SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 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 April 30, 1997
- ------------------------------------------ ------------------------------
Ordinary Shares, par value $0.01 per share 36,393,846
- ------------------------------------------ ------------------------------
</TABLE>
TRITON ENERGY LIMITED AND SUBSIDIARIES
INDEX
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PART I. FINANCIAL INFORMATION PAGE NO.
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Item 1. Financial Statements
Condensed Consolidated Statements of Operations -
Three months ended March 31, 1997 and 1996 2
Condensed Consolidated Balance Sheets -
March 31, 1997 and December 31, 1996 3
Condensed Consolidated Statements of Cash Flows -
Three months ended March 31, 1997 and 1996 4
Condensed Consolidated Statement of Shareholders' Equity -
Three months ended March 31, 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 6. Exhibits and Reports on Form 8-K 22
</TABLE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
TRITON ENERGY LIMITED AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 1997 AND 1996
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
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1997 1996
-------- --------
SALES AND OTHER OPERATING REVENUES:
Oil and gas sales $33,759 $31,599
Other operating revenues --- 4,182
-------- --------
33,759 35,781
-------- --------
COSTS AND EXPENSES:
Operating 11,221 9,541
General and administrative 5,704 7,684
Depreciation, depletion and amortization 7,443 6,401
-------- --------
24,368 23,626
-------- --------
OPERATING INCOME 9,391 12,155
Interest income 905 1,834
Interest expense (5,026) (5,698)
Other income (expense), net (857) 3,753
-------- --------
(4,978) (111)
-------- --------
EARNINGS BEFORE INCOME TAXES 4,413 12,044
Income tax expense 927 693
-------- --------
NET EARNINGS 3,486 11,351
Dividends on preference shares 213 772
-------- --------
EARNINGS APPLICABLE TO ORDINARY SHARES $ 3,273 $10,579
-------- --------
Average ordinary and equivalent shares outstanding 37,102 36,623
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EARNINGS PER ORDINARY SHARE $ 0.09 $ 0.29
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</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
<PAGE>
TRITON ENERGY LIMITED AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
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ASSETS MARCH 31, DECEMBER 31,
1997 1996
------------ --------------
(Unaudited)
Current assets:
Cash and equivalents $ 88,609 $ 11,048
Short-term marketable securities 785 3,866
Trade receivables, net 7,989 11,526
Other receivables 44,578 49,000
Inventories, prepaid expenses and other 6,594 8,920
------------ --------------
Total current assets 148,555 84,360
Property and equipment, at cost, less accumulated depreciation and
depletion of $102,866 and $96,421, respectively 714,750 676,833
Investments and other assets 155,177 153,331
------------ --------------
$ 1,018,482 $ 914,524
------------ --------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Short-term borrowings and current maturities of long-term debt $ 91,483 $ 199,552
Accounts payable and accrued liabilities 36,659 38,545
Deferred income 35,254 28,466
------------ --------------
Total current liabilities 163,396 266,563
Long-term debt, excluding current maturities 427,268 217,078
Deferred income taxes 46,440 45,431
Deferred income and other 76,094 84,808
Convertible debentures due to employees --- ---
Shareholders' equity:
Preference shares 8,513 8,515
Ordinary shares, par value $0.01 364 363
Additional paid-in capital 584,058 582,581
Accumulated deficit (285,199) (288,685)
Other (2,450) (2,128)
------------ --------------
305,286 300,646
Less cost of ordinary shares in treasury 2 2
------------ --------------
Total shareholders' equity 305,284 300,644
Commitments and contingencies (note 5) --- ---
------------ --------------
$ 1,018,482 $ 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
THREE MONTHS ENDED MARCH 31, 1997 AND 1996
(IN THOUSANDS)
(UNAUDITED)
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1997 1996
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Cash flows from operating activities:
Net earnings $ 3,486 $ 11,351
Adjustments to reconcile net earnings to net cash provided
by operating activities:
Depreciation, depletion and amortization 7,443 6,401
Amortization of debt discount 5,026 5,698
Amortization of unearned revenue (2,026) (2,026)
Gain on sale of assets --- (4,150)
Deferred income taxes and other 1,914 (3,258)
Changes in working capital pertaining to operating activities 7,431 3,158
--------- ---------
Net cash provided by operating activities 23,274 17,174
--------- ---------
Cash flows from investing activities:
Capital expenditures and investments (46,613) (54,946)
Proceeds from sales of marketable securities 2,000 18,008
Proceeds from sales of assets --- 25,475
Other 1,100 (1,743)
--------- ---------
Net cash used by investing activities (43,513) (13,206)
--------- ---------
Cash flows from financing activities:
Short-term borrowings, net 10,000 ---
Proceeds from long-term debt 94,800 43,601
Payments on long-term debt (8,514) (48,959)
Issuance of ordinary shares 1,342 2,013
Other (190) (1,119)
--------- ---------
Net cash provided (used) by financing activities 97,438 (4,464)
--------- ---------
Effect of exchange rate changes on cash and equivalents 362 (73)
--------- ---------
Net increase (decrease) in cash and equivalents 77,561 (569)
Cash and equivalents at beginning of period 11,048 49,050
--------- ---------
Cash and equivalents at end of period $ 88,609 $ 48,481
--------- ---------
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
TRITON ENERGY LIMITED AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
THREE MONTHS ENDED MARCH 31, 1997
(IN THOUSANDS)
(UNAUDITED)
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ADDITIONAL
PREFERENCE ORDINARY PAID-IN ACCUMULATED TREASURY
SHARES SHARES CAPITAL DEFICIT OTHER SHARES
------------ --------- ------------ ------------- -------- ----------
Balance at
December 31, 1996 $ 8,515 $ 363 $ 582,581 $ (288,685) $(2,128) $ (2)
Net earnings --- --- --- 3,486 --- ---
Dividends on preference shares --- --- (213) --- --- ---
Conversion of preference shares (2) --- 2 --- --- ---
Exercise of employee stock
options and debentures --- 1 714 --- --- ---
Other --- --- 974 --- (322) ---
------------ --------- ------------ ------------- -------- ----------
Balance at March 31, 1997 $ 8,513 $ 364 $ 584,058 $ (285,199) $(2,450) $ (2)
------------ --------- ------------ ------------- -------- ----------
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TOTAL
SHAREHOLDERS'
EQUITY
---------------
Balance at
December 31, 1996 $ 300,644
Net earnings 3,486
Dividends on preference shares sharesres (213)
Conversion of preference shares ---
Exercise of employee stock
options and debentures 715
Other 652
---------------
Balance at March 31, 1997 $ 305,284
---------------
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
TRITON ENERGY LIMITED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. GENERAL
Triton Energy Limited ("Triton") is an international oil and gas exploration
company primarily engaged in exploration and production through subsidiaries
and affiliates. 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 March 31, 1997, and the results of its operations and cash
flows for the three months ended March 31, 1997 and 1996, and shareholders'
equity for the three months ended March 31, 1997. The results of operations
for the three months ended March 31, 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 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. 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 may also 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 750,000 barrels of production during the period
from April 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, which has delivery terms of 58,425
barrels per month through March 1997 and 254,136 barrels per month from April
1997 through March 2000. During the three months ended March 31, 1997 and
1996, the Company recorded an unrealized loss of $3.3 million and an
unrealized gain of $2.1 million, respectively, in Other income (expense), 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 three months ended March 31, 1997, markets provided the Company the
opportunity to realize WTI benchmark oil prices on average $3.99 per barrel
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 three months ended March 31, 1997, the Company's risk management
program resulted in an average net realization of approximately $.32 per
barrel lower than if the Company had not entered into such transactions.
4. DEBT
During the three months ended March 31, 1997, the Company borrowed $90.8
million, net under a $125 million unsecured bank revolving credit facility.
At March 31, 1997, the Company had outstanding borrowings under the facility
of $71.8 million classified as a current liability and $30 million classified
as a long-term liability.
On April 10, 1997, the Company issued $400 million aggregate face value of
senior indebtedness to refinance through redemption and/or tender offer the
Senior Subordinated Discount Notes due November 1, 1997 ("1997 Notes") and the
9 3/4% Senior Subordinated Discount Notes due December 15, 2000 ("9 3/4%
Notes"), and to repay a portion of the indebtedness outstanding under the
Company's revolving credit facility. As a result, the 1997 Notes, which were
classified as a current liability at December 31, 1996, were classified as
long-term at March 31, 1997. (See note 8.)
5. 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. The Company assisted OCENSA in raising
one tranche of debt totaling $65 million in 1996 and may assist OCENSA in
raising up to $25 million of additional debt in 1997. 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 the heads of agreement for a definitive gas-sales contract
is signed, a portion of the capital expenditures relating to Block A-18
budgeted 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 revolving credit facility, cash
flow from its Colombian operations (including additional proceeds from the
1995 forward oil sale), cash and marketable securities, asset sales, and the
issuance of debt and equity securities. As of March 31, 1997, the revolving
credit facility permitted the Company to incur total indebtedness of up to
approximately $640 million. Availability under the credit facility may be
more in the future under certain circumstances.
