funds if such deposit is made prior to the
applicable Redemption Date) sufficient to pay the Redemption Price of all the
Notes or portions thereof which are to be redeemed on that Redemption Date
plus accrued interest to such Redemption Date.
SECTION 12.7 Notes Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Notes so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein
specified plus accrued interest to the Redemption Date and from and after such
date (unless the Issuer shall default in the payment of the Redemption Price)
such Notes shall cease to accrue interest. Upon surrender of any such Note
for redemption in accordance with said notice, such Note shall be paid by the
Issuer at the Redemption Price.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the Redemption Price thereof shall accrue
interest at the rate of 9-3/4% per annum.
SECTION 12.8 Notes Redeemed in Part. Any Note that is to be
redeemed only in part shall be surrendered at the office or agency of the
Issuer maintained for such purpose pursuant to Section 3.2 (with, if the
Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer or the Trustee duly
executed by, the Holder thereof or its attorney duly authorized in writing),
and the Issuer shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Note without service charge, a new Note or Notes, of
any authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal amount of the Note so surrendered.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness of
the Issuer. (a) The Issuer covenants and agrees, and each Holder of
Securities of each series, by his acceptance thereof, likewise covenants and
agrees, that anything in this Indenture or the Securities of any series to the
contrary notwithstanding, the indebtedness evidenced by the Securities of each
series is subordinate and junior in right of payment, to the extent provided
herein, to all Senior Indebtedness of the Issuer, whether outstanding on the
date of execution of this Indenture or thereafter created, incurred or
assumed, and that the subordination is for the benefit of the holders of
Senior Indebtedness of the Issuer but the Securities shall in all respects
rank pari passu with all other Senior Subordinated Indebtedness of the Issuer.
The Securities shall rank senior to all existing and future Indebtedness of
the Issuer that is neither Senior Indebtedness of the Issuer nor Senior
Subordinated Indebtedness and only Indebtedness of the Issuer that is Senior
Indebtedness of the Issuer shall rank senior to the Securities in accordance
with the provisions set forth herein.
(b) Subject to Section 13.4, if (i) the Issuer shall default in
the payment of any principal of, premium, if any, or interest, if any, on any
Senior Indebtedness of the Issuer when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration of
acceleration or otherwise, or (ii) any other default shall occur with respect
to Senior Indebtedness of the Issuer and the maturity of such Senior
Indebtedness of the Issuer has been accelerated in accordance with its terms,
then, upon written notice of such default to the Issuer and the Trustee by the
holders of Senior Indebtedness of the Issuer or any trustee therefor, unless
and until, in either case, the default has been cured or waived, and any such
acceleration has been rescinded or such Senior Indebtedness of the Issuer has
been paid in full, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made on
account of the principal of, premium, if any, or interest, if any, on any of
the Securities, or in respect of any redemption, retirement, purchase or other
acquisition of any of the Securities other than those made in capital stock of
the Issuer (or cash in lieu of fractional shares thereof).
(c) If any default (other than a default described in paragraph
(b) of this Section 13.1) shall occur under the Senior Indebtedness of the
Issuer, pursuant to which the maturity thereof may be accelerated immediately
without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods occurs (a
"Senior Nonmonetary Default"), then, upon the receipt by the Issuer and the
Trustee of written notice thereof (a "Payment Notice") from or on behalf of
holders of such Senior Indebtedness of the Issuer specifying an election to
prohibit such payment and other action by the Issuer in accordance with the
following provisions of this paragraph (c), the Issuer may not make any
payment or take any other action that would be prohibited by paragraph (b)
of this Section 13.1 during the period (the "Payment Blockage Period")
commencing on the date of receipt of such Payment Notice and ending on the
earlier of (i) the date, if any, on which the holders of such Senior
Indebtedness of the Issuer or their representative notify the Trustee that
such Senior Nonmonetary Default is cured or waived or ceases to exist or
the Senior Indebtedness of the Issuer to which such Senior Nonmonetary
Default relates is discharged or (ii) the 179th day after the date of
receipt of such Payment Notice. Notwithstanding the provisions described
in the immediately preceding sentence, the Issuer may resume payments on
the Securities following such Payment Blockage Period.
(d) If (i) (A) without the consent of the Issuer, a receiver,
conservator, liquidator or trustee of the Issuer or of any of its property is
appointed by the order or decree of any court or agency or supervisory
authority having jurisdiction, and such decree or order remains in effect for
more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or
(C) any of its property is sequestered by court order and such order remains
in effect for more than 60 days or (D) a petition is filed against the Issuer
<PAGE>
under any state or federal bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution, liquidation or receivership
law of any jurisdiction whether now or hereafter in effect (including
without limitation the Bankruptcy Code), and is not dismissed within 60
days after such filing; or (ii) the Issuer (A) commences a voluntary case or
other proceeding seeking liquidation, reorganization, arrangement,
insolvency, readjustment of debt, dissolution, liquidation or other relief
with respect to itself or its debt or other liabilities under any
bankruptcy, insolvency or other similar law now or hereafter in effect
(including without limitation the Bankruptcy Code) or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or (B)
consents to any such relief or to the appointment of or taking possession
by any such official in an involuntary case or other proceeding commenced
against it, or (C) fails generally to, or cannot, pay its debts generally
as they become due or (D) takes any corporate action to authorize or effect
any of the foregoing; or (iii) any Subsidiary of the Issuer takes,
suffers or permits to exist any of the events or conditions referred to in
the foregoing clause (i) or (ii), then all Senior Indebtedness of the
Issuer (including any interest thereon accruing
after the commencement of any such proceedings) shall first be paid in full
before any payment or distribution, whether in cash, securities or other
property, shall be made to any Holder of any Securities on account thereof.
Any payment or distribution, whether in cash, securities or other property
(other than securities of the Issuer or any other corporation provided for by
a plan of reorganization or readjustment the payment of which is subordinate,
at least to the extent provided in these subordination provisions with
respect to the indebtedness evidenced by the Securities to the payment of all
Senior Indebtedness of the Issuer then outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
adjustment) which would otherwise (but for these subordination provisions)
be payable or deliverable in respect of the Securities of any series shall
be paid or delivered directly to the holders of Senior Indebtedness of the
Issuer in accordance with the priorities then existing among such holders
until all Senior Indebtedness of the Issuer (including any interest thereon
accruing after the commencement of any such proceedings) shall have been
paid in full.In the event of any such proceeding, after payment in full of
all sums owing with respect to Senior Indebtedness of the Issuer, the
Holders of the Securities, together with the holders of any obligations of
the Issuer ranking on a parity with the Securities, shall be entitled to
be paid from the remaining assets of the Issuer the amounts at the time
due and owing on account of unpaid principal of and interest, if any, on
the Securities and such other obligations before any payment or other
distribution, whether in cash, property or otherwise, shall be made on
account of any capital stock or any obligations of the Issuer ranking
junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or
distribution of any character, whether in cash, securities or other property
(other than securities of the Issuer or any other corporation provided for by
a plan of reorganization or readjustment the payment of which is subordinate,
at least to the extent provided in the subordination provisions with respect
to the indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness of the Issuer then outstanding and to any securities issued in
respect thereof under any such plan of reorganization or readjustment), shall
be received by the Trustee or any Holder in contravention of any of the terms
hereof, such payment or distribution of securities shall be received in trust
for the benefit of and shall be paid over or delivered and transferred to the
holders of the Senior Indebtedness of the Issuer then outstanding in
accordance with the priorities then existing among such holders for
application to the payment of all Senior Indebtedness of the Issuer remaining
unpaid, to the extent necessary to pay all such Senior Indebtedness of the
Issuer in full. In the event of the failure of the Trustee or any Holder to
endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness of the Issuer is hereby irrevocably authorized to
endorse or assign the same.
(f) No present or future holder of any Senior Indebtedness of the
Issuer shall be prejudiced in the right to enforce subordination of the
indebtedness evidenced by the Securities by any act or failure to act on the
part of the Issuer or any Holder of Securities. Nothing contained herein
shall impair, as between the Issuer and the Holders of Securities of each
series, the obligation of the Issuer to pay to such Holders the principal of
and interest, if any, on such Securities or prevent the Trustee or the
Holder from exercising all rights, powers and remedies otherwise permitted
by applicable law or hereunder upon a default or Event of Default hereunder,
all subject to the rights of the holders of the Senior Indebtedness of the
Issuer to remove cash, securities or other property otherwise payable or
deliverable to the Holders.
