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 JUNE 30, 1997
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)
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CAYMAN ISLANDS NONE
- ----------------------------- -------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
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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: (345) 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 August 1, 1997
- ------------------------------------------ ------------------------------
Ordinary Shares, par value $0.01 per share 36,533,637
- ------------------------------------------ ------------------------------
</TABLE>
<PAGE>
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 and six months ended June 30, 1997 and 1996 2
Condensed Consolidated Balance Sheets -
June 30, 1997 and December 31, 1996 3
Condensed Consolidated Statements of Cash Flows -
Six months ended June 30, 1997 and 1996 4
Condensed Consolidated Statement of Shareholders' Equity -
Six months ended June 30, 1997 5
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 16
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 23
Item 4. Submission of Matters to a Vote of Security Holders 24
Item 6. Exhibits and Reports on Form 8-K 25
</TABLE>
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
TRITON ENERGY LIMITED AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
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THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
------------------ ----------------------------
1997 1996 1997 1996
--------- -------- --------- --------
SALES AND OTHER OPERATING REVENUES:
Oil and gas sales $ 28,492 $31,170 $ 62,251 $62,769
Other operating revenues 4,077 --- 4,077 4,182
--------- -------- --------- --------
32,569 31,170 66,328 66,951
--------- -------- --------- --------
COSTS AND EXPENSES:
Operating 10,912 9,622 22,133 19,163
General and administrative 7,788 6,777 13,492 14,461
Depreciation, depletion and amortization 8,012 5,663 15,455 12,064
--------- -------- --------- --------
26,712 22,062 51,080 45,688
--------- -------- --------- --------
OPERATING INCOME 5,857 9,108 15,248 21,263
Interest income 2,411 1,877 3,316 3,711
Interest expense (7,223) (4,294) (12,249) (9,992)
Other income, net 1,163 8,003 306 11,756
--------- -------- --------- --------
(3,649) 5,586 (8,627) 5,475
--------- -------- --------- --------
EARNINGS BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM 2,208 14,694 6,621 26,738
Income tax expense 2,516 1,998 3,443 2,691
--------- -------- --------- --------
EARNINGS (LOSS) BEFORE EXTRAORDINARY ITEM (308) 12,696 3,178 24,047
Extraordinary item - extinguishment of debt (14,491) (434) (14,491) (434)
--------- -------- --------- --------
NET EARNINGS (LOSS) (14,799) 12,262 (11,313) 23,613
Dividends on preference shares --- --- 213 772
--------- -------- --------- --------
EARNINGS (LOSS) APPLICABLE TO ORDINARY SHARES $(14,799) $12,262 $(11,526) $22,841
--------- -------- --------- --------
Average ordinary and equivalent shares outstanding 36,910 36,733 36,981 36,669
--------- -------- --------- --------
EARNINGS (LOSS) PER ORDINARY SHARE:
Earnings (loss) before extraordinary item $ (0.01) $ 0.34 $ 0.08 $ 0.63
Extraordinary item - extinguishment of debt (0.39) (0.01) (0.39) (0.01)
--------- -------- --------- --------
NET EARNINGS (LOSS) $ (0.40) $ 0.33 $ (0.31) $ 0.62
--------- -------- --------- --------
.
See accompanying Notes to Condensed Consolidated Financial Statements.
<PAGE>
TRITON ENERGY LIMITED AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
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ASSETS JUNE 30, DECEMBER 31,
1997 1996
----------- --------------
(Unaudited)
Current assets:
Cash and equivalents $ 24,079 $ 11,048
Short-term marketable securities 653 3,866
Trade receivables, net 8,583 11,526
Other receivables 42,911 49,000
Inventories, prepaid expenses and other 6,585 8,920
----------- --------------
Total current assets 82,811 84,360
Property and equipment at cost, less accumulated depreciation and
depletion of $68,995 and $96,421, respectively 761,504 676,833
Investments and other assets 166,624 153,331
----------- --------------
$1,010,939 $ 914,524
----------- --------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Short-term borrowings and current maturities of long-term debt $ 60,637 $ 199,552
Accounts payable and accrued liabilities 45,372 38,545
Deferred income 35,254 28,466
----------- --------------
Total current liabilities 141,263 266,563
Long-term debt, excluding current maturities 461,113 217,078
Deferred income taxes 47,717 45,431
Deferred income and other 67,378 84,808
Convertible debentures due to employees --- ---
Shareholders' equity:
Preference shares 7,511 8,515
Ordinary shares, par value $0.01 365 363
Additional paid-in capital 587,934 582,581
Accumulated deficit (299,998) (288,685)
Other (2,342) (2,128)
----------- --------------
293,470 300,646
Less cost of ordinary shares in treasury 2 2
----------- --------------
Total shareholders' equity 293,468 300,644
Commitments and contingencies (note 6) --- ---
----------- --------------
$1,010,939 $ 914,524
----------- --------------
</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
SIX MONTHS ENDED JUNE 30, 1997 AND 1996
(IN THOUSANDS)
(UNAUDITED)
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1997 1996
---------- ----------
Cash flows from operating activities:
Net earnings (loss) $ (11,313) $ 23,613
Adjustments to reconcile net earnings to net cash provided
by operating activities:
Depreciation, depletion and amortization 15,455 12,064
Amortization of debt discount 7,937 9,992
Amortization of unearned revenue (10,839) (4,053)
Gain on sale of assets (4,077) (4,172)
Payment of accreted interest on extinguishment of debt (124,794) ---
Extraordinary loss on extinguishment of debt, net of tax 14,491 434
Deferred income taxes and other 5,697 (718)
Changes in working capital pertaining to operating activities 17,627 14,073
---------- ----------
Net cash provided (used) by operating activities (89,816) 51,233
---------- ----------
Cash flows from investing activities:
Capital expenditures and investments (107,526) (121,214)
Proceeds from sales of marketable securities 2,000 30,007
Proceeds from sales of assets 4,077 25,409
Other (2,027) (1,321)
---------- ----------
Net cash used by investing activities (103,476) (67,119)
---------- ----------
Cash flows from financing activities:
Short-term borrowings, net 10,000 ---
Proceeds from long-term debt 508,880 43,601
Payments on long-term debt (316,140) (49,295)
Issuance of ordinary shares 4,336 3,111
Other (201) (781)
---------- ----------
Net cash provided (used) by financing activities 206,875 (3,364)
---------- ----------
Effect of exchange rate changes on cash and equivalents (552) (515)
---------- ----------
Net increase (decrease) in cash and equivalents 13,031 (19,765)
Cash and equivalents at beginning of period 11,048 49,050
---------- ----------
Cash and equivalents at end of period $ 24,079 $ 29,285
---------- ----------
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
<PAGE>
TRITON ENERGY LIMITED AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
SIX MONTHS ENDED JUNE 30, 1997
(IN THOUSANDS)
(UNAUDITED)
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ADDITIONAL
PREFERENCE ORDINARY PAID-IN ACCUMULATED
SHARES SHARES CAPITAL DEFICIT
---------- --------- ----------- -----------
Balance at
December 31, 1996 $ 8,515 $363 $582,581 $(288,685)
Net loss --- --- --- (11,313)
Dividends on preference shares --- --- (213) ---
Conversion of preference shares (1,004) --- 1,004 ---
Exercise of employee stock
options and debentures --- 2 3,599 ---
Other --- --- 963 ---
-------- ---- --------- ----------
Balance at June 30, 1997 $ 7,511 $365 $ 587,934 $(299,998)
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TOTAL
TREASURY SHAREHOLDERS'
OTHER SHARES EQUITY
----- -------- -------------
Balance at
December 31, 1996 $(2,128) $ (2) $300,644
Net loss --- --- (11,313)
Dividends on preference shares --- --- (213)
Conversion of preference shares --- --- ---
Exercise of employee stock
options and debentures --- --- 3,601
Other (214) --- 749
-------- ----- ---------
Balance at June 30, 1997 $(2,342) $ (2) $293,468
-------- ----- ---------
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
<PAGE>
TRITON ENERGY LIMITED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. GENERAL
Triton Energy Limited ("Triton") is an international oil and gas exploration
and production company. The term "Company" when used herein means Triton and
its subsidiaries and other affiliates through which the Company conducts its
business. The Company's principal properties, operations and oil and gas
reserves are located in Colombia and Malaysia-Thailand. All sales are
currently derived from oil and gas production in Colombia. The Company also
has oil and gas interests in other Latin American, African, Asian and European
countries.
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 June 30, 1997, and the results of its operations for the three
and six months ended June 30, 1997 and 1996, its cash flows for the six months
ended June 30, 1997 and 1996, and shareholders' equity for the six months
ended June 30, 1997. The results of operations for the three and six months
ended June 30, 1997, is 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 the Company's Annual Report on Form 10-K for the year ended December
31, 1996.
Certain other previously reported financial information has been reclassified
to conform to the current period's presentation.
2. ASSET DISPOSITIONS
In June 1997, the Company sold its Argentine subsidiary for cash proceeds of
$4.1 million and recognized a gain of $4.1 million in other operating
revenues.
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.
3. CASH RECEIPT FROM SETTLEMENT OF LITIGATION
In the six months ended June 30, 1996, the Company received cash of $7.6
million for settlement of litigation in which the Company was plaintiff. The
settlement was recorded in other income.
<PAGE>
4. DEBT
In April 1997, the Company issued $400 million aggregate face value of senior
indebtedness to refinance other indebtedness. The senior indebtedness
consisted of $200 million face amount of 8 3/4% Senior Notes due April 15,
2002, (the "2002 Notes") at 99.942% of the principal amount (resulting in
$199.9 million aggregate net proceeds) and $200 million face amount of 9 1/4%
Senior Notes due April 15, 2005, (the "2005 Notes" and, together with the 2002
Notes, the "Senior Notes") at 100% of the principal amount, for total
aggregate net proceeds of $399.9 before deducting transaction costs of
approximately $1 million.
Interest on the Senior Notes is payable semi-annually on each April 15 and
October 15, commencing October 15, 1997. The Senior Notes are redeemable at
any time at the option of the Company in whole or in part and contain certain
covenants limiting the incurrence of certain liens, sale/leaseback
transactions, and mergers and consolidations.
In May and June 1997, the Company completed a tender offer and consent
solicitation with respect to its Senior Subordinated Discount Notes due
November 1, 1997 ("1997 Notes") and 9 3/4% Senior Subordinated Discount Notes
due December 15, 2000 ("9 3/4% Notes") that resulted in the retirement of the
1997 Notes and substantially all of the 9 3/4% Notes.
The Company's results of operations for the three months ended June 30, 1997,
included an extraordinary expense of $14.5 million, net of a $7.8 million tax
benefit, associated with the extinguishment of the 1997 Notes and 9 3/4%
Notes.
5. PETROLEUM PRICE RISK MANAGEMENT
Oil sold by the Company is normally priced with reference to a defined
benchmark, such as light sweet crude oil traded on the New York Mercantile
Exchange. Actual prices received vary from the benchmark depending on quality
and location differentials. It is the Company's policy to use financial
market transactions with creditworthy counterparties from time to time,
primarily to reduce risk associated with the pricing of a portion of the oil
that it sells. The policy is structured to underpin the Company's planned
revenues and results of operations. The Company also may enter into financial
market transactions to benefit from its assessment of the future prices of its
production relative to other benchmark prices. There can be no assurance that
the use of financial market transactions will not result in losses.
With respect to the sale of oil to be produced by the Company, the Company has
used a combination of swaps, options and collars to establish a minimum
weighted average West Texas Intermediate ("WTI") benchmark price of $19 per
barrel for an aggregate of 300,000 barrels of production during the period
from July through December 1997. As a result, to the extent WTI prices exceed
the minimum WTI benchmark price during each month within the period, the
Company will be able to sell its production at the higher market price and, to
the extent that WTI prices are below the minimum WTI benchmark price, the
Company will be able to realize prices related to the minimum WTI benchmark
price on its hedged production.
In anticipation of entering into a forward oil sale, the Company purchased WTI
benchmark call options to retain the ability to benefit from future WTI price
increases above a weighted average price of $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. During the three and six months ended
June 30, 1997, the Company recorded an unrealized loss of $.7 million and $4
million, respectively, in other income, net 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.
During the six months ended June 30, 1997, markets provided the Company the
opportunity to realize WTI benchmark oil prices on average $3.34 per barrel
(excluding forward oil sale barrels) above the WTI benchmark oil price the
Company set as part of its 1997 annual plan. As a result of financial and
commodity market transactions settled during the six months ended June 30,
1997, the Company's risk management program resulted in an average net
realization of approximately $.23 per barrel lower than if the Company had not
entered into such transactions.
6. COMMITMENTS AND CONTINGENCIES
Development of the Cusiana and Cupiagua fields ("the Fields") in Colombia,
including drilling and construction of additional production facilities, will
require further capital outlays. Further exploration and development
activities on Block A-18 in the Malaysia-Thailand Joint Development Area, as
well as exploratory drilling in other countries, also will require substantial
capital outlays. The Company's capital budget for the year ending December
31, 1997, is approximately $310 million, excluding capitalized interest, of
which approximately $150 million relates to the Fields and capital
contributions to Oleoducto Central S.A. ("OCENSA"), $95 million relates to
Block A-18, and $65 million relates to the Company's exploration and drilling
program in other parts of the world. Capital requirements for exploration and
development relating to Block A-18 are expected to increase significantly into
1998. In addition, because development of Block A-18 will not commence until
a heads of agreement for a definitive gas-sales contract is signed, a portion
of the capital expenditures relating to Block A-18 planned for 1997 will not
be spent until 1998.
The Company expects to meet capital needs in the future with a combination of
some or all of the following: the Company's credit facilities, cash flow from
operations, cash and marketable securities, asset sales, and the issuance of
debt and equity securities.
<PAGE>
GUARANTEES
At June 30, 1997, the Company had guaranteed loans of approximately $4.5
million for a Colombian pipeline company in which the Company has an ownership
interest and guaranteed performance of $7.8 million in future exploration
expenditures in various countries. These commitments are backed primarily by
unsecured letters of credit and bank guarantees.
LITIGATION
As disclosed in the Company's Annual Report on Form 10-K for the year ended
December 31, 1996, the Company and subsidiaries or former subsidiaries of the
Company, including Triton Oil & Gas Corp., are among numerous defendants in
three related lawsuits brought in the Superior Court of the State of
California, County of Los Angeles, by (i) National Union Fire Insurance
Company ("National Union") and The Restaurant Enterprises Group, (ii)
Travelers Indemnity Company ("Travelers") and (iii) the City of Redondo Beach.
All three lawsuits arise out of a 1988 storm and tidal wave at King Harbor in
Redondo Beach, California. The lawsuits allege, among other things, that the
defendants' negligence contributed to the collapse of a hotel and the flooding
of a restaurant by extracting fluids from nearby oil wells which allegedly
resulted in ground subsidence and lowered the height of the King Harbor
breakwater. The Travelers lawsuit asserts damages in excess of $14.6 million
and the National Union lawsuit asserts damages in excess of $4.75 million. In
a separate lawsuit against the Army Corp of Engineers, a federal court found
Travelers' damages to be $6.7 million and National Union's damages to be $3.7
million. The federal court's ruling was reversed in May 1997 by the United
States Court of Appeals for the Ninth Circuit on grounds that the Army Corp of
Engineers was immune from liability. An agreement in principle to settle the
National Union lawsuit against the Company's affiliates and the other
defendants has since been reached. Final settlement of this lawsuit is
subject to negotiation and execution of definitive settlement documents.
The City of Redondo Beach lawsuit asserts damages in excess of $13.2 million,
including indemnity for amounts it paid to settle the foregoing lawsuits and
other claims arising out of the flooding. The two remaining lawsuits have
been consolidated for trial, which has been set for October 1997. The Company
believes that it and its subsidiaries have meritorious defenses and intends to
defend the suits vigorously.
The Company is also subject to other various litigation matters, none of which
is expected to have a material, adverse effect on the Company's operations or
consolidated financial condition.
<PAGE>
7. TRITON ENERGY CORPORATION FINANCIAL INFORMATION
Triton and its wholly owned subsidiary Triton Energy Corporation ("TEC"),
issued on a joint-and-several basis, the Senior Notes. The Company has not
presented separate financial statements and other disclosures concerning TEC,
because management has determined that such information is not material to
debt security holders. The following table sets forth certain summarized
financial information of TEC and its subsidiaries (in thousands):
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JUNE 30, DECEMBER 31,
1997 1996
-------- ------------
Current assets $ 68,706 $ 69,783
Noncurrent assets 1,050,054 946,592
---------- ----------
Total $1,118,760 $1,016,375
---------- ----------
Current liabilities $ 122,654 $ 247,811
Noncurrent liabilities 612,158 379,294
Stockholders' equity 383,948 389,270
---------- ----------
Total $1,118,760 $1,016,375
---------- ----------
</TABLE>
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THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
------------------ ----------------
1997 1996 1997 1996
--------- -------- --------- --------
Sales and other operating revenues $ 27,150 $31,170 $ 58,777 $66,951
Costs and expenses 20,501 14,248 39,861 37,874
--------- -------- --------- --------
Operating income 6,649 16,922 18,916 29,077
Other income (expense), net (1,001) 4,578 (3,422) 4,467
--------- -------- --------- --------
Earnings before income taxes
and extraordinary item 5,648 21,500 15,494 33,544
Income tax expense 3,436 676 5,354 1,369
--------- -------- --------- --------
Earnings before extraordinary item 2,212 20,824 10,140 32,175
Extraordinary item (14,491) (434) (14,491) (434)
--------- -------- --------- --------
Net earnings (loss) $(12,279) $20,390 $ (4,351) $31,741
--------- -------- --------- --------
</TABLE>
8. 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 heads of agreement to a gas-sales contract and a
gas-sales 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 amount by which production from the
Cusiana and Cupiagua fields may increase or when such increased production may
commence, the Company's realization of its deferred tax asset, the level of
future expenditures for environmental costs, the outcome of regulatory and
litigation matters, and proven oil and gas reserves and discounted future net
cash flows therefrom; 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 these prospects contain significant oil and gas reserves or that
the Company will be successful in its exploration activities thereon. The
Company follows the full cost method of accounting for exploration and
development of oil and gas reserves whereby all acquisition, exploration and
development costs are capitalized. Costs related to acquisition, holding and
initial exploration of licenses in countries with no proved reserves are
initially capitalized, including internal costs directly identified with
acquisition, exploration and development activities. The Company's
exploration licenses are periodically assessed for impairment on a
country-by-country basis. If the Company's investment in exploration licenses
within a country where no proved reserves are assigned is deemed to be
impaired, the licenses are written down to estimated recoverable value. If
the Company abandons all exploration efforts in a country where no proved
reserves are assigned, all exploration costs associated with the country are
expensed. The Company's assessments of whether its investment within a
country is impaired and whether exploration activities within a country will
be abandoned are made from time to time based on its review and assessment of
drilling results, seismic data and other information it deems relevant. Due
to the unpredictable nature of exploration drilling activities, the amount and
timing of impairment expense are difficult to predict with any certainty.
Financial information concerning the Company's assets at December 31, 1996,
including capitalized costs by geographic area, is set forth in note 23 of
Notes to Consolidated Financial Statements in Triton's Annual Report on Form
10-K for the year ended December 31, 1996.
The markets for oil and natural gas historically have been volatile and are
likely to continue to be volatile in the future. Oil and natural-gas prices
have been subject to significant fluctuations during the past several decades
in response to relatively minor changes in the supply of and demand for oil
and natural gas, market uncertainty and a variety of additional factors that
are beyond the control of the Company. These factors include the level of
consumer product demand, weather conditions, domestic and foreign government
regulations, political conditions in the Middle East and other production
areas, the foreign supply of oil and natural gas, the price and availability
of alternative fuels, and overall economic conditions. It is impossible to
predict future oil and gas price movements with any certainty.
The Company's oil and gas business is also subject to all of the operating
risks normally associated with the exploration for and production of oil and
gas, including, without limitation, blowouts, cratering, pollution,
earthquakes, labor disruptions and fires, each of which could result in
substantial losses to the Company due to injury or loss of life and damage to
or destruction of oil and gas wells, formations, production facilities or
other properties. 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. There can be no assurance that any insurance will be adequate to
cover losses or liabilities. The Company cannot predict the continued
availability of insurance, or its availability at premium levels that justify
its purchase.
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. Many jurisdictions have at
various times imposed limitations on the production of natural gas and oil by
restricting the rate of flow for oil and natural-gas wells below their actual
capacity. There can be no assurance that present or future regulation will
not adversely affect the operations of the Company.
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
consolidated results of operations, cash flows or financial position.
Pollution and similar environmental risks generally are not fully insurable.
<PAGE>
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 U.S. 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.
CERTAIN FACTORS RELATING TO COLOMBIA
The Company is a participant in significant oil and gas discoveries in the
Cusiana and Cupiagua fields, located approximately 160 kilometers (100 miles)
northeast of Bogota, Colombia. Development of reserves in the Cusiana and
Cupiagua fields is ongoing and will require additional drilling and completion
of the production facilities currently under construction. The Company
expects that the production facilities will be completed in early 1998.
Pipelines connect the major producing fields in Colombia to export facilities
and to refineries. The upgrades to these pipelines to accommodate production
from the Cusiana and Cupiagua fields are expected to be completed by the end
of 1997.
From time to time, guerrilla activity in Colombia has disrupted the operation
of oil and gas projects causing increased costs. Such activity has increased
in 1997 causing delays in the development of the Cupiagua field. Although the
Colombian government, the Company and its partners have taken steps to
maintain security and favorable relations with the local population, there can
be no assurance that attempts to reduce or prevent guerrilla activity will be
successful or that guerrilla activity will not disrupt operations in the
future.
Colombia is among several 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 1997, 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, has been or will be suspended; the Export-Import Bank of the
United States and the Overseas Private Investment Corporation will not approve
financing for new projects in Colombia; 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. Each of these consequences of the failure to receive such
certification could result in adverse economic consequences in Colombia and
could further heighten the political and economic risks associated with the
Company's operations in Colombia. 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.
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 as a contractor
under a production-sharing contract covering Block A-18 of the
Malaysia-Thailand Joint Development Area. Test results to date indicate that
significant gas and oil deposits lie within 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 under which any gas produced from the Company's contract area in
Malaysia-Thailand is 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 of transportation within
Thailand and its territorial waters.
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.
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.
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.
9. SUBSEQUENT EVENT
In July 1997, TEC was released as co-obligor of the Senior Notes in accordance
with the terms of the indentures under which the Senior Notes were issued.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
LIQUIDITY AND CAPITAL REQUIREMENTS
----------------------------------
Cash, cash equivalents and marketable securities totaled $24.7 million
and $14.9 million at June 30, 1997, and December 31, 1996, respectively.
Working capital (deficit) was ($58.5 million) at June 30, 1997, an improvement
of $123.7 million from December 31, 1996. The reduction of the working
capital deficit primarily resulted from the retirement of the Company's Senior
Subordinated Discount Notes due November 1, 1997 (the "1997 Notes"), which had
been classified as a current liability at December 31, 1996. At June 30,
1997, and December 31, 1996, current liabilities included deferred income
totaling $35.2 million and $28.5 million, respectively, related to a forward
oil sale consummated in May 1995.