GUARANTEES
At March 31, 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 $4 million in future exploration
expenditures in various countries. These commitments are backed primarily by
unsecured letters of credit and bank guarantees.
LITIGATION
The Company is subject to litigation that is incidental to its business, none
of which is expected to have a material adverse effect on the Company's
operations or consolidated financial condition.
6. TRITON ENERGY CORPORATION FINANCIAL INFORMATION
Following a reorganization in March 1996, whereby Triton became the parent
holding company of Triton Energy Corporation ("TEC"), TEC ceased filing
periodic reports with the Securities and Exchange Commission. TEC is the
issuer of the 1997 Notes and 9 3/4% Notes, with Triton being the guarantor,
and is co-obligor with Triton on a joint and several basis under the senior
notes issued in April 1997. 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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MARCH 31, DECEMBER 31,
1997 1996
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Current assets $ 136,640 $ 69,783
Noncurrent assets 991,197 946,592
---------- -------------
Total $1,127,837 $ 1,016,375
---------- -------------
Current liabilities $ 147,685 $ 247,811
Noncurrent liabilities 582,952 379,294
Stockholders' equity 397,200 389,270
---------- -------------
Total $1,127,837 $ 1,016,375
---------- -------------
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THREE MONTHS ENDED
MARCH 31,
------------------------------
1997 1996
-------------------- --------
Sales and other operating revenues $ 31,627 $35,781
Costs and expenses 19,360 23,626
-------------------- --------
Operating income 12,267 12,155
Other income (expense), net (2,421) (111)
-------------------- --------
Earnings before income taxes 9,846 12,044
Income tax expense 1,918 693
-------------------- --------
Net earnings $ 7,928 $11,351
-------------------- --------
</TABLE>
7. 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, 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.
COMPETITION
The Company encounters strong competition from other 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.
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 are ongoing and will take more than one year to complete and
require additional drilling and extensive production facilities, which in turn
will require significant additional capital expenditures, the ultimate amount
of which cannot be predicted. Pipelines connect the major producing fields in
Colombia to export facilities and to refineries. These pipelines are in the
process of being upgraded and expanded to accommodate production from the
Cusiana and Cupiagua fields.
Guerrilla activity in Colombia from time to time has disrupted the operation
of oil and gas projects and increased costs. Although the Colombian
government, the Company and its partners have taken steps to improve security
and improve relations with the local population, there can be no assurance
that attempts to reduce or prevent guerrilla activity will be successful or
that such activity will not disrupt operations in the future.
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. The Company is
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 deposits lie across five fields 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 on which any gas produced from the Company's
contract area in Malaysia-Thailand may be sold may be affected adversely by
the present monopoly gas- purchase and transportation conditions in both
Thailand and Malaysia, including the Thai national oil company's monopoly in
transportation within Thailand and its territorial waters.
LITIGATION
The outcome of litigation and its impact on the Company are difficult to
predict due to many uncertainties, such as jury verdicts, the application of
laws to various factual situations, the actions that may or may not be taken
by other parties and the availability of insurance. In addition, in certain
situations, such as environmental claims, one defendant may be responsible, or
potentially responsible, for the liabilities of other parties. Moreover,
circumstances could arise under which the Company may elect to settle claims
at amounts that exceed the Company's expected liability for such claims in
order to avoid costly litigation. Judgments or settlements could, therefore,
exceed any reserves.
8. SUBSEQUENT EVENTS
On April 10, 1997, the Company issued $400 million aggregate face value of
senior indebtedness to refinance through redemption and/or tender offer TEC's
9 3/4% Notes and 1997 Notes, and to repay a portion of indebtedness
outstanding under the Company's revolving credit facility. The senior
indebtedness, issued on a joint and several basis by Triton and TEC,
consisted of $200 million face amount of 8 3/4% Senior Notes due April 15,
2002 (the "Five-Year 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 "Eight-Year Notes" and, together with the
Five-Year Notes, the "Notes") at 100% of the principal amount, for total
aggregate net proceeds of $399.9 million before deducting expenses estimated
to be approximately $0.3 million.
Interest on the Five-Year Notes and the Eight-Year Notes will accrue at the
rate of 8 3/4% per annum and 9 1/4% per annum, respectively, and is payable in
cash semi-annually on each April 15 and October 15, commencing October 15,
1997. The Notes are redeemable at any time at the option of the Company in
whole or in part. Additionally, the Notes contain certain covenants limiting
the incurrence of certain liens, sale/leaseback transactions, and mergers and
consolidations.
On May 2, 1997, Triton and TEC completed a tender offer and consent
solicitation with respect to TEC's 1997 Notes and 9 3/4% Notes that resulted
in the purchase of $202.2 million face value of 1997 Notes and $169.1 million
face value of 9 3/4% Notes for total consideration of $376.7 million. As a
result, the indentures for the 1997 Notes and 9 3/4% Notes were amended to
delete substantially all of the restrictive covenants, including limitations
on indebtedness, restricted payments and liens. On May 6, 1997, the Company
gave notice of redemption of the remaining $7.8 million face value of 1997
Notes at a price of $982.03 for each $1,000 note outstanding, with a
redemption date of June 6, 1997.
The Company's results of operations for the quarter ending June 30, 1997, will
include an extraordinary after-tax expense of approximately $14.5 million
associated with the extinguishment of the 1997 Notes and 9 3/4% Notes.
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 $89.4 million
and $14.9 million at March 31, 1997 and December 31, 1996, respectively.
Working capital (deficit) was ($14.8 million) at March 31, 1997, an increase
of $167.4 million from December 31, 1996. The increase in working capital
primarily resulted from the classification of the Company's Senior
Subordinated Discount Notes due November 1, 1997 (the "1997 Notes") as
long-term debt following a refinancing of such debt with senior indebtedness
in April 1997. At March 31, 1997 and December 31, 1996, current liabilities
included deferred income totaling $35.3 million and $28.5 million,
respectively, related to a forward oil sale consummated in May 1995.
The Company's capital expenditures and other capital investments were
$46.6 million for the three months ended March 31, 1997, primarily for
exploration and development of the Cusiana and Cupiagua fields (the "Fields")
in Colombia and Block A-18 in the Malaysia-Thailand Joint Development Area in
the Gulf of Thailand. The capital spending program for the three months ended
March 31, 1997, was funded with cash flow from operations and borrowings under
the Company's revolving credit facility.
On April 10, 1997, the Company issued $400 million aggregate face value
of senior indebtedness to refinance through redemption and/or tender offer
Triton Energy Corporation's ("TEC's") 1997 Notes and the 9 3/4% Senior
Subordinated Discount Notes due December 15, 2000 ("9 3/4% Notes"), and to
repay a portion of indebtedness outstanding under the Company's revolving
credit facility. The senior indebtedness, issued on a joint and several basis
by Triton Energy Limited ("Triton") and TEC, consisted of $200 million face
amount of 8 3/4% Senior Notes due April 15, 2002 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 at 100% of the principal
amount for total aggregate net proceeds of $399.9 million before deducting
expenses estimated to be approximately $0.3 million.
On May 2, 1997, Triton and TEC completed a tender offer and consent
solicitation with respect to TEC's 1997 Notes and 9 3/4% Notes that resulted
in the purchase of $202.2 million face value of 1997 Notes and $169.1 million
face value of 9 3/4% Notes for total consideration of $376.7 million. On May
6, 1997, the Company gave notice of redemption of the remaining $7.8 million
face value of 1997 Notes at a price of $982.03 for each $1,000 note
outstanding, with a redemption date of June 6, 1997.
Development of the Cusiana and Cupiagua 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. The Company assisted OCENSA in raising
one tranche of debt totaling $65 million in 1996 and may assist OCENSA in
raising up to $25 million of additional debt in 1997. 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 the heads of agreement for a definitive gas-sales contract
is signed, a portion of the capital expenditures relating to Block A-18
budgeted 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 revolving credit
facility, cash flow from its Colombian operations (including additional
proceeds from the 1995 forward oil sale), cash and marketable securities,
asset sales, and the issuance of debt and equity securities. As of March 31,
1997, the revolving credit facility permitted the Company to incur total
indebtedness of up to approximately $640 million. Availability under the
credit facility may be more in the future under certain circumstances.
RESULTS OF OPERATIONS
Sales volumes and average prices realized were as follows:
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THREE MONTHS ENDED
MARCH 31,
---------------------------
1997 1996
------------------- ------
Sales volumes
Oil (MBbls), excluding forward oil sale 1,413 1,541
Gas (MMcf) 77 527
Forward oil sale (1) (MBbls delivered) 175 175
Weighted average price realized:
Oil (per Bbl) $ 21.19 $18.03
Gas (per Mcf) $ 1.36 $ 1.25
</TABLE>
(1) Commencing April 1, 1997, an additional 195,711 barrels of oil per month
will be delivered under the forward oil sale.