(g) Senior Indebtedness of the Issuer shall not be deemed to have
been paid in full unless the holders thereof shall have received cash,
securities or other property equal to the amount of such Senior Indebtedness
of the Issuer then outstanding. Upon the payment in full of all Senior
Indebtedness of the Issuer, the Holders of Securities of each series shall be
subrogated to all rights of any holders of Senior Indebtedness of the Issuer
to receive any further payment or distributions applicable to the Senior
Indebtedness of the Issuer until the indebtedness evidenced by the Securities
of such series shall have been paid in full and such payments or distributions
received by such Holders, by reason of such subrogation, of cash, securities
or other property which otherwise would be paid or distributed to the holders
of Senior Indebtedness of the Issuer, shall, as between the Issuer and its
creditors other than the holders of Senior Indebtedness of the Issuer, on the
one hand, and such Holders, on the other hand, be deemed to be a payment by
the Issuer on account of Senior Indebtedness of the Issuer, and not on account
of the Securities of such series.
(h) The provisions of this Section 13.1 shall not impair any
rights, interests, remedies or powers of any secured creditor of the Issuer in
respect of any security interest the creation of which is not prohibited by
the provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise
ranking on a parity with the Securities or ranking junior to the Securities,
shall not be deemed to prevent such obligations from constituting,
respectively, obligations ranking on a parity with the Securities or ranking
junior to the Securities.
SECTION 13.2 Reliance on Certificate of Liquidating Agent;
Further Evidence as to Ownership of Senior Indebtedness of the Issuer. Upon
any payment or distribution of assets of the Issuer, the Trustee and the
Holders shall be entitled to rely upon an order or decree issued by any court
of competent jurisdiction in which such dissolution or winding up or
liquidation or reorganization or arrangement proceedings are pending or upon a
certificate of the bankruptcy trustee, receiver, assignee for the benefit of
creditors or other Person making such payment or distribution, delivered to
the Trustee or to the Holders, for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness of the Issuer and other indebtedness of the Issuer, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Thirteen. In the
absence of any such bankruptcy trustee, receiver, assignee or other Person,
the Trustee shall be entitled to rely upon written notice by a Person
representing himself to be a holder of Senior Indebtedness of the Issuer
(or a trustee or representative on behalf of such holder) as evidence that
such Person is a holder of Senior Indebtedness of the Issuer (or is such a
trustee or representative). If the Trustee determines, in good faith, that
further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness of the Issuer to participate in any payment
or distributions pursuant to this Article Thirteen, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness of the Issuer held by such
Person, as to the extent to which such Person is entitled to participate
in such payment or distribution, and to other facts pertinent to the rights
of such Person under this Article Thirteen, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 13.3 Payment Permitted If No Default. Nothing contained
in this Article Thirteen or elsewhere in this Indenture, or in any of the
Securities, shall prevent (a) the Issuer at any time, except during the
pendency of any default with respect to Senior Indebtedness of the Issuer
described in Section 13.1(b) or Section 13.1(c) or of any of the events
described in Section 13.1(d), from making payments of the principal of or
interest, if any, on the Securities, or (b) the application by the Trustee or
any paying agent of any moneys deposited with it hereunder to payments of the
principal of or interest, if any, on the Securities, if, at the time of such
deposit, the Trustee or such paying agent, as the case may be, did not have
the written notice provided for in Section 13.5 of any event prohibiting the
making of such deposit, or if, at the time of such deposit (whether or not
in trust) by the Issuer with the Trustee or paying agent (other than the
Issuer) such payment would not have been prohibited by the provisions of
this Article Thirteen, and the Trustee or any paying agent shall not be
affected by any notice to the contrary received by it on or after such date.
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness
of the Issuer. Any failure by the Issuer to make any payment on or under any
Senior Indebtedness of the Issuer, other than any Senior Indebtedness of the
Issuer as to which the provisions of this Section 13.4 shall have been waived
by the Issuer in the instrument or instruments by which the Issuer incurred,
assumed, guaranteed or otherwise created such Senior Indebtedness of the
Issuer, shall not be deemed a default under Section 13.1 hereof if (i) the
Issuer shall be disputing its obligation to make such payment or perform such
obligation, and (ii) either (A) no final judgment relating to such dispute
shall have been issued against the Issuer which is in full force and effect
and is not subject to further review, including a judgment that has become
final by reason of the expiration of the time within which a party may seek
further appeal or review, or (B) if a judgment that is subject to further
review or appeal has been issued, the Issuer shall in good faith be
prosecuting an appeal or other proceeding for review, and a stay of
execution shall have been obtained pending such appeal or review.
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Thirteen or elsewhere in this Indenture contained to
the contrary notwithstanding, the Trustee shall not at any time be charged
with knowledge of the existence of any facts which would prohibit the making
of any payment of moneys to or by the Trustee and shall be entitled to assume
conclusively that no such facts exist and that no event specified in clauses
(b) and (c) of Section 13.1 has happened unless and until the Trustee shall
have received an Officers' Certificate to the effect or notice in writing to
that effect signed by or on behalf of the holder or holders, or the
representatives, of Senior Indebtedness of the Issuer who shall have been
certified by the Issuer or otherwise established to the reasonable
satisfaction of the Trustee to be such holder or holders or representatives
or from any trustee under any indenture pursuant to which such Senior
Indebtedness of the Issuer shall be outstanding; provided, however, that, if
the Trustee shall not have received the Officers' Certificate or notice
provided for in this Section 13.5 at least three Business Days preceding the
date upon which by the terms hereof any moneys become payable for any
purpose (including, without limitation, the payment of either the principal
of or interest, if any, on any Security), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such moneys and apply the same to the purpose for which
they were received and shall not be affected by any notice to the contrary
that may be received by it within three Business Days preceding such date.
The Issuer shall give prompt written notice to the Trustee and to each
paying agent of any facts that would prohibit any payment of moneys to or by
the Trustee or any paying agent, and the Trustee shall not be charged with
knowledge of the curing of any default or the elimination of
any other fact or condition preventing such payment or distribution unless and
until the Trustee shall have received an Officers' Certificate to such effect.
SECTION 13.6 Trustee to Effectuate Subordination. Each Holder of
Securities by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate
the subordination as between such Holder and holders of Senior Indebtedness of
the Issuer as provided in this Article Thirteen and appoints the Trustee its
attorney-in-fact for any and all such purposes.
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness
of the Issuer. The Trustee shall be entitled to all the rights set forth in
this Article Thirteen with respect to any Senior Indebtedness of the Issuer
which may at the time be held by it, to the same extent as any other holder of
Senior Indebtedness of the Issuer and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder. Nothing in this Article
Thirteen shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.6.
SECTION 13.8 Article Applicable to Paying Agents. In case at any
time any paying agent other than the Trustee shall have been appointed by the
Issuer and be then acting hereunder, the term "Trustee" as used in this
Article Thirteen shall in such case (unless the context shall otherwise
require) be construed as extending to and including such paying agent within
its meaning as fully for all intents and purposes as if the paying agent were
named in this Article Thirteen in addition to or in place of the Trustee;
provided, however, that Sections 13.5 and 13.7 shall not apply to the Issuer
if it acts as paying agent.
SECTION 13.9 Subordination Rights Not Impaired by Acts or
Omissions of the Issuer or Holders of Senior Indebtedness of the Issuer. No
right of any present or future holders of any Senior Indebtedness of the
Issuer to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Issuer or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Issuer with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof which any such holder
may have or be otherwise charged with. The holders of Senior Indebtedness of
the Issuer, may at any time or from time to time and in their absolute
direction, change the manner, place or terms of payment, change or extend the
time of payment of, or renew or alter, any such Senior Indebtedness of the
Issuer, or amend or supplement any instrument pursuant to which any such
Senior Indebtedness of the Issuer is issued or by which it may be secured, or
release any security therefor, or exercise or refrain from exercising any
other of their rights under such Senior Indebtedness of the Issuer, including,
without limitation, the waiver of default thereunder, all without notice to
or assent from the Holders of the Securities or the Trustee and without
affecting the obligations of the Issuer, the Trustee or the Holders of
Securities under this Article Thirteen.