In April 1997, the Company issued $400 million aggregate face value of
senior indebtedness to refinance other indebtedness. The senior indebtedness
consisted of a $200 million face amount of 8 3/4% Senior Notes due April 15,
2002, (the "2002 Notes") at 99.942% of the principal amount (resulting in
$199.9 million aggregate net proceeds) and a $200 million face amount of
9 1/4% Senior Notes due April 15, 2005, (the "2005 Notes" and together with
the 2002 Notes, the "Senior Notes") at 100% of the principal amount for total
aggregate net proceeds of $399.9 million before deducting transaction
costs of approximately $1 million.
In May and June 1997, the Company completed a tender offer and consent
solicitation with respect to the 1997 Notes and 9 3/4% Senior Subordinated
Discount Notes due December 15, 2000 ("9 3/4% Notes") that resulted in the
retirement of the 1997 Notes and substantially all of the 9 3/4% Notes. The
Company's cash flows from operating activities for the period were reduced by
$124.8 million, which was attributable to the interest accreted in respect of
the 1997 Notes and the 9 3/4% Notes through the date of retirement.
The Company's capital expenditures and other capital investments were
$107.5 million for the six months ended June 30, 1997, primarily for
development of the Cusiana and Cupiagua fields (the "Fields") in Colombia and
exploration in Block A-18 in the Malaysia-Thailand Joint Development Area in
the Gulf of Thailand. The capital spending program for the six months ended
June 30, 1997, was funded primarily with cash flow from operations and
borrowings under the Company's credit facilities.
Development of the Fields, including drilling and construction of
additional production facilities, will require further capital outlays.
Further exploration and development activities on Block A-18, as well as
exploratory drilling in other countries, also will require substantial capital
outlays. The Company's capital budget for the year ending December 31, 1997,
is approximately $310 million, excluding capitalized interest, of which
approximately $150 million relates to the Fields and capital contributions to
Oleoducto Central S.A. ("OCENSA"), $95 million relates to Block A-18, and $65
million relates to the Company's exploration and drilling program in other
parts of the world. Capital requirements for exploration and development
relating to Block A-18 are expected to increase significantly into 1998. In
addition, because development of Block A-18 will not commence until a heads of
agreement for a definitive gas-sales contract is signed, a portion of the
capital expenditures relating to Block A-18 planned for 1997 will not be spent
until 1998.
The Company expects to meet capital needs in the future with a
combination of some or all of the following: the Company's credit facilities,
cash flow from operations, cash and marketable securities, asset sales, and
the issuance of debt and equity securities.
RESULTS OF OPERATIONS
---------------------
Sales volumes and average prices realized were as follows:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
------------------ ----------------
1997 1996 1997 1996
------ ------ ------ ------
Sales volumes
Oil (MBbls), excluding forward oil sale 1,018 1,407 2,431 2,948
Forward oil sale (1) (MBbls delivered) 763 176 938 351
------ ------ ------ ------
Total 1,781 1,583 3,369 3,297
------ ------ ------ ------
Gas (MMcf) 127 51 204 578
Weighted average price realized:
Oil (per Bbl) $15.91 $19.63 $18.40 $18.80
Gas (per Mcf) $ 1.17 $ 1.78 $ 1.24 $ 1.30
</TABLE>
(1) Commencing April 1, 1997, an additional 195,711 barrels of oil per month
are required to be delivered under the forward oil sale.
THREE MONTHS ENDED JUNE 30, 1997,
COMPARED WITH THREE MONTHS ENDED JUNE 30, 1996
Sales and Other Operating Revenues
- --------------------------------------
Revenue decreased $2 million in 1997 (excluding properties sold during
1996), primarily due to lower average oil prices ($6.5 million) reflecting the
increased deliveries under the forward oil sale, which was partially offset by
higher production ($4.5 million). Oil and gas sales from properties sold in
1996 aggregated $.7 million in 1996.
Based on the operator's current projections, the Company expects gross
production capacity from the Fields to reach 320,000 barrels per day in the
next few months and at least 500,000 barrels per day in early 1998. In April
1997, the Company's delivery requirement under the forward oil sale increased
from 58,425 barrels per month to 254,136 barrels per month, which had an
adverse effect on the Company's earnings and cash flows on a per-barrel basis
for the second quarter of 1997. The Company expects that the adverse effect
on the Company's results of operations and cash flows will be mitigated by
increased production from the Fields. There can be no assurance, however,
about the timing of any increase in production.
Other operating revenues in 1997 included a gain of $4.1 million
resulting from the sale of the Company's Argentine subsidiary.
Costs and Expenses
- --------------------
Second quarter operating expenses increased $1.3 million in 1997, and
depreciation, depletion and amortization increased $2.3 million. The
Company's operating costs per equivalent barrel were $6.57 and $6.15 in 1997
and 1996, respectively. Operating expenses in Colombia increased by $1.9
million, primarily due to an increase in pipeline tariffs of $1.4 million and
an increase in production taxes of $.2 million. Operating expenses
attributable to properties sold during 1996 were $.6 million in 1996.
Depreciation, depletion and amortization in Colombia increased $2.3 million
due to higher production and a higher depletion rate.
The Company expects that aggregate pipeline tariff costs from OCENSA will
increase further during 1997. OCENSA imposes a tariff on the Cusiana and
Cupiagua fields shippers (the "Initial Shippers") estimated to recoup the
total capital cost of the project over a 15 year period, its operating
expenses, which include all Colombian taxes, interest expense, and the
dividend to be paid by OCENSA to its shareholders. Any shippers of crude oil
who are not Initial Shippers ("Third Party Shippers") are also assessed a
tariff on a per-barrel basis, and OCENSA uses revenues from such tariffs to
reduce the Initial Shippers' tariff. The Company cannot predict with any
certainty the impact of the increased tariff on a per-barrel basis due to the
uncertainty about the volumes of any Third Party Shippers' production to be
transported by OCENSA and when the increases in production from the Cusiana
and Cupiagua fields may occur.
General and administrative expense increased $1 million in 1997 primarily
due to higher corporate and personnel costs. Capitalized general and
administrative costs were $7.6 million and $6 million in 1997 and 1996,
respectively.
Other Income and Expenses
- ----------------------------
Interest expense increased $2.9 million primarily due to a temporary
increase in debt outstanding during the quarter caused by the debt refinancing
process.
Other income in 1997 and 1996 included an unrealized loss of $.7 million
and $1.5 million, respectively, representing the change in the fair market
value of call options purchased in anticipation of a forward oil sale in May
1995 and foreign exchange gains of $.7 million and $.5 million in 1997 and
1996, respectively. Other income in 1996 included a $7.6 million benefit from
a legal settlement and a $1.7 million gain on the sale of approximately 20% of
the Company's shareholdings in Crusader Limited ("Crusader").
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. 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 1997 included a deferred tax benefit in the
United States totaling $.2 million, compared with a benefit of $3.8 million in
1996. Additionally, the income tax provision included foreign deferred taxes
totaling $2.3 million in 1997, primarily related to the Company's Colombian
operations, compared with foreign deferred taxes of $4.9 million in 1996.
Current taxes related to the Company's Colombian operations were $.4 million
and $.9 million in 1997 and 1996, respectively.
Extraordinary Item
- -------------------
The Company's results of operations for the three months ended June 30,
1997, included an extraordinary expense of $14.5 million, net of a $7.8
million tax benefit, associated with extinguishment of the 1997 Notes and 9
3/4% Notes.
SIX MONTHS ENDED JUNE 30, 1997,
COMPARED WITH SIX MONTHS ENDED JUNE 30, 1996
Sales and Other Operating Revenues
- --------------------------------------
Revenue increased $2.2 million in 1997 (excluding properties sold during
1996), primarily due to higher production ($3.4 million). This increase was
partially offset by lower average realized oil prices ($1.2 million)
reflecting the increased deliveries under the forward oil sale. Oil and gas
sales from properties sold during 1996 aggregated $2.7 million in 1996.
Other operating revenues in 1997 included a gain of $4.1 million from the
sale of the Company's Argentine subsidiary. Other operating revenues in 1996
included a gain of $4.1 million from the sale of the Company's royalty
interests in U.S. properties.
Costs and Expenses
- --------------------
Operating expenses increased $3 million in 1997, and depreciation,
depletion and amortization increased $3.4 million. The Company's operating
costs per equivalent barrel were $6.85 and $5.84 in 1997 and 1996,
respectively. Operating expenses in Colombia increased by $4.7 million,
primarily due to an increase in pipeline tariffs of $3.4 million and an
increase in production taxes of $.7 million. Operating expenses attributable
to properties sold during 1996 were $1.7 million in 1996. Depreciation,
depletion and amortization in Colombia increased by $3.5 million due to higher
production and a higher depletion rate.
General and administrative expense decreased $1 million in 1997 primarily
due to increased billings to partners and higher capitalization as a result of
increased exploration. Capitalized general and administrative costs were
$14.7 million and $11.5 million in 1997 and 1996, respectively.
Other Income and Expenses
- ----------------------------
Interest expense increased $2.3 million, primarily due to a temporary
increase in debt outstanding during the second quarter caused by the debt
refinancing process.
.
Other income in 1997 and 1996 included an unrealized gain (loss) of ($4
million) and $.6 million, respectively, representing the change in the fair
market value of call options purchased in anticipation of a forward oil sale
in May 1995, and foreign exchange gains of $3 million and $1.5 million in 1997
and 1996, respectively, primarily on deferred tax liabilities in Colombia.
Other income in 1996 included a $7.6 million benefit from a legal settlement,
a $1.7 million gain on the sale of approximately 20% of the Company's
shareholdings in Crusader, and a loss provision of $.9 million for various
legal matters.
Income Taxes
- -------------
The income tax provision for 1997 includes a deferred tax benefit in the
United States totaling $3.9 million, compared with a benefit of $8.8 million
in 1996. Additionally, the income tax provision includes foreign deferred
taxes totaling $5.6 million in 1997, primarily related to the Company's
Colombian operations, compared with foreign deferred taxes of $9.3 million in
1996. Current taxes related to the Company's Colombian operations were $1.7
million and $1.8 million in 1997 and 1996, respectively.
<PAGE>
Petroleum Price Risk Management
- ----------------------------------
Oil sold by the Company is normally priced with reference to a defined
benchmark, such as light sweet crude oil traded on the New York Mercantile
Exchange. Actual prices received vary from the benchmark depending on quality
and location differentials. It is the Company's policy to use financial
market transactions with creditworthy counterparties from time to time,
primarily to reduce risk associated with the pricing of a portion of the oil
and natural gas that it sells. The policy is structured to underpin the
Company's planned revenues and results of operations. The Company also may
enter into financial market transactions to benefit from its assessment of the
future prices of its production relative to other benchmark prices. There can
be no assurance that the use of financial market transactions will not result
in losses.
With respect to the sale of oil to be produced by the Company, the
Company has used a combination of swaps, options and collars to establish a
minimum weighted average West Texas Intermediate ("WTI") benchmark price of
$19 per barrel for an aggregate of 300,000 barrels of production during the
period from July through December 1997. As a result, to the extent WTI
prices exceed the minimum WTI benchmark price during each month within the
period, the Company will be able to sell its production at the higher market
price, and to the extent that WTI prices are below the minimum WTI benchmark
price, the Company will be able to realize prices related to the minimum WTI
benchmark price on its hedged production.
In anticipation of entering into a forward oil sale, the Company
purchased WTI benchmark call options to retain the ability to benefit from
future WTI price increases above a weighted average price of $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. During the three and
six months ended June 30, 1997, the Company recorded an unrealized loss of $.7
million and $4 million, respectively, in other income, net 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.
During the six months ended June 30, 1997, markets provided the Company
the opportunity to realize WTI benchmark oil prices on average $3.34 per
barrel (excluding forward oil sale barrels) above the WTI benchmark oil price
the Company set as part of its 1997 annual plan. As a result of financial and
commodity market transactions settled during the six months ended June 30,
1997, the Company's risk management program resulted in an average net
realization of approximately $.23 per barrel lower than if the Company had not
entered into such transactions.
Recent Accounting Pronouncements
- ----------------------------------
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128 ("SFAS 128"), "Earnings Per Share." This Statement is
effective for financial statements issued for periods ending after December
15, 1997. Earlier adoption is not permitted. SFAS 128 requires dual
presentation of basic and diluted EPS for entities with complex capital
structures. The impact of adopting this statement would not have a material
effect on the Company's earnings per share calculation based on its current
capital structure.
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 heads of agreement to a gas-sales contract and a
gas-sales 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 amount by which production from the
Cusiana and Cupiagua fields may increase or when such increased production may
commence; the Company's realization of its deferred tax asset; the level of
future expenditures for environmental costs, the outcome of regulatory and
litigation matters; and proven oil and gas reserves and discounted future net
cash flows therefrom; 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 Notes to Condensed Consolidated
Financial Statements.
<PAGE>
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
LITIGATION
As disclosed in the Company's Annual Report on Form 10-K for the year ended
December 31, 1996, the Company and subsidiaries or former subsidiaries of the
Company, including Triton Oil & Gas Corp., are among numerous defendants in
three related lawsuits brought in the Superior Court of the State of
California, County of Los Angeles, by (i) National Union Fire Insurance
Company ("National Union") and The Restaurant Enterprises Group, (ii)
Travelers Indemnity Company ("Travelers") and (iii) the City of Redondo Beach.
All three lawsuits arise out of a 1988 storm and tidal wave at King Harbor in
Redondo Beach, California. The lawsuits allege, among other things, that the
defendants' negligence contributed to the collapse of a hotel and the flooding
of a restaurant by extracting fluids from nearby oil wells which allegedly
resulted in ground subsidence and lowered the height of the King Harbor
breakwater. The Travelers lawsuit asserts damages in excess of $14.6 million
and the National Union lawsuit asserts damages in excess of $4.75 million. In
a separate lawsuit against the Army Corp of Engineers, a federal court found
Travelers' damages to be $6.7 million and National Union's damages to be $3.7
million. The federal court's ruling was reversed in May 1997 by the United
States Court of Appeals for the Ninth Circuit on grounds that the Army Corp of
Engineers was immune from liability. An agreement in principle to settle the
National Union lawsuit against the Company's affiliates and the other
defendants has since been reached. Final settlement of this lawsuit is
subject to negotiation and execution of definitive settlement documents.
The City of Redondo Beach lawsuit asserts damages in excess of $13.2 million,
including indemnity for amounts it paid to settle the foregoing lawsuits and
other claims arising out of the flooding. The two remaining lawsuits
have been consolidated for trial, which has been set for October 1997. The
Company believes that it and its subsidiaries have meritorious defenses and
intends to defend the suits vigorously.
<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company held its Annual Meeting of Shareholders on May 6, 1997 at which
the shareholders of the Company voted on the proposal for election of three
directors to serve until the third annual meeting of shareholders to occur
after the May 6, 1997 meeting or until their respective successors shall have
been duly elected and qualified. The directors elected and the votes cast for
or withheld were as follows: Ernest E. Cook (28,198,693 votes for and
1,708,192 votes withheld), Thomas P. Kellogg, Jr. (28,199,683 votes for and
1,707,202 votes withheld), and Edwin D. Williamson (28,153,180 votes for and
1,753,705 votes withheld). The following directors continue in office: Sheldon
R. Erikson, Thomas G. Finck, Jesse E. Hendricks, Fitzgerald S. Hudson, John R.
Huff, John P. Lewis, and Michael E. McMahon.
<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' 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.)
<TABLE>
<CAPTION>
<C> <S>
3.1 Memorandum of Association. (1)
3.2 Articles of Association. (1)
4.1 Specimen Share Certificate of Ordinary Shares, $.01 par value, of the Company. (2)
4.2 Rights Agreement dated as of March 25, 1996, between Triton and Chemical Bank, as
Rights Agent, including, as Exhibit A thereto, Resolutions establishing the Junior
Preference Shares. (1)
4.3 Resolutions Authorizing the Company's 5% Convertible Preference Shares. (3)
4.4 Amendment No. 1 to Rights Agreement dated as of August 2, 1996, between Triton and
Chemical Bank, as Rights Agent. (4)
10.1 Amended and Restated Retirement Income Plan. (5)
10.2 Amended and Restated Supplemental Executive Retirement Income Plan. (6)
10.3 1981 Employee Non-Qualified Stock Option Plan. (7)
10.4 Amendment No. 1 to the 1981 Employee Non-Qualified Stock Option Plan. (8)
10.5 Amendment No. 2 to the 1981 Employee Non-Qualified Stock Option Plan. (7)
10.6 Amendment No. 3 to the 1981 Employee Non-Qualified Stock Option Plan. (5)
10.7 1985 Stock Option Plan. (9)
10.8 Amendment No. 1 to the 1985 Stock Option Plan. (7)
10.9 Amendment No. 2 to the 1985 Stock Option Plan. (5)
10.10 Amended and Restated 1986 Convertible Debenture Plan. (5)
10.11 1988 Stock Appreciation Rights Plan. (10)
10.12 1989 Stock Option Plan. (11)
10.13 Amendment No. 1 to 1989 Stock Option Plan. (7)
10.14 Amendment No. 2 to 1989 Stock Option Plan. (5)
10.15 Second Amended and Restated 1992 Stock Option Plan. (13)
10.16 Form of Amended and Restated Employment Agreement with Triton Energy Limited
and its executive officers. (21)
10.17 Form of Amended and Restated Employment Agreement with Triton Energy Limited
and certain officers. (21)
10.18 Amended and Restated 1985 Restricted Stock Plan. (5)
10.19 First Amendment to Amended and Restated 1985 Restricted Stock Plan. (12)
10.20 Second Amendment to Amended and Restated 1985 Restricted Stock Plan. (13)
10.21 Executive Life Insurance Plan. (14)
10.22 Long Term Disability Income Plan. (14)
10.23 Amended and Restated Retirement Plan for Directors. (9)
10.24 Amended and Restated Indenture dated as of March 25, 1996 between Triton and
Chemical Bank, with respect to the issuance of Senior Subordinated Discount Notes
due 1997. (13)
10.25 Amended and Restated Senior Subordinated Indenture by and between the Company and
United States Trust Company of New York, dated as of March 25, 1996. (13)
10.26 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. (9)
10.27 Contract for Exploration and Exploitation for Tauramena with an effective date of July
4, 1988, between Triton Colombia, Inc., and Empresa Colombiana De Petroleos. (10)
10.28 Summary of Assignment legalized by Public Instrument No. 1255 dated September 15,
1987 (Assignment is in Spanish language). (10)
10.29 Summary of Assignment legalized by Public Instrument No. 1602 dated June 11, 1990
(Assignment is in Spanish language). (10)
10.30 Summary of Assignment legalized by Public Instrument No. 2586 dated September 9,
1992 (Assignment is in Spanish language). (10)
10.31 401(K) Savings Plan. (5)
10.32 Contract between Malaysia-Thailand and Joint Authority and Petronas Carigali
SDN.BHD.and Triton Oil Company of Thailand relating to Exploration and Production
of Petroleum for Malaysia-Thailand Joint Development Area Block A-18.(15)
10.33 Triton Crude Purchase Agreement between Triton Colombia, Inc. and Oil Co., LTD.
dated May 25, 1995. (16)
10.34 Credit Agreement among Triton Colombia, Inc., Triton Energy Corporation,
NationsBank, N.A. (Carolinas) and Export-Import Bank of the United States. (12)
10.35 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. (12)
10.36 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. (13)
10.37 Agreement and Plan of Merger among Triton Energy Corporation, Triton Energy
Limited and TEL Merger Corp. (12)
10.38 Credit Agreement among Triton Energy Limited and Triton Energy Corporation, as
Borrowers, and NationsBank of Texas, N.A., Barclays Bank PLC, Meespierson N.V.,
The Chase Manhattan Bank and Societe Generale, Southwest Agency dated
August 30, 1996. (17)
10.39 Credit Agreement between Triton Energy Corporation and Banque Paribas Houston
Agency dated as of May 28, 1995, together with related form of revolving credit
note. (18)
10.40 First Amendment to Credit Agreement between Triton Energy Corporation and Banque
Paribas Houston Agency dated May 16, 1995. (19)
10.41 Security Agreement between Triton Energy Corporation and Banque Paribas Houston
Agency. (18)
10.42 Second Amendment to Credit Agreement and First Amendment to Security Agreement
between Triton Energy Corporation and Banque Paribas Houston Agency dated August
11, 1995. (6)
10.43 Third Amendment to Credit Agreement between Triton Energy Corporation and Banque
Paribas Houston Agency dated September 29, 1995. (6)
10.44 Consent, Waiver and Guaranty among Triton Energy Limited, Triton Energy
Corporation and Paribas Houston Agency dated as of March 25, 1996. (13)
10.45 Form of Indemnity Agreement entered into with each director and officer of the
Company. (17)
10.46 Restated Employment Agreement between John Tatum and the Company. (21)
10.47 Description of Performance Goals for Executive Bonus Compensation. (21)
10.48 Demand Promissory Note - Grid executed by Triton Energy Limited and Triton Energy
Corporation in favor of Banque Paribas dated as of February 6, 1997. (21)
10.49 Supplemental Indenture dated April 17, 1997 among Triton Energy Corporation, Triton
Energy Limited and The Chase Manhattan Bank (formerly known as Chemical Bank)
amending Amended and Restated Indenture dated as of March 25, 1996 relating to
the Senior Subordinated Discount Notes due 1997. (22)
10.50 Supplemental Indenture dated April 17, 1997 among Triton Energy Corporation, Triton
Energy Limited and United States Trust Company of New York amending Amended
and Restated Senior Subordinated Indenture dated as of March 25, 1996 relating to the
9 3/4% Senior Subordinated Discount Notes due 2000. (22)
10.51 Senior Indenture dated April 10, 1997 among Triton Energy Corporation, Triton
Energy Limited and The Chase Manhattan Bank. (22)
10.52 First Supplemental Indenture dated April 10, 1997 among Triton Energy Corporation,
Triton Energy Limited and The Chase Manhattan Bank amending Senior Indenture
dated as of April 10, 1997 relating to the 8 3/4% Senior Notes due 2002. (22)
10.53 Second Supplemental Indenture dated April 10, 1997 among Triton Energy Corporation,
Triton Energy Limited and The Chase Manhattan Bank amending Senior Indenture
dated as of April 10, 1997 relating to the 9 1/4% Senior Notes due 2005. (22)
10.54 First Amendment to Credit Agreement dated as of April 4, 1997 among Triton Energy
Limited and Triton Energy Corporation, as Borrowers, and NationsBank of Texas, N.A.,
Barclays Bank PLC, Meespierson N.V., The Chase Manhattan Bank and Societe
Generale, Southwest Agency. (22)
10.55 1997 Share Compensation Plan. (22)
10.56 First Amendment to Second Amended and Restated 1992 Stock Option Plan. (22)
10.57 Agreement to Release Triton Energy Corporation and Second Amendment to Credit
Agreement dated as of July 21, 1997 among Triton Energy Limited and Triton Energy
Corporation, as Borrowers, and NationsBank of Texas, N.A., Barclays Bank PLC,
MeesPierson N.V., The Chase Manhattan Bank and Societe General, Southwest
Agency. (23)
10.58 Amended and Restated Indenture dated July 25, 1997 between Triton Energy Limited and
The Chase Manhattan Bank. (23)
10.59 Amended and Restated First Supplemental Indenture dated July 25, 1997 between Triton
Energy Limited and The Chase Manhattan Bank relating to the 8 3/4% Senior Notes
due 2002. (23)
10.60 Amended and Restated Second Supplemental Indenture dated July 25, 1997 between
Triton Energy Limited and The Chase Manhattan Bank relating to the 9 1/4% Senior
Notes due 2005. (23)
11.1 Computation of Earnings per Share. (23)
12.1 Computation of Ratio of Earnings to Fixed Charges. (23)
12.2 Computation of Ratio of Earnings to Combined Fixed Charges and Preference
Dividends. (23)
27.1 Financial Data Schedule.(23)
99.1 Rio Chitamena Association Contract. (20)
99.2 Rio Chitamena Purchase and Sale Agreement. (20)
99.3 Integral Plan - Cusiana Oil Structure. (20)
99.4 Letter Agreements with co-investor in Colombia. (20)
99.5 Colombia Pipeline Memorandum of Understanding. (20)
99.6 Amended and Restated Oleoducto Central S.A. Agreement dated as of March 31,
1995. (19)
</TABLE>
___________________
<TABLE>
<CAPTION>
<C> <S>
(1) Previously filed as an exhibit to the Company's Registration Statement on Form S-3
(No 333-08005) and incorporated herein by reference.