<PAGE>
THREE MONTHS ENDED MARCH 31, 1997,
COMPARED WITH THREE MONTHS ENDED MARCH 31, 1996
Sales and other operating revenues
Revenue in Colombia increased $4.2 million in 1997, primarily due to
higher oil prices ($5.1 million). Revenue from reimbursement of
pre-commerciality costs for the Cusiana and Cupiagua fields was lower in 1997
by $1 million. Oil and gas sales from properties sold during 1996 aggregated
$2 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 during
summer 1997 and at least 500,000 barrels per day by the end of 1997. 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 will have an
adverse effect on the Company's earnings and cash flows on a per barrel basis.
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, as to the timing of any such
increase in production or that any such increase would occur in the same
accounting period as the increase in the Company's forward oil sale delivery
requirement.
Other operating revenues in 1996 included a gain of $4.1 million
resulting from the sale of the Company's royalty interests in U.S. properties
for $23.8 million based on an effective date of January 1, 1996.
Costs and Expenses
Operating expenses increased $1.7 million in 1997, and depreciation,
depletion and amortization increased $1 million. The Company's operating
costs per equivalent barrel were $7.14 and $5.55 in 1997 and 1996,
respectively. Operating expenses in Colombia increased by $2.8 million,
primarily due to an increase in pipeline tariffs of $1.9 million and an
increase in production taxes of $.5 million. Operating expenses attributable
to properties sold during 1996 were $1.1 million in 1996. Depreciation,
depletion and amortization in Colombia increased by $1.2 million.
The Company expects that aggregate pipeline tariff costs from OCENSA will
increase further during 1997. When the pipeline expansion project is completed
and shipments through the pipeline upgrade commence, and each year thereafter,
OCENSA will assess to the Cusiana and Cupiagua fields shippers (the "Initial
Shippers") a tariff estimated to recoup the total capital cost of the project
over a period of 15 years, 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") will be assessed a tariff on a per barrel basis and OCENSA
will use 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 as to 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 expenses decreased $2 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 $7.2 million and $5.6 million in 1997 and 1996, respectively.
Other Income and Expenses
Other income in 1997 and 1996 included an unrealized gain (loss) of ($3.3
million) and $2.1 million, respectively, representing the change in fair
market value of call options purchased in anticipation of a forward oil sale
in May 1995, and foreign exchange gains of $2.2 million and $1 million in 1997
and 1996, respectively, primarily on deferred tax liabilities in Colombia.
Income Taxes
Statement of Financial Accounting Standards No. 109 ("SFAS 109"),
"Accounting for Income Taxes," requires that the Company make projections
about the timing and scope of certain future business transactions in order to
estimate recoverability of deferred tax assets primarily resulting from the
expected utilization of net operating loss carryforwards ("NOLs"). Changes in
the timing or nature of actual or anticipated business transactions,
projections and income tax laws can give rise to significant adjustments to
the Company's deferred tax expense or benefit that may be reported from time
to time. For these and other reasons, compliance with SFAS 109 may result in
significant differences between tax expense for income statement purposes and
taxes actually paid.
The income tax provision for 1997 includes a deferred tax benefit in the
United States totaling $3.6 million, compared with a benefit of $5 million in
1996. Additionally, the income tax provision includes foreign deferred taxes
totaling $3.3 million in 1997, primarily related to the Company's Colombian
operations, compared with foreign deferred taxes of $4.5 million in 1996.
Current taxes related to the Company's Colombian operations were $1.3 million
and $.9 million in 1997 and 1996, respectively.
Subsequent Event
The Company's results of operations for the quarter ending June 30,
1997, will include an extraordinary after-tax expense of approximately $14.5
million associated with extinguishment of the 1997 Notes and 9 3/4% Notes.
<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 may also
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 750,000 barrels of production during the
period from April 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, which has delivery
terms of 58,425 barrels per month through March 1997 and 254,136 barrels per
month from April 1997 through March 2000. During the three months ended March
31, 1997 and 1996, the Company recorded an unrealized loss of $3.3 million and
an unrealized gain of $2.1 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 three months ended March 31, 1997, markets provided the
Company the opportunity to realize WTI benchmark oil prices on average $3.99
per barrel 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 three months ended March 31, 1997, the Company's risk
management program resulted in an average net realization of approximately
$.32 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.
PART II. OTHER INFORMATION
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.)
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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)
11.1 Computation of Earnings per Share. (22)
12.1 Computation of Ratio of Earnings to Fixed Charges. (22)
12.2 Computation of Ratio of Earnings to Combined Fixed Charges and Preference
Dividends. (22)
27.1 Financial Data Schedule.(22)
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>
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(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) Filed herewith.
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<PAGE>
(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.
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: May 13, 1997
Exhibit 10.49
SUPPLEMENTAL INDENTURE, dated as of April 17, 1997, by and between
Triton Energy Corporation, a Delaware corporation (the "TEL"), Triton Energy
Limited, a Cayman Islands company ("TEL", and together with TEC, the
"Companies"), as Guarantor, and The Chase Manhattan Bank, as trustee (the
"Trustee").
W I T N E S S E T H :
WHEREAS, the Companies and the Trustee have heretofore executed and
delivered an Indenture, dated as of November 13, 1992, as amended and restated
as of July 1, 1993 and March 25, 1996 (the "Indenture"), providing for the
issuance of Senior Subordinated Discount Notes due 1997 (the "Securities") of
TEC;
WHEREAS, there is currently outstanding under the Indenture
approximately $210 million aggregate principal amount of the Securities;
WHEREAS, Section 9.02 of the Indenture provides that the Companies
and the Trustee may, with the consent of the Holders of a majority of the
aggregate principal amount of the outstanding Securities, enter into a
supplemental indenture for the purpose of amending the Indenture;
WHEREAS, the Companies have offered to purchase for cash any and all
of the outstanding Securities upon the terms and subject to the conditions set
forth in the Offer to Purchase and Consent Solicitation Statement dated April
3, 1997, as the same may be amended, supplemented or modified (the "Offer");
WHEREAS, the Offer is conditioned upon, among other things, certain
proposed amendments to the Indenture (the "Proposed Amendments") having been
approved by a majority in aggregate principal amount of the outstanding
Securities (and a supplemental indenture in respect thereof having been
executed and delivered) with the effectiveness of such Proposed Amendments
with respect to the Securities being subject only to the acceptance for
payment by the Companies of the Securities representing a majority in
aggregate principal amount at maturity of the outstanding Securities pursuant
to the Offer (the "Acceptance");
WHEREAS, the Companies have received and delivered to the Trustee
the requisite consents to effect the Proposed Amendments under the Indenture;
WHEREAS, each of TEC and TEL has been authorized by a resolution of
its Board of Directors to enter into this Supplemental Indenture; and
WHEREAS, all other acts and proceedings required by law, by the
Indenture and by the certificate of incorporation and by-laws of TEC and the
memorandum and articles of association of TEL to make this Supplemental
Indenture a valid and binding agreement for the purposes expressed herein, in
accordance with its terms, have been duly done and performed;
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements contained herein, and for other good and valuable consideration
the receipt of which is hereby acknowledged, and for the equal and
proportionate benefit of the Holders of the Securities, the Companies and the
Trustee hereby agree as follows:
ARTICLE ONE
Section 1.01. Definitions.
Capitalized terms used in this Supplemental Indenture and not
otherwise defined herein shall have the meanings assigned to such terms in the
Indenture.
ARTICLE TWO
Section 2.01. Amendment of Section 1.01. Effective upon, and subject
only to, the Acceptance, the provisions of Section 1.01 of the Indenture are
amended by deleting the following definitions: "Acquired Indebtedness";
"Asset Sale"; "Average Quoted Price"; "Consolidated Net Income"; "Consolidated
Net Worth"; "Currency Agreement"; "Intercompany Agreement"; "Investment";
"Permitted Indebtedness"; "Permitted Investments"; and "Quoted Price".
Section 2.02 Amendment of Section 5.01. Effective upon, and subject
only to, the Acceptance, the provisions of Section 5.01 of the Indenture are
amended by deleting the text of clause (c) thereto in its entirety and
inserting in lieu thereof the phrase "[intentionally omitted]".
Section 2.03. Amendment of Section 8.01. Effective upon, and subject
only to, the Acceptance, the provisions of Section 8.01 of the Indenture are
amended by:
(a) deleting the text of clause (3) thereto in its entirety and inserting
in lieu thereof the phrase "[intentionally omitted]"; and
(b) deleting the text of clause (4) thereto in its entirety and inserting
in lieu thereof the phrase "[intentionally omitted]".
Section 2.04. Amendment of Section 10.07. Effective upon, and subject only
to, the Acceptance, the provisions of Section 10.07 of the Indenture are
amended by deleting the text of such Section in its entirety and inserting in
lieu thereof the phrase "[intentionally omitted]".
Section 2.05. Amendment of Section 10.08. Effective upon, and subject
only to, the Acceptance, the provisions of Section 10.08 of the Indenture are
amended by deleting the text of such Section in its entirety and inserting in
lieu thereof the phrase "[intentionally omitted]".