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior
Indebtedness of the Issuer. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of the Senior Indebtedness of the Issuer, and
shall not be liable to any such holders if it shall mistakenly pay over or
distribute money or assets to Securityholders or the Issuer. With respect to
the holders of Senior Indebtedness of the Issuer, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article Thirteen and no implied covenants or
obligations with respect to holders of Senior Indebtedness of the Issuer shall
be read into this Indenture against the Trustee.
ARTICLE FOURTEEN
GUARANTEES
SECTION 14.1 Guarantee. The Guarantor hereby unconditionally
guarantees to each Holder of a Security of each series authenticated and
delivered by the Trustee the due and prompt payment of the principal of (and
premium, if any) and interest on such Security and the due and prompt payment
of any sinking fund payments provided for pursuant to the terms of such
Security, when and as the same shall become due and payable, whether at the
Stated Maturity, by declaration of acceleration, call for redemption or
otherwise, according to the terms of such Security and of this Indenture. In
case of the failure of the Issuer punctually to make any such principal,
premium, interest or sinking fund payment, the Guarantor hereby agrees to
cause any such payment to be made promptly when and as the same shall become
due and payable, whether at the Stated Maturity, by declaration of
acceleration, call for redemption or otherwise, and as if such payment were
made by the Issuer. The Guarantor hereby further agrees that any amounts to
be paid by the Guarantor under this Guarantee shall be paid without
deduction or withholding for any and all present and future withholding
taxes, levies, imposts and charges whatsoever imposed by or for the account
of the Cayman Islands or any political subdivision or taxing authority
thereof or therein, or if deduction or withholding of any such taxes,
levies, imposts or charges shall at any time be required by the Cayman
Islands or any such subdivision or authority, the Guarantor will (subject
to compliance by the Holder of such Security with any relevant
administrative requirements) pay such additional amount in respect of
principal (and premium, if any) interest and sinking fund payment, if any, as
may be necessary in order that the net amounts paid to such Holder or the
Trustee, as the case may be, pursuant to this Guarantee, after such deduction
or withholding, shall equal the respective amounts of principal (and premium,
if any), interest and sinking fund payments, if any, as specified in such
Security to which such Holder is entitled; provided, however, that the
foregoing shall not apply to any such tax, levy, impost or charge which would
not be payable or due but for the fact (i) the Holder of such Security is a
domiciliary, national or resident of, or engaging in business or maintaining a
permanent establishment or being physically present in, the Cayman Islands or
such political subdivision or otherwise having some connection with the Cayman
Islands other than the holding or ownership of such Security or the collection
of principal of (and premium, if any) or interest on such Security or the
enforcement of such Security or this Guarantee or (ii) where presentation is
required, such Security was presented more than 30 days after the date such
payment became due or was provided for, whichever is later. The Guarantor
hereby agrees that its obligations hereunder shall be as if it were principal
debtor and not merely surety, and shall be absolute and unconditional,
irrespective of, and shall be unaffected by, any invalidity, irregularity or
unenforceability of any Security of any series of this Indenture, any failure
to enforce the provisions of any Security of any series or this Indenture, or
any waiver, modification or indulgence granted to the Issuer with respect
thereto, by the Holder of any Security of any series or the Trustee, or any
other circumstance which may otherwise constitute a legal or equitable
discharge of a surety or guarantor; provided, however, that, notwithstanding
the foregoing, no such waiver, modification or indulgence shall, without the
consent of the Guarantor, increase the principal amount of a Security or the
interest rate thereon or increase any premium payable upon redemption thereof.
The Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of merger or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, protest or notice with
respect to any Security or the indebtedness evidenced thereby or with respect
to any sinking fund payment required pursuant to the terms of a Security
issued under this Indenture and all demands whatsoever, and covenants that
this Guarantee will not be discharged with respect to any Security except by
payment in full of the principal of (and premium, if any) and interest on
such Security.
SECTION 14.2 Subrogation. The Guarantor shall be subrogated to
all rights of the Holder of a Security against the Issuer in respect of any
amounts paid to such Holder by the Guarantor pursuant to the provisions of
this Guarantee; provided, however, that the Guarantor shall not be entitled
to enforce, or to receive any payments arising out of or based upon, such
right of subrogation until the principal of (and premium, if any) and
<PAGE>
interest on all Securities of the relevant series shall have been paid in
full.
SECTION 14.3 Execution and Delivery of Guarantees. To evidence
its guarantee set forth in Section 14.1, the Guarantor hereby agrees to
execute the Guarantee in a form established pursuant to Section 2.1, to be
endorsed on each Security authenticated and delivered by the Trustee. Each
such Guarantee shall be signed manually or by facsimile by a person duly
authorized thereto by Board Resolution of the Guarantor.
Guarantees bearing the facsimile signature of any individual who
was at any time an officer of the Guarantor shall bind the Guarantor,
notwithstanding that such individual shall have ceased to be an officer prior
to the authentication and delivery of the Securities upon which such
Guarantees are endorsed or was not an officer at the date of such Securities.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee endorsed thereon on behalf of the Guarantor.
SECTION 14.4 Agreement to Subordinate. The Guarantor agrees, and
each Securityholder by accepting a Security agrees, that all payments pursuant
to the Guarantee of the Guarantor are subordinated in right of payment to the
prior payment in full of all Senior Indebtedness of the Guarantor, to the same
extent and manner that all payments pursuant to the Securities are
subordinated in right of payment to the prior payment in full of all Senior
Indebtedness of the Issuer.
IN WITNESS WHEREOF, the parties hereto have caused this Amended
and Restated Indenture to be duly executed, all as of the date first above
written.
TRITON ENERGY CORPORATION, as
Issuer
Attest:/s/Robert B. Holland, III By:/s/ Peter Rugg
Robert B. Holland, III Peter Rugg
Title: Secretary Title: Senior Vice President
TRITON ENERGY LIMITED, as
Guarantor
Attest:/s/Robert B. Holland, III By:/s/ Peter Rugg
Robert B. Holland, III Peter Rugg
Title: Secretary Title: Senior Vice President
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
Attest: /s/Collette Newner By: /s/John Stohlmann
Collette Newner John Stohlmann
Title: Authorized Officer Title: Authorized Officer
<PAGE>
EXHIBIT A
[FORM OF FACE OF SECURITY]
FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE INTERNAL REVENUE CODE,
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000
OF PRINCIPAL AMOUNT OF THIS SECURITY IS $248.24, THE ISSUE DATE IS
DECEMBER 16, 1993 AND THE YIELD TO MATURITY IS 9-3/4%.
TRITON ENERGY CORPORATION
9-3/4% Senior Subordinated Discount Notes due 2000
No. ____
Issue Date: December 16, 1993
Issue Price: $751.76
(for each $1,000 principal amount)
Original Issue Discount: $248.24
(for each $1,000 principal amount)
Triton Energy Corporation, a Delaware corporation (the "Issuer"),
promises to pay to ____________ or its registered assigns, the principal
amount of ___________ DOLLARS ($__________) on December 15, 2000. This Note
shall not bear interest except as specified on the other side of this Note.
Additional provisions of this Note are set forth on the other side of this
Note.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed under its facsimile corporate seal.