(2) Previously filed as an exhibit to the Company's Registration Statement on Form 8-A
dated March 25, 1996 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 the Company's Registration Statement on Form 8-A/A
(Amendment No. 1) dated August 14, 1996 and incorporated herein by reference.
(5) 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.
(6) 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.
(7) 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.
(8) 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 by reference herein.
(9) 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.
(10) 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.
(11) 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 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 December 31, 1995 and incorporated herein by
reference.
(13) Previously filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996 and incorporated herein by reference.
(14) 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.
(15) 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.
(16) Previously filed as an exhibit to Triton Energy Corporation's Current Report on Form
8-K dated May 26, 1995 and incorporated herein by reference.
(17) Previously filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1996 and incorporated herein by reference.
(18) 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.
(19) 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.
(20) Previously filed as an exhibit to Triton Energy Corporation's current report on Form
8-K/A dated July 15, 1994 and incorporated by reference herein.
(21) Previously filed as an exhibit to Triton Energy Limited's Annual Report on Form 10-K for
the fiscal year ended December 31, 1996 and incorporated herein by reference.
(22) Previously filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997 and incorporated herein by reference.
(23) Filed herewith.
</TABLE>
(b) Reports on Form 8-K
On April 9, 1997, the Company filed a Current Report on Form 8-K containing a
computation of pro forma ratio of earnings to fixed charges for the year ended
December 31, 1996.
<PAGE>
SIGNATURES
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: August 13, 1997
<PAGE>
EXIBIT 10.57
AGREEMENT TO RELEASE TRITON ENERGY CORPORATION
AND
SECOND AMENDMENT TO CREDIT AGREEMENT
This Agreement to Release Triton Energy Corporation and Second Amendment
to Credit Agreement (this "Second Amendment") is entered into as of the 21st
day of July, 1997, by and among Triton Energy Limited, a Cayman Islands
corporation ("TEL"), Triton Energy Corporation, a Delaware corporation
("TEC"), NationsBank of Texas, N.A., as Administrative Agent
("Administrative Agent"), Barclays Bank PLC, as Documentary Agent,
("Documentary Agent"), MeesPierson, N.V. and The Chase Manhattan Bank as
Co-Agents ("Co-Agents"), and NationsBank of Texas, N.A., Barclays Bank PLC,
MeesPierson, N.V., The Chase Manhattan Bank and Societe Generale, Southwest
Agency as Banks (the "Banks").
W I T N E S S E T H:
WHEREAS, TEL, TEC, Administrative Agent, Documentary Agent, Co-Agents and
the Banks are parties to that certain Credit Agreement dated as of August 30,
1996 (as amended by a First Amendment to Credit Agreement dated as of April 4,
1997 by and among TEL, TEC, Administrative Agent, Documentary Agent, Co-Agents
and the Banks, the "Credit Agreement") (unless otherwise defined herein, all
terms used herein with their initial letter capitalized shall have the meaning
given such terms in the Credit Agreement as amended hereby); and
WHEREAS, pursuant to the Credit Agreement the Banks have made a Loan to
TEL and TEC, and certain Issuers have issued certain Letters of Credit on
behalf of TEL and TEC; and
WHEREAS, TEL and TEC have requested that TEC be released from its
obligations under the Credit Agreement; and
WHEREAS, TEL and TEC have requested that the Credit Agreement be amended
in certain respects.
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and confessed, TEL,
TEC, each Agent and each Bank hereby agree as follows:
Section 1. Release. Each Agent and each Bank hereby agree
that, upon the satisfaction of each condition precedent set forth in Section 4
hereof and in reliance on the representations, warranties, covenants and
agreements contained in this Second Amendment, each Agent and each Bank shall
execute and deliver to TEC a Release (herein so called) in the form of Exhibit
"A" attached hereto, pursuant to which TEC shall be released from and shall
have no further liability for the payment or performance of any of the
Obligations under the Credit Agreement or any of the other Loan Papers.
Section 2. Amendments. Subject to the satisfaction of each
condition precedent set forth in Section 4 hereof and in reliance on the
representations, warranties, covenants and agreements contained in this Second
Amendment, the Credit Agreement shall be amended, simultaneously with the
execution and delivery of the Release, and without the requirement of any
other act by either Borrower, any Agent or any Bank, in the manner provided
in this Section 2.
2.1. Amendment to Definitions. The definitions of "Borrower",
"Borrowers" and "Loan Papers", contained in Section 2.1 of the Credit
Agreement shall be amended to read in full as follows:
"Borrower" means TEL and "Borrowers" means TEL.
"Loan Papers" means this Agreement, the First Amendment, the Second
Amendment, the Notes and all other certificates, documents or instruments
delivered in connection with this Agreement, as the foregoing may be amended
from time to time.
"Material Subsidiaries" means TEC, TCI, TIOC, TOCT, TOCT (JDA), Triton
Pipeline Colombia, Inc., TIOC-Cayman, CTOC, and Triton International
Petroleum, Inc. Notwithstanding the foregoing, CTOC shall not be considered a
"Material Subsidiary" for purposes of Section 7.5(b) or 7.7.
"Restricted Payment" means (a) any Distribution by TEL or any of its
Subsidiaries to any Person other than TEL or any wholly owned Subsidiary of
TEL, or (b) any retirement, redemption, purchase, repurchase, payment or
defeasance by TEL or any of its Subsidiaries of Debt of TEL or any of its
Subsidiaries other than the Obligations (including, without limitation, the
retirement, redemption, purchase, repurchase, payment or defeasance of the
1997 Notes, the 9 % Notes, the 2002 Notes or the 2005 Notes); provided, that
"Restricted Payment" shall not include (i) the payment at scheduled maturity
of Debt permitted to be outstanding hereunder by the Persons obligated to
repay such Debt to the extent such payment is not prohibited under the
subordination provisions, if any, applicable to such Debt, or (ii) the payment
or prepayment of Debt owed by TEL or any of its Subsidiaries to any other
Subsidiary of TEL or to TEL which is not prohibited pursuant to the terms of
the Subordination Agreement applicable to such Debt, if any.
2.2 Additional Definitions. Section 1.1 of the Credit
Agreement shall be amended to add (in alphabetical order) the following
defined terms:
"2002 Notes" means TEL's and TEC's 8 3/4% Senior Notes due April 15, 2002
in an aggregate stated principal amount of $200,000,000.
"2005 Notes" means TEL's and TEC's 9 1/4% Senior Notes due April 15, 2005
in an aggregate stated principal amount of $200,000,000.
"2002 Notes Indenture" means the Senior Indenture dated as of April 10,
1997 as amended and supplemented by a First Supplemental Indenture dated as of
April 10, 1997 by and among TEL, TEC and The Chase Manhattan Bank, as trustee
which sets forth certain terms and conditions applicable to the 2002 Notes.
"2005 Notes Indenture" means the Senior Indenture dated as of April 10,
1997 as amended and supplemented by a Second Supplemental Indenture dated as
of April 10, 1997 by and among TEL, TEC and The Chase Manhattan Bank, as
trustee which sets forth certain terms and conditions applicable to the 2005
Notes.
2.3 Amendment to Section 8.1(c). The first sentence of Section
8.1(c) of the Credit Agreement shall be amended to read in full as follows:
During the period from and including the Production Milestone Date to the
Termination Date (the "Final Leverage Test Period") TEL will not, and will
not permit any of its Subsidiaries to, incur, become or remain liable for any
Debt or Advance Payment Contract Liabilities which causes the sum of (i)
the aggregate total Debt of TEL and its Subsidiaries, and (ii) the aggregate
total Advance Payment Contract Liabilities of TEL and its Subsidiaries, in
each case on a consolidated basis, to exceed the lesser of (A) $700,000,000,
or (B) an amount which would cause the Final Leverage Ratio to exceed 4.0 to
1 as of any date during the Final Leverage Test Period.
2.4 Amendment to Section 8.1(d). Section 8.1(d) of the Credit
Agreement shall be amended to read in full as follows:
(d) TEL will not permit TEC or any Subsidiary of TEC to incur, become
or remain liable for any Debt other than (i) Permitted ECA Debt, (ii) Debt
under Hedge Transactions provided that the Net Hedge Transaction Exposure for
all Hedge Transactions to which TEC and Subsidiaries of TEC are parties shall
not exceed $5,000,000 at any time, (iii) other Debt not to exceed $10,000,000
outstanding at any time in the aggregate, and (iv) Debt owed to TEL or any of
its Subsidiaries.
2.5 Amendment to Section 8.6. Section 8.6 of the Credit Agreement
shall be amended to read in full as follows:
SECTION 8.6. Amendments to Material Documents. TEL will not,
nor will TEL permit any of its Subsidiaries to enter into or permit any
modification or amendment of, or waive any material right or obligation of any
Person under (a) its articles of association, certificate of incorporation,
bylaws, partnership agreement, regulations or other organizational documents
other than amendments, modifications and waivers which could not reasonably be
expected to have a Material Adverse Effect, (b) the 2002 Notes Indenture or
the 2005 Notes Indenture if the effect of any such modification, amendment or
waiver (i) is to accelerate the maturity of the 2002 Notes or the 2005 Notes
or the date on which any payment is due thereunder, (ii) is to increase the
interest rate applicable to the 2002 Notes or the 2005 Notes, or (iii) is to
add representations, warranties, covenants or events of default or otherwise
cause the 2002 Notes Indenture or the 2005 Notes Indenture to be more
restrictive or burdensome to TEL or any of its Subsidiaries, (c) the Existing
Advance Payment Contract, (d) the License Agreements, or (e) the Joint
Operating Agreement (other than in the case of clauses (d) and (e) hereof,
modifications, amendments and waivers which have no material adverse effect on
the rights, interests or obligations [economic or otherwise] of TEL and its
Subsidiaries arising under such agreements).
Section 3. Representations and Warranties of Borrower. To
induce the Banks and Agents to enter into this Second Amendment, TEL and TEC
hereby jointly and severally represent and warrant to each Bank and each Agent
as follows:
(a) Each representation and warranty of each Borrower contained in
the Credit Agreement and the other Loan Papers is true and correct on the date
hereof and will be true and correct after giving effect to the release
contemplated by Section 1 hereof and the amendments set forth in Section 2
hereof.
(b) The execution, delivery and performance by TEL and TEC of this
Second Amendment are within such Person's corporate powers, have been duly
authorized by necessary corporate action, require no action by or in respect
of, or filing with, any Governmental Authority do not violate or constitute a
default under any provision of Law or any agreement binding upon TEL or any of
its Material Subsidiaries or result in the creation or imposition of any
Lien upon any of the assets of TEL or any of its Subsidiaries other than
Permitted Encumbrances.
(c) This Second Amendment constitutes the valid and binding
obligation of TEL and TEC enforceable against each such Person in accordance
with its terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditor's rights generally,
and (ii) the availability of equitable remedies may be limited by equitable
principles of general application.
(d) Neither Borrower has any defense to payment, counterclaim or
right of set-off with respect to the Obligations existing on the date hereof.
TEL further represents and warrants that after giving effect to the execution
and delivery of the Release, TEL shall remain fully and unconditionally
obligated for the payment and performance in full of all of the Obligations,
and the Credit Agreement, the Notes and the other Loan Papers constitute the
valid and binding obligation of TEL enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditor's rights generally, and (ii) the
availability of equitable remedies may be limited by equitable principles of
general application.
(e) The 1997 Notes have been paid in full, the 1997 Notes Indenture
has been terminated and neither TEL nor TEC has any obligation or liability
thereunder. Not more than $1,000,000 is outstanding under the 9 3/4% Notes.
Section 4. Conditions Precedent to Release and Amendments. The
agreement of the Agents and the Banks to execute and deliver the Release in
accordance with Section 1 hereof and the effectiveness of the amendments to
the Credit Agreement contained in Section 2 of this Second Amendment are
subject to the satisfaction of each of the conditions set forth in this
Section 4.
4.1 Release of TEC. TEL, TEC and the Trustee under the 2002 Notes
Indenture and the 2005 Notes Indenture shall have entered into a supplement to
each such Indenture contemplated by Section 8.1 of the 2002 Notes Indenture
and Section 8.1 of the 2005 Notes Indenture evidencing the release of TEC from
the obligations under the 2002 Notes, the 2002 Notes Indenture, the 2005 Notes
and the 2005 Notes Indenture.
4.2 Representations and Warranties. Each representation and
warranty of Borrowers contained in the Credit Agreement and the other Loan
Papers is true and correct on the date hereof and will be true and correct
after the execution of the Release pursuant to Section 1 and after giving
effect to the amendments set forth in Section 2.
4.3 No Default. Each Borrower represents and warrants that no
Default or Event of Default exists on the date hereof and will not exist after
the execution of the Release pursuant to Section 1 and after giving effect
to the amendments set forth in Section 2.
4.4 Certificate of Officer. TEL and TEC shall have delivered to
Administrative Agent a certificate of an authorized officer of TEL and TEC
certifying that the conditions in Section 4.1, 4.2 and 4.3 hereof have
been satisfied, and shall furnish Administrative Agent with an executed copy
of the supplements to the 2002 Notes Indenture and 2005 Notes Indenture
referred to in Section 4.1.
Section 5. Miscellaneous.
5.1 Reaffirmation of Loan Papers. Any and all of the terms and
provisions of the Credit Agreement and the Loan Papers shall, except as
amended and modified hereby, remain in full force and effect.
5.2 Parties in Interest. All of the terms and provisions of this
Second Amendment shall bind and inure to the benefit of the parties hereto and
their respective permitted successors and assigns.
5.3 Legal Expenses. TEL hereby agrees to pay on demand all
reasonable fees and expenses of counsel to Administrative Agent incurred by
Administrative Agent in connection with the preparation, negotiation and
execution of this Second Amendment and all related documents.
5.4 Counterparts. This Second Amendment may be executed in
counterparts, and all parties need not execute the same counterpart; however,
no party shall be bound by this Second Amendment until all parties have
executed a counterpart. Facsimiles shall be effective as originals.
5.5 Complete Agreement. THIS SECOND AMENDMENT, THE CREDIT
AGREEMENT AND THE OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
5.6 Headings. The headings, captions and arrangements used in
this Second Amendment are, unless specified otherwise, for convenience only
and shall not be deemed to limit, amplify or modify the terms of this Second
Amendment, nor affect the meaning thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be duly executed by their respective authorized officers on the date and
year first above written.
TRITON ENERGY LIMITED,
a Cayman Islands company
By:
Its:
TRITON ENERGY CORPORATION,
a Delaware corporation
By:
Its:
BANKS:
NATIONSBANK OF TEXAS, N.A.
By:
Name:
Title:
BARCLAYS BANK PLC
By:
Name:
Title:
<PAGE>
THE CHASE MANHATTAN BANK
By:
Name:
Title:
MEESPIERSON N.V.
By:
Name:
Title:
SOCIETE GENERALE SOUTHWEST
AGENCY
By:
Name:
Title:
<PAGE>
ADMINISTRATIVE AGENT:
NATIONSBANK OF TEXAS, N.A.
By:
Name:
Title:
DOCUMENTARY AGENT:
BARCLAYS BANK PLC
By:
Name:
Title:
CO-AGENTS:
MEESPIERSON N.V.
By:
Name:
Title:
THE CHASE MANHATTAN BANK
By:
Name:
Title:
EXHIBIT 10.58
TRITON ENERGY LIMITED
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
AMENDED AND RESTATED SENIOR INDENTURE
DATED AS OF JULY 25, 1997
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
Affiliate 1
Authenticating Agent 2
Bankruptcy Code 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 2
Consolidated Net Tangible Assets 2
Corporate Trust Office 2
Depositary 2
Dollars 2
$ 2
Exchange Act 2
Event of Default 2
Global Security 2
Holder 3
Holder of Securities 3
Securityholder 3
Indebtedness 3
Indenture 3
Interest 3
Issuer 3
Issuer Order 3
Officers' Certificate 3
Opinion of Counsel 4
Original Issue Date 4
Original Issue Discount 4
Original Issue Discount Security 4
Outstanding 4
Periodic Offering 4
Person 5
Place of Payment 5
Principal 5
Principal Amount 5
Record Date 5
Responsible Officer 5
Restricted Subsidiary 5
Securities Act 5
Security 5
Securities 5
Subsidiary 5
Trust Indenture Act of 1939 5
Trustee 5
Unrestricted Subsidiary 5
U.S. Government Obligations 6
Vice President 6
Yield to Maturity 6
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally 6
SECTION 2.2 Form of Trustee's Certificate of Authentication 6
SECTION 2.3 Amount Unlimited, Issuable in Series 7
SECTION 2.4 Authentication and Delivery of Securities 9
SECTION 2.5 Execution of Securities 11
SECTION 2.6 Certificate of Authentication 11
SECTION 2.7 Denomination and Date of Securities; Payments of Interest 11
SECTION 2.8 Registration, Transfer and Exchange 12
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities 13
SECTION 2.10 Cancellation of Securities; Disposition Thereof 14
SECTION 2.11 Temporary Securities 14
SECTION 2.12 CUSIP Numbers 15
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest 15
SECTION 3.2 Offices for Notices and Payments, etc 15
SECTION 3.3 No Interest Extension 15
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office 15
SECTION 3.5 Provision as to Paying Agent 15
SECTION 3.6 Limitation on Liens 16
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders 18
SECTION 4.2 Preservation and Disclosure of Securityholders Lists 18
SECTION 4.3 Reports by the Issuer 19
SECTION 4.4 Reports by the Trustee 19
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default 20
SECTION 5.2 Payment of Securities on Default; Suit Therefor 22
SECTION 5.3 Application of Moneys Collected by Trustee 23
SECTION 5.4 Proceedings by Securityholders 23
SECTION 5.5 Proceedings by Trustee 24
SECTION 5.6 Remedies Cumulative and Continuing 24
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by
Majority of Securityholders 24
SECTION 5.8 Notice of Defaults 24
SECTION 5.9 Undertaking to Pay Costs 25
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default 25
SECTION 6.2 Certain Rights of the Trustee 26
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof 27
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc 27
SECTION 6.5 Moneys Held by Trustee 27
SECTION 6.6 Compensation and Indemnification of Trustee and Its
Prior Claim 27
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc 28
SECTION 6.8 Qualification of Trustee; Conflicting Interests 28
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different
Trustees for Different Series. 28
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee 28
SECTION 6.11 Acceptance of Appointment by Successor Trustee 29
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee 30
SECTION 6.13 Preferential Collection of Claims Against the Issuer 30
SECTION 6.14 Appointment of Authenticating Agent 30
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders 31
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities 31
SECTION 7.3 Holders to be Treated as Owners 32
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding 32
SECTION 7.5 Right of Revocation of Action Taken 32
SECTION 7.6 Record Date for Consents and Waivers 32
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders 33
SECTION 8.2 Supplemental Indentures with Consent of Securityholders 34
SECTION 8.3 Effect of Supplemental Indenture 35
SECTION 8.4 Documents to Be Given to Trustee 35
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures 35
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER
DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms 36
SECTION 9.2 Successor Corporation to be Substituted 36
SECTION 9.3 Opinion of Counsel to be Given Trustee 37
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture; Covenant
Defeasance 37
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities 39
SECTION 10.3 Repayment of Moneys Held by Paying Agent 39
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years 39
SECTION 10.5 Indemnity for U.S. Government Obligations 40
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability 40
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities 40
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture 40
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities 40
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein 41
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays 41
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 41
SECTION 11.8 GOVERNING LAW 42
SECTION 11.9 Submission to Jurisdiction 42
SECTION 11.10 Counterparts 42
SECTION 11.11 Effect of Headings 42
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article 42
SECTION 12.2 Notice of Redemption; Partial Redemptions 42
SECTION 12.3 Payment of Securities Called for Redemption 43
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption 44
SECTION 12.5 Mandatory and Optional Sinking Funds 44
<PAGE>
CROSS REFERENCE SHEET*
___________
Provisions of Trust Indenture Act of 1939 and Amended and Restated
Indenture to be dated as of July __, 1997 between TRITON ENERGY LIMITED and
THE CHASE MANHATTAN BANK, 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
_____________________
*This Cross Reference Sheet is not part of the Indenture.
AMENDED AND RESTATED SENIOR INDENTURE
THIS AMENDED AND RESTATED SENIOR INDENTURE, dated as of July 25, 1997
(the "Indenture") between TRITON ENERGY LIMITED, a Cayman Islands company (the
"Issuer"), and THE CHASE MANHATTAN BANK, a New York banking corporation, as
trustee (the "Trustee"), amending and restating in its entirety the Senior
Indenture among the Issuer, Triton Energy Corporation, a Delaware corporation
and a wholly owned subsidiary of the Issuer ("TEC"), and the Trustee dated as
of April 10, 1997 (the "Original Indenture").