Section 2.06. Amendment of Section 10.09. Effective upon, and subject only
to, the Acceptance, the provisions of Section 10.09 of the Indenture are
amended by deleting the text of such Section in its entirety and inserting in
lieu thereof the phrase "[intentionally omitted]".
Section 2.07. Amendment of Section 10.10. Effective upon, and subject
only to, the Acceptance, the provisions of Section 10.10 of the Indenture are
amended by deleting the text of such Section in its entirety and inserting in
lieu thereof the phrase "[intentionally omitted]".
Section 2.08. Amendment of Section 10.11. Effective upon, and subject only
to, the Acceptance, the provisions of Section 10.11 of the Indenture are
amended by deleting the text of such Section in its entirety and inserting in
lieu thereof the phrase "[intentionally omitted]".
Section 2.09. Amendment of Section 10.12. Effective upon, and subject only
to, the Acceptance, the provisions of Section 10.12 of the Indenture are
amended by deleting the text of such Section in its entirety and inserting in
lieu thereof the phrase "[intentionally omitted]".
Section 2.10. Amendment of Section 10.15. Effective upon, and subject only
to, the Acceptance, the provisions of Section 10.15 of the Indenture are
amended by deleting the text of such Section in its entirety and inserting in
lieu thereof the phrase "[intentionally omitted]".
Section 2.11. Amendment of Section 10.16. Effective upon, and subject only
to, the Acceptance, the provisions of Section 10.16 of the Indenture are
amended by deleting the text of clause (a) of such Section in its entirety
and inserting in lieu thereof the phrase "[intentionally omitted]".
Section 2.12 Amendment to Section 12.04. Effective upon, and subject
only to, the Acceptance, the provisions of Section 12.04 of the Indenture are
amended by deleting the text of clause (3) thereto in its entirety and
inserting in lieu thereof the phrase "[intentionally omitted]".
ARTICLE THREE
Section 3.01. Continuing Effect of Indenture.
Except as expressly provided herein, all of the terms, provisions
and conditions of the Indenture and the Securities outstanding thereunder
shall remain in full force and effect.
Section 3.02. Construction of Supplemental Indenture.
The Supplemental Indenture is executed as and shall constitute an
indenture supplemental to the Indenture and shall be construed in connection
with and as part of the Indenture. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New
York.
Section 3.03. Trust Indenture Act Controls.
If any provision of this Supplemental Indenture limits, qualifies or
conflicts with another provision of this Supplemental Indenture or the
Indenture that is required to be included by the Trust Indenture Act of 1939
as in force at the date as of which this Supplemental Indenture is executed,
the provision required by said Act shall control.
Section 3.04. Trustee Disclaimer.
The recitals contained in this Supplemental Indenture shall be taken
as the statements of the Companies, and the Trustee assumes no responsibility
for their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Supplemental Indenture.
Section 3.05. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
TRITON ENERGY LIMITED, as Guarantor
By: /s/
Name:
Title:
TRITON ENERGY CORPORATION, as
Issuer
By: /s/
Name:
Title:
THE CHASE MANHATTAN BANK, as
Trustee
By: /s/
Name:
Title:
<PAGE>
STATE OF ________ )
) SS.:
COUNTY OF _______ )
On the 17th day of April, 1997, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and
say that he/she is _____________________ of Triton Energy Limited, the company
described in and which executed the foregoing instrument; and that he/she
signed his/her name thereto by like authority.
__________________________________
Notary Public, State of __________
STATE OF ___________ )
) SS.:
COUNTY OF ___________ )
On the 17th day of April, 1997, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and
say that he/she is _____________________ of Triton Energy Corporation, a
corporation described in and which executed the foregoing instrument; and that
he/she signed his/her name thereto by like authority.
__________________________________
Notary Public, State of __________
STATE OF ___________ )
) SS.:
COUNTY OF ___________ )
On the 17th day of April, 1997, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and
say that he/she is _____________________ of The Chase Manhattan Bank, a
corporation described in and which executed the foregoing instrument; and that
he/she signed his/her name thereto by like authority.
__________________________________
Notary Public, State of __________
Exhibit 10.50
SUPPLEMENTAL INDENTURE, dated as of April 17, 1997, by and between
Triton Energy Corporation, a Delaware corporation (the "TEL"), Triton Energy
Limited, a Cayman Islands company ("TEL", and together with TEC, the
"Companies"), as Guarantor, and United States Trust Company of New York, as
trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Companies and the Trustee have heretofore executed and
delivered an Indenture, dated as of December 15, 1993, as amended and restated
as of March 25, 1996 (the "Indenture"), providing for the issuance of 9-3/4%
Senior Subordinated Discount Notes due 2000 (the "Securities") of TEC;
WHEREAS, there is currently outstanding under the Indenture
approximately $170 million aggregate principal amount at maturity of the
Securities;
WHEREAS, Section 8.2 of the Indenture provides that the Companies
and the Trustee may, with the consent of the Holders of a majority of the
aggregate principal amount of the outstanding Securities, enter into a
supplemental indenture for the purpose of amending the Indenture;
WHEREAS, the Companies have offered to purchase for cash any and all
of the outstanding Securities upon the terms and subject to the conditions set
forth in the Offer to Purchase and Consent Solicitation Statement dated April
3, 1997, as the same may be amended, supplemented or modified (the "Offer");
WHEREAS, the Offer is conditioned upon, among other things, certain
proposed amendments to the Indenture (the "Proposed Amendments") having been
approved by a majority in aggregate principal amount of the outstanding
Securities (and a supplemental indenture in respect thereof having been
executed and delivered) with the effectiveness of such Proposed Amendments
with respect to the Securities being subject only to the acceptance for
payment by the Companies of the Securities representing a majority in
aggregate principal amount at maturity of the outstanding Securities pursuant
to the Offer (the "Acceptance");
WHEREAS, the Companies have received and delivered to the Trustee
the requisite consents to effect the Proposed Amendments under the Indenture;
WHEREAS, each of TEC and TEL has been authorized by a resolution of
its Board of Directors to enter into this Supplemental Indenture; and
WHEREAS, all other acts and proceedings required by law, by the
Indenture and by the certificate of incorporation and by-laws of TEC and the
memorandum and articles of association of TEL to make this Supplemental
Indenture a valid and binding agreement for the purposes expressed herein, in
accordance with its terms, have been duly done and performed;
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements contained herein, and for other good and valuable consideration
the receipt of which is hereby acknowledged, and for the equal and
proportionate benefit of the Holders of the Securities, the Companies and the
Trustee hereby agree as follows:
ARTICLE ONE
Section 1.01. Definitions.
Capitalized terms used in this Supplemental Indenture and not
otherwise defined herein shall have the meanings assigned to such terms in the
Indenture.
ARTICLE TWO
Section 2.01. Amendment of Section 1.1. Effective upon, and subject
only to, the Acceptance, the provisions of Section 1.1 of the Indenture are
amended by deleting the following definitions: "Acquired Indebtedness";
"Asset Sale"; "Average Quoted Price"; "Consolidated Net Income"; "Consolidated
Net Worth"; "Currency Agreement"; "Intercompany Agreement"; "Investment";
"Permitted Indebtedness"; "Permitted Investments"; and "Quoted Price".
Section 2.02. Amendment of Section 3.6. Effective upon, and subject only
to, the Acceptance, the provisions of Section 3.6 of the Indenture are amended
by deleting the text of such Section in its entirety and inserting in lieu
thereof the phrase "[intentionally omitted]".
Section 2.03. Amendment of Section 3.7. Effective upon, and subject
only to, the Acceptance, the provisions of Section 3.7 of the Indenture are
amended by deleting the text of such Section in its entirety and inserting in
lieu thereof the phrase "[intentionally omitted]".
Section 2.04. Amendment of Section 3.8. Effective upon, and subject only
to, the Acceptance, the provisions of Section 3.8 of the Indenture are
amended by deleting the text of such Section in its entirety and
inserting in lieu thereof the phrase "[intentionally omitted]".
Section 2.05. Amendment of Section 3.9. Effective upon, and subject
only to, the Acceptance, the provisions of Section 3.9 of the Indenture are
amended by deleting the text of clause (a) of such Section in its entirety and
inserting in lieu thereof the phrase "[intentionally omitted]".
Section 2.06. Amendment of Section 3.10. Effective upon, and subject only
to, the Acceptance, the provisions of Section 3.10 of the Indenture are
amended by deleting the text of such Section in its entirety and inserting in
lieu thereof the phrase "[intentionally omitted]".
Section 2.07. Amendment of Section 3.11. Effective upon, and subject only
to, the Acceptance, the provisions of Section 3.11 of the Indenture are
amended by deleting the text of such Section in its entirety and inserting in
lieu thereof the phrase "[intentionally omitted]".
Section 2.08. Amendment of Section 3.12. Effective upon, and subject only
to, the Acceptance, the provisions of Section 3.12 of the Indenture are
amended by deleting the text of such Section in its entirety and inserting in
lieu thereof the phrase "[intentionally omitted]".