TRITON ENERGY CORPORATION, as
Issuer
Attest:____________________ By:___________________________
Title: Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
Dated: UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE SIDE OF NOTE]
9-3/4% Senior Subordinated Discount Note due 2000
1. Interest. There will be no payments of interest on this
Note prior to December 15, 1996. Commencing December 15, 1996, interest
on this Note will accrue at the rate of 9-3/4% per annum and will be
payable in cash semiannually on each December 15 and June 15, commencing
June 15, 1997, to Holders of record on the close of business on the
immediately preceding December 1 and June 1; provided that if the principal
amount hereof or any portion of such principal amount is not paid
when due (whether upon acceleration pursuant to Section 5.2 of the
Indenture, upon the date set for payment of the Redemption Price pursuant
to paragraph 6 hereof, upon the date set for payment of the Change in
Control Purchase Price or Colombian Asset Redemption Price, or other
required payments pursuant to paragraph 8 hereof or upon the Stated
Maturity of this Note), then in each such case the overdue amount
shall bear interest at the rate of 9-3/4% per annum, compounded
semiannually (to the extent that the payment of such interest shall be
legally enforceable), which interest shall accrue from the date such
overdue amount was due to the date payment of such amount, including
interest thereon, has been made or duly provided for. All such interest
shall be payable on demand.
2. Original Issue Discount. Original issue discount (the
difference between the issue price and the principal amount of the Note), in
the period during which any of the Notes remains outstanding, shall accrue at
a rate of 9 3/4% per annum, on a semiannual bond equivalent basis using a
360-day year composed of twelve 30-day months, commencing on the date of
issuance of this Note.
3. Method of Payment. Subject to the terms and conditions of
the Indenture, payments in respect of the Notes shall be made at the office
or agency of the Issuer maintained for that purpose in the City and State
of New York or, at the option of the Issuer, payments in respect of the
Notes may be made by check mailed to the Holders of the Notes at their
respective addresses set forth in the register of Holders of Notes. The
Issuer will pay cash amounts in money of the United States that at the
time of payment is legal tender for payment of public and private debts.
4. Paying Agent and Registrar. Initially, United States Trust
Company of New York (the "Trustee"), will act as paying agent and registrar.
The Issuer may appoint and change any paying agent or registrar without
notice, other than notice to the Trustee. The Issuer or any of its
Subsidiaries or any of their Affiliates may act as paying agent or registrar.
5. Indenture. The Issuer issued the Notes under an Indenture,
dated as of December 15, 1993, and amended and restated as of March 25,
1996, among the Issuer, Triton Energy Limited (the "Guarantor") and the
Trustee (the "Indenture"). The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act of 1939").
Capitalized terms used herein and not defined herein have the meanings
ascribed thereto in the Indenture. The Notes are subject to all such terms,
and holders are referred to the Indenture and the Trust Indenture Act of 1939
for a statement of those terms.
The Notes are general unsecured obligations of the Issuer,
limited to $170 million aggregate principal amount.
6. Subordination. The Indebtedness represented by the Notes is
expressly subordinate and junior in right of payment, in the manner and to the
extent set forth in the Indenture, to the prior payment in full of all Senior
Indebtedness of the Issuer whether outstanding on the date of such Indenture
or thereafter created, incurred, assumed or guaranteed. Each Holder of a Note
by its acceptance hereof agrees and accepts to be bound by such provisions.
7. Redemption at the Option of the Issuer. No sinking fund is
provided for the Notes. Commencing December 15, 1997, the Notes will be
subject to redemption at the option of the Issuer, in whole or in part, at any
time and from time to time, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as a percentage of principal
amount) set forth below plus accrued and unpaid interest to the redemption
date, if redeemed during the 12-month period beginning on December 15 of the
years indicated below:
Year Percentage
1997 . . . . . . . . . . . . . . . . . . . . 104.875%
1998 . . . . . . . . . . . . . . . . . . . . 102.438%
1999 and thereafter . . . . . . . . . . . . . . 100.000%
8. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at the Holder's registered address. If money
sufficient to pay the Redemption Price of all Notes to be redeemed on the
Redemption Date, together with accrued interest thereon to the Redemption
Date, is deposited with the Paying Agent prior to or on the Redemption Date,
on and after such date interest ceases to accrue on such Notes or portions
thereof.
9. Offers to Repurchase the Notes by the Issuer. In certain
circumstances relating to Asset Sales and Changes in Control described in the
Indenture, the Issuer may be required to make offers to repurchase the Notes.
10. Denominations; Transfer; Exchange. The Notes are in
registered form, without coupons, in denominations of $1,000 of principal
amount and integral multiples of $1,000. A Holder may register the transfer
of or exchange Notes in accordance with the Indenture. The registrar may
require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Issuer shall not be required to exchange
or register a transfer of (a) any Notes for a period of 15 days next
preceding the first mailing or publication of notice of redemption of
Notes to be redeemed, (b) any Notes selected, called or being called for
redemption, in whole or in part, except, in the case of any Note to be
redeemed in part, the portion thereof not so to be redeemed or (c) any
Note if the Holder thereof has exercised its right, if any, to require
the Issuer to repurchase such Note in whole or in part, except
the portion of such Note not required to be repurchased.
<PAGE>
11. Persons Deemed Owners. The registered Holder of this Note
may be treated as the owner of this Note for all purposes.
12. Unclaimed Money. The Trustee and each paying agent shall
each return to the Issuer upon written request any money held by them for the
payment of any amount with respect to the Notes that remains unclaimed for two
years. After return to the Issuer, Holders entitled to the money must look to
the Issuer for payment as general creditors unless an applicable abandoned
property law designates another person.
13. Amendment; Waiver. Subject to certain exceptions set
forth in the Indenture, (i) the Indenture or the Notes may be amended with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Notes at the time outstanding and (ii) certain defaults or
noncompliance with certain provisions may be waived with the written consent
of the Holders of a majority in aggregate principal amount of the Notes at
the time outstanding. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder, the Issuer, the Guarantor and
the Trustee may amend the Indenture or the Notes to cure any ambiguity,
defect or inconsistency, or to comply with Article Nine of the Indenture,
or to make any change that does not adversely affect the rights of any
Holder of Notes.
14. Defaults and Remedies. Under the Indenture, Events of
Default include, among others, (i) default in the payment of any installment
of interest on the Notes as and when the same becomes due and payable, and
continuance of such default for a period of 30 days; (ii) default in the
payment of the principal amount, Redemption Price, Change in Control Purchase
Price, Colombian Sale Redemption Price or Asset Sale Offer Price when the same
becomes due and payable; (iii) failure by the Issuer or the Guarantor to
comply with other agreements in the Indenture or the Notes, subject to notice
and lapse of time; (iv) certain Indebtedness of the Issuer, the Guarantor or
certain Subsidiaries of the Guarantor for money borrowed in an aggregate
outstanding principal amount of $10,000,000 or more becoming due and payable
prior to final maturity thereof or default in any payment when due at final
maturity of any such Indebtedness; (v) certain judgments or orders rendered
against the Issuer, the Guarantor or certain Subsidiaries of the Guarantor in
an aggregate principal amount of more than $10,000,000; and (vi) certain
events of bankruptcy or insolvency. If an Event of Default occurs and is
continuing, the Trustee, or the Holders of at least 25% in aggregate
principal amount of the Notes at the time outstanding, may declare all the
Notes to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Notes becoming
due and payable immediately upon the occurrence of such Events of Default.
Holders of Notes may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Notes unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in aggregate principal
amount of the Notes at the time outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of
Notes notice of any continuing Default (except a Default in payment of
amounts specified in clauses (i) and (ii) above) if it determines that
withholding notice is in their best interests.
<PAGE>
15. Trustee Dealings with the Issuer and the Guarantor.
Subject to certain limitations imposed by the Trust Indenture Act of 1939, the
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Issuer, the Guarantor or their respective
Affiliates and may otherwise deal with the Issuer, the Guarantor or their
respective Affiliates with the same rights it would have if it were not
Trustee.
16. No Recourse Against Others. A director, officer, employee
or stockholder, as such, of the Issuer or the Guarantor shall not have any
liability for any obligations of the Issuer or the Guarantor under the Notes,
the Guarantees or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Note having
endorsed thereon a Guarantee, each Note Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue
of the Notes and the Guarantees.
17. Authentication. This Note and the Guarantee endorsed
hereon shall not be valid until an authorized signatory of the Trustee
manually signs the Trustee's Certificate of Authentication on the other side
of this Note.
18. Defeasance, Covenant Defeasance. The Notes and the
Guarantees are subject to defeasance and covenant defeasance as provided in
the Indenture.