W I T N E S S E T H :
WHEREAS, the Issuer, TEC, and the Trustee duly executed the Original
Indenture in connection with the issuance from time to time, on a joint and
several basis, of the Issuer's and TEC's unsecured 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 the Original Indenture;
WHEREAS, the Issuer, TEC and the Trustee duly executed a First
Supplemental Indenture dated as of April 10, 1997 (the "Original First
Supplemental Indenture"), which Original First Supplemental Indenture amended
and supplemented the Original Indenture in connection with the issuance by the
Issuer and TEC, on a joint and several basis, of $200,000,000 aggregate
principal amount of 8 3/4% Senior Notes due 2002 (the "2002 Notes");
WHEREAS, the Issuer, TEC and the Trustee duly executed a Second
Supplemental Indenture dated as of April 10, 1997 (the "Original Second
Supplemental Indenture" and, together with the Original First Supplemental
Indenture, the "Original Supplemental Indentures"), which Original Second
Supplemental Indenture amended and supplemented the Original Indenture in
connection with the issuance by the Issuer and TEC, on a joint and several
basis, of $200,000,000 aggregate principal amount of 9 1/4% Senior Notes due
2005 (the "2005 Notes" and, together with the 2002 Notes, the "Notes")
WHEREAS, the Original Supplemental Indentures provided for the release of
TEC from its obligations under the Original Indenture and the Notes, without
the consent of the Holders of the Notes, if (i) (A) no more than $25,000,000
in aggregate principal amount of TEC's Senior Subordinated Discount Notes due
1997 (the "1997 Notes") and TEC's 9-3/4% Senior Subordinated Discount Notes
due 2000 (the "9 3/4% Notes"), taken together, were no longer outstanding or
(B) the Issuer or any successor to the Issuer assumed the obligations of TEC
under the 1997 Notes and the 9 3/4% Notes and (ii) the Issuer or any successor
of the Issuer assumed the obligations of TEC under the Notes;
WHEREAS, as of the date hereof, no 1997 Notes and $850,000 aggregate
principal amount of the 9 3/4% Notes remain outstanding;
WHEREAS, TEC and the Issuer desire that TEC be released from its
obligations under the Original Indenture and the Notes and the Issuer assume
such obligations, and, in connection therewith, the Issuer and the Trustee are
executing an Amended and Restated First Supplemental Indenture and an Amended
and Restated Second Supplemental Indenture simultaneously with the execution
hereof;
NOW, THEREFORE:
In consideration of the foregoing and the premises and the purchases of
the Securities by the Holders (as hereinafter defined) thereof, the Issuer and
the Trustee mutually covenant and agree for the equal and proportionate
benefit of the respective Holders from time to time of the Securities 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
herein 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 on the date of this
Indenture.
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 April 10, 1997.
The terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" shall have the meaning set forth in Section 6.14.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United
States Code 101 et seq., or any successor statute thereto.
"Board of Directors" means either the Board of Directors of the Issuer or
any committee of such 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 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.
"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 Tangible Assets" means the aggregate amount of assets
included on the most recent consolidated balance sheet of the Issuer 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.
"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.
"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.
"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.
"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.
"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" with respect to any Person means, without duplication:
(a) (i) the principal of, premium, if any, and interest, if any, on
indebtedness for money borrowed of such Person, indebtedness of such Person
evidenced by bonds, notes, debentures or similar obligations, and any guaranty
by such Person of any indebtedness for money borrowed or indebtedness
evidenced by bonds, notes, debentures or similar obligations of any other
Person, whether any such indebtedness or guaranty is outstanding on the date
of this Indenture or is thereafter created, assumed or incurred, (ii)
obligations of such Person for the reimbursement of any obligor on any letter
of credit, banker's acceptance or similar credit transaction; (iii) the
principal of and premium, if any, and interest, if any, on indebtedness
incurred, assumed or guaranteed by such Person in connection with the
acquisition by it or any of its subsidiaries of any other businesses,
properties or other assets; (iv) lease obligations which such Person
capitalized in accordance with Statement of Financial Accounting Standards No.
13 promulgated by the Financial Accounting Standards Board or such other
generally accepted accounting principles as may be from time to time in
effect; (v) any indebtedness of such Person representing the balance deferred
and unpaid of the purchase price of any property or interest therein (except
any such balance that constitutes an accrued expense or trade payable) and any
guaranty, endorsement or other contingent obligation of such Person in respect
of any indebtedness of another that is outstanding on the date of this
Indenture or is thereafter created, assumed or incurred by such Person; and
(vi) obligations of such Person under interest rate, commodity or currency
swaps, caps, collars, options and similar arrangements if and to the extent
that any of the foregoing indebtedness in (i) through (vi) would appear as a
liability on the balance sheet of such Person in accordance with generally
accepted accounting principles; and
(b) any amendments, modifications, refundings, renewals or extensions of
any indebtedness or obligation described as Indebtedness in clause (a) above.
"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.
"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.
"Issuer" means Triton Energy Limited, a Cayman Islands company, and,
subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the Issuer
which is signed in its name by the chairman of the Board of Directors, the
president or any vice president of the Issuer, and delivered to the Trustee.
"Officers' Certificate", when used with respect to the Issuer, 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. 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 an Officers' Certificate given
pursuant to Section 4.3 shall be the principal executive, financial or
accounting officer of the Issuer.
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer 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).
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.
"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 with
Section 2.3.
"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.
"Record Date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of
this Indenture.
"Restricted Subsidiary" means (a) any Subsidiary of the Issuer other than
an Unrestricted Subsidiary, and (b) any Subsidiary of the Issuer which was an
Unrestricted Subsidiary but which, subsequent to the date hereof, is
designated by the Issuer (by Board Resolution) to be a Restricted Subsidiary;
provided, however, that the Issuer may not designate any such Subsidiary to be
a Restricted Subsidiary if the Issuer would thereby breach any covenant or
agreement herein contained (on the assumptions that any outstanding
Indebtedness of such Subsidiary was incurred at the time of such designation).
"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.
"Subsidiary" of any specified Person means any corporation of which such
Person, or such Person and one or more Subsidiaries of such Person, or any one
or more Subsidiaries of such Person, directly or indirectly own voting
securities entitling any one or more of such Persons and its Subsidiaries to
elect a majority of the directors, either at all times or, so long as there is
no default or contingency which permits the holders of any other class or
classes of securities to vote for the election of one or more directors.
"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 of the Issuer 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 of the Issuer 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 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."
"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.
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 definitive Securities 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 as evidenced by their
execution of such Securities.
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.
THE CHASE MANHATTAN BANK, as Trustee
By_______________________________
Authorized Signatory
<PAGE>
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.
THE CHASE MANHATTAN BANK, 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 and with all other unsecured and unsubordinated debt of the
Issuer. 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:
(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
Holderthereof 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;
(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 The Chase Manhattan Bank 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;
(19) the terms for conversion or exchange, if any, with respect to the
Securities of such series; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
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 filed with the Trustee on or before the
initial issuance of the Securities of such series shall be incorporated herein
by reference with respect to Securities of such series and shall thereafter be
deemed to be a part of the Indenture for all purposesrelating to Securities of
such series 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 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 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) at the option of the Issuer, 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) in the case of an underwritten offering, the terms of the
Securities of such series 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 and will have been established in
conformity with the provisions of this Indenture;
(b) when the Securities of such series have been executed by the
Issuer and 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
legallybinding obligations of the Issuer, enforceable in accordance with their
respective terms, and will be entitled to the benefits of this Indenture; and
(c) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the Securities of such
series will not contravene any provision of applicable law or the articles of
incorporation or bylaws of the Issuer or any agreement or other instrument
binding upon the Issuer or any of its Subsidiaries that is material to the
Issuer and its Subsidiaries, considered as one enterprise, or, to such
counsel's knowledge after the inquiry indicated therein, any judgment, order
or decree of any governmental agency or any court having jurisdiction over the
Issuer or any Subsidiary of the Issuer, and no consent, approval or
authorization of any governmental body or agency is required for the
performance by the Issuer of its obligations under the Securities, 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 the Issuer 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 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 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. 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. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors
or defects in any such reproduction of a seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall
be authenticated and delivered by the Trustee or disposed of by the Issuer,
such Security nevertheless may be authenticated and delivered or disposed of
as though the person who signed such Security had not ceased to be such
officer of the Issuer; and any Security may be signed on behalf of the Issuer
by such persons as, at the actual date of the execution of such Security,
shall be the proper officers of the Issuer, 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 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 authentication by the Trustee includes
authentication by an agent appointed pursuant to Section 6.14.
<PAGE>
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 languageor 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.
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, 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.
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, 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.
<PAGE>
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, 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 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,
(i) to the Person specified by such Depositary, a new Security or
Securities of the same series, 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 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 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, 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 and to the Trustee and any
agent of the Issuer or the Trustee such security or indemnity as may be
required by the Trustee or the Issuer or any such agent to indemnify and
defend and to save each of the Trustee and the Issuer 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 and to the Trustee and any agent of the Issuer 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 and the Trustee and any agent of
the Issuer 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, 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 or any agent of the Issuer 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 Issuer. If the
Issuer 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 but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer 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 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
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 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 in respect
of the Securities or of this Indenture may be served. In case the Issuer
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. The Issuer 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
anyclaim 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 Liens. So long as any of the Securities are
Outstanding, the Issuer will not, and will not permit any Restricted
Subsidiary to, pledge, mortgage, hypothecate or grant a security interest in,
or permit any mortgage, pledge, security interest or other lien upon, any
property or assets owned by the Issuer or any Restricted Subsidiary to secure
any Indebtedness, without making effective provision whereby the Securities
then Outstanding shall (so long as such other Indebtedness shall be so
secured) be equally and ratably secured with any and all such other
Indebtedness and any other indebtedness similarly entitled to be equally and
ratably secured; provided, however, that this restriction shall not apply to
nor prevent the creation or existence of:
(a) any mortgage, pledge, security interest, lien or encumbrance
upon any property or assets created at the time of the acquisition of such
property or assets by the Issuer or any Restricted Subsidiary or within one
year after such time to secure all or a portion of the purchase price for
such property or assets;
(b) any mortgage, pledge, security interest, lien or encumbrance upon
any property or assets existing thereon at the time of the acquisition thereof
by the Issuer or any Restricted Subsidiary (whether or not the obligations
secured thereby are assumed by the Issuer or any Subsidiary of the Issuer);
(c) any mortgage, pledge, security interest, lien or encumbrance upon
any property or assets, whenever acquired, of any corporation or other entity
that becomes a Restricted Subsidiary after the date hereof, provided that (i)
the instrument creating such mortgage, pledge, security interest, lien or
encumbrance shall be in effect prior to the time such corporation or other
entity becomes a Restricted Subsidiary and (ii) such mortgage, pledge,
security interest, lien or encumbrance shall only apply to properties or
assets owned by such corporation or other entity at the time it becomes a
Restricted Subsidiary or thereafter acquired by it from sources other than the
Issuer or another Restricted Subsidiary;
(d) any mortgage, pledge, security interest, lien or encumbrance
arising from or in connection with a conveyance by the Issuer or a Restricted
Subsidiary of any production payment with respect to oil, gas, natural gas,
carbon dioxide, sulphur, helium, coal, metals, minerals, steam, timber or
other natural resources;
(e) any mortgage, pledge, security interest, lien or encumbrance with
respect to, or other transfer of, crude oil, natural gas or other petroleum
hydrocarbons in place for a period of time until, or in an amount such that,
the transferee will realize therefrom a specified amount (however determined)
of money or of such crude oil, natural gas or other petroleum hydrocarbons;
(f) any mortgage, pledge, security interest, lien or encumbrance
required by any contract or statute in order to permit the Issuer or any
Restricted Subsidiary to perform any contract or subcontract made by it with
or at the request of the United States or any State thereof or any foreign
government or any department, agency, organization or instrumentality thereof,
or to secure partial, progress, advance or other payments to the Issuer or any
Restricted Subsidiary by such governmental unit pursuant to the provisions of
any contract or statute;
(g) any mortgage, pledge, security interest, lien or encumbrance in
favor of the Issuer or any wholly-owned Subsidiary of the Issuer;
(h) any mortgage, pledge, security interest, lien or encumbrance created
or assumed by the Issuer or a Restricted Subsidiary in connection with the
issuance of debt securities the interest on which is excludable from gross
income of the holder of such security pursuant to the Internal Revenue Code of
1986, as amended, for the purpose of financing, in whole or in part, the
acquisition or construction of property or assets to be used by the Issuer or
a Subsidiary of the Issuer;
(i) any extension, renewal or refunding of any mortgage, pledge,
security interest, lien or encumbrance permitted by the foregoing
subparagraphs (a) through (h) above on substantially the same property or
assets theretofore subject thereto; or
(j) any mortgage, pledge, security interest, lien or encumbrance
securing any Indebtedness in an amount which, together with all other
Indebtedness secured by a mortgage, pledge, security interest, lien or
encumbrance that is not otherwise permitted by the provisions of this Section
3.6, does not at the time of the incurrence of the Indebtedness so secured
exceed 20% of Consolidated Net Tangible Assets.
In case the Issuer or any Restricted Subsidiary shall propose to pledge,
mortgage, hypothecate or grant a security interest in any property or assets
owned by the Issuer or any Restricted Subsidiary to secure any Indebtedness,
other than as permitted by subdivisions (a) to (j), inclusive, of this Section
3.6, the Issuer will prior thereto give written notice thereof to the Trustee,
and the Issuer will, or will cause such Restricted Subsidiary to, prior to or
simultaneously with such pledge, mortgage, hypothecation or grant of security
interest, by supplemental indenture executed to the Trustee (or to the extent
legally necessary to another trustee or additional or separate trustee), in
form satisfactory to the Trustee,effectively secure (for so long as such other
Indebtedness shall be so secured) all the Securities equally and ratably with
such Indebtedness and with any other indebtedness similarly entitled to be
equally and ratably secured. Such supplemental indenture shall contain the
provisions concerning the possession, control, release and substitution of
mortgaged and pledged property and securities and other appropriate matters
which are required by the Trust Indenture Act of 1939 (as in effect at the
date of execution of such supplemental indenture) to be included in a secured
indenture qualified under the Trust Indenture Act of 1939, and may also
contain such additional and amendatory provisions permitted by the Trust
Indenture Act of 1939 as the Issuer and the Trustee shall deem advisable or
appropriate or as the Trustee shall deem necessary in connection with such
pledge, mortgage, hypothecation or grant of security interest.
For the purpose of this Section 3.6, "security interest" shall include
the interest of the lessor under a lease with a term of three years or more
that should be, in accordance with generally accepted accounting principles,
recorded as a capital lease, and any such lease of property or assets not
acquired from the Issuer or any Restricted Subsidiary in contemplation of such
lease shall be treated as though the lessee had purchased such property or
assets from the lessor.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer 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 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 nor the
Trustee nor any agent of the Issuer 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. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer 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 may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
or, if the Issuer 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 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 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) to 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 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) The Trustee shall transmit
to Holders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act of 1939 at
the times and in the manner provided pursuant thereto. To the extent that any
such report is required by the Trust Indenture Act of 1939 with respect to any
12 month period, such report shall cover the 12 month period ending July 15
and shall be transmitted by the next succeeding September 15.
(b) A copy of each such report shall, at the time of such transmission
to Securityholders, be furnished to the Issuer 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 Securities of any series, means any one or more of the
following events (whatever the reason for such Event of Default), unless it is
either inapplicable to a particular series or it is specifically deleted or
modified in or pursuant to the Board Resolution or supplemental indenture
establishing such series of Securities or in the form of Security, for such
series:
(a) default in the payment of the principal of or premium, if any, of
the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise; or
(b) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(c) default in the payment or satisfaction of any sinking fund or other
purchase obligation with respect to Securities of such series, as and when
such obligation shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the
Securities of such series or in this Indenture continued for a period of 90
days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given by certified or registered mail to
the Issuer by the Trustee, or to the Issuer and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Securities of such series
then Outstanding; or
(e) without the consent of the Issuer a court having jurisdiction
shall enter an order for relief with respect to the Issuer under any
applicable bankruptcy, insolvency or other similar law of the Cayman Islands,
or without the consent of the Issuer a court having jurisdiction shall enter a
judgment, order or decree adjudging the Issuer a bankrupt or insolvent, or
enter an order for relief for reorganization, arrangement, adjustment or
composition of or in respect of the Issuer under any applicable bankruptcy,
insolvency or other similar law of the Cayman Islands, and the continuance of
any such judgment, order or decree is unstayed and in effect for a period of
90 consecutive days; or
(f) the Issuer shall institute proceedings for entry of an order for
relief with respect to the Issuer under any applicable bankruptcy, insolvency
or other similar law of the Cayman Islands, or for an adjudication of
insolvency, or shall consent to the institution of bankruptcy or insolvency
proceedings against it, or shall file a petition seeking, or seek or consent
to reorganization, arrangement, composition or relief under any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands, or shall
consent to the filing of such petition or to the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator or similar official of
the Issuer or of substantially all of its property, or the Issuer shall make a
general assignment for the benefit of creditors as recognized under any
applicable bankruptcy, insolvency or other similar law of the Cayman Islands;
or
(g) default under any bond, debenture, note or other evidence of
Indebtedness for money borrowed by the Issuer or under any mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Issuer, whether such
Indebtedness exists on the date hereof or shall hereafter be created, which
default shall have resulted in such Indebtedness becoming or being declared
due and payable prior to the date on which it would otherwise have become due
and payable, or any default in payment of such Indebtedness (after the
expiration of any applicable grace periods and the presentation of any debt
instruments, if required), if the aggregate amount of all such Indebtedness
that has been so accelerated and with respect to which there has been such a
default in payment shall exceed $20,000,000, without each such defaultand
acceleration having been rescinded or annulled within a period of 20 days
after there shall have been given by certified or registered mail to the
Issuer by the Trustee, or to the Issuer and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Securities of such series then
Outstanding, a written notice specifying each such default and requiring the
Issuer to cause each such default and acceleration to be rescinded or annulled
and stating that such notice is a "Notice of Default" hereunder; or
(h) any other Event of Default provided with respect to the Securities
of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of such series then
Outstanding, by notice in writing to the Issuer (and to the Trustee if given
by Securityholders), may declare the principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities
of such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything to the contrary
contained in this Indenture or in the Securities of such series. This
provision, however, is subject to the condition that, if at any time after the
unpaid principal amount (or such specified amount) of the Securities of such
series shall have been so declared due and payable and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest, if any,
upon all of the Securities of such series and the principal of any and all
Securities of such series which shall have become due otherwise than by
acceleration (with interest on overdue installments of interest, if any, to
the extent that payment of such interest is enforceable under applicable law
and on such principal at the rate borne by the Securities of such series to
the date of such payment or deposit) and the reasonable compensation,
disbursements, expenses and advances of the Trustee and all other amounts due
the Trustee under Section 6.6, and any and all defaults under this Indenture,
other than the nonpayment of such portion of the principal amount of and
accrued interest, if any, on Securities of such series which shall have become
due by acceleration, shall have been cured or shall have been waived in
accordance with Section 5.7 or provision deemed by the Trustee to be adequate
shall have been made therefor, then and in every such case the Holders of a
majority in aggregate principal amount of the Securities of such series then
Outstanding, by written notice to the Issuer and to the Trustee, may rescind
and annul such declaration and its consequences; but no such rescission and
annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon. If any Event of Default specified in
Section 5.1(e) or 5.1(f) occurs with respect to the Issuer, all unpaid
principal amount (or, if the Securities of any series then Outstanding are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of each such series) and accrued interest on all
Securities of each series then Outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act by the
Trustee or any Securityholder.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Issuer, the Trustee and the Securityholders shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Securityholders shall continue as
though no such proceeding had been taken.
Except with respect to an Event of Default pursuant to Section 5.1 (a),
(b) or (c), the Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to a Responsible
Officer by the Issuer, a paying agent or any Securityholder.
SECTION 5.2 Payment of Securities on Default; Suit Therefor. The Issuer
covenants that (a) if default shall be made in the payment of any installment
of interest upon any of the Securities of any series then Outstanding as and
when the same shall become due and payable, and such default shall have
continued for a period of 60 days, or (b) if default shall be made in the
payment of the principal of any of the Securities of such series as and when
the same shall have become due and payable, whether at maturity of the
Securities of such series or upon redemption or by declaration or otherwise,
then, upon demand of the Trustee, the Issuer will pay to the Trustee, for the
benefit of the Holders of the Securities, the whole amount that then shall
have become due and payable on all such Securities of such series for
principal or interest, if any, or both, as the case may be, with interest upon
the overdue principal and (to the extent that payment of such interest is
enforceableunder applicable law) upon the overdue installments of interest, if
any, at the rate borne by the Securities of such series; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the Trustee,
its agents, attorneys and counsel, and any expenses or liabilities incurred by
the Trustee hereunder other than through its negligence or bad faith.
If the Issuer shall fail forthwith to pay such amounts upon such demand,
the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other
obligor, or in the case of any other similar judicial proceedings relative to
the Issuer or other obligor upon the Securities of such series, or to the
creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of the Securities of such series 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 pursuant to
the provisions of this Section 5.2, shall be entitled and empowered by
intervention in such proceedings or otherwise to file and prove a claim or
claims for the whole amount of principal and interest, if any, owing and
unpaid in respect of the Securities of such series, and, in case of any
judicial proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and of the Securityholders allowed in such judicial proceedings
relative to the Issuer or any other obligor on the Securities of such series,
its or their creditors, or its or their property, and to collect and receive
any moneys or other property payable or deliverable on any such claims, and to
distribute the same after the deduction of its charges and expenses, and any
receiver, assignee or trustee or similar official in bankruptcy or
reorganization is hereby authorized by each of the Securityholders to make
such payments to the Trustee, and, if the Trustee shall consent to the making
of such payments directly to the Securityholders, to pay to the Trustee any
amount due it for compensation and expenses or otherwise pursuant to Section
6.6, including counsel fees and expenses incurred by it up to the date of such
distribution. To the extent that such payment of reasonable compensation,
expenses and counsel fees and expenses out of the estate in any such
proceedings shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions,
dividends, moneys, securities and other property which the Holders of the
Securities of such series may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall be for the ratable benefit of the
Holders of the Securities of the series in respect of which such judgment has
been recovered.
SECTION 5.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 5.2 with respect to Securities of
any series then Outstanding shall be applied in the order following, at the
date or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities of such series, and stamping thereon
the payment, if only partially paid, and upon surrender thereof, if fully
paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
of all other expenses and liabilities incurred, and all advances made, by the
Trustee pursuant to Section 6.6 except as a result of its negligence or bad
faith;
SECOND: If the principal of the Outstanding Securities of such
series shall not have become due and be unpaid, to the payment of interest, if
any, on the Securities of such series, in the order of the maturity of the
installments of such interest, if any, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments of
interest, if any, at the rate borne by the Securities of such series, such
payment to be made ratably to the Persons entitled thereto;
THIRD: If the principal of the Outstanding Securities of such
series shall have become due, by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon the Securities of such series for
principal and interest, if any, with interest on the overdue principal and (to
the extent that such interest has been collected by the Trustee) upon overdue
installments of interest, if any, at the rate borne by the Securities of such
series; and in case such moneys shall be insufficient to pay in full the whole
amounts so due and unpaid upon the Securities of such series, then to the
payment of such principal and interest, if any, without preference or priority
of principal over interest or of interest over principal, or of any
installment of interest over any other installment of interest, or of any
Security over any other Security, ratably to the aggregate of such principal
and accrued and unpaid interest; and
FOURTH: To the payment of any surplus then remaining to the Issuer,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same.