Section 2.09. Amendment of Section 3.13. Effective upon, and subject only
to, the Acceptance, the provisions of Section 3.13 of the Indenture are
amended by deleting the text of such Section in its entirety and inserting in
lieu thereof the phrase "[intentionally omitted]".
Section 2.10. Amendment to Section 5.1. Effective upon, and subject
only to, the Acceptance, the provisions of Section 5.1 of the Indenture are
amended by deleting the text of clause (d) thereto in its entirety and
inserting in lieu thereof the phrase "[intentionally omitted]".
Section 2.11. Amendment to Section 10.1. Effective upon, and subject
only to, the Acceptance, the provisions of Section 12.04 of the Indenture are
amended by deleting the text of clause (C) of paragraph (c) thereto in its
entirety and inserting in lieu thereof the phrase "[intentionally omitted]".
Section 2.12. Amendment to Section 9.1. Effective upon, and subject
only to, the Acceptance, the provisions of Section 9.1 of the Indenture are
amended by:
(a) deleting the text of clause (d) thereto in its entirety and inserting
in lieu thereof the phrase "[intentionally omitted]"; and
(b) deleting the text of clause (e) thereto in its entirety and inserting
in lieu thereof the phrase "[intentionally omitted]".
ARTICLE THREE
Section 3.01. Continuing Effect of Indenture.
Except as expressly provided herein, all of the terms, provisions
and conditions of the Indenture and the Securities outstanding thereunder
shall remain in full force and effect.
Section 3.02. Construction of Supplemental Indenture.
The Supplemental Indenture is executed as and shall constitute an
indenture supplemental to the Indenture and shall be construed in connection
with and as part of the Indenture. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New
York.
Section 3.03. Trust Indenture Act Controls.
If any provision of this Supplemental Indenture limits, qualifies or
conflicts with another provision of this Supplemental Indenture or the
Indenture that is required to be included by the Trust Indenture Act of 1939
as in force at the date as of which this Supplemental Indenture is executed,
the provision required by said Act shall control.
Section 3.04. Trustee Disclaimer.
The recitals contained in this Supplemental Indenture shall be taken
as the statements of the Companies, and the Trustee assumes no responsibility
for their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Supplemental Indenture.
Section 3.05. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
TRITON ENERGY LIMITED, as Guarantor
By: /s/
Name:
Title:
TRITON ENERGY CORPORATION, as
Issuer
By: /s/
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By: /s/
Name:
Title:
<PAGE>
STATE OF ________ )
) SS.:
COUNTY OF _______ )
On the ___ day of April, 1997, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and
say that he/she is _____________________ of Triton Energy Limited, the company
described in and which executed the foregoing instrument; and that he/she
signed his/her name thereto by like authority.
__________________________________
Notary Public, State of __________
STATE OF ___________ )
) SS.:
COUNTY OF ___________ )
On the ____ day of April, 1997, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and
say that he/she is _____________________ of Triton Energy Corporation, a
corporation described in and which executed the foregoing instrument; and that
he/she signed his/her name thereto by like authority.
__________________________________
Notary Public, State of __________
STATE OF ___________ )
) SS.:
COUNTY OF ___________ )
On the ____ day of April, 1997, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and
say that he/she is _____________________ of United States Trust Company of New
York, a corporation described in and which executed the foregoing instrument;
and that he/she signed his/her name thereto by like authority.
__________________________________
Notary Public, State of __________
Exhibit 10.51
SENIOR INDENTURE, dated as of April 10, 1997 among TRITON ENERGY LIMITED,
a Cayman Islands company ("TEL"), TRITON ENERGY CORPORATION, a Delaware
corporation ("TEC" and, together with TEL, the "Issuers"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuers each have duly authorized the issuance from time to
time of their joint and several 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 this Indenture; and
WHEREAS, the Issuers have duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication,
delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been undertaken and completed;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the Holders (as hereinafter defined) thereof, the Issuers 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" when used with respect to either of the Issuers,
means either the Board of Directors of such Issuer or any committee of that
Board duly authorized to act on its behalf.
"Board Resolution" when used with respect to either of the Issuers, means
one or more resolutions, certified by the secretary or an assistant secretary
of such Issuer to have been duly adopted or consented to by the Board of
Directors of such Issuer 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 TEL 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 Issuers 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 Issuers 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 Issuers become obligated to acquire a
Security, whether upon conversion, by purchase or otherwise.
"Issuer" means either TEC or TEL, and "Issuers" means both TEC and TEL,
and, subject to Article Nine, their respective successors and assigns.
"Issuer Order" means a written statement, request or order of the Issuers
which is signed in the name of each of the Issuers by the chairman of the
Board of Directors, the president or any vice president of each such Issuer
and delivered to the Trustee.
"Officers' Certificate", when used with respect to each 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 such 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 each Officers' Certificate given
pursuant to Section 4.3 shall be the principal executive, financial or
accounting officer of each such Issuer.
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of each Issuer or by such other legal counsel who may be an employee
of or counsel to such 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 canceled 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 either of the Issuers) or shall have been set aside, segregated and held
in trust by an Issuer for the Holders of such Securities (if such Issuer shall
act as the Issuers' 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 Issuers).
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 Issuers 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 each of the Issuers 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 Issuers, upon any purchase or exchange at the option of
the Issuers 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 TEL other than an
Unrestricted Subsidiary, and (b) any Subsidiary of TEL which was an
Unrestricted Subsidiary but which, subsequent to the date hereof, is
designated by TEL (by Board Resolution) to be a Restricted Subsidiary;
provided, however, that TEL may not designate any such Subsidiary to be a
Restricted Subsidiary if TEL 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 TEL 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 TEL 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 either of the Issuers 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
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 each of
the Issuers. There shall be established in or pursuant to one or more Board
Resolutions of each Issuer (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 Issuers
pursuant to Section 3.2;
(6) the right, if any, of the Issuers 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 Issuers to redeem, purchase
or repay Securities of the series in whole or in part pursuant to any
mandatory redemption, sinking fund or analogous provisions or at the option of
a Holder thereof and the period or periods within which the price or prices
(or the method by which such price or prices shall be determined or both) at
which, the form or method of payment therefor if other than in cash and any
terms and conditions upon which and the manner in which (if different from the
provisions of Article Twelve) Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(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 orrates 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 Resolutions or Officers' Certificates 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 Resolutions, such Officers' Certificates or in any such
indenture supplemental hereto.
Any such Board Resolutions or Officers' Certificates 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 purposes relating
to Securities of such series as fully as if such Board Resolutions or
Officers' Certificates were set forth herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The Issuers may
deliver Securities of any series executed by each of the Issuers 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 Issuers (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 each of the Issuers 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 each 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 Issuers 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
each of the Issuers 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 Issuers that the Trustee authenticate Securities of such series
for original issuance will be deemed to be a certification by each such 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 Resolutions, Officers' Certificates 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 Issuers, 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 Board Resolutions, Officers'
Certificates 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 each of the Issuers 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 Issuers 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 legally binding obligations of each of the Issuers,
enforceable in accordance with their respective terms, and will be entitled to
the benefits of this Indenture; and
(c) the execution and delivery by each of the Issuers of,
and the performance by each 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 each such Issuer or any agreement or
other instrument binding upon each such Issuer or any of its Subsidiaries that
is material to each such 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 each such Issuer or any Subsidiary, and no consent,
approval or authorization of any governmental body or agency is required for
the performance by each such 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 each of the Issuers 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 each such 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 Issuers and their
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
either 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 Issuers 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 Issuers 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 canceled, (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 each of the Issuers by the chairman of the Board of Directors, the
president, any vice president or the treasurer of such 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 either
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 either of the Issuers 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
Issuers, 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 such Issuer; and any Security may be signed on behalf of such
Issuer, by such persons as, at the actual date of the execution of such
Security, shall be the proper officers of such 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 Issuers 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.
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 each of the Issuers 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 Issuers 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 Issuers 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 Issuers 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 Issuers will keep
at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide
for the registration of Securities of each series and the registration of
transfer of Securities of such series. Each such register shall be in written
form in the English language or in any other form capable of being converted
into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection and available for copying
by the Trustee.
Upon due presentation for registration of transfer of any Security of any
series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuers 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 Issuers or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Issuers 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 Issuers that shall be maintained for such purpose in
accordance with Section 3.2.
The Issuers 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 Issuers 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
Issuers 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 Issuers 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 Issuers shall appoint a successor Depositary with respect to such
Securities. If a successor Depositary for such Securities is not appointed by
the Issuers within 90 days after the Issuers receive such notice or become
aware of such ineligibility, the Issuers' election pursuant to Section 2.3
that such Securities be represented by one or more Global Securities shall no
longer be effective and the Issuers 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.