19. Abbreviations. Customary abbreviations may be used in the
name of a Holder of Notes or an assignee, such as TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= custodian), and
U/G/M/A (= Uniform Gift to Minors Act).
20. GOVERNING LAW. THIS NOTE, THE GUARANTEES ENDORSED HEREON
AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
The Issuer will furnish to any Holder of Notes upon written
request and without charge a copy of the Indenture. Requests may be made to:
Triton Energy Corporation, 6688 North Central Expressway, Suite 1400, Dallas,
Texas 75206, Attention of Corporate Secretary.
<PAGE>
EXHIBIT B
GUARANTEE OF TRITON ENERGY LIMITED
19. Guarantee. For value received, Triton Energy Limited, a
company duly organized and existing under the laws of the Cayman Islands
(herein called the "Guarantor", which term includes any successor corporation
under the Indenture referred to in the Security upon which this Guarantee is
endorsed), hereby unconditionally guarantees to the Holder of the Security
upon which this Guarantee is endorsed the due and prompt payment of the
principal of (and premium, if any) and interest on such Security when and as
the same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption or otherwise, according to
the terms thereof and of the Indenture referred to therein. In case of the
failure of Triton Energy Corporation, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Issuer",
which term includes any successor corporation under such Indenture)
punctually to make any such principal, premium or interest payment, the
Guarantor hereby agrees to cause any such payment to be made promptly when
and as the same shall become due and payable, whether at the Stated Maturity,
by declaration of acceleration, call for redemption or otherwise, and as
if such payment were made by the Issuer.
The Guarantor hereby further agrees that any amounts to be paid
by the Guarantor under this Guarantee shall be paid without deduction or
withholding for any and all present and future withholding taxes, levies,
imposts and charges whatsoever imposed by or for the account of the Cayman
Islands or any political subdivision or taxing authority thereof or therein,
or if deduction or withholding of any such taxes, levies, imposts or charges
shall at any time be required by the Cayman Islands or any such subdivision
or authority, the Guarantor will (subject to compliance by the Holder of
such Security with any relevant administrative requirements) pay such
additional amount in respect of principal (and premium, if any) and interest
as may be necessary in order that the net amounts paid to such Holder or
the Trustee under such Indenture, as the case may be, pursuant to this
Guarantee, after such deduction or withholding, shall equal the respective
amounts of principal (and premium, if any) and interest as specified in
such Security to which such Holder or the Trustee is entitled; provided,
however that the foregoing shall not apply to any such tax, levy, impost
or charge which would not be payable or due but for the fact that (i) the
Holder of such Security is a domiciliary, national or resident of, or
engaging in business or maintaining a permanent establishment or being
physically present in, the Cayman Islands or such political subdivision
or otherwise having some connection with the Cayman Islands other than
the holding or ownership of such Security or the collection
of principal of (and premium, if any) or interest on such Security or the
enforcement of such Security or this Guarantee or (ii) where presentation is
required, such Security was presented more than 30 days after the date such
payment became due or was provided for, whichever is later.
The Guarantor hereby agrees that its obligations hereunder
shall be as if it were principal debtor and not merely surety, and shall be
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of such Security or such
Indenture, any failure to enforce the provisions of such Security or such
Indenture, or any waiver, modification or indulgence granted to the Issuer
with respect thereto, by the Holder of such Security or such Trustee, or any
other circumstance which may otherwise constitute a legal or equitable
discharge of a surety or guarantor, provided, however, that,
notwithstanding the foregoing, no such waiver, modification or indulgence
shall, without the consent of the Guarantor, increase the principal amount
of such Security or the interest rate thereon or increase any premium
payable upon redemption thereof. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with
a court in the event of merger or bankruptcy of the Issuer, any right to
require a proceeding first against the Issuer, protest or notice with respect
to such Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged except by
payment in full of the principal of (and premium, if any) and interest on such
Security.
The Guarantor shall be subrogated to all rights of the Holder
of such Security against the Issuer in respect of any amounts paid to such
Holder by the Guarantor pursuant to the provisions of this Guarantee;
provided, however, that the Guarantor shall not be entitled to enforce, or
to receive any payments arising out of or based upon, such right of
subrogation until the principal of (and premium, if any) and interest on
all Securities of the same series issued under such Indenture shall have
been paid in full.
No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantee of the
Guarantor, which is absolute and unconditional, of the due and punctual
payment of the principal of (and premium, if any) and interest on the
Security upon which this Guarantee is endorsed at the times, place and
rate, and in the cash or currency prescribed therein.
This Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication of such Security shall have been
manually executed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such
Indenture shall have the meanings assigned to them in such Indenture.
<PAGE>
20. Subordination. The Guarantor agrees, and each Security
holder by accepting a Security agrees, that all payments pursuant to the
Guarantee of the Guarantor are subordinated and junior in right of payment to
the prior payment in full of all Senior Indebtedness of the Guarantor, to the
same extent and manner that all payments pursuant to the Securities are
subordinated and junior in right of payment, in the manner and to the extent
set forth in the Indenture, to the prior payment in full of all Senior
Indebtedness of the Issuer, whether outstanding on the date of such Indenture
or thereafter created, incurred, assumed or guaranteed.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to
be signed in facsimile by a person duly authorized in that behalf.
TRITON ENERGY LIMITED
_________________________________
Authorized Signatory
Dated the date on the face hereof.
<PAGE>
EXHIBIT 10.37
CONSENT, WAIVER AND GUARANTY
THIS CONSENT, WAIVER AND GUARANTY ("this Consent") is made and entered
into effective as of March 25, 1996 (the "Effective Date") by and among TRITON
ENERGY CORPORATION, a Delaware corporation ("Borrower"), TRITON ENERGY
LIMITED, a Cayman Islands company and a wholly owned subsidiary of Borrower
("Triton Limited") and the FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE
PAGES HEREOF (individually referred to herein as a "Lender" and collectively
as "Lenders") and BANQUE PARIBAS HOUSTON AGENCY, as agent for the Lenders (in
such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, Borrower and the Lenders, with the Agent as Agent thereunder are
parties to a Credit Agreement, dated as of March 28, 1995, as amended by the
First Amendment thereto dated as of May 16, 1995, the Second Amendment thereto
dated as of August 11, 1995 and the Third Amendment thereto dated as of
September 29, 1995 (as so amended, the "Credit Agreement");
WHEREAS, Borrower has called a Special Meeting of Stockholders to be held
on March 25, 1996 to consider a proposed reorganization (the "Reorganization")
pursuant to which Triton Limited will become the parent holding company of the
Borrower through the merger (the "Merger") of TEL Merger Corp., a Delaware
corporation and a newly formed wholly owned subsidiary of Triton Limited
("Sub"), with and into the Borrower, as described in the proxy statement/joint
prospectus of Triton Limited and the Borrower dated February 23, 1996 (the
"Proxy Statement/Prospectus");
WHEREAS, in connection with the Reorganization, Triton Limited and the
Borrower propose to effect certain transactions among, or otherwise affecting,
certain Subsidiaries of Triton Limited and/or the Borrower, as described in
Exhibit "A", attached hereto and made a part hereof for all purposes (the
"Related Transactions");
WHEREAS, Borrower has requested that the Lenders consent to the
Reorganization, the Merger and the Related Transactions, and waive any
provision of the Credit Agreement to the extent required to permit the
consummation of the Reorganization, the Merger and the Related Transactions,
all as described more fully in the Proxy Statement/Prospectus and Exhibit "A"
hereto; and
WHEREAS, the Lenders and the Agent are willing to grant such request on
the terms provided for in this Consent;
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and affirmed, Borrower, Triton Limited, the Lenders and the
Agent, each intending to be legally bound, hereby mutually agree as follows:
1. Capitalized Terms. All capitalized terms used herein and not
otherwise defined shall have the respective meanings ascribed to such terms in
the Credit Agreement.
2. Consent and Waiver With Respect to the Reorganization. The
Lenders hereby consent to, and grant any waiver of any provision of the Credit
Agreement to the extent required to permit, the Reorganization, the
consummation of the Merger pursuant to the Agreement and Plan of Merger dated
as of February 8, 1996 among the Borrower, Triton Limited and Sub, all as
described more fully in the Proxy Statement/Prospectus and the consummation of
the Related Transactions.