No claim for interest which in any manner at or after maturity shall have
been transferred or pledged separate or apart from the Securities to which it
relates, or which in any manner shall have been kept alive after maturity by
an extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on behalf or with the
consent or approval of the Issuer shall be entitled, in case of a default
hereunder, to any benefit of this Indenture, except after prior payment in
full of the principal of all Securities of any series then Outstanding and of
all claims for interest not so transferred, pledged, kept alive, extended,
purchased or funded.
SECTION 5.4 Proceedings by Securityholders. No Holder of any Securities
of any series then Outstanding shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee or similar official, or for
any other remedy hereunder, unless such Holder previously shall have given to
the Trustee written notice of default and of the continuance thereof, as
hereinbefore provided, and unless the Holders of not less than 25% in
aggregate principal amount of the Securities of such series then Outstanding
shall have made written request to the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee
for 60 days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding, it being understood and intended, and being expressly covenanted
by the Holder of every Security of such series with every other Holder and the
Trustee, that no one or more Holders of Securities of such series shall have
any right in any manner whatever by virtue of or by availing of any provision
of this Indenture or of the Securities to affect, disturb or prejudice the
rights of any other Holder of such Securities of such series, or to obtain or
seek to obtain priority over or preference as to any other such Holder, or to
enforce any right under this Indenture or the Securities, except in the manner
herein provided and for the equal, ratable and common benefit of all Holders
of Securities of such series.
Notwithstanding any other provisions in this Indenture, however, the
right of any Holder of any Security to receive payment of the principal of,
premium, if any, and interest, if any, on such Security, on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates shall not be
impaired or affected without the consent of such Holder.
SECTION 5.5 Proceedings by Trustee. In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any of such rights, either by suit in equity or by action at law or by
proceedings in bankruptcy or otherwise, whether for the specific enforcement
of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.6 Remedies Cumulative and Continuing. All powers and remedies
given by this Article Five to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omissionof the Trustee or of any Securityholder to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be
a waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.4, every power and remedy given by this Article Five
or by law to the Trustee or to the Securityholders may be exercised from time
to time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by Majority of
Securityholders. The Holders of a majority in aggregate principal amount of
the Securities of any series then Outstanding shall have the right to direct
the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to Securities of such series; provided, however, that
(subject to the provisions of Section 6.1) the Trustee shall have the right to
decline to follow any such direction if the Trustee shall determine upon
advice of counsel that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith by its board of directors, its
executive committee, or a trust committee of directors or Responsible Officers
or both shall determine that the action or proceeding so directed would
involve the Trustee in personal liability. The Holders of a majority in
aggregate principal amount of the Securities of any series then Outstanding
may on behalf of the Holders of all of the Securities of such series waive any
past default or Event of Default hereunder and its consequences except a
default in the payment of interest, if any, on, or the principal of, the
Securities of such series. Upon any such waiver the Issuer, the Trustee and
the Holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon. Whenever any default or Event of Default hereunder shall
have been waived as permitted by this Section 5.7, said default or Event of
Default shall for all purposes of the Securities and this Indenture be deemed
to have been cured and to be not continuing.
SECTION 5.8 Notice of Defaults. The Trustee shall, within 90 days after
the occurrence of a default, with respect to Securities of any series then
Outstanding, mail to all Holders of Securities of such series, as the names
and the addresses of such Holders appear upon the Securities register, notice
of all defaults known to the Trustee with respect to such series, unless such
defaults shall have been cured before the giving of such notice (the term
"defaults" for the purpose of this Section 5.8 being hereby defined to be the
events specified in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of
Section 5.1, not including periods of grace, if any, provided for therein and
irrespective of the giving of the written notice specified in said clause (d)
or (g) but in the case of any default of the character specified in said
clause (d) or (g) no such notice to Securityholders shall be given until at
least 60 days after the giving of written notice thereof to the Issuer
pursuant to said clause (d) or (g), as the case may be); provided, however,
that, except in the case of default in the payment of the principal of or
interest, if any, on any of the Securities, or in the payment or satisfaction
of any sinking fund or other purchase obligation, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or Responsible
Officers or both of the Trustee in good faith determines that the withholding
of such notice is in the best interests of the Securityholders.
SECTION 5.9 Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
cost of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 5.9 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder, or group of Securityholders, holding in the
aggregate more than 10% in principal amount of the Securities of any series
then Outstanding, or to any suit instituted by any Securityholders for the
enforcement of the payment of the principal of or interest, if any, on any
Security against the Issuer on or after the due date expressed in such
Security.
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
withrespect 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 made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent 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 Section 5.7 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 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 Section 5.7), 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, if paid by the Trustee or any predecessor Trustee, shall be repaid
by the Issuer 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 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, 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 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
receive, collect, hold and retain collections from the Issuer 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 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 covenants and agrees 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 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 covenants and agrees to pay or reimburse the
Trustee and each predecessor Trusteeupon 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 also covenants 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 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. 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 each 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 The Chase Manhattan
Bank, the Issuer 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 Section 5.9, 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 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 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 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 Section 5.9, 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 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 seriesshall 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 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 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 and the Issuer, 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 awitness 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 Trustee
and any agent of the Issuer 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 Trustee nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary.
SECTION 7.4 Securities Owned by Issuer 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 or any other obligor on the Securities with respect to which such
determination is being made or by any Affiliate of the Issuer or 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 any other obligor upon
the Securities or any Affiliate of the Issuer 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 shall
furnish to the Trustee promptly an Officers' Certificate listing and
identifying all Securities, if any, known by the Issuer 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 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 Section 5.7 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), 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 to the Issuer, or successive
successions, and the assumption by the successor Person of the covenants,
agreements and obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer 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 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;
(h) to evidence and provide for the acceptance of appointment hereunder
of a Trustee other than The Chase Manhattan Bank 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 solely in
respect of, or add new covenants or Events of Default of the Issuer 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 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), 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 pursuant to Section 5.1 or the amount thereof provable in
bankruptcy pursuant to Section 5.2, 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, 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 and the Issuer 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, accompanied by a copy of a resolution of
the Board of Directors (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)
certified by the secretary or an assistant secretary of the Issuer 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
shalljoin with the Issuer 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 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 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 or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by
the Issuer, 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 May Consolidate, etc., on Certain Terms. Subject to
the provisions of Section 9.2, nothing contained in this Indenture or in any
of the Securities shall prevent any consolidation or merger of the Issuer with
or into any other Person or Persons (whether or not affiliated with the
Issuer), or successive consolidations or mergers in which the Issuer or its
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 to any other Person (whether or not
affiliated with the Issuer) authorized to acquire and operate the same;
provided, however, and the Issuer hereby covenants and agrees, that any such
consolidation, merger, sale, lease, exchange or other disposition shall be
upon the conditions that (a) immediately after giving effect to such
consolidation, merger, sale, lease, exchange or other disposition of the
Person (whether the Issuer 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, 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; (b) the Person (if other than the Issuer)
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 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 (c) the due and punctual payment of
the principal of and interest, if any, on all the Securities, according to
their tenor, and the due andpunctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Issuer,
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) 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.
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 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, such successor
Person shall succeed to and be substituted for the Issuer, with the same
effect as if it had been named herein as the party of the first part, and the
Issuer (including any intervening successor to the Issuer which shall have
become the obligor hereunder) shall be relieved of any further obligation
under this Indenture and the Securities; provided, however, that in the case
of a sale, lease, exchange or other disposition of the property and assets of
the Issuer (including any such intervening successor), the Issuer (including
any such intervening successor) shall continue to be liable on its obligations
under this Indenture and the Securities to the extent, but only to the extent,
of liability to pay the principal of, premium, if any, 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, any or all
of the Securities issuable hereunder which theretofore shall not have been
signed by the Issuer 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 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 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, such changes in phraseology and form (but not in substance) may be
made in the Securities, 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; Covenant
Defeasance.
(A) If at any time (a) the Issuer 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 (b) the Issuer 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 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 agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properlyincurred, 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 (a) the Issuer 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 (b) the Issuer 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 (c) in
the case of any series of Securities with respect to which the exact amount
described in clause (ii) below can be determined at the time of making the
deposit referred to in such clause (ii), (i) 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 (ii)
the Issuer 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 shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such series on the
date of the deposit referred to in clause (ii) above and the provisions of
this Indenture with respect to the Securities of such series shall no longer
be in effect (except, in the case of clause (c) 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 under Section 3.2
with respect to Securities of such series) 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 shall
be deemed to have paid and discharged the entire indebtedness on all the
Securities of such a series 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 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 under Section 3.2
with respect to Securities of such series) 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, if
(a) with reference to this provision the Issuer 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 (i) cash in an amount, or
(ii) 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 (iii) 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 (A) 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 (B) 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 is
a party or by which it is bound; and
(c) the Issuer has delivered to the Trustee an Opinion of Counsel based
on the fact that (x) the Issuer has received from, or there has been published
by, the Internal Revenue Service a ruling or (y), 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) 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 the foregoing, 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 shall be deemed to be, and shall be, released from its
obligations under Section 3.6 hereof on the 91st day after the date of the
deposit referred to in subparagraph (a) below, and the Issuer's obligations
under all Securities of such series and this Indenture with respect to Section
3.6 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
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 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 (i) cash in an amount, or
(ii) 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 (iii) 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 (A) 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 (B) 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; and
(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 is
a party or by which it is bound; and
(c) the Issuer has delivered to the Trustee an Opinion of Counsel 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.
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
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 Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, 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, or any partner of
the Issuer or of any successor, either directly or through the Issuer 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 by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities. Nothing in this Indenture or in the Securities,
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
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 Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, 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 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 (until another address of the Issuer is filed by the Issuer with the
Trustee) to Triton Energy Limited, Caledonian House, Mary Street, P.O. Box
1043, George Town, Grand Cayman, Cayman Islands, with a copy to Triton Energy
Corporation, 6688 North Central Expressway, Suite 1400, Dallas, Texas
75206, Attention: Robert B. Holland III. Any notice, direction, request or
demand by the Issuer 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 The Chase Manhattan Bank, 450 West 33rd Street,
15th Floor, New York, New York 10001, 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 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 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 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, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, 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 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, 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 AND EACH SECURITY 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 Issuer 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 or the Securities. The Issuer
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 its 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 Issuer all process in any action, suit or proceedings
that may be brought against the Issuer in any of the courts referred to in
this Section, and agrees that such service of process, or the acceptance or
acknowledgment 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 Issuer 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 Securities or any of them to take
proceedings against the Issuer in any other court of competent jurisdiction
no, by virtue of anything contained herein, shall the taking of proceedings in
one or more jurisdictions preclude the taking of 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 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities
of a series except as otherwise specified, as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a
whole or in part at the option of the Issuer shall be given by mailing notice
of such redemption by first class mail, postage prepaid, at least 30 days and
not more than 60 days prior to the date fixed for redemption to such Holders
of Securities of such series at their last addresses as they shall appear in
the Security register. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or
not the Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i) the
principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price, (iv)
the place or places of payment, (v) the CUSIP number relating to such
Securities, (vi) that payment will be made upon presentation and surrender of
such Securities, (vii) whether such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, (viii) whether interest,
if any, (or, in the case of Original Issue Discount Securities, original issue
discount) accrued to the date fixed for redemption will be paid as specified
in such notice and (ix) whether on and after said date interest, if any, (or,
in the case of Original Issue Discount Securities, original issue discount)
thereon or on the portions thereof to be redeemed will cease to accrue. In
case any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.2, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in
Section 3.5) an amount of money sufficient to redeem on the redemption date
all the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest, if any, to the date fixed
for redemption. The Issuer will deliver to the Trustee at least 45 days prior
to the date fixed for redemption (unless a shorter notice period shall be
satisfactory to the Trustee) an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed. In case of a redemption at the
election of the Issuer prior to the expiration of any restriction on such
redemption, the Issuer shall deliver to the Trustee, prior to the giving of
any notice of redemption to Holders pursuant to this Section, an Officers'
Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed. Securities may be redeemed in part
in multiples equal to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
Issuer in writing of the Securities of such series selected for redemption
and, in the case of any Securities of such series selected for partial
redemption, the principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all provisions relating
to the redemption of Securities of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as provided by this Article Twelve, the Securities
or portions of Securities specified in such notice shall become due and
payable on the date and at the place or places stated in such notice at the
applicable redemption price, together with interest, if any accrued to the
date fixed for redemption, and on and after said date (unless the Issuer shall
default in the payment of such Securities at the redemption price, together
with interest, if any, accrued to said date) interest, if any (or, in the case
of Original Issue Discount Securities, original issue discount), on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and such Securities shall cease from and after the date fixed for
redemption (unless an earlier date shall be specified in a Board Resolution,
Officers' Certificate or executed supplemental indenture referred to in
Sections 2.1 and 2.3 by or pursuant to which the form and terms of the
Securities of such series were established) except as provided in Sections 6.5
and 10.4, to be entitled to any benefit or security under this Indenture, and
the Holders thereof shall have no right in respect of such Securities except
the right to receive the redemption price thereof and unpaid interest, if any,
to the date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, said Securities or
the specified portions thereof shall be paid and redeemed by the Issuer at the
applicable redemption price, together with interest, if any, accrued thereon
to the date fixed for redemption; provided that payment of interest, if any,
becoming due on or prior to the date fixed for redemption shall be payable to
the Holders of Securities registered as such on the relevant record date
subject to the terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the redemption price shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of
the Holder thereof, at the expense of the Issuer, a new Security or Securities
of such series, and of like tenor, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and
certificate number in an Officers' Certificate delivered to the Trustee at
least 45 days prior to the last date on which notice of redemption may be
given as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer, or (b) a Person specifically identified
in such written statement as an Affiliate of the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation
pursuant to Section 2.10, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section 12.5, or
(c) receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers'
Certificate (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by credit
of Securities of such series and the basis for such credit, (b) stating that
none of the Securities of such series to be so credited has theretofore been
so credited, (c) stating that no defaults in the payment of interest or Events
of Default with respect to such series have occurred (which have not been
waived or cured or otherwise ceased to exist) and are continuing, and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Issuer
intends to pay on or before the next succeeding sinking fund payment date.
Any Securities of such series to be credited and required to be delivered to
the Trustee in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.10 to the Trustee with such
Officers' Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers' Certificate shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become unconditionally obligated to
make all the cash payments or payments therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the Issuer,
on or before any such 60th day, to deliver such Officers' Certificate and
Securities (subject to the parenthetical clause in the second preceding
sentence) specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Issuer (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in respect
thereof, and (ii) that the Issuer will make no optional sinking fund payment
with respect to such series as provided in this Section 12.5.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000, or a lesser sum if the Issuer shall so request with respect to
the Securities of any particular series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price together with accrued
interest, if any, to the date fixed for redemption. If such amount shall be
$50,000 or less and the Issuer makes no such request, then it shall be carried
over until a sum in excess of $50,000 is available. The Trustee shall select,
in the manner provided in Section 12.2, for redemption on such sinking fund
payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing
bythe Issuer) inform the Issuer of the serial numbers of the Securities of
such series (or portions thereof) so selected. The Issuer, or the Trustee, in
the name and at the expense of the Issuer (if the Issuer shall so request the
Trustee in writing) shall cause notice of redemption of the Securities of such
series to be given in substantially the manner provided in Section 12.2 (and
with the effect provided in Section 12.3) for the redemption of Securities of
such series in part at the option of the Issuer. The amount of any sinking
fund payments not so applied or allocated to the redemption of Securities of
such series shall be added to the next cash sinking fund payment for such
series and, together with such payment, shall be applied in accordance with
the provisions of this Section 12.5. Any and all sinking fund moneys held on
the stated maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for the payment
or redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the principal of, and interest, if any, on, the Securities of such
series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest, if
any, accrued to the date fixed for redemption on Securities to be redeemed on
such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
with respect to such series except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default known to a Responsible Officer of the Trustee
shall occur, and any moneys thereafter paid into the sinking fund, shall,
during the continuance of such default or Event of Default, be deemed to have
been collected under Article Five and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided
in Section 5.7 or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as
of July 25, 1997.
TRITON ENERGY LIMITED
By:
Title:
Attest:
By:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By:
Title:
Attest:
By:
Title:
EXHIBIT 10.59
AMENDED AND RESTATED FIRST SUPPLEMENTAL INDENTURE
AMENDED AND RESTATED FIRST SUPPLEMENTAL INDENTURE, dated as of July 25,
1997 (this "Supplemental Indenture"), between Triton Energy Limited, a
Cayman Islands company (the "Issuer"), and The Chase Manhattan Bank, a New
York banking corporation, as trustee (the "Trustee"), amending and restating
in its entirety the First Supplemental Indenture dated as of April 10, 1997
(the "Original First Supplemental Indenture"), among the Issuer, Triton Energy
Corporation, a Delaware corporation and a wholly owned subsidiary of the
Issuer ("TEC"), and the Trustee.
W I T N E S S E T H:
WHEREAS, the Issuer, TEC, and the Trustee duly executed the Senior
Indenture dated as of April 10, 1997 (the "Original Indenture") in connection
with the issuance from time to time, on a joint and several basis, of the
Issuer's and TEC's unsecured debentures, notes or other evidences of
indebtedness to be issued in one or more series;
WHEREAS, the Issuer, TEC and the Trustee duly executed the Original First
Supplemental Indenture, which Original First Supplemental Indenture amended
and supplemented the Original Indenture in connection with the issuance by the
Issuer and TEC, on a joint and several basis, of $200,000,000 aggregate
principal amount of 8 3/4% Senior Notes due 2002 (the "Notes");
WHEREAS, the Original First Supplemental Indenture provided for the
release of TEC from its obligations under the Original Indenture and the
Notes, without the consent of the Holders of the Notes, if (i) (A) no more
than $25,000,000 in aggregate principal amount of TEC's Senior Subordinated
Discount Notes due 1997 (the "1997 Notes") and TEC's 9-3/4% Senior
Subordinated Discount Notes due 2000 (the "9 3/4% Notes"), taken together,
were no longer outstanding or (B) the Issuer or any successor to the Issuer
assumed the obligations of TEC under the 1997 Notes and the 9 3/4% Notes and
(ii) the Issuer or any successor of the Issuer assumed the obligations of TEC
under the Notes;
WHEREAS, as of the date hereof, no 1997 Notes and $854,000 aggregate
principal amount of the 9 3/4% Notes remain outstanding;
WHEREAS, TEC and the Issuer desire that TEC be released from its
obligations under the Original Indenture and the Notes and the Issuer assume
such obligations;
WHEREAS, in connection with the release of TEC from its obligations
under the Notes and the execution by the Issuer and the Trustee on the date
hereof of an Amended and Restated Senior Indenture dated as of the date
hereof, amending and restating the Original Indenture in its entirety (such
amended and restated senior indenture referred to herein as the "Indenture"),
the Issuer has requested the Trustee and the Trustee has agreed to join in the
execution of this Supplemental Indenture in accordance with the terms of
Section 8.1 of the Indenture and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual
agreements herein contained, the Issuer 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:
SECTION 1. Amendments to the Indenture Relating to the Notes.
1.1 Amendments to Article One of the Indenture
(Definitions). Article One of the Indenture is hereby amended in respect of
the Notes and only in respect of the Notes as follows:
(a) by adding thereto the following new definitions in their
appropriate alphabetical order:
"Additional Amounts" has the meaning set forth in Section 13.1
"Attributable Indebtedness" means, with respect to any particular
lease under which any Person is at the time liable and at any date as of which
the amount thereof is to be determined, the present value of the total net
amount of rent required to be paid by such Person under the lease during the
primary term thereof, without giving effect to any renewals at the option of
the lessee, discounted from the respective due dates thereof to such date at
the rate of interest per annum implicit in the terms of the lease. As used in
the preceding sentence, the net amount of rent under any lease for any such
period shall mean the sum of rental and other payments required to be paid
with respect to such period by the lessee thereunder excluding any amounts
required to be paid by such lessee on account of maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges. In the case of
any lease which is terminable by the lessee upon payment of a penalty, such
net amount ofrent shall also include the amount of such penalty, but no rent
shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated.
"Currency Hedge Obligations" means, at any time as to any Person,
the obligations of such Person at such time that were incurred in the ordinary
course of business pursuant to any foreign currency exchange agreement, option
or futures contract or other similar agreement or arrangement designed to
protect against or manage such Person's or any of its Subsidiaries' exposure
to fluctuations in foreign currency exchange rates.
"Funded Indebtedness" means all the Indebtedness (including
Indebtedness incurred under any revolving credit, letter of credit or working
capital facility) that matures by its terms, or that is renewable at the
option of any obligor thereon to a date, more than one year after the date on
which such Indebtedness is originally incurred.
"Interest Rate Hedging Agreements" means, with respect to any
Person, the obligations of such Person under (i) interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements
and (ii) other agreements or arrangements designed to protect such Person or
any of its Subsidiaries against fluctuations in interest rates.
"Non-U.S. Restricted Subsidiary" has the meaning set forth in
Section 5(e).
"Notes" means the Issuer's 8 3/4% Senior Notes due 2002, which Notes
shall be substantially in the form of Exhibit A hereto.
"Oil and Gas Hedging Contracts" means any oil and gas purchase or
hedging agreement, and other agreement or arrangement, in each case, that is
designed to provide protection against oil and gas price fluctuations.
"Ordinary Course Lien" means:
(a) Liens for taxes, assessments or governmental charges or
levies on the property of the Issuer or any Restricted Subsidiary if the same
shall not at the time be delinquent or thereafter can be paid without penalty,
or are being contested in good faith by appropriate proceedings;
(b) Liens imposed by law, such as carriers', warehousemen's,
landlords' and mechanics' liens and other similar liens arising in the
ordinary course of business which secure obligations not morethan 60 days past
due or which are being contested in good faith by appropriate proceedings;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the
use thereof in the ordinary course of business of the Issuer and the
Restricted Subsidiaries;
(e) Liens arising under operating agreements or similar
agreements in respect of obligations which are not yet due or which are being
contested in good faith by appropriate proceedings;
(f) Liens reserved in oil, gas and/or mineral leases, production
sharing contracts and petroleum concession agreements and licenses for bonus
or rental payments and for compliance with the terms of such leases,
contracts, agreements and licenses;
(g) Liens pursuant to partnership agreements, oil, gas and/or
mineral leases, production sharing contracts, petroleum concession agreements
and licenses, farm-out agreements, division orders, contracts for the sale,
purchase, exchange, processing or transportation of oil, gas and/or other
hydrocarbons, unitization and pooling declarations and agreements, operating
agreements, development agreements, area of mutual interest agreements, and
other agreements which are customary in the oil, gas and other mineral
exploration, development and production business and in the business of
processing of gas and gas condensate production for the extraction of products
therefrom;
(h) Liens on personal property (excluding the capital stock of
any Restricted Subsidiary) securing Indebtedness of the Issuer or any
Restricted Subsidiary other than Funded Indebtedness; and
(i) Liens imposed by law or order as a result of any proceeding
before any court or regulatory body that is being contested in good faith, and
Liens which secure a judgment or other court-ordered award or settlement as to
which the Issuer has not exhausted its appellate rights.