The Issuers may at any time and in their 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 Issuers 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 Issuers 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 Issuers and such Depositary. Thereupon, the Issuers
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
canceled 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 Issuers or an agent of
the Issuers. 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 Issuers,
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 Issuers in their discretion may execute,
and upon the written request of the Issuers, 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 Issuers, and to the Trustee and any
agent of the Issuers or the Trustee such security or indemnity as may be
required by the Trustee or the Issuers or any such agent to indemnify and
defend and to save each of the Trustee and the Issuers 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 Issuers 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 Issuers 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 Issuers and the Trustee and any agent of the Issuers 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 Issuers and the Trustee and any agent of
the Issuers 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
Issuers, 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 Issuers, or any agent of the Issuers 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
canceled 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 canceled Securities in accordance with its standard
procedures and shall deliver a certificate of such disposition to the Company.
If either of the Issuers 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 Issuers 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 Issuers 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 Issuers 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 Issuers 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 Issuers 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 Issuers 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 ISSUERS
SECTION 3.1 Payment of Principal and Interest. The Issuers jointly and
severally covenant and agree that they 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 Issuers 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 Issuers in
respect of the Securities or of this Indenture may be served. In case the
Issuers shall at any time fail to maintain any such office or agency, or shall
fail to give notice to the Trustee of any change in the location thereof,
presentation may be made and notice and demand may be served in respect of the
Securities or of this Indenture at the Corporate Trust Office. Each of the
Issuers 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 Issuers will not directly
or indirectly extend or consent to the extension of the time for the payment
of any claim for interest on any of the Securities and will not directly or
indirectly be a party to or approve any such arrangement by the purchase or
funding of said claims or in any other manner; provided, however, that this
Section 3.3 shall not apply in any case where an extension shall be made
pursuant to a plan proposed by the Issuers to the Holders of all Securities of
any series then Outstanding.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office. The
Issuers, 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 Issuers shall
appoint a paying agent other than the Trustee, they 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 Issuers 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 Issuers (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 Issuers shall act as their own paying agent, they
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 Issuers (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 Issuers 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 Issuers shall have one or more paying agents,
they 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 Issuers 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 Issuers 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 an 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 an 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 an Issuer or any Restricted Subsidiary (whether or not the
obligations secured thereby are assumed by an Issuer or any Subsidiary);
(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 an
Issuer or another Restricted Subsidiary;
(d) any mortgage, pledge, security interest, lien or encumbrance
arising from or in connection with a conveyance by an 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 TEL 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 TEL 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 an Issuer or any wholly-owned Subsidiary of TEL;
(h) any mortgage, pledge, security interest, lien or encumbrance
created or assumed by an 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 an Issuer or a
Subsidiary;
(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 either of the Issuers or any Restricted Subsidiary shall propose
to pledge, mortgage, hypothecate or grant a security interest in any property
or assets owned by such Issuer or any Restricted Subsidiary to secure any
Indebtedness, other than as permitted by subdivisions (a) to (j), inclusive,
of this Section 3.6, such Issuer will prior thereto give written notice
thereof to the Trustee, and such Issuer will, or TEL 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 such
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 an 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.
SECTION 3.7 Condition for Release of TEC. TEC may, by supplemental
indenture, be released from its obligations under this Indenture and the
Securities, without the consent of the holders of the Securities of any
series, if the 12-1/2% Senior Subordinated Discount Notes due 1997 and the
9-3/4% Senior Subordinated Discount Notes due 2000 issued by TEC are no longer
outstanding or if TEL or any successor to TEL has assumed the obligations of
TEC under such notes.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY
THE ISSUERS AND THE TRUSTEE
SECTION 4.1 Issuers to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuers 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 Issuers 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 Issuers and the Trustee that neither the Issuers nor the
Trustee nor any agent of the Issuers 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 Issuers. Each of the Issuers covenants:
(a) to file with the Trustee, within 15 days after such 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), if any, which such Issuer may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if TEL 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
such 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 such 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 of such Issuer as to his knowledge of such
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 Issuers 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 Issuers agree
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 Resolutions 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 either of the Issuers duly to
observe or perform any other of the covenants or agreements on the part of
such 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 both of the Issuers by the Trustee, or to both of the
Issuers, 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 such Issuer a court having
jurisdiction shall enter an order for relief, in the case of TEC, under the
Bankruptcy Code, or, in the case of TEL, any applicable bankruptcy, insolvency
or other similar law of the Cayman Islands, or without the consent of such
Issuer a court having jurisdiction shall enter a judgment, order or decree
adjudging such Issuer a bankrupt or insolvent, or enter an order for relief
for reorganization, arrangement, adjustment or composition of or in respect of
TEC under the Bankruptcy Code or applicable state insolvency law, or, in the
case of TEL, 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) either of the Issuers shall institute proceedings for
entry of an order for relief with respect to such Issuer under, in the case of
TEC, the Bankruptcy Code, or, in the case of TEL, 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, in the case of
TEC, the Bankruptcy Code or any applicable state law, or, in the case of TEL,
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 either Issuer or of substantially all of its property, or
either Issuer shall make a general assignment for the benefit of creditors as
recognized under, in the case of TEC, the Bankruptcy Code, or, in the case of
TEL, 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 either of the Issuers 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
either of the Issuers, 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 default and acceleration having been rescinded
or annulled within a period of 20 days after there shall have been given by
certified or registered mail to both of the Issuers by the Trustee, or to both
of the Issuers 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 Issuers 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 both of the Issuers (and to both of the
Issuers and 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
Issuers 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 both of the
Issuers, 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 either of the Issuers, 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
Issuers, the Trustee and the Securityholders shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Issuers, 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 an Issuer, a paying agent or any Securityholder.
SECTION 5.2 Payment of Securities on Default; Suit Therefor. The
Issuers covenant 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 Issuers 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 enforceable under 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 Issuers 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 either or both of the Issuers or any
other obligor on the Securities of such series and collect in the manner
provided by law out of the property of either or both of the Issuers, 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 either of the Issuers 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 either of the Issuers
or such other obligor, or in the case of any other similar judicial
proceedings relative to either of the Issuers or other obligor upon the
Securities of such series, or to the creditors or property of either the
Issuers 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 such 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 Issuers,
their respective 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 Issuers 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 Issuers 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 omission of 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 Issuers, 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 Issuers
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 Issuers 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
with respect to the Securities of a particular series and after the curing or
waiving of all Events of Default which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured
or waived) the Trustee shall exercise with respect to such series of
Securities such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect
to the Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect
to the Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements
of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
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 Issuers 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 of an Issuer 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 Issuers or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Issuers 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 either of the Issuers 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 Issuers, 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 Issuers 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 Issuers 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 each Issuer and
receive, collect, hold and retain collections from each 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 Issuers 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 Issuers jointly and severally covenant and agree to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such
compensation as shall be agreed to in writing between the Issuers 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 Issuers jointly and
severally covenant and agree to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad
faith. The Issuers also jointly and severally covenant to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
and all loss, liability, damage, claim or expense, including taxes (other than
taxes based on the income of the Trustee), incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim or liability in the premises. The obligations of the
Issuers 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 Issuers 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 Issuers 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 Issuers. Upon receiving such notice of
resignation, the Issuers 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 of each Issuer, 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 Issuers 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 Issuers 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 Issuers 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 of each Issuer, 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 Issuers 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 Issuers and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with
like effect as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuers, 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 Issuers 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 Issuers, 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 Issuers 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 Issuers
fail 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 Issuers.
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 Issuers. 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 Issuers 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 Issuers. 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 Issuers.
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 Issuers and the Issuers 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 Issuers agree 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 Issuers, if made in the manner provided in this Article Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in the following
manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Where such execution
is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute sufficient proof of the
authority of the person executing the same.
(b) The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuers, the Trustee
and any agent of the Issuers 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
Issuers nor the Trustee nor any agent of the Issuers or the Trustee shall be
affected by any notice to the contrary.
SECTION 7.4 Securities Owned by Issuers 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 an
Issuer, or any other obligor on the Securities with respect to which such
determination is being made or by any Affiliate of either of the Issuers 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 an Issuer or any
other obligor upon the Securities or any Affiliate of an 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
Issuers shall furnish to the Trustee promptly an Officers' Certificate listing
and identifying all Securities, if any, known by the Issuers 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 Issuers, the Trustee and the Holders of all the Securities affected by
such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuers 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 canceled and of no further
effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuers, when authorized by a Board Resolution of each Issuer (which
resolutions may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939 as
in force at the date of the execution thereof) for one or more of the
following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another Person to either or both of
the Issuers, or successive successions, and the assumption by the successor
Person of the covenants, agreements and obligations of such Issuer or Issuers
pursuant to Article Nine;
(c) to add to the covenants of either or both of the Issuers such
further covenants, restrictions, conditions or provisions as the Issuers 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 Issuers 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 Issuers
solely in respect of, or add new covenants or Events of Default of the Issuers
that apply solely to, Securities not Outstanding on the date of such
supplemental indenture;
(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; and
(l) to evidence and provide for the release of TEC from its
obligations under this Indenture and the Securities in accordance with Section
3.7.