3. Guaranty of Triton Limited. Triton Limited hereby irrevocably and
unconditionally guarantees to the Lenders the prompt and full discharge by
Borrower of all of Borrower's covenants, agreements, obligations and
liabilities under the Credit Agreement and each other Loan Document including,
without limitation the due and punctual payment of all amounts which are or
may become due and payable by Borrower thereunder when and as the same shall
become due and payable (collectively, the "Borrower Obligations"). Triton
Limited acknowledges and agrees that, with respect to the Borrower
Obligations, such guaranty shall be a guaranty of payment and performance and
not of collection and shall not be conditioned or contingent upon the pursuit
of any remedies against Borrower. If Borrower shall default on the due and
punctual performance of any Borrower Obligation, including the full and timely
payment of any amount due and payable pursuant to any Borrower Obligation,
Triton Limited will forthwith perform or cause to be performed such Borrower
Obligation and will forthwith make full payment of any amount due with respect
thereto at its sole cost and expense.
The liabilities and obligations of Triton Limited pursuant to this
Section 3 are unconditional and absolute and, without limiting the generality
of the foregoing, shall not be released, discharged or otherwise affected by:
(i) any acceleration, extension, renewal, settlement, compromise, waiver
or release in any respect of the Credit Agreement or any other Borrower
Obligation by operation of law or otherwise;
(ii) the invalidity or unenforceability in whole or in part of the Credit
Agreement;
(iii) any modification or amendment of or supplement to the Credit Agreement
or any other Borrower Obligation;
(iv) any change in the corporate existence, structure or ownership of the
Borrower or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Borrower or any of its assets;
(v) any sale, exchange, release or surrender of, realization upon or
taking action otherwise in any manner and in any order in respect of the
Collateral or any other property at any time pledged or mortgaged by the
Borrower or any other Person to secure the Borrower Obligation; or
(vi) any other act, omission to act, delay of any act by any party to the
Credit Agreement or any other circumstance whatsoever that might, but for the
provisions of this Section 3, constitute a legal or equitable discharge of the
obligations of Triton Limited hereunder.
Triton Limited waives all presentments, demands for performance, protests
and notices, including without limitation notices of nonperformance, notices
of protest, notices of dishonor, notices of acceptance of this guaranty, and
notices of the existence, creation or incurring of new or additional
indebtedness. Triton Limited assumes all responsibility for being and keeping
itself informed of the Borrowers' financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of any of the Borrower
Obligations and the nature, scope and extent of the risks which Triton Limited
assumes and incurs hereunder, and agrees that the Lenders shall have no duty
to advise Triton Limited of information known to them regarding such
circumstances or risks.
4. Representations of Borrower and Triton Limited.
(a)The execution, delivery and performance by Borrower and Triton Limited
of this Consent and the consummation of the transactions contemplated hereby:
(i) are within Borrower's and Triton Limited's respective corporate
powers;
(ii) have been duly authorized by all necessary corporate action,
including, without limitation, the consent of stockholders or shareholders
where required;
(iii) do not and will not (A) contravene Borrower's or Triton Limited's
certificate of incorporation or by-laws or other comparable governing
documents, (B) violate any other applicable Requirement of Law (including,
without limitation, Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System), or any order or decree of any Governmental Authority
or arbitrator, (C) conflict with or result in the breach of, or constitute a
default under, or result in or permit the termination or acceleration of, any
Contractual Obligation of any Loan Party or any of the Material Subsidiaries,
or (D) result in the creation or imposition of any Lien upon any of the
property of any Loan Party or any of its Material Subsidiaries, other than
those in favor of the Agent pursuant to the Collateral Securities; and
(iv) do not require the consent of, authorization by, approval of, notice
to, or filing or registration with, any Governmental Authority or any other
Person, other than those which have been or will be, prior to the Effective
Date, obtained or made and copies of which in the case of those involving a
Governmental Authority have been or will be delivered to the Agent, and each
of which on the Effective Date will be in full force and effect.
(b) This Consent has been duly executed and delivered by each of
Borrower and Triton Limited. This Consent is the legal, valid and binding
obligation of each of Borrower and Triton Limited, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar law affecting creditors' rights
generally and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding of law or in
equity).
(c) Borrower and Triton Limited jointly and severally further represent
and warrant that (i) all of the representations and warranties made by
Borrower in Article IV of the Credit Agreement and in each other Loan Document
are true and correct on and as of the date hereof, as though made on the date
hereof; (ii) Borrower has complied with all terms and conditions set forth in
the Credit Agreement and in each other Loan Document as of the date hereof;
and (iii) there has not occurred, and currently there exists no, Default or
Event of Default.
5. Conditions. The obligations of the Lenders and the Agent under
this Consent are subject to the condition precedent that this Consent shall
have been duly executed by Borrower and Triton Limited and delivered to the
Lenders, and each Lender and the Agent shall have executed a counterpart
hereof.
6. Legal Opinion. Not later than April 30, 1996, Borrower and Triton
Limited shall cause their counsel (who shall be reasonably acceptable to the
Agent) to deliver to each Lender and the Agent a favorable opinion as to such
matters pertaining to Sections 3 and 4 hereof that are requested by the Agent.
7. Ratification of Credit Agreement. All terms and provisions of the
Credit Agreement are hereby ratified and reaffirmed and shall remain in full
force and effect without interruption, change, or impairment of any kind.
8. General.
(a) Applicable Law. This Consent has been delivered and accepted in,
and shall be a contract made under and governed by the laws of the State of
New York.
(b) Submission to Jurisdiction; Service of Process. Any legal action
or proceeding with respect to this Consent or any document related hereto may
be brought in the courts of the State of New York or of the United States of
America for the Southern District of New York, and, by execution and delivery
of this Consent, the Borrower and Triton Limited hereby accept for themselves
and in respect of their respective properties, generally and unconditionally,
the jurisdiction of the aforesaid courts. The parties hereto hereby
irrevocably waive any objection including, without limitation, any objection
to the laying of venue or based on the grounds of forum non conveniens, which
any of them may now or hereafter have to the bringing of any such action or
proceeding in such respective jurisdictions. The Borrower and Triton Limited
each irrevocably consents to the service of process of any of the aforesaid
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Borrower and, in the
case of Triton Limited, in care of the Borrower, at the Borrower's address
provided in the Credit Agreement. Nothing contained in this Section 8(b)
shall affect the right of the Agent, any Lender or any holder of a Revolving
Credit Note to serve process in any other manner permitted by law or commence
legal proceedings or otherwise proceed against the Borrower or Triton Limited
in any other jurisdiction.
(c) Binding Effect; Construction. This Consent shall be binding upon
and inure to the benefit of Borrower, Triton Limited and the Lenders and their
respective successors and assigns. This Consent is and shall be construed as
a Loan Document for all purposes.
(d) Payment of Expenses. Borrower and Triton Limited jointly and
severally agree to reimburse the Lenders for out-of-pocket expenses and will
pay fees of counsel on behalf of the Lenders reasonably incurred in the
preparation, and subsequent enforcement of this Consent.
(e) Headings. The Section and subsection headings of this Consent are
for convenience and shall not affect, limit or expand any term or provision
hereof.
(f) Counterparts. This Consent may be executed in as many
counterparts as may be deemed necessary or convenient, and each counterpart
shall be deemed an original. No one counterpart need be signed by all parties
hereto, but all such counterparts shall constitute but one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Consent,
Waiver and Guaranty to be executed and delivered at Dallas, Texas by their
duly authorized officers, to be deemed effective as of the Effective Date.
TRITON ENERGY CORPORATION
By: /s/Peter Rugg
Peter Rugg
Senior Vice President and
Chief Financial Officer
TRITON ENERGY LIMITED
By: /s/Robert B. Holland, III
Robert B. Holland, III
Senior Vice President
BANQUE PARIBAS HOUSTON AGENCY, as the Agent and as a
Lender
By: /s/Mark M. Green
Mark M. Green
Vice President
By: /s/Barton Schouest
Barton Schouest
Group Vice President
UNION BANK
By:
Name:
Title:
By:
Name:
Title:
MEESPIERSON N.V.