"Redemption Date" when used with respect to any Note to be redeemed
pursuant to Article Twelve of the Indenture, means the date fixed for such
redemption by or pursuant to such Article.
"Redemption Price" when used with respect to any Note to be redeemed
pursuant to Article Twelve of the Indenture, means the price at which such
Note is to be redeemed pursuant to such Article.
"Restricted Subsidiary" means (i) any Subsidiary of the Issuer which
owns or leases (as lessor or lessee) (A) any property owned or leased by the
Issuer or any Subsidiary, or any interest of the Issuer or any Subsidiary in
property which is considered by the Issuer to be capable of producing oil or
gas or minerals in commercial quantities or (B) any processing or
manufacturing plant or pipeline owned or leased by the Issuer or any
Subsidiary except any processing or manufacturing plant or pipeline, or
portion thereof, which the Board of Directors in its good faith judgment
determines in a Board Resolution is not material to the business of the Issuer
and its Subsidiaries taken as a whole, or (ii) any Subsidiary designated as a
Restricted Subsidiary by the Board of Directors.
"Sale/Leaseback Transaction" means with respect to the Issuer or any
of its Restricted Subsidiaries, any arrangement with any Person providing for
the leasing by the Issuer or any of its Restricted Subsidiaries of any
principal property, acquired or placed into service more than 180 days prior
to such arrangement, whereby such property has been or is to be sold or
transferred by the Issuer or any of its Restricted Subsidiaries to such
Person.
"U.S. Restricted Subsidiary" has the meaning set forth in Section
5.1(e).
(b) by deleting therefrom the definitions of the following
defined terms in their respective entireties :
"Restricted Subsidiary"
"Unrestricted Subsidiary"
1.2 Amendments to Article Three of the Indenture (Covenants of the
Issuer). Article Three of the Indenture is hereby amended in respect of the
Notes and only in respect of the Notes by deleting therefrom Sections 3.6 and
3.7 and adding thereto the following new Sections 3.6 and 3.7 in their
appropriate numerical order:
SECTION 3.6 Limitations on Liens. The Issuer will not, and will not
permit any Restricted Subsidiary to, issue, assume or guarantee any
Indebtedness for borrowed money secured by any Lien on any property or asset
now owned or hereafter acquired by the Issuer or any Restricted Subsidiary
without making effective provision whereby any and all Notes then or
thereafter outstanding will be secured by a Lien equally and ratably with any
and all other obligations thereby secured for so long as any such obligations
shall be so secured.
The foregoing restriction will not, however, apply to:
(a) Liens existing on the date on which the Notes are originally issued
or provided for under the terms of agreements existing on such date;
(b) Liens on property securing (i) all or any portion of the cost of
exploration, drilling or development of such property; (ii) all or any portion
of the cost of acquiring, constructing, altering, improving or repairing any
property or assets, real or personal, or improvements used or to be used in
connection with such property or (iii) Indebtedness incurred by the Restricted
Subsidiary to provide funds for the activities set forth in clauses (i) and
(ii) above;
(c) Liens securing Indebtedness owed by a Restricted Subsidiary to the
Issuer or to any other Restricted Subsidiary;
(d) Liens on property existing at the time of acquisition of such
property by the Issuer or a Subsidiary or Liens on the property of any
corporation or other entity existing at the time such corporation or other
entity becoming a Restricted Subsidiary or is merged with the Issuer in
compliance with the Indenture and in either case not incurred as a result of
(or in connection with or in anticipation of) the acquisition of such property
or such corporation or other entity becoming a Restricted Subsidiary or being
merged with the Issuer, provided that such Liens do not extend to or cover any
property or assets of the Issuer or any Restricted Subsidiaries other than the
property so acquired;
(e) Liens on any property securing (i) Indebtedness incurred in
connection with the construction, installation or financing of pollution
control or abatement facilities or other forms of industrial revenue bond
financing or (ii) Indebtedness issued or guaranteed by the United States or
any State thereof or any department, agency or instrumentality of either;
(f) any Lien extending, renewing or replacing (or successive extensions,
renewals or replacements of) any Lien of any type permitted under clauses (a)
through (e) above, provided that such Lien extends to or covers only the
property that is subject to the Lien being extended, renewed or replaced;
(g) Ordinary Course Liens;
(h) any Lien resulting from the deposit of moneys or evidence of
indebtedness in trust for the purpose of defeasing Indebtedness of the Issuer
or any Subsidiary; or
(i) Liens (exclusive of any Lien of any type otherwise permitted under
clauses (a) through (h) above) securing Indebtedness of the Issuer or any
Restricted Subsidiary in an aggregate principal amount which, together with
the aggregate amount of Attributable Indebtedness deemed to be outstanding in
respect of all Sale/Leaseback Transactions entered into pursuant to clause (a)
of Section 3.7 (exclusive of any such Sale/Leaseback Transactions otherwise
permitted under clauses (a) through (h) above), does not at the time such
Indebtedness is incurred exceed 15% of Consolidated Net Tangible Assets (as
shown in the most recent consolidated balance sheet of the Issuer and its
Subsidiaries).
The following types of transactions will not be prohibited or otherwise
limited by the foregoing: (i) the sale, granting of Liens with respect to, or
other transfer of, crude oil, natural gas or other petroleum hydrocarbons in
place for a period of time until, or in an amount such that, the transferee
will realize therefrom a specified amount (however determined) of money or of
such crude oil, natural gas or other petroleum hydrocarbons; (ii) the sale or
other transfer of any other interest in property of the character commonly
referred to as a production payment, overriding royalty, forward sale or
similar interest; (iii) the entering into of Currency Hedge Obligations,
Interest Rate Hedging Agreements or Oil and Gas Hedging Contracts although
Liens securing any Indebtedness for borrowed money that is the subject of any
such obligation shall not be permitted hereby unless permitted under clauses
(a) through (i) above; and (iv) the granting of Liens required by any contract
or statute in order to permit the Issuer or any Restricted Subsidiary to
perform any contract or subcontract made by it with or at the request of the
United States or any State thereof or any department, agency or
instrumentality of either, or to secure partial, progress, advance or other
payments to the Issuer or any Restricted Subsidiary by such governmental unit
pursuant to the provisions of any contract or statute.
SECTION 3.7 Limitation of Sale/Leaseback Transactions. The Issuer
will not, and will not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with any Person (other than the Issuer or a
Restricted Subsidiary) unless:
(a) the Issuer or such Restricted Subsidiary would be entitled to incur
Indebtedness, in a principal amount equal to the Attributable Indebtedness
with respect to such Sale/Leaseback Transaction, secured by a Lien on the
property subject to such Sale/Leaseback Transaction pursuant to the covenant
described in Section 3.6 without equally and ratably securing the Notes
pursuant to such covenant;
(b) after the date on which the Notes are originally issued and within a
period commencing six months prior to the consummation of such Sale/Leaseback
Transaction and ending six months after the consummation thereof, the Issuer
or such Restricted Subsidiary shall have expended for property used or to be
used in the ordinary course of business of the Issuer and the Restricted
Subsidiaries (including amounts expended for the exploration, drilling or
development thereof, and for additions, alterations, repairs and improvements
thereto) an amount equal to all or a portion of the net proceeds of such
Sale/Leaseback Transaction and the Issuer shall have elected to designate such
amount as a credit against such Sale/Leaseback Transaction (with any such
amount not being so designated to be applied as set forth in clause (c)
below); or
(c) the Issuer during the twelve-month period after the effective date
of such Sale/Leaseback Transaction, shall have applied to the voluntary
repurchase, repayment, defeasance or retirement of all or a portion of the
Notes or any pari passu Indebtedness an amount equal to the greater of the net
proceeds of the sale or transfer of the property leased in such Sale/Leaseback
Transaction and the fair value, as determined by the Board of Directors of the
Issuer, of such property at the time of entering into such Sale/Leaseback
Transaction (in either case adjusted to reflect the remaining term of the
lease and any amount expended by the Issuer as set forth in clause (b) above),
less an amount equal to the principal amount of Notes and pari passu
Indebtedness voluntarily repurchased, repaid, defeased or retired by the
Issuer within such twelve-month period and not designated as a credit against
any other Sale/Leaseback Transaction entered into by the Issuer or any
Restricted Subsidiary during such period.
1.3 Amendments to Article Five of the Indenture (Remedies of the
Trustee and Security Holders on an Event of Default. Article Five of
theIndenture is hereby amended in respect of the Notes and only in respect of
the Notes as follows:
(a) by deleting the text of clause 5.1(c) in its entirety and
inserting in lieu thereof the phrase "[intentionally omitted]".
(b) by deleting the phrase "period of 90 days" from the third
line of Section 5.1(d) and replacing it with the phrase "period of 60 days";
(c) by deleting the phrase "90 consecutive days" from the eighth
line of Section 5.1(e) and replacing it with the phrase "60 consecutive days";
(d) by deleting therefrom clauses 5.1(e) and 5.1(f) and adding
thereto the following new sections 5.1(e) and 5.1(f) in their appropriate
numerical order:
(e) without the consent of the Issuer a court having
jurisdiction shall enter an order for relief, (x) in the case of the
Issuer or any Restricted Subsidiary organized under the laws of any
jurisdiction other than the laws of the United States of America, any state
thereof or the District of Columbia (each such Restricted Subsidiary a
"Non-U.S. Restricted Subsidiary"), under any applicable bankruptcy,
insolvency or other similar law of the Cayman Islands or (y) in the case
of any Restricted Subsidiary organized under the laws of the United States
of America, any state thereof or the District of Columbia (each such
Restricted Subsidiary a "U.S. Restricted Subsidiary"), under the Bankruptcy
Code, or without the consent of the Issuer a court having jurisdiction shall
enter a judgment, order or decree adjudging the Issuer or TEC a bankrupt or
insolvent, or enter an order for relief for reorganization, arrangement,
adjustment or composition of or in respect of (x) the Issuer or any Non-U.S.
Restricted Subsidiary under any applicable bankruptcy, insolvency or other
similar law of the Cayman Islands or (y) in respect of any U.S.
Restricted Subsidiary, under the Bankruptcy Code or applicable state
insolvency law, and the continuance of any such judgment, order or decree is
unstayed and in effect for a period of 90 consecutive days; or
(f) the Issuer shall institute proceedings for entry of
an order for relief with respect to (x) the Issuer or any Non-U.S.
Restricted Subsidiary under any applicablebankruptcy, insolvency or other
similar law of the Cayman Islands or (y) any U.S. Restricted Subsidiary,
under the Bankruptcy Code, or for an adjudication of insolvency, or
shall consent to the institution of bankruptcy or insolvency proceedings
against it, or shall file a petition seeking, or seek or consent to
reorganization, arrangement, composition or relief under (x) with respect
to the Issuer or any Non-U.S. Restricted Subsidiary, any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands or (y)
with respect to any U.S. Restricted Subsidiary, the Bankruptcy Code or any
applicable state law, or shall consent to the filing of such petition or to
the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or similar official of the Issuer or of substantially all of
the Issuer's property, or the Issuer shall make a general assignment for the
benefit of creditors as recognized under (x) with respect to the Issuer or
any Non-U.S. Restricted Subsidiary, any applicable bankruptcy,
insolvency or other similar law of the Cayman Islands or (y) with respect to
any U.S Restricted Subsidiary, the Bankruptcy Code or any
applicable state law; or
(e) by deleting the amount "$20,000,000" from the tenth line of
Section 5.1(g) and replacing it with the amount "$10,000,000"; and
(f) by adding the phrase "or any Restricted Subsidiary" to the
second line and the third line of Section 5.1(g), in each case after the
phrase "the Issuer".
1.4 Amendments to Article Ten of the Indenture (Satisfaction
and Discharge of Indenture; Covenant Defeasance; Unclaimed Moneys). Article
Ten of the Indenture is hereby amended in respect of the Notes and only in
respect of the Notes as follows:
(a) by adding the phrase "(provided that no Default shall have
occurred and be continuing on the date of such deposit or, insofar as Sections
5.1(e) or (f) are concerned, at any time ending on the 91st day after such
deposit)" to the seventh line of Section 10.1(C) and the sixth line of Section
10.1(D), in each case after the phrase "subparagraph (a) below"; and
(b) by adding the phrase "and Section 3.7" to the sixth and
seventh lines of Section 10.1(D), in each case after the phrase "Section 3.6".
1.5 Amendments to Article Twelve of the Indenture (Redemption
of Securities and Sinking Funds). Article Twelve of the Indenture is hereby
amended in respect of the Notes and only in respect of the Notes by
deletingSections 12.1 through 12.5 therefrom in their entirety and
substituting in lieu thereof the following new Sections 12.1 through 12.8:
"SECTION 12.1 Right of Redemption. The Notes may be redeemed at any
time, at the election of the Issuer, as a whole or from time to time in part,
at the Redemption Price specified in the form of Note.
SECTION 12.2 Applicability of Article. Redemption of Notes at the
election of the Issuer, 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 30nor 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 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, 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 suchdeposit 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.
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 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 8 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."
1.6 Addition of Article Thirteen to the Indenture (Additional
Amounts). The Indenture is hereby amended in respect of the Notes and only
in respect of the Notes by adding the following thereto:
"ARTICLE THIRTEEN
ADDITIONAL AMOUNTS
SECTION 13.1 Additional Amounts. The Issuer hereby agrees that any
amounts to be paid by the Issuer hereunder with respect to any Note 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 anysuch subdivision or authority thereof or therein, the Issuer
will (subject to compliance by the Holder of such Note with any relevant
administrative requirements) pay such additional amounts ("Additional
Amounts") in respect of principal amount, premium (if any), Redemption Price,
and interest (if any), in accordance with the terms of the Notes 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, after such deduction or
withholding, shall equal the respective amounts of principal amount, premium
(if any), Redemption Price, and interest (if any), in accordance with the
terms of the Notes and this Indenture, as specified in such Notes to which
such Holder is entitled; provided, however, that the foregoing shall not apply
to:
(i) any such tax, levy, impost or charge which would not be payable or
due but for the fact that (A) the Holder of such Note (or a fiduciary,
settlor, beneficiary of, member or shareholder of, such Holder, if such Holder
is an estate, trust, partnership or corporation) is a domiciliary, national or
resident of, or engaging in business or maintaining a permanent establishment
or being physically present in, the Cayman Islands or such political
subdivision or otherwise having some present or former connection with the
Cayman Islands other than the holding or ownership of such Note or the
collection of principal amount, premium (if any), Redemption Price, and
interest (if any), in accordance with the terms of the Notes and this
Indenture, or the enforcement of such Note or (B) where presentation is
required, such Note was presented more than 30 days after the date such
payment became due or was provided for, whichever is later;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal
property or similar tax, levy, impost or charge;
(iii) any tax, levy, impost or charge which is payable otherwise than by
withholding from payment of principal amount, premium (if any), Redemption
Price, and interest (if any);
(iv) any tax, levy, impost or charge which would not have been imposed
but for the failure to comply with certification, information, documentation
or other reporting requirements concerning the nationality, residence,
identity or connections with the relevant tax authority of the Holder or
beneficial owner of such Note, if such compliance is required by statute or by
regulation as a precondition to relief or exemption from such tax, levy,
impost or charge;
(v) any combination of (i) through (iv);
nor shall any Additional Amounts be paid to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such Note to the
extentthat a beneficiary or settlor with respect to such fiduciary, or a
member or such partnership or a beneficial owner thereof would not have been
entitled to the payment of such Additional Amounts had such beneficiary,
settlor, member or beneficial owner been the Holder of the Note."
SECTION 2. MISCELLANEOUS.
2.1 The Trustee. The recitals contained herein shall be taken
as the statements of the Issuer and the Trustee shall not assume
responsibility for, or be liable in respect of, the correctness thereof. The
Trustee makes no representation as to, and shall not be liable or responsible
for, the validity or sufficiency of this Supplemental Indenture.
2.2 Limited Effect. Except as expressly amended hereby, all
of the provisions, covenants, terms and conditions of the Indenture are
ratified and confirmed, and shall remain in full force.
2.3 Counterparts. This Supplemental Indenture may be executed
by one or more parties hereto on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.
2.4 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE 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 PRINCIPLES OF CONFLICTS OF LAWS.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
TRITON ENERGY LIMITED, as
Issuer
Attest:____________________ By:___________________________
Title: Title:
THE CHASE MANHATTAN BANK, as Trustee
Attest:____________________ By:___________________________
Title: Title:
<PAGE>
EXHIBIT A
[FORM OF NOTE]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS REGISTERED GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.
TRITON ENERGY LIMITED
8 3/4% SENIOR NOTES DUE 2002
No. G-2
CUSIP No. 89675AA6
Issue Date: July 25, 1997
Triton Energy Limited, a Cayman Islands company (the "Issuer")
promises to pay to CEDE & CO. or its registered assigns, the principal amount
of TWO HUNDRED MILLION DOLLARS ($200,000,000) on April 15, 2002. 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.
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its facsimile corporate seal.
TRITON ENERGY LIMITED, as
Issuer
By:___________________________
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: July 25, 1997 THE CHASE MANHATTAN BANK, as Trustee
By:___________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE SIDE OF NOTE]
8 3/4% SENIOR NOTE DUE 2002
1. INTEREST. Commencing April 10, 1997, interest on this Note
will accrue at the rate of 8 3/4% per annum and will be payable in cash
semiannually on each April 15 and October 15, commencing October 15, 1997, to
Holders of record on the close of business on the immediately preceding April
1 and October 1; provided that if the principal amount hereof or any portion
of such principal amount is not paid when due, then in each such case the
overdue amount shall bear interest at the rate of 8 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. 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. 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.
3. PAYING AGENT AND REGISTRAR. Initially, The Chase Manhattan
Bank (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 its
Affiliates may act as paying agent or registrar.
4. INDENTURE. The Issuer issued the Notes under an Amended and
Restated Indenture, dated as of July 25, 1997, between the Issuer and the
Trustee, as supplemented by an Amended and Restated First Supplemental
Indenture, dated as of July 25, 1997 (collectively, 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 $200 million aggregate principal amount.
5. REDEMPTION AT THE OPTION OF THE ISSUER. No sinking fund is
provided for the Notes. 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 a redemption price equal to
the sum of:(i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the redemption date; and (ii) the Make-Whole Amount (as
defined below), if any, with respect to such Notes (the "Redemption Price").
If notice of redemption has been given as provided in Article Twelve
of the Indenture and funds for the redemption of any Notes called for
redemption shall have been made available on the redemption date referred to
in such notice, such Notes will cease to bear interest on the date fixed for
such redemption specified in such notice and the only right of the Holders of
the Notes from and after the redemption date will be to receive payment of the
Redemption Price upon surrender of such Notes in accordance with such notice.
As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption of any Notes by the Issuer pursuant to Article Twelve of the
Indenture, the excess, if any, of: (a) the aggregate present value as of the
date of such redemption of each dollar of principal being redeemed and the
amount of interest (exclusive of interest accrued to the date of redemption)
that would have been payable in respect of each such dollar if such redemption
had not been made, determined by discounting, on a semi-annual basis, such
principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date notice of such redemption is given) from the
respective dates on which such principal and interest would have been payable
if such redemption had not been made, to the date of redemption; over (b) the
aggregate principal amount of the Notes being redeemed.
"Reinvestment Rate" means the yield on Treasury securities at a
constant maturity corresponding to the remaining life (as of the date of
redemption, rounded to the nearest month) to the stated maturity of the
principal being redeemed (the "Treasury Yield") plus .20%. For purposes
hereof, the Treasury Yield shall be equal to the arithmetic mean of the yields
published in the Statistical Release (as defined below) under the heading
"Week Ending" for "U.S. Government Securities-Treasury Constant Maturities"
with a maturity equal to such remaining life; provided, that if no published
maturity exactly corresponds with such remaining life, then the Treasury Yield
shall be interpolated or extrapolated on a straight-line basis from the
arithmetic means of the yields for the next shortest and next longest
published maturities. For purposes of calculating the Reinvestment Rate, the
most recent Statistical Release published prior to the date of determination
of the Make-Whole Amount shall be used. If the format or content of the
Statistical Release changes in a manner that precludes determination of the
Treasury Yield in the above manner, then the Treasury Yield shall be
determined in the manner that most closely approximates the above manner, as
reasonably determined by the Issuer.
"Statistical Release" means the statistical release designated "H.15
(519)" or any successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which reports yields on actively
traded United States government securities adjusted to constant maturities,
or, if such statistical release is not published at the time of any
determination under the Indenture, then such other reasonably comparable index
which shall be designated by the Issuer.
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 must be equal to $1,000 or any
integral multiple thereof.
6. 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 Trustee or any paying agent prior to or on the
Redemption Date, on and after such date interest shall cease to accrue on such
Notes or portions thereof.
7. 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.
8. PERSONS DEEMED OWNERS. The registered Holder of this Note may
be treated as the owner of this Note for all purposes.
9. 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 Issuerfor payment as general creditors unless an applicable abandoned
property law designates another person.
10. 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 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.
11. DEFAULTS AND REMEDIES. Under the Indenture, Events of Default
include, among others, (a) default in the payment of principal or premium, if
any, when due; (b) default in the payment of any installment of interest when
due, continued for 30 days; (c) default in the performance of any other
covenant of the Issuer applicable to the Notes, continued for 60 days after
written notice to the Issuer by the Trustee or to the Issuer and the Trustee,
by the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding requiring the same to be remedied; (d) certain events of
bankruptcy, insolvency or reorganization of the Issuer or any Restricted
Subsidiary; and (e) default under any bond, debenture, note or other evidence
of indebtedness for money borrowed by the Issuer or any Restricted Subsidiary
or under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any indebtedness for money
borrowed of the Issuer or any Restricted Subsidiary resulting in the
acceleration of such indebtedness, or any default in payment of such
indebtedness (after expiration of any applicable grace periods and
presentation of any debt instruments, if required), if the aggregate amount of
all such indebtedness that has been so accelerated and with respect to which
there has been such a default in payment shall exceed $10,000,000 and there
has been a failure to obtain rescission or annulment of all such accelerations
or to discharge all such defaulted indebtedness within 20 days after written
notice of the type specified below.
If any Event of Default shall occur and be continuing, the Trustee
or the Holders of not less than 25% in aggregate principal amount of the Notes
then outstanding, by notice in writing to the Issuer (and to the Trustee, if
given by the Holders), may declare the principal of all of the Notes and the
interest, if any, accrued thereon to be due and payable immediately; provided,
however, that the Holders of a majority in aggregate principal amount of the
Notes then outstanding, by notice in writing to the Issuer and the Trustee,
may rescind andannul such declaration and its consequences if all defaults
under such Indenture are cured or waived.