The Trustee is hereby authorized to join with the Issuers 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
Issuers, when authorized by a Board Resolution of each Issuer (which
resolutions may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), 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 Issuers 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 Issuers 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 Issuers, accompanied by a copy of a resolution of
the Board of Directors of each of the Issuers (which resolutions may provide
general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to an
Issuer Order) certified by the secretary or an assistant secretary of such
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 shall join with the Issuers 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 Issuers, and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Issuers (or the Trustee at the request and expense of the Issuers) 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 Issuers 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 Issuers 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 Issuers or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuers, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by
the Issuers, 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 Issuers 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 either of the
Issuers with or into any other Person or Persons (whether or not affiliated
with such Issuer), or successive consolidations or mergers in which such
Issuer or its respective successor or successors shall be a party or parties,
or shall prevent any sale, lease, exchange or other disposition of all or
substantially all the property and assets of either of the Issuers to any
other Person (whether or not affiliated with such Issuer) authorized to
acquire and operate the same; provided, however, each 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 such 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
such 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 and punctual performance and observance
of all of the covenants and conditions of this Indenture to be performed by
such 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 such Issuer) formed by such consolidation, or into which such
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 either of the Issuers 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 such Issuer,
such successor Person shall succeed to and be substituted for such Issuer,
with the same effect as if it had been named herein as the party of the first
part, and such Issuer (including any intervening successor to such 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 such Issuer (including any such intervening successor),
such 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 such Issuer, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by such Issuer and delivered to the
Trustee; and, upon the order of such successor Person instead of such 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
Issuers 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
either of the Issuers, 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.
<PAGE>
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 Issuers 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 Issuers 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 Issuers shall also pay or cause to be paid all other sums
payable hereunder by the Issuers (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 Issuers 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
Issuers, shall execute proper instruments acknowledging such satisfaction and
discharging this Indenture. The Issuers agree to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred, and to
compensate the Trustee for any services thereafter reasonably and properly
rendered, by the Trustee in connection with this Indenture or the Securities.
(B) If at any time (a) the Issuers 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 Issuers 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 Issuers 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 Issuers 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 Issuers 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 Issuers under Section 3.2 with respect to Securities of
such series) and the Trustee, on demand of the Issuers 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 Issuers, 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 Issuers 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 Issuers under Section 3.2
with respect to Securities of such series) and the Trustee, on demand of the
Issuers 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 Issuers, shall execute
proper instruments acknowledging the same, if
(a) with reference to this provision the Issuers have
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 either of the
Issuers is a party or by which either of the Issuers is bound; and
(c) the Issuers have delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuers have 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 Issuers shall be deemed to be, and shall be, released from their
obligations under Section 3.6 hereof on the 91st day after the date of the
deposit referred to in subparagraph (a) below, and the Issuers' 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 Issuers
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 Issuers, shall execute
proper instruments acknowledging the same, if
(a) with reference to this provision the Issuers have
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 either of the
Issuers is a party or by which either of the Issuers is bound; and
(c) the Issuers have 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 Issuers acting as their 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 Issuers, 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 Issuers and unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, be repaid to the
Issuers 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 Issuers 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 Issuers
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 Issuers 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 either of the Issuers, or any
partner of either of the Issuers, or of any successor, either directly or
through the Issuers 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 Issuers Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Issuers shall bind their successors and
assigns, whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuers, 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 Issuers, or as required pursuant to the Trust
Indenture Act of 1939, may be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed, in the case of TEC (until another address of TEC is filed by TEC
with the Trustee) to Triton Energy Corporation, 6688 North Central Expressway,
Suite 1400, Dallas, Texas 75206-9926, Attention: Chairman of the Board, and in
the case of TEL (until another address of TEL is filed by TEL with the
Trustee), to Triton Energy Limited, Caledonian House, Mary Street, P.O. Box
1043, George Town, Grand Cayman, Cayman Islands. Any notice, direction,
request or demand by the Issuers, 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 Issuers) 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 Issuers 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 Issuers 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 Issuers 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 either of the
Issuers 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 either the Issuers, upon the
certificate, statement or opinion of or representations by an officer or
officers of such 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 either of the
Issuers 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 either of the Issuers, 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. TEL 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. TEL
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 TEL all process in any action, suit or proceedings that may
be brought against TEL 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,
TEL 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 TEL 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 Issuers 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 Issuers shall be given by the Issuers or, at the Issuers'
request, by the Trustee in the name and at the expense of the Issuers.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.2, the Issuers will deposit with the
Trustee or with one or more paying agents (or, if either of the Issuers is
acting as the Issuers' 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 Issuers 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 Issuers prior to the expiration of any
restriction on such redemption, the Issuers 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
Issuers 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 Issuers
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 Issuers 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 Issuers
shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Issuers, 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 (a) either of the Issuers, or (b) a Person specifically
identified in such written statement as an Affiliate of either of the Issuers.
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 Issuers may at their
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 Issuers or receive credit for Securities of
such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Issuers 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 Issuers 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 Issuers 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 Issuers intend to exercise their 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 Issuers
intend 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 Issuers 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 Issuers 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 Issuers,
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
Issuers (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 Issuers 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 Issuers 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 Issuers make 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 by
the Issuers) inform the Issuers of the serial numbers of the Securities of
such series (or portions thereof) so selected. The Issuers, or the Trustee,
in the name and at the expense of the Issuers (if the Issuers 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 Issuers. 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 Issuers 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 Issuers 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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
TRITON ENERGY LIMITED, as Issuer
By: /s/
Title:
Attest:
By: /s/
Title:
TRITON ENERGY CORPORATION, as Issuer
By: /s/
Title:
Attest:
By: /s/
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/
Title:
Attest:
By: /s/
Title:
Exhibit 10.52
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of April 10, 1997 (this
"Supplemental Indenture"), among Triton Energy Limited, a Cayman Islands
company ("TEL"), Triton Energy Corporation, a Delaware corporation ("TEC",
and together with TEL, the "Issuers"), and The Chase Manhattan Bank, a New
York banking corporation, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuers and the Trustee are parties to the Indenture
dated as of April 10, 1997 (as amended, supplemented or otherwise modified
from time to time, the "Indenture");
WHEREAS, the Board of Directors of each of the Issuers has adopted a
Board Resolution authorizing such Issuer (i) to issue $200,000,000 in
aggregate principal amount of 8 3/4% Senior Notes due 2002 in the form
attached hereto as Exhibit A, which notes shall be joint and several
obligations of TEL and TEC (the "Notes"), which Notes shall constitute
a series of Securities under the Indenture and (ii) in connection
with issuance of the Notes and in accordance with the terms of Section 8.1 of
the Indenture, to enter into this Supplemental Indenture without the consent
of the Holders of Securities; and
WHEREAS, the Issuers have 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 Issuers 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 of rent 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.
"Notes" means the Issuers' 8 3/4% Senior Notes due 2002.
"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 an 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 more than 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 TEL 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 an 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 an 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 TEL which owns
or leases (as lessor or lessee) (A) any property owned or leased by TEL or any
Subsidiary, or any interest of TEL or any Subsidiary in property which is
considered by TEL 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 TEL 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 TEL 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 Issuers or
any of its Restricted Subsidiaries, any arrangement with any Person providing
for the leasing by the Issuers 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 Issuers or any of its Restricted Subsidiaries to such
Person.
(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
Issuers). 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, 3.7 and 3.8 in their
appropriate numerical order:
SECTION 3.6 Limitations on Liens. The Issuers 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 an 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 an
Issuer or to any other Restricted Subsidiary;
(d) Liens on property existing at the time of acquisition of such
property by an 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 an 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 an Issuer, provided that such Liens do not extend to or cover any
property or assets of the Issuers 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 Issuers
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 Issuers 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 TEL 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 Issuers 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 Issuers 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 Issuers
will not, and will not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with any Person (other than the Issuers or a
Restricted Subsidiary) unless:
(a) the Issuers 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 Issuers
or such Restricted Subsidiary shall have expended for property used or to be
used in the ordinary course of business of the Issuers 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 Issuers 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 Issuers 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 an
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 an 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
Issuers within such twelve-month period and not designated as a credit against
any other Sale/Leaseback Transaction entered into by the Issuers or any
Restricted Subsidiary during such period.
SECTION 3.8 Condition for Release of TEC. TEC may be released from
its obligations under this 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 the Senior Subordinated Discount Notes due 1997 (the "1997
Notes") and the 9-3/4% Senior Subordinated Discount Notes due 2000 (the "9
3/4% Notes") issued by TEC, taken together, are no longer outstanding or (B)
TEL or any successor to TEL has assumed the obligations of TEC under the 1997
Notes and the 9 3/4% Notes and (ii) TEL or any successor to TEL has assumed
the obligations of TEC under the Notes."
1.3 Amendments to Article Five of the Indenture (Remedies of the
Trustee and Security Holders on an Event of Default. Article Five of the
Indenture 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 (i) adding the phrase "or any Restricted Subsidiary
organized under the laws of the United States of America, any state thereof or
the District of Columbia" to (i) the second line and the sixth line of Section
5.1(e) and to the second line, the sixth line and tenth line of Section
5.1(f), in each case after the word "TEC" and (ii) adding the phrase "or any
Restricted Subsidiary organized under the laws of any jurisdiction other than
the United States of America, any state thereof or the District of Columbia"
to the second line and the sixth line of Section 5.1(e) and to the second
line, the sixth line and eleventh line of Section 5.1(f), in each case after
the word "TEL";
(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 fourth line of Section 5.1(g), in each case after the
phrase "either of the Issuers".