By:
Name:
Title:
CHEMICAL BANK
By:
Name:
Title:
Exhibit 10.41
Amendment No. 2 dated as of February 8, 1996 among Triton Colombia, Inc.
("Borrower"), Triton Energy Corporation ("Guarantor"), Nationsbank, N.A.
(Carolinas) ("Lender") and the Export-Import Bank of the United States, an
agency of the United States of America ("Eximbank").
WHEREAS, the Lender, Guarantor and Borrower have notified Eximbank that
they wish to amend the credit agreement among the Lender, Guarantor, Borrower
and Eximbank dated as of November 21, 1995 ("Credit Agreement") to extend the
Guaranteed Loan Final Disbursement Date and the Eligibility Date;
WHEREAS, Eximbank agrees to the extension of the Guaranteed Loan Final
Disbursement Date and Shipment Eligibility Date;
THEREFORE, in consideration of the premises and the noted agreement
contained herein, and for the other good and valuable consideration, the
receipt and sufficiency which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Capitalized Terms.
All Capitalized terms shall have the meaning set forth in the Credit.
Section 2. Amendment to the Credit.
Subject to, and effective upon the occurrence of the execution date of
Amendment No. 2, each party hereto agrees that the Credit shall be amended as
follows:
(a) The third line of Section 2.01 shall be deleted and replaced with the
following "Borrower to finance: the Finance Portion of the cost incurred on or
after January 1, 1993 by the".
(b) The third and fourth lines of Section 2.02 shall be deleted and replaced
with the following, "and including the Final Disbursement Date. Final
Disbursement Date shall mean either March 30, 1996 or, if earlier, the date on
which the Credit is canceled by either (i) the Borrower in accordance".
Section 3. Conditions to Effectiveness.
The amendments to the Credit Agreement set forth in Section 2 hereof shall
become effective, as of the date hereof, upon the satisfaction of the
following condition to effectiveness:
Amendment No. 2. Eximbank shall have received this Amendment, duly
executed and delivered by all parties.
Section 4. Documents Otherwise Unchanged. Credit Agreement. Except as
herein provided, the Agreement shall remain unchanged and in full force and
effect.
Section 5. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be identified and all of which, when taken
together, shall constitute one and the same instrument, and any of the parties
hereto may execute this Amendment by signing any such counterpart.
Section 6. Binding Effect. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
Section 7. Governing Law. This Amendment shall be deemed to be a contract
made under the law of the State of New York, United States of America,
applicable to contracts entered into and to be performed entirely within such
State, and for all Purposes shall be governed by and construed in accordance
with the law of such State.
<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed and delivered as of the date first above written.
TRITON COLOMBIA, INC.
By: /s/ Robert B. Holland, III
(Signature)
Name: Robert B. Holland, III
(Print)
Title: Vice President
(Print)
TRITON ENERGY CORPORATION
By: /s/ Robert B. Holland, III
(Signature)
Name: Robert B. Holland, III
(Print)
Title: Senior Vice President
(Print)
NATIONSBANK, N.A. (CAROLINAS)
By: /s/ Kathleen M. Gibson
Kathleen M. Gibson
Senior Vice President
EXPORT-IMPORT BANK OF THE UNITED STATES
By:
(Signature)
Name:
(Print)
Title:
(Print)
Eximbank Guarantee No. AP065758XX-Colombia
Exhibit 11.1
TRITON ENERGY LIMITED AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER ORDINARY SHARE
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
<S> <C> <C>
THREE MONTHS ENDED
MARCH 31,
------------------------------
1996 1995
-------------------- --------
PRIMARY COMPUTATION:
Earnings (loss) from continuing operations $ 11,351 $ (353)
Dividends on preference shares (772) (449)
-------------------- --------
Earnings (loss) from continuing operations
applicable to ordinary shares 10,579 (802)
Loss from discontinued operations --- (1,202)
-------------------- --------
Net earnings (loss) applicable to ordinary shares $ 10,579 $(2,004)
-------------------- --------
Shares:
Average number of ordinary shares outstanding 35,410 34,984
Additional shares assuming conversion of
stock options and convertible debentures 1,213 145
-------------------- --------
Average ordinary and equivalent shares outstanding 36,623 35,129
-------------------- --------
PRIMARY EARNINGS (LOSS) PER ORDINARY SHARE:
Continuing operations $ 0.29 $ (0.02)
Discontinued operations --- (0.04)
-------------------- --------
Net earnings (loss) $ 0.29 $ (0.06)
-------------------- --------
FULLY DILUTED COMPUTATION:*
Earnings (loss) from continuing operations $ 11,351 $ (353)
Net interest expense related to convertible debt 196 205
-------------------- --------
Adjusted earnings (loss) from continuing operations
applicable to ordinary shares 11,547 (148)
Loss from discontinued operations --- (1,202)
-------------------- --------
Net earnings (loss) applicable to ordinary shares as adjusted $ 11,547 $(1,350)
-------------------- --------
Shares:
Average number of ordinary shares outstanding 35,410 34,984
Additional shares assuming conversion of:
Stock options and convertible debentures 1,304 193
Preference shares 257 522
Convertible debt 556 556
-------------------- --------
Average ordinary and equivalent shares
outstanding as adjusted 37,527 36,255
-------------------- --------
FULLY DILUTED EARNINGS (LOSS) PER ORDINARY SHARE:
Continuing operations $ 0.31 $ (0.01)
Discontinued operations --- (0.03)
-------------------- --------
Net earnings (loss) $ 0.31 $ (0.04)
-------------------- --------
</TABLE>
*This calculation is submitted in accordance with Regulation S-K item
601(b)(11) although it is contrary to paragraph 40 of APB Opinion No. 15
because it produces an anti-dilutive result.
Exhibit 12.1
TRITON ENERGY LIMITED AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
SEVEN MONTHS
THREE MONTHS ENDED YEAR ENDED ENDED
MARCH 31, DEC. 31, DEC. 31,
------------------------------ ------------ --------------
1996 1995 1995 1994
-------------------- -------- ------------ --------------
Fixed charges, as defined (1):
Interest charges $ 11,106 $ 9,586 $ 41,305 $ 20,285
Preferred dividend requirements of
subsidiaries adjusted to pre-tax basis --- --- --- ---
-------------------- -------- ------------ --------------
Total fixed charges 11,106 9,586 41,305 20,285
-------------------- -------- ------------ --------------
Earnings, as defined (1) (3):
Earnings (loss) from continuing operations
before income taxes, minority interest,
extraordinary item and cumulative effect of
accounting change 12,044 2,424 16,600 (22,834)
Fixed charges, above 11,106 9,586 41,305 20,285
Less interest capitalized (5,182) (3,766) (16,211) (11,833)
Plus undistributed (earnings) loss of affiliates 46 (2,927) 2,249 4,102
Less preferred dividend requirements of
subsidiaries adjusted to pre-tax basis --- --- --- ---
-------------------- -------- ------------ --------------
$ 18,014 $ 5,317 $ 43,943 $ (10,280)
-------------------- -------- ------------ --------------
RATIO OF EARNINGS TO FIXED CHARGES (2) (3) 1.6 --- 1.1 ---
-------------------- -------- ------------ --------------
<S> <C> <C> <C> <C>
YEARS ENDED MAY 31,
------------------------------------------------------
1994 1993 1992 1991
--------------------- ---------- --------- --------
Fixed charges, as defined (1):
Interest charges $ 26,951 $ 16,336 $ 11,066 $28,056
Preferred dividend requirements of
subsidiaries adjusted to pre-tax basis 364 1,551 1,780 2,330
--------------------- ---------- --------- --------
Total fixed charges 27,315 17,887 12,846 30,386
--------------------- ---------- --------- --------
Earnings, as defined (1) (3):
Earnings (loss) from continuing operations
before income taxes, minority interest,
extraordinary item and cumulative effect of
accounting change (23,104) (147,445) (87,124) 21,054
Fixed charges, above 27,315 17,887 12,846 30,386
Less interest capitalized (16,863) (6,407) (6,529) (5,879)
Plus undistributed (earnings) loss of affiliates (645) 3,012 2,558 (2,604)
Less preferred dividend requirements of
subsidiaries adjusted to pre-tax basis (364) (1,551) (1,780) (2,330)
--------------------- ---------- --------- --------
$ (13,661) $(134,504) $(80,029) $40,627
--------------------- ---------- --------- --------
RATIO OF EARNINGS TO FIXED CHARGES (2) (3) --- --- --- 1.3
--------------------- ---------- --------- --------
</TABLE>
(1) Earnings include the Company's equity in the losses of an affiliate
whose debt is guaranteed by the Company. Related interest charges for the
years ended May 31, 1992 and 1991 of $819,000 and $802,000, respectively,
were excluded from fixed charges due to the improbability that such
guarantees would be honored.