No Holder of Notes then outstanding may institute any suit, action or
proceeding with respect to, or otherwise attempt to enforce, such Indenture,
unless (i) such Holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, (ii) the Holders of not less
than 25% in aggregate principal amount of the Notes then outstanding shall
have made written request to the Trustee to institute such suit, action or
proceeding and shall have offered to the Trustee such reasonable indemnity as
it may require with respect thereto and (iii) the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding;
provided that, the right of any Holder of any Note to receive payment of the
principal of, premium, if any, or interest, if any, on such Note, on or after
the respective due dates, or to institute suit for the enforcement of any such
payment shall not be impaired or affected without the consent of such Holder.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Notes, provided that the Trustee
may decline to follow such direction if the Trustee determines that such
action or proceeding is unlawful or would involve the Trustee in personal
liability.
The Issuer is required to furnish to the Trustee annually a certificate
as to compliance by the Issuer with all conditions and covenants under the
Indenture.
12. TRUSTEE DEALINGS WITH THE ISSUER. 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 or its Affiliates and may otherwise deal with the Issuer or
its Affiliates with the same rights it would have if it were not Trustee.
13. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Issuer shall not have any liability for any
obligations of the Issuer under the Notes 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, each Holder waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Notes.
14. AUTHENTICATION. This Note 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.
15. DEFEASANCE, COVENANT DEFEASANCE. The Notes are subject to
defeasance and covenant defeasance as provided in the Indenture.
16. 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).
17. GOVERNING LAW. THIS NOTE 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 Limited, care of Triton Energy Corporation, 6688 North Central
Expressway, Suite 1400, Dallas, Texas 75206, Attention of Corporate Secretary.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address, including postal zip code,
of assignee)
_____________________________________________________________________________
this Note and all rights hereunder, hereby irrevocably constituting and
appointing
____________________________________________________________________ Attorney
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated: ____________________ _____________________________________________
Notice: The signature(s) on this Assignment must
correspond with the name(s) as written upon
the face of this Note in every
particular, without alteration or
enlargement or any change whatsoever.
EXHIBIT 10.60
AMENDED AND RESTATED SECOND SUPPLEMENTAL INDENTURE
AMENDED AND RESTATED SECOND SUPPLEMENTAL INDENTURE, dated as of July
25, 1997 (this "Supplemental Indenture"), between Triton Energy Limited, a
Cayman Islands company (the "Issuer"), and The Chase Manhattan Bank, a New
York banking corporation, as trustee (the "Trustee"), amending and restating
in its entirety the Second Supplemental Indenture dated as of April 10, 1997
(the "Original Second Supplemental Indenture"), among the Issuer, Triton
Energy Corporation, a Delaware corporation and a wholly owned subsidiary of
the Issuer ("TEC"), and the Trustee.
W I T N E S S E T H:
WHEREAS, the Issuer, TEC, and the Trustee duly executed the Senior
Indenture dated as of April 10, 1997 (the "Original Indenture") in connection
with the issuance from time to time, on a joint and several basis, of the
Issuer's and TEC's unsecured debentures, notes or other evidences of
indebtedness to be issued in one or more series;
WHEREAS, the Issuer, TEC and the Trustee duly executed the Original
Second Supplemental Indenture, which Original Second Supplemental Indenture
amended and supplemented the Original Indenture in connection with the
issuance by the Issuer and TEC, on a joint and several basis, of $200,000,000
aggregate principal amount of 9 1/4% Senior Notes due 2005 (the "Notes");
WHEREAS, the Original Second Supplemental Indenture provided for the
release of TEC from its obligations under the Original Indenture and the
Notes, without the consent of the Holders of the Notes, if (i) (A) no more
than $25,000,000 in aggregate principal amount of TEC's Senior Subordinated
Discount Notes due 1997 (the "1997 Notes") and TEC's 9-3/4% Senior
Subordinated Discount Notes due 2000 (the "9 3/4% Notes"), taken together,
were no longer outstanding or (B) the Issuer or any successor to the Issuer
assumed the obligations of TEC under the 1997 Notes and the 9 3/4% Notes and
(ii) the Issuer or any successor of the Issuer assumed the obligations of TEC
under the Notes;
WHEREAS, as of the date hereof, no 1997 Notes and $854,000 aggregate
principal amount of the 9 3/4% Notes remain outstanding;
WHEREAS, TEC and the Issuer desire that TEC be released from its
obligations under the Original Indenture and the Notes and the Issuer assume
such obligations;
WHEREAS, in connection with the release of TEC from its obligations under
the Notes and the execution by the Issuer and the Trustee on the date hereof
of an Amended and Restated Senior Indenture dated as of the date hereof,
amending and restating the Original Indenture in its entirety (such amended
and restated senior indenture referred to herein as the "Indenture"), the
Issuer has requested the Trustee and the Trustee has agreed to join in the
execution of this Supplemental Indenture in accordance with the terms of
Section 8.1 of the Indenture and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual
agreements herein contained, the Issuer 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:
SECTION 1. Amendments to the Indenture Relating to the Notes.
1.1 Amendments to Article One of the Indenture
(Definitions). Article One of the Indenture is hereby amended in respect of
the Notes and only in respect of the Notes as follows:
(a) by adding thereto the following new definitions in their
appropriate alphabetical order:
"Additional Amounts" has the meaning set forth in Section 13.1
"Attributable Indebtedness" means, with respect to any particular
lease under which any Person is at the time liable and at any date as of which
the amount thereof is to be determined, the present value of the total net
amount of rent required to be paid by such Person under the lease during the
primary term thereof, without giving effect to any renewals at the option of
the lessee, discounted from the respective due dates thereof to such date at
the rate of interest per annum implicit in the terms of the lease. As used in
the preceding sentence, the net amount of rent under any lease for any such
period shall mean the sum of rental and other payments required to be paid
with respect to such period by the lessee thereunder excluding any amounts
required to be paid by such lessee on account of maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges. In the case of
any lease which is terminable by the lessee upon payment of a penalty, such
net amount ofrent shall also include the amount of such penalty, but no rent
shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated.
"Currency Hedge Obligations" means, at any time as to any Person,
the obligations of such Person at such time that were incurred in the ordinary
course of business pursuant to any foreign currency exchange agreement, option
or futures contract or other similar agreement or arrangement designed to
protect against or manage such Person's or any of its Subsidiaries' exposure
to fluctuations in foreign currency exchange rates.
"Funded Indebtedness" means all the Indebtedness (including
Indebtedness incurred under any revolving credit, letter of credit or working
capital facility) that matures by its terms, or that is renewable at the
option of any obligor thereon to a date, more than one year after the date on
which such Indebtedness is originally incurred.
"Interest Rate Hedging Agreements" means, with respect to any
Person, the obligations of such Person under (i) interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements
and (ii) other agreements or arrangements designed to protect such Person or
any of its Subsidiaries against fluctuations in interest rates.
"Non-U.S. Restricted Subsidiary" has the meaning set forth in
Section 5(e).
"Notes" means the Issuer's 9 1/4% Senior Notes due 2005, which Notes
shall be substantially in the form of Exhibit A hereto.
"Oil and Gas Hedging Contracts" means any oil and gas purchase or
hedging agreement, and other agreement or arrangement, in each case, that is
designed to provide protection against oil and gas price fluctuations.
"Ordinary Course Lien" means:
(a) Liens for taxes, assessments or governmental charges or
levies on the property of the Issuer or any Restricted Subsidiary if the same
shall not at the time be delinquent or thereafter can be paid without penalty,
or are being contested in good faith by appropriate proceedings;
(b) Liens imposed by law, such as carriers', warehousemen's,
landlords' and mechanics' liens and other similar liens arising in the
ordinary course of business which secure obligations not morethan 60 days past
due or which are being contested in good faith by appropriate proceedings;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the
use thereof in the ordinary course of business of the Issuer and the
Restricted Subsidiaries;
(e) Liens arising under operating agreements or similar
agreements in respect of obligations which are not yet due or which are being
contested in good faith by appropriate proceedings;
(f) Liens reserved in oil, gas and/or mineral leases, production
sharing contracts and petroleum concession agreements and licenses for bonus
or rental payments and for compliance with the terms of such leases,
contracts, agreements and licenses;
(g) Liens pursuant to partnership agreements, oil, gas and/or
mineral leases, production sharing contracts, petroleum concession agreements
and licenses, farm-out agreements, division orders, contracts for the sale,
purchase, exchange, processing or transportation of oil, gas and/or other
hydrocarbons, unitization and pooling declarations and agreements, operating
agreements, development agreements, area of mutual interest agreements, and
other agreements which are customary in the oil, gas and other mineral
exploration, development and production business and in the business of
processing of gas and gas condensate production for the extraction of products
therefrom;
(h) Liens on personal property (excluding the capital stock of
any Restricted Subsidiary) securing Indebtedness of the Issuer or any
Restricted Subsidiary other than Funded Indebtedness; and
(i) Liens imposed by law or order as a result of any proceeding
before any court or regulatory body that is being contested in good faith, and
Liens which secure a judgment or other court-ordered award or settlement as to
which the Issuer has not exhausted its appellate rights.
"Redemption Date" when used with respect to any Note to be redeemed
pursuant to Article Twelve of the Indenture, means the date fixed for such
redemption by or pursuant to such Article.
"Redemption Price" when used with respect to any Note to be redeemed
pursuant to Article Twelve of the Indenture, means the price at which such
Note is to be redeemed pursuant to such Article.
"Restricted Subsidiary" means (i) any Subsidiary of the Issuer which
owns or leases (as lessor or lessee) (A) any property owned or leased by the
Issuer or any Subsidiary, or any interest of the Issuer or any Subsidiary in
property which is considered by the Issuer to be capable of producing oil or
gas or minerals in commercial quantities or (B) any processing or
manufacturing plant or pipeline owned or leased by the Issuer or any
Subsidiary except any processing or manufacturing plant or pipeline, or
portion thereof, which the Board of Directors in its good faith judgment
determines in a Board Resolution is not material to the business of the Issuer
and its Subsidiaries taken as a whole, or (ii) any Subsidiary designated as a
Restricted Subsidiary by the Board of Directors.
"Sale/Leaseback Transaction" means with respect to the Issuer or any
of its Restricted Subsidiaries, any arrangement with any Person providing for
the leasing by the Issuer or any of its Restricted Subsidiaries of any
principal property, acquired or placed into service more than 180 days prior
to such arrangement, whereby such property has been or is to be sold or
transferred by the Issuer or any of its Restricted Subsidiaries to such
Person.
"U.S. Restricted Subsidiary" has the meaning set forth in Section
5.1(e).
(b) by deleting therefrom the definitions of the following
defined terms in their respective entireties :
"Restricted Subsidiary"
"Unrestricted Subsidiary"
1.2 Amendments to Article Three of the Indenture (Covenants of
the Issuer). Article Three of the Indenture is hereby amended in respect of
the Notes and only in respect of the Notes by deleting therefrom Sections 3.6
and 3.7 and adding thereto the following new Sections 3.6 and 3.7 in their
appropriate numerical order:
SECTION 3.6 Limitations on Liens. The Issuer will not, and will not
permit any Restricted Subsidiary to, issue, assume or guarantee any
Indebtedness for borrowed money secured by any Lien on any property or asset
now owned or hereafter acquired by the Issuer or any Restricted Subsidiary
without making effective provision whereby any and all Notes then or
thereafter outstanding will be secured by a Lien equally and ratably with any
and all other obligations thereby secured for so long as any such obligations
shall be so secured.
The foregoing restriction will not, however, apply to:
(a) Liens existing on the date on which the Notes are originally issued
or provided for under the terms of agreements existing on such date;
(b) Liens on property securing (i) all or any portion of the cost of
exploration, drilling or development of such property; (ii) all or any portion
of the cost of acquiring, constructing, altering, improving or repairing any
property or assets, real or personal, or improvements used or to be used in
connection with such property or (iii) Indebtedness incurred by the Restricted
Subsidiary to provide funds for the activities set forth in clauses (i) and
(ii) above;
(c) Liens securing Indebtedness owed by a Restricted Subsidiary to the
Issuer or to any other Restricted Subsidiary;
(d) Liens on property existing at the time of acquisition of such
property by the Issuer or a Subsidiary or Liens on the property of any
corporation or other entity existing at the time such corporation or other
entity becoming a Restricted Subsidiary or is merged with the Issuer in
compliance with the Indenture and in either case not incurred as a result of
(or in connection with or in anticipation of) the acquisition of such property
or such corporation or other entity becoming a Restricted Subsidiary or being
merged with the Issuer, provided that such Liens do not extend to or cover any
property or assets of the Issuer or any Restricted Subsidiaries other than the
property so acquired;
(e) Liens on any property securing (i) Indebtedness incurred in
connection with the construction, installation or financing of pollution
control or abatement facilities or other forms of industrial revenue bond
financing or (ii) Indebtedness issued or guaranteed by the United States or
any State thereof or any department, agency or instrumentality of either;
(f) any Lien extending, renewing or replacing (or successive extensions,
renewals or replacements of) any Lien of any type permitted under clauses (a)
through (e) above, provided that such Lien extends to or covers only the
property that is subject to the Lien being extended, renewed or replaced;
(g) Ordinary Course Liens;
(h) any Lien resulting from the deposit of moneys or evidence of
indebtedness in trust for the purpose of defeasing Indebtedness of the Issuer
or any Subsidiary; or
(i) Liens (exclusive of any Lien of any type otherwise permitted under
clauses (a) through (h) above) securing Indebtedness of the Issuer or any
Restricted Subsidiary in an aggregate principal amount which, together with
the aggregate amount of Attributable Indebtedness deemed to be outstanding in
respect of all Sale/Leaseback Transactions entered into pursuant to clause (a)
of Section 3.7 (exclusive of any such Sale/Leaseback Transactions otherwise
permitted under clauses (a) through (h) above), does not at the time such
Indebtedness is incurred exceed 15% of Consolidated Net Tangible Assets (as
shown in the most recent consolidated balance sheet of the Issuer and its
Subsidiaries).
The following types of transactions will not be prohibited or otherwise
limited by the foregoing: (i) the sale, granting of Liens with respect to, or
other transfer of, crude oil, natural gas or other petroleum hydrocarbons in
place for a period of time until, or in an amount such that, the transferee
will realize therefrom a specified amount (however determined) of money or of
such crude oil, natural gas or other petroleum hydrocarbons; (ii) the sale or
other transfer of any other interest in property of the character commonly
referred to as a production payment, overriding royalty, forward sale or
similar interest; (iii) the entering into of Currency Hedge Obligations,
Interest Rate Hedging Agreements or Oil and Gas Hedging Contracts although
Liens securing any Indebtedness for borrowed money that is the subject of any
such obligation shall not be permitted hereby unless permitted under clauses
(a) through (i) above; and (iv) the granting of Liens required by any contract
or statute in order to permit the Issuer or any Restricted Subsidiary to
perform any contract or subcontract made by it with or at the request of the
United States or any State thereof or any department, agency or
instrumentality of either, or to secure partial, progress, advance or other
payments to the Issuer or any Restricted Subsidiary by such governmental unit
pursuant to the provisions of any contract or statute.
SECTION 3.7 Limitation of Sale/Leaseback Transactions. The Issuer
will not, and will not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with any Person (other than the Issuer or a
Restricted Subsidiary) unless:
(a) the Issuer or such Restricted Subsidiary would be entitled to incur
Indebtedness, in a principal amount equal to the Attributable Indebtedness
with respect to such Sale/Leaseback Transaction, secured by a Lien on the
property subject to such Sale/Leaseback Transaction pursuant to the covenant
described in Section 3.6 without equally and ratably securing the Notes
pursuant to such covenant;
(b) after the date on which the Notes are originally issued and within a
period commencing six months prior to the consummation of such Sale/Leaseback
Transaction and ending six months after the consummation thereof, the Issuer
or such Restricted Subsidiary shall have expended for property used or to be
used in the ordinary course of business of the Issuer and the Restricted
Subsidiaries (including amounts expended for the exploration, drilling or
development thereof, and for additions, alterations, repairs and improvements
thereto) an amount equal to all or a portion of the net proceeds of such
Sale/Leaseback Transaction and the Issuer shall have elected to designate such
amount as a credit against such Sale/Leaseback Transaction (with any such
amount not being so designated to be applied as set forth in clause (c)
below); or
(c) the Issuer during the twelve-month period after the effective date
of such Sale/Leaseback Transaction, shall have applied to the voluntary
repurchase, repayment, defeasance or retirement of all or a portion of the
Notes or any pari passu Indebtedness an amount equal to the greater of the net
proceeds of the sale or transfer of the property leased in such Sale/Leaseback
Transaction and the fair value, as determined by the Board of Directors of the
Issuer, of such property at the time of entering into such Sale/Leaseback
Transaction (in either case adjusted to reflect the remaining term of the
lease and any amount expended by the Issuer as set forth in clause (b) above),
less an amount equal to the principal amount of Notes and pari passu
Indebtedness voluntarily repurchased, repaid, defeased or retired by the
Issuer within such twelve-month period and not designated as a credit against
any other Sale/Leaseback Transaction entered into by the Issuer or any
Restricted Subsidiary during such period.
1.3 Amendments to Article Five of the Indenture (Remedies of
the Trustee and Security Holders on an Event of Default. Article Five of
theIndenture is hereby amended in respect of the Notes and only in respect of
the Notes as follows:
(a) by deleting the text of clause 5.1(c) in its entirety and
inserting in lieu thereof the phrase "[intentionally omitted]".
(b) by deleting the phrase "period of 90 days" from the third
line of Section 5.1(d) and replacing it with the phrase "period of 60 days";
(c) by deleting the phrase "90 consecutive days" from the eighth
line of Section 5.1(e) and replacing it with the phrase "60 consecutive days";
(d) by deleting therefrom clauses 5.1(e) and 5.1(f) and adding
thereto the following new sections 5.1(e) and 5.1(f) in their appropriate
numerical order:
(e) without the consent of the Issuer a court having jurisdiction shall
enter an order for relief, (x) in the case of the Issuer or any Restricted
Subsidiary organized under the laws of any jurisdiction other than the laws of
the United States of America, any state thereof or the District of Columbia
(each such Restricted Subsidiary a "Non-U.S. Restricted Subsidiary"), under
any applicable bankruptcy, insolvency or other similar law of the Cayman
Islands or (y) in the case of any Restricted Subsidiary organized under the
laws of the United States of America, any state thereof or the District of
Columbia (each such Restricted Subsidiary a "U.S. Restricted Subsidiary"),
under the Bankruptcy Code, or without the consent of the Issuer a court having
jurisdiction shall enter a judgment, order or decree adjudging the Issuer or
TEC a bankrupt or insolvent, or enter an order for relief for reorganization,
arrangement, adjustment or composition of or in respect of (x) the Issuer or
any Non-U.S. Restricted Subsidiary under any applicable bankruptcy, insolvency
or other similar law of the Cayman Islands or (y) in respect of any U.S.
Restricted Subsidiary, under the Bankruptcy Code or applicable state
insolvency law, and the continuance of any such judgment, order or decree is
unstayed and in effect for a period of 90 consecutive days; or
(f) the Issuer shall institute proceedings for entry of an order for
relief with respect to (x) the Issuer or any Non-U.S. Restricted Subsidiary
under any applicablebankruptcy, insolvency or other similar law of the Cayman
Islands or (y) any U.S. Restricted Subsidiary, under the Bankruptcy Code, or
for an adjudication of insolvency, or shall consent to the institution of
bankruptcy or insolvency proceedings against it, or shall file a petition
seeking, or seek or consent to reorganization, arrangement, composition or
relief under (x) with respect to the Issuer or any Non-U.S. Restricted
Subsidiary, any applicable bankruptcy, insolvency or other similar law of the
Cayman Islands or (y) with respect to any U.S. Restricted Subsidiary, the
Bankruptcy Code or any applicable state law, or shall consent to the filing of
such petition or to the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator or similar official of the Issuer or of
substantially all of the Issuer's property, or the Issuer shall make a general
assignment for the benefit of creditors as recognized under (x) with respect
to the Issuer or any Non-U.S. Restricted Subsidiary, any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands or (y) with
respect to any U.S Restricted Subsidiary, the Bankruptcy Code or any
applicable state law; or
(e) by deleting the amount "$20,000,000" from the tenth line of
Section 5.1(g) and replacing it with the amount "$10,000,000"; and
(f) by adding the phrase "or any Restricted Subsidiary" to the
second line and the third line of Section 5.1(g), in each case after the
phrase "the Issuer".
1.4 Amendments to Article Ten of the Indenture (Satisfaction
and Discharge of Indenture; Covenant Defeasance; Unclaimed Moneys). Article
Ten of the Indenture is hereby amended in respect of the Notes and only in
respect of the Notes as follows:
(a) by adding the phrase "(provided that no Default shall have
occurred and be continuing on the date of such deposit or, insofar as Sections
5.1(e) or (f) are concerned, at any time ending on the 91st day after such
deposit)" to the seventh line of Section 10.1(C) and the sixth line of Section
10.1(D), in each case after the phrase "subparagraph (a) below"; and
(b) by adding the phrase "and Section 3.7" to the sixth and
seventh lines of Section 10.1(D), in each case after the phrase "Section 3.6".
1.5 Amendments to Article Twelve of the Indenture (Redemption
of Securities and Sinking Funds). Article Twelve of the Indenture is hereby
amended in respect of the Notes and only in respect of the Notes by
deletingSections 12.1 through 12.5 therefrom in their entirety and
substituting in lieu thereof the following new Sections 12.1 through 12.8:
"SECTION 12.1 Right of Redemption. The Notes may be redeemed at any
time, at the election of the Issuer, as a whole or from time to time in part,
at the Redemption Price specified in the form of Note.
SECTION 12.2 Applicability of Article. Redemption of Notes at the
election of the Issuer, 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 30nor 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 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, 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 suchdeposit 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.
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 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 1/4% 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."
1.6 Addition of Article Thirteen to the Indenture (Additional
Amounts). The Indenture is hereby amended in respect of the Notes and only
in respect of the Notes by adding the following thereto:
"ARTICLE THIRTEEN
ADDITIONAL AMOUNTS
SECTION 13.1 Additional Amounts. The Issuer hereby agrees that any
amounts to be paid by the Issuer hereunder with respect to any Note 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 anysuch subdivision or authority thereof or therein, the Issuer
will (subject to compliance by the Holder of such Note with any relevant
administrative requirements) pay such additional amounts ("Additional
Amounts") in respect of principal amount, premium (if any), Redemption Price,
and interest (if any), in accordance with the terms of the Notes 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, after such deduction or
withholding, shall equal the respective amounts of principal amount, premium
(if any), Redemption Price, and interest (if any), in accordance with the
terms of the Notes and this Indenture, as specified in such Notes to which
such Holder is entitled; provided, however, that the foregoing shall not apply
to:
(i) any such tax, levy, impost or charge which would not be payable or
due but for the fact that (A) the Holder of such Note (or a fiduciary,
settlor, beneficiary of, member or shareholder of, such Holder, if such Holder
is an estate, trust, partnership or corporation) is a domiciliary, national or
resident of, or engaging in business or maintaining a permanent establishment
or being physically present in, the Cayman Islands or such political
subdivision or otherwise having some present or former connection with the
Cayman Islands other than the holding or ownership of such Note or the
collection of principal amount, premium (if any), Redemption Price, and
interest (if any), in accordance with the terms of the Notes and this
Indenture, or the enforcement of such Note or (B) where presentation is
required, such Note was presented more than 30 days after the date such
payment became due or was provided for, whichever is later;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal
property or similar tax, levy, impost or charge;
(iii) any tax, levy, impost or charge which is payable otherwise than by
withholding from payment of principal amount, premium (if any), Redemption
Price, and interest (if any);
(iv) any tax, levy, impost or charge which would not have been imposed
but for the failure to comply with certification, information, documentation
or other reporting requirements concerning the nationality, residence,
identity or connections with the relevant tax authority of the Holder or
beneficial owner of such Note, if such compliance is required by statute or by
regulation as a precondition to relief or exemption from such tax, levy,
impost or charge;
(v) any combination of (i) through (iv);
nor shall any Additional Amounts be paid to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such Note to the
extentthat a beneficiary or settlor with respect to such fiduciary, or a
member or such partnership or a beneficial owner thereof would not have been
entitled to the payment of such Additional Amounts had such beneficiary,
settlor, member or beneficial owner been the Holder of the Note."
SECTION 2. MISCELLANEOUS.
2.1 The Trustee. The recitals contained herein shall be taken
as the statements of the Issuer and the Trustee shall not assume
responsibility for, or be liable in respect of, the correctness thereof. The
Trustee makes no representation as to, and shall not be liable or responsible
for, the validity or sufficiency of this Supplemental Indenture.
2.2 Limited Effect. Except as expressly amended hereby, all
of the provisions, covenants, terms and conditions of the Indenture are
ratified and confirmed, and shall remain in full force.
2.3 Counterparts. This Supplemental Indenture may be executed
by one or more parties hereto on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.
2.4 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE 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 PRINCIPLES OF CONFLICTS OF LAWS.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
TRITON ENERGY LIMITED, as
Issuer
Attest:____________________ By:___________________________
Title: Title:
THE CHASE MANHATTAN BANK, as Trustee
Attest:____________________ By:___________________________
Title: Title:
<PAGE>
EXHIBIT A
[FORM OF NOTE]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS REGISTERED GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.
TRITON ENERGY LIMITED
9 1/4% SENIOR NOTES DUE 2005
No. G-2
CUSIP No. 89675VAB4
Issue Date: July 25, 1997
Triton Energy Limited, a Cayman Islands company (the "Issuer")
promises to pay to CEDE & CO. or its registered assigns, the principal amount
of TWO HUNDRED MILLION DOLLARS ($200,000,000) on April 15, 2005. 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.
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its facsimile corporate seal.
TRITON ENERGY LIMITED, as
Issuer
By:___________________________
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: April __, 1997 THE CHASE MANHATTAN BANK, as Trustee
By:___________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE SIDE OF NOTE]
9 1/4% SENIOR NOTE DUE 2005
1. INTEREST. Commencing April 10, 1997, interest on this Note
will accrue at the rate of 9 1/4% per annum and will be payable in cash
semiannually on each April 15 and October 15, commencing October 15, 1997, to
Holders of record on the close of business on the immediately preceding April
1 and October 1; provided that if the principal amount hereof or any portion
of such principal amount is not paid when due, then in each such case the
overdue amount shall bear interest at the rate of 9 1/4% 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. 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. 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.
3. PAYING AGENT AND REGISTRAR. Initially, The Chase Manhattan
Bank (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 its
Affiliates may act as paying agent or registrar.
4. INDENTURE. The Issuer issued the Notes under an Amended and
Restated Indenture, dated as of July __, 1997, between the Issuer and the
Trustee, as supplemented by an Amended and Restated First Supplemental
Indenture, dated as of July __, 1997 (collectively, 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 $200 million aggregate principal amount.
5. REDEMPTION AT THE OPTION OF THE ISSUER. No sinking fund is
provided for the Notes. 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 a redemption price equal to
the sum of:(i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the redemption date; and (ii) the Make-Whole Amount (as
defined below), if any, with respect to such Notes (the "Redemption Price").
If notice of redemption has been given as provided in Article Twelve
of the Indenture and funds for the redemption of any Notes called for
redemption shall have been made available on the redemption date referred to
in such notice, such Notes will cease to bear interest on the date fixed for
such redemption specified in such notice and the only right of the Holders of
the Notes from and after the redemption date will be to receive payment of the
Redemption Price upon surrender of such Notes in accordance with such notice.
As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption of any Notes by the Issuer pursuant to Article Twelve of the
Indenture, the excess, if any, of: (a) the aggregate present value as of the
date of such redemption of each dollar of principal being redeemed and the
amount of interest (exclusive of interest accrued to the date of redemption)
that would have been payable in respect of each such dollar if such redemption
had not been made, determined by discounting, on a semi-annual basis, such
principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date notice of such redemption is given) from the
respective dates on which such principal and interest would have been payable
if such redemption had not been made, to the date of redemption; over (b) the
aggregate principal amount of the Notes being redeemed.
"Reinvestment Rate" means the yield on Treasury securities at a
constant maturity corresponding to the remaining life (as of the date of
redemption, rounded to the nearest month) to the stated maturity of the
principal being redeemed (the "Treasury Yield") plus .20%. For purposes
hereof, the Treasury Yield shall be equal to the arithmetic mean of the yields
published in the Statistical Release (as defined below) under the heading
"Week Ending" for "U.S. Government Securities-Treasury Constant Maturities"
with a maturity equal to such remaining life; provided, that if no published
maturity exactly corresponds with such remaining life, then the Treasury Yield
shall be interpolated or extrapolated on a straight-line basis from the
arithmetic means of the yields for the next shortest and next longest
published maturities. For purposes of calculating the Reinvestment Rate, the
most recent Statistical Release published prior to the date of determination
of the Make-Whole Amount shall be used. If the format or content of the
Statistical Release changes in a manner that precludes determination of the
Treasury Yield in the above manner, then the Treasury Yield shall be
determined in the manner that most closely approximates the above manner, as
reasonably determined by the Issuer.
"Statistical Release" means the statistical release designated "H.15
(519)" or any successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which reports yields on actively
traded United States government securities adjusted to constant maturities,
or, if such statistical release is not published at the time of any
determination under the Indenture, then such other reasonably comparable index
which shall be designated by the Issuer.
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 must be equal to $1,000 or any
integral multiple thereof.
6. 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 Trustee or any paying agent prior to or on the
Redemption Date, on and after such date interest shall cease to accrue on such
Notes or portions thereof.
7. 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.
8. PERSONS DEEMED OWNERS. The registered Holder of this Note may
be treated as the owner of this Note for all purposes.
9. 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 Issuerfor payment as general creditors unless an applicable abandoned
property law designates another person.
10. 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 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.
11. DEFAULTS AND REMEDIES. Under the Indenture, Events of Default
include, among others, (a) default in the payment of principal or premium, if
any, when due; (b) default in the payment of any installment of interest when
due, continued for 30 days; (c) default in the performance of any other
covenant of the Issuer applicable to the Notes, continued for 60 days after
written notice to the Issuer by the Trustee or to the Issuer and the Trustee,
by the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding requiring the same to be remedied; (d) certain events of
bankruptcy, insolvency or reorganization of the Issuer or any Restricted
Subsidiary; and (e) default under any bond, debenture, note or other evidence
of indebtedness for money borrowed by the Issuer or any Restricted Subsidiary
or under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any indebtedness for money
borrowed of the Issuer or any Restricted Subsidiary resulting in the
acceleration of such indebtedness, or any default in payment of such
indebtedness (after expiration of any applicable grace periods and
presentation of any debt instruments, if required), if the aggregate amount of
all such indebtedness that has been so accelerated and with respect to which
there has been such a default in payment shall exceed $10,000,000 and there
has been a failure to obtain rescission or annulment of all such accelerations
or to discharge all such defaulted indebtedness within 20 days after written
notice of the type specified below.
If any Event of Default shall occur and be continuing, the Trustee
or the Holders of not less than 25% in aggregate principal amount of the Notes
then outstanding, by notice in writing to the Issuer (and to the Trustee, if
given by the Holders), may declare the principal of all of the Notes and the
interest, if any, accrued thereon to be due and payable immediately; provided,
however, that the Holders of a majority in aggregate principal amount of the
Notes then outstanding, by notice in writing to the Issuer and the Trustee,
may rescind andannul such declaration and its consequences if all defaults
under such Indenture are cured or waived.
No Holder of Notes then outstanding may institute any suit, action or
proceeding with respect to, or otherwise attempt to enforce, such Indenture,
unless (i) such Holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, (ii) the Holders of not less
than 25% in aggregate principal amount of the Notes then outstanding shall
have made written request to the Trustee to institute such suit, action or
proceeding and shall have offered to the Trustee such reasonable indemnity as
it may require with respect thereto and (iii) the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding;
provided that, the right of any Holder of any Note to receive payment of the
principal of, premium, if any, or interest, if any, on such Note, on or after
the respective due dates, or to institute suit for the enforcement of any such
payment shall not be impaired or affected without the consent of such Holder.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Notes, provided that the Trustee
may decline to follow such direction if the Trustee determines that such
action or proceeding is unlawful or would involve the Trustee in personal
liability.
The Issuer is required to furnish to the Trustee annually a certificate
as to compliance by the Issuer with all conditions and covenants under the
Indenture.
12. TRUSTEE DEALINGS WITH THE ISSUER. 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 or its Affiliates and may otherwise deal with the Issuer or
its Affiliates with the same rights it would have if it were not Trustee.
13. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Issuer shall not have any liability for any
obligations of the Issuer under the Notes 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, each Holder waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Notes.
14. AUTHENTICATION. This Note 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.
15. DEFEASANCE, COVENANT DEFEASANCE. The Notes are subject to
defeasance and covenant defeasance as provided in the Indenture.
16. 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).
17. GOVERNING LAW. THIS NOTE 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 Limited, care of Triton Energy Corporation, 6688 North Central
Expressway, Suite 1400, Dallas, Texas 75206, Attention of Corporate Secretary.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address, including postal zip code,
of assignee)
_____________________________________________________________________________
this Note and all rights hereunder, hereby irrevocably constituting and
appointing
____________________________________________________________________ Attorney
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated: ____________________ ____________________________________________
Notice: The signature(s) on this Assignment must
correspond with the name(s) as written upon
the face of this Note in every
particular, without alteration or
enlargement or any change whatsoever.
EXHIBIT 11.1
TRITON ENERGY LIMITED AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER ORDINARY SHARE
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
-------------------- ------------------
1997 1996 1997 1996
-------------------- -------- ------------------ --------
PRIMARY COMPUTATION:
Earnings (loss) from continuing operations $ (308) $12,696 $ 3,178 $24,047
Dividends on preference shares --- --- (213) (772)
-------------------- -------- ------------------ --------
Earnings (loss) from continuing operations
applicable to ordinary shares (308) 12,696 2,965 23,275
Loss from discontinued operations --- --- --- ---
-------------------- -------- ------------------ --------
Earnings (loss) before extraordinary item applicable to
ordinary shares (308) 12,696 2,965 23,275
Extraordinary item on extinguishment of debt (14,491) (434) (14,491) (434)
-------------------- -------- ------------------ --------
Net earnings (loss) applicable to ordinary shares $ (14,799) $12,262 $ (11,526) $22,841
-------------------- -------- ------------------ --------
Shares:
Average number of ordinary shares outstanding 36,432 35,661 36,404 35,536
Additional shares assuming conversion of
stock options and convertible debentures 478 1,072 577 1,133
-------------------- -------- ------------------ --------
Average ordinary and equivalent shares outstanding 36,910 36,733 36,981 36,669
-------------------- -------- ------------------ --------
PRIMARY EARNINGS (LOSS) PER ORDINARY SHARE:
Continuing operations $ (0.01) $ 0.34 $ 0.08 $ 0.63
Discontinued operations --- --- --- ---
Extraordinary item (0.39) (0.01) (0.39) (0.01)
-------------------- -------- ------------------ --------
Net earnings (loss) $ (0.40) $ 0.33 $ (0.31) $ 0.62
-------------------- -------- ------------------ --------
FULLY DILUTED COMPUTATION:*
Earnings (loss) from continuing operations $ (308) $12,696 $ 3,178 $24,047
Net interest expense related to convertible debt --- 196 --- 392
-------------------- -------- ------------------ --------
Adjusted earnings (loss) from continuing operations
applicable to ordinary shares (308) 12,892 3,178 24,439
Loss from discontinued operations --- --- --- ---
-------------------- -------- ------------------ --------
Adjusted earnings (loss) before extraordinary item
applicable to ordinary shares (308) 12,892 3,178 24,439
Extraordinary item on extinguishment of debt (14,491) (434) (14,491) (434)
-------------------- -------- ------------------ --------
Net earnings (loss) applicable to ordinary shares as adjusted $ (14,799) $12,458 $ (11,313) $24,005
-------------------- -------- ------------------ --------
Shares:
Average number of ordinary shares outstanding 36,432 35,661 36,404 35,536
Additional shares assuming conversion of:
Stock options and convertible debentures 693 1,071 698 1,132
Preference shares 218 257 218 257
Convertible debt of affiliate --- 550 --- 556
-------------------- -------- ------------------ --------
Average ordinary and equivalent shares
outstanding as adjusted 37,343 37,539 37,320 37,481
-------------------- -------- ------------------ --------
FULLY DILUTED EARNINGS (LOSS) PER ORDINARY SHARE:
Continuing operations $ (0.01) $ 0.34 $ 0.09 $ 0.65
Discontinued operations --- --- --- ---
Extraordinary item (0.39) (0.01) (0.39) (0.01)
-------------------- -------- ------------------ --------
Net earnings (loss) $ (0.40) $ 0.33 $ (0.30) $ 0.64
-------------------- -------- ------------------ --------
</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 for the six months ended June 30,
1997 and 1996.
EXHIBIT 12.1
TRITON ENERGY LIMITED AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS, EXCEPT RATIOS)
(UNAUDITED)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
----------------------------- ------------------------------------
1997 1996 1996 1995
------------------ --------- ------------------------- ---------
Fixed charges, as defined (1):
Interest charges $ 25,242 $ 22,040 $ 43,884 $ 41,305
Preferred dividend requirements of
subsidiaries adjusted to pre-tax basis --- --- --- ---
------------------ --------- ------------------------- ---------
Total fixed charges $ 25,242 $ 22,040 $ 43,884 $ 41,305
------------------ --------- ------------------------- ---------
Earnings, as defined (1) (3):
Earnings (loss) from continuing operations
before income taxes, minority interest,
extraordinary item and cumulative effect of
accounting change $ 6,621 $ 26,738 $ 20,945 $ 16,600
Fixed charges, above 25,242 22,040 43,884 41,305
Less interest capitalized (12,505) (11,610) (27,102) (16,211)
Plus undistributed (earnings) loss of affiliates --- (118) (118) 2,249
Less preferred dividend requirements of
subsidiaries adjusted to pre-tax basis --- --- --- ---
------------------ --------- ------------------------- ---------
$ 19,358 $ 37,050 $ 37,609 $ 43,943
------------------ --------- ------------------------- ---------
RATIO OF EARNINGS TO FIXED CHARGES (2) (3) 0.8 1.7 0.9 1.1
------------------ --------- ------------------------- ---------
<S> <C> <C> <C> <C>
SEVEN MONTHS
ENDED
DEC. 31, YEAR ENDED MAY 31,
-------------------------------------------
1994 1994 1993 1992
-------------- -------------------- ---------- ---------
Fixed charges, as defined (1):
Interest charges $ 20,285 $ 26,951 $ 16,336 $ 11,066
Preferred dividend requirements of
subsidiaries adjusted to pre-tax basis --- 364 1,551 1,780
-------------- -------------------- ---------- ---------
Total fixed charges $ 20,285 $ 27,315 $ 17,887 $ 12,846
-------------- -------------------- ---------- ---------
Earnings, as defined (1) (3):
Earnings (loss) from continuing operations
before income taxes, minority interest,
extraordinary item and cumulative effect of
accounting change $ (22,834) $ (23,104) $(147,445) $(87,124)
Fixed charges, above 20,285 27,315 17,887 12,846
Less interest capitalized (11,833) (16,863) (6,407) (6,529)
Plus undistributed (earnings) loss of affiliates 4,102 (645) 3,012 2,558
Less preferred dividend requirements of
subsidiaries adjusted to pre-tax basis --- (364) (1,551) (1,780)
-------------- -------------------- ---------- ---------
$ (10,280) $ (13,661) $(134,504) $(80,029)
-------------- -------------------- ---------- ---------
RATIO OF EARNINGS TO FIXED CHARGES (2) (3) --- --- --- ---
-------------- -------------------- ---------- ---------
</TABLE>
(1) Earnings include the Company's equity in the losses of a former
affiliate whose debt was guaranteed by the Company. Related interest
charges for the year ended May 31, 1992 of $819,000 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 six months
ended June 30, 1997 by $5,884,000, for the year ended December 31,
1996 by $6,275,000, 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 six months ended June 30, 1996, $46,153,000 and
$1,058,000 for the years ended December 31, 1996 and 1995, $984,000 for
the seven months ended December 31, 1994 and $45,754,000, $99,883,000
and $48,805,000 for the years ended May 31, 1994, 1993 and 1992,
respectively. Nonrecurring gains from the sale of assets and other
gains aggregated $4,842,000 and $13,486,000 for the six months
ended June 30, 1997 and 1996, respectively, $22,189,000, $13,617,000
and $56,193,000 for the years ended December 31, 1996 and 1995 and May 31,
1994, respectively. The ratio of earnings to fixed charges if adjusted to
remove nonrecurring items, would have been 0.6 for the six months ended June
30, 1997, 1.4 and 0.8 for the years ended December 31, 1996 and 1995,
respectively. Without nonrecurring items, earnings would have been inadequate
to cover fixed charges for the six months ended June 30, 1997 by $10,726,000,
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 and 1992 by $51,415,000, $45,183,000 and $32,301,000, 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)
(UNAUDITED)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
----------------------------- ------------------------------------
1997 1996 1996 1995
------------------ --------- ------------------------- ---------
Fixed charges, as defined (1):
Interest charges $ 25,242 $ 22,040 $ 43,884 $ 41,305
Preference dividend requirements of the Company 213 772 985 802
Preferred dividend requirements of subsidiaries
adjusted to pre-tax basis --- --- --- ---
------------------ --------- ------------------------- ---------
Total fixed charges $ 25,455 $ 22,812 $ 44,869 $ 42,107
------------------ --------- ------------------------- ---------
Earnings, as defined (1) (3):
Earnings (loss) from continuing operations
before income taxes, minority interest,
extraordinary item and cumulative effect of
accounting change $ 6,621 $ 26,738 $ 20,945 $ 16,600
Fixed charges, above 25,455 22,812 44,869 42,107
Less interest capitalized (12,505) (11,610) (27,102) (16,211)
Plus undistributed (earnings) loss of affiliates --- (118) (118) 2,249
Less preference dividend requirements of the
Company and its subsidiaries adjusted to pre-tax basis (213) (772) (985) (802)
------------------ --------- ------------------------- ---------
$ 19,358 $ 37,050 $ 37,609 $ 43,943
------------------ --------- ------------------------- ---------
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERENCE DIVIDENDS (2) (3) 0.8 1.6 0.8 1.0
------------------ --------- ------------------------- ---------
<S> <C> <C> <C> <C>
SEVEN MONTHS
ENDED
DEC. 31, YEAR ENDED MAY 31,
-------------------------------------------
1994 1994 1993 1992
-------------- -------------------- ---------- ---------
Fixed charges, as defined (1):
Interest charges $ 20,285 $ 26,951 $ 16,336 $ 11,066
Preference dividend requirements of the Company 449 --- --- 1,386
Preferred dividend requirements of subsidiaries
adjusted to pre-tax basis --- 364 1,551 1,780
-------------- -------------------- ---------- ---------
Total fixed charges $ 20,734 $ 27,315 $ 17,887 $ 14,232
-------------- -------------------- ---------- ---------
Earnings, as defined (1) (3):
Earnings (loss) from continuing operations
before income taxes, minority interest,
extraordinary item and cumulative effect of
accounting change $ (22,834) $ (23,104) $(147,445) $(87,124)
Fixed charges, above 20,734 27,315 17,887 14,232
Less interest capitalized (11,833) (16,863) (6,407) (6,529)
Plus undistributed (earnings) loss of affiliates 4,102 (645) 3,012 2,558
Less preference dividend requirements of the
Company and its subsidiaries adjusted to pre-tax basis (449) (364) (1,551) (3,166)
-------------- -------------------- ---------- ---------
$ (10,280) $ (13,661) $(134,504) $(80,029)
-------------- -------------------- ---------- ---------
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERENCE DIVIDENDS (2) (3) --- --- --- ---
-------------- -------------------- ---------- ---------
</TABLE>
(1)Earnings include the Company's equity in the losses of a former
affiliate whose debt was guaranteed by the Company. Related interest
charges for the year ended May 31, 1992 of $819,000 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 six months ended June 30, 1997 by $6,097,000, for the
year ended December 31, 1996 by $7,260,000, 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 six months ended June 30, 1996, $46,153,000 and
$1,058,000 for the years ended December 31, 1996 and 1995, $984,000 for
the seven months ended December 31, 1994 and $45,754,000, $99,883,000
and $48,805,000 for the years ended May 31, 1994, 1993 and 1992,
respectively. Nonrecurring gains from the sale of assets and other
gains aggregated $4,842,000 and $13,486,000 for the six months
ended June 30, 1997 and 1996, respectively, $22,189,000, $13,617,000
and $56,193,000 for the years ended December 31, 1996 and 1995 and
May 31, 1994, respectively. The ratio of earnings to combined
fixed charges and preference dividends if adjusted to remove
nonrecurring items, would have been 0.6 for the six months ended
June 30, 1997, 1.4 and 0.7 for the years ended December 31, 1996
and 1995, respectively. Without nonrecurring items, earnings
would have been inadequate to cover fixed charges and preference
dividends for the six months ended June 30, 1997 by $10,939,000, 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 and 1992 by $51,415,000, $45,183,000 and
$33,687,000, respectively.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM JUN-30-1997
FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> JUN-30-1997
<CASH> 24,079
<SECURITIES> 653
<RECEIVABLES> 8,583
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 82,811
<PP&E> 830,499
<DEPRECIATION> 68,995
<TOTAL-ASSETS> 1,010,939
<CURRENT-LIABILITIES> 141,263
<BONDS> 461,113
0
7,511
<COMMON> 365
<OTHER-SE> 285,592
<TOTAL-LIABILITY-AND-EQUITY> 1,010,939
<SALES> 66,328
<TOTAL-REVENUES> 66,328
<CGS> 22,133
<TOTAL-COSTS> 22,133
<OTHER-EXPENSES> 15,455
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 12,249
<INCOME-PRETAX> 6,621
<INCOME-TAX> 3,443
<INCOME-CONTINUING> 3,178
<DISCONTINUED> 0
<EXTRAORDINARY> (14,491)
<CHANGES> 0
<NET-INCOME> (11,313)
<EPS-PRIMARY> (0.31)
<EPS-DILUTED> (0.30)
</TABLE>