(2) Earnings were inadequate to cover fixed charges for the three months
ended March 31, 1995 by $4,269,000, for the seven months ended December 31,
1994 by $30,565,000 and for the years ended May 31, 1994, 1993 and 1992 by
$40,976,000, $152,391,000 and $92,875,000, respectively.
(3) Earnings reflect nonrecurring writedowns and loss provisions of
$350,000 for the three months ended March 31, 1996, $1,058,000 for the year
ended December 31, 1995, $984,000 for the seven months ended December 31,
1994 and $45,754,000, $99,883,000, $48,805,000 and $2,708,000 for the years
ended May 31, 1994, 1993, 1992 and 1991, respectively. Nonrecurring gains
from the sale of assets and other gains aggregated $4,150,000 and $1,875,000
for the three months ended March 31, 1996 and 1995, respectively,
$13,617,000, $56,193,000 and $28,351,000 for the years ended December 31,
1995, May 31, 1994 and 1991, respectively. The ratio of earnings to fixed
charges if adjusted to remove nonrecurring items, would have been 0.8 and 0.6
for the years ended December 31, 1995 and May 31, 1991, respectively.
Without nonrecurring items, earnings would have been inadequate to cover
fixed charges for the three months ended March 31, 1995 by $6,144,000, for
the year ended December 31, 1995 by $9,921,000, for the seven months ended
December 31, 1994 by $29,581,000 and for the years ended May 31, 1994, 1993,
1992 and 1991 by $51,415,000, $45,183,000, $32,301,000 and $11,906,000,
respectively.
Exhibit 12.2
TRITON ENERGY LIMITED AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERENCE
DIVIDENDS
(IN THOUSANDS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
SEVEN MONTHS
THREE MONTHS ENDED YEAR ENDED ENDED
MARCH 31, DEC. 31, DEC. 31,
------------------------------ ------------ --------------
1996 1995 1995 1994
-------------------- -------- ------------ --------------
Fixed charges, as defined (1):
Interest charges $ 11,106 $ 9,586 $ 41,305 $ 20,285
Preference dividend requirements of the Company 772 449 802 449
Preferred dividend requirements of subsidiaries
adjusted to pre-tax basis --- --- --- ---
-------------------- -------- ------------ --------------
Total fixed charges 11,878 10,035 42,107 20,734
-------------------- -------- ------------ --------------
Earnings, as defined (1) (3):
Earnings (loss) from continuing operations
before income taxes, minority interest,
extraordinary item and cumulative effect of
accounting change 12,044 2,424 16,600 (22,834)
Fixed charges, above 11,878 10,035 42,107 20,734
Less interest capitalized (5,182) (3,766) (16,211) (11,833)
Plus undistributed (earnings) loss of affiliates 46 (2,927) 2,249 4,102
Less preference dividend requirements of the
Company and its subsidiaries adjusted to pre-tax basis (772) (449) (802) (449)
-------------------- -------- ------------ --------------
$ 18,014 $ 5,317 $ 43,943 $ (10,280)
-------------------- -------- ------------ --------------
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERENCE DIVIDENDS (2) (3) 1.5 --- 1.0 ---
-------------------- -------- ------------ --------------
<S> <C> <C> <C> <C>
YEARS ENDED MAY 31,
------------------------------------------------------
1994 1993 1992 1991
--------------------- ---------- --------- --------
Fixed charges, as defined (1):
Interest charges $ 26,951 $ 16,336 $ 11,066 $28,056
Preference dividend requirements of the Company --- --- 1,386 5,546
Preferred dividend requirements of subsidiaries
adjusted to pre-tax basis 364 1,551 1,780 2,330
--------------------- ---------- --------- --------
Total fixed charges 27,315 17,887 14,232 35,932
--------------------- ---------- --------- --------
Earnings, as defined (1) (3):
Earnings (loss) from continuing operations
before income taxes, minority interest,
extraordinary item and cumulative effect of
accounting change (23,104) (147,445) (87,124) 21,054
Fixed charges, above 27,315 17,887 14,232 35,932
Less interest capitalized (16,863) (6,407) (6,529) (5,879)
Plus undistributed (earnings) loss of affiliates (645) 3,012 2,558 (2,604)
Less preference dividend requirements of the
Company and its subsidiaries adjusted to pre-tax basis (364) (1,551) (3,166) (7,876)
--------------------- ---------- --------- --------
$ (13,661) $(134,504) $(80,029) $40,627
--------------------- ---------- --------- --------
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERENCE DIVIDENDS (2) (3) --- --- --- 1.1
--------------------- ---------- --------- --------
</TABLE>
(1) Earnings include the Company's equity in the losses of an affiliate
whose debt is guaranteed by the Company. Related interest charges for the
years ended May 31, 1992 and 1991 of $819,000 and $802,000, respectively,
were excluded from fixed charges due to the improbability that such
guarantees would be honored.
(2) Earnings were inadequate to cover fixed charges and preference
dividends for the three months ended March 31, 1995 by $4,718,000, for the
seven months ended December 31, 1994 by $31,014,000 and for the years ended
May 31, 1994, 1993 and 1992 by $40,976,000, $152,391,000 and $94,261,000,
respectively.
(3) Earnings reflect nonrecurring writedowns and loss provisions of
$350,000 for the three months ended March 31, 1996, $1,058,000 for the year
ended December 31, 1995, $984,000 for the seven months ended December 31,
1994 and $45,754,000, $99,883,000, $48,805,000 and $2,708,000, for the years
ended May 31, 1994, 1993, 1992 and 1991, respectively. Nonrecurring gains
from the sales of assets and other gains aggregated $4,150,000 and
$1,875,000 for the three months ended March 31, 1996 and 1995, respectively,
$13,617,000, $56,193,000 and $28,351,000 for the years ended December 31,
1995, May 31, 1994 and 1991, respectively. The ratio of earnings to combined
fixed charges and preference dividends if adjusted to remove nonrecurring
items would have been 0.7 and 0.5 for the years ended December 31, 1995 and
May 31, 1991, respectively. Without nonrecurring items, earnings would have
been inadequate to cover fixed charges and preference dividends for the three
months ended March 31, 1995 by $6,593,000, for the year ended December 31,
1995 by $10,723,000, for the seven months ended December 31, 1994 by
$30,030,000 and for the years ended May 31, 1994, 1993, 1992 and 1991 by
$51,415,000, $45,183,000, $33,687,000 and $17,452,000, respectively.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM MAR-31-1996
FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> MAR-31-1996
<CASH> 48,481
<SECURITIES> 26,509
<RECEIVABLES> 36,168
<ALLOWANCES> 810
<INVENTORY> 1,793
<CURRENT-ASSETS> 115,043
<PP&E> 632,408
<DEPRECIATION> 87,470
<TOTAL-ASSETS> 845,446
<CURRENT-LIABILITIES> 44,267
<BONDS> 0
0
8,840
<COMMON> 361
<OTHER-SE> 248,794
<TOTAL-LIABILITY-AND-EQUITY> 845,446
<SALES> 35,781
<TOTAL-REVENUES> 35,781
<CGS> 9,541
<TOTAL-COSTS> 9,541
<OTHER-EXPENSES> 6,401
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (5,698)
<INCOME-PRETAX> 12,044
<INCOME-TAX> 693
<INCOME-CONTINUING> 11,351
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 11,351
<EPS-PRIMARY> 0.29
<EPS-DILUTED> 0.29
</TABLE>