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 deleting
Sections 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 Issuers, 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 Issuers, 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
Issuers 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 Issuers, the Issuers 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 Issuers in writing of the Notes
selected for redemption and, in the case of any Notes selected for partial
redemption, the aggregate principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Notes shall relate, in the
case of any Note redeemed or to be redeemed only in part, to the portion of
the aggregate principal amount of such Note which has been or is to be
redeemed.
SECTION 12.5 Notice of Redemption. Notice of redemption shall be given
by first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Notes to be redeemed, at
its address appearing in the Note register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all outstanding Notes are to be redeemed, the
identification (and, in the case of a Note to be redeemed in part, the
aggregate principal amount to be redeemed) of the particular Notes to be
redeemed;
(d) that on the Redemption Date the Redemption Price will become due and
payable upon each such Note or portion thereof, and that unless the Issuers
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
Issuers shall be given by the Issuers or, at its request, by the Trustee in
the name and at the expense of the Issuers.
SECTION 12.6 Deposit of Redemption Price. On or prior to 11:00 a.m.,
New York City time, on any Redemption Date, the Issuers shall deposit with the
Trustee or with a Paying Agent (or, if the Issuers are acting as their own
Paying Agent, segregate and hold in trust) an amount of money in same day
funds (or New York Clearing House funds if such deposit is made prior to the
applicable Redemption Date) sufficient to pay the Redemption Price of all the
Notes or portions thereof which are to be redeemed on that Redemption Date.
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 Issuers 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 Issuers 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 Issuers
maintained for such purpose pursuant to Section 3.2 (with, if the Issuers or
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Issuers or the Trustee duly executed by,
the Holder thereof or its attorney duly authorized in writing), and the
Issuers 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. TEL hereby agrees that any amounts
to be paid by TEL 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 any such
subdivision or authority thereof or therein, TEL 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 extent
that 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 Issuers 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.
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: /s/
Title: Title:
TRITON ENERGY CORPORATION, as
Issuer
Attest:____________________ By: /s/
Title: Title:
THE CHASE MANHATTAN BANK, as
Trustee
Attest:____________________ By: /s/
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
TRITON ENERGY CORPORATION
8 3/4% SENIOR NOTES DUE 2002
No. G-1
CUSIP No. 89675AA6
Issue Date: April 10, 1997
Triton Energy Limited, a Cayman Islands company ("TEL"), and Triton
Energy Corporation, a Delaware corporation ("TEC", and together with TEL, the
"Issuers"), jointly and severally promise 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 Issuers have caused this instrument to be
duly executed under its facsimile corporate seal.
TRITON ENERGY LIMITED, as
Issuer
By:___________________________
Title:
TRITON ENERGY CORPORATION, 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]
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 Issuers maintained for that purpose in the City and State of New
York. The Issuers 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 Issuers may
appoint and change any paying agent or registrar without notice, other than
notice to the Trustee. TEL or any of its Subsidiaries or any of their
Affiliates may act as paying agent or registrar.
4. INDENTURE. The Issuers issued the Notes under an Indenture,
dated as of April 10, 1997, among TEL, TEC and the Trustee, as supplemented by
a First Supplemental Indenture, dated as of April 10, 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 Issuers, limited
to $200 million aggregate principal amount.
5. REDEMPTION AT THE OPTION OF THE ISSUERS. No sinking fund is
provided for the Notes. The Notes will be subject to redemption at the option
of the Issuers, 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 Issuers 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 Issuers.
"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 Issuers.
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 Issuer for 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 either of the Issuers applicable to the Notes, continued for 60
days after written notice to the Issuers by the Trustee or to the Issuers 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 either of the Issuers or
any Restricted Subsidiary; and (e) default under any bond, debenture, note or
other evidence of indebtedness for money borrowed by either of the Issuers 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 either of the Issuers 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 Issuers (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 Issuers and the Trustee,
may rescind and annul 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 Issuers are required to furnish to the Trustee annually a certificate
as to compliance by the Issuers with all conditions and covenants under the
Indenture.
12. TRUSTEE DEALINGS WITH THE ISSUERS. 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 Issuers or their Affiliates and may otherwise deal with the Issuers
or their 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 each Issuer shall not have any liability for any
obligations of such 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 Issuers will furnish to any Holder of Notes upon written request
and without charge a copy of the Indenture. Requests may be made to: Triton
Energy Corporation, 6688 North Central Expressway, Suite 1400, Dallas, Texas
75206, Attention of Corporate Secretary.
<PAGE>
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 10.53
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of April 10, 1997 (this
"Supplemental Indenture"), among Triton Energy Limited, a Cayman Islands
company ("TEL"), Triton Energy Corporation, a Delaware corporation ("TEC",
and together with TEL, the "Issuers"), and The Chase Manhattan Bank, a New
York banking corporation, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuers and the Trustee are parties to the Indenture
dated as of April 10, 1997 (as amended, supplemented or otherwise modified
from time to time, the "Indenture");
WHEREAS, the Board of Directors of each of the Issuers has adopted a
Board Resolution authorizing such Issuer (i) to issue $200,000,000 in
aggregate principal amount of 9 1/4% Senior Notes due 2005 in the form
attached hereto as Exhibit A, which notes shall be joint and several
obligations of TEL and TEC (the "Notes"), which Notes shall
constitute a series of Securities under the Indenture and (ii) in connection
with issuance of the Notes and in accordance with the terms of Section 8.1 of
the Indenture, to enter into this Supplemental Indenture without the consent
of the Holders of Securities; and
WHEREAS, the Issuers have 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 Issuers 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 of rent 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.
"Notes" means the Issuers' 9 1/4% Senior Notes due 2005.
"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 an 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 more than 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 TEL 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 an 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 an 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 TEL which owns
or leases (as lessor or lessee) (A) any property owned or leased by TEL or any
Subsidiary, or any interest of TEL or any Subsidiary in property which is
considered by TEL 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 TEL 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 TEL 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 Issuers or
any of its Restricted Subsidiaries, any arrangement with any Person providing
for the leasing by the Issuers 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 Issuers or any of its Restricted Subsidiaries to such
Person.
(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
Issuers). 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, 3.7 and 3.8 in their
appropriate numerical order:
SECTION 3.6 Limitations on Liens. The Issuers 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 an 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 an
Issuer or to any other Restricted Subsidiary;
(d) Liens on property existing at the time of acquisition of such
property by an 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 an 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 an Issuer, provided that such Liens do not extend to or cover any
property or assets of the Issuers 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 Issuers
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 Issuers 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 TEL 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 Issuers 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 Issuers 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 Issuers
will not, and will not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with any Person (other than the Issuers or a
Restricted Subsidiary) unless:
(a) the Issuers 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 Issuers
or such Restricted Subsidiary shall have expended for property used or to be
used in the ordinary course of business of the Issuers 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 Issuers 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 Issuers 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 an
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 an 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
Issuers within such twelve-month period and not designated as a credit against
any other Sale/Leaseback Transaction entered into by the Issuers or any
Restricted Subsidiary during such period.
SECTION 3.8 Condition for Release of TEC. TEC may be released from
its obligations under this 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 the Senior Subordinated Discount Notes due 1997 (the "1997
Notes") and the 9-3/4% Senior Subordinated Discount Notes due 2000 (the "9
3/4% Notes") issued by TEC, taken together, are no longer outstanding or (B)
TEL or any successor to TEL has assumed the obligations of TEC under the 1997
Notes and the 9 3/4% Notes and (ii) TEL or any successor to TEL has assumed
the obligations of TEC under the Notes."
1.3 Amendments to Article Five of the Indenture (Remedies of the
Trustee and Security Holders on an Event of Default. Article Five of the
Indenture 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 (i) adding the phrase "or any Restricted Subsidiary
organized under the laws of the United States of America, any state thereof or
the District of Columbia" to (i) the second line and the sixth line of Section
5.1(e) and to the second line, the sixth line and tenth line of Section
5.1(f), in each case after the word "TEC" and (ii) adding the phrase "or any
Restricted Subsidiary organized under the laws of any jurisdiction other than
the United States of America, any state thereof or the District of Columbia"
to the second line and the sixth line of Section 5.1(e) and to the second
line, the sixth line and eleventh line of Section 5.1(f), in each case after
the word "TEL" ;
(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 fourth line of Section 5.1(g), in each case after the
phrase "either of the Issuers".
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 deleting
Sections 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 Issuers, 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 Issuers, 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
Issuers 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 Issuers, the Issuers 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 Issuers in writing of the Notes
selected for redemption and, in the case of any Notes selected for partial
redemption, the aggregate principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Notes shall relate, in the
case of any Note redeemed or to be redeemed only in part, to the portion of
the aggregate principal amount of such Note which has been or is to be
redeemed.
SECTION 12.5 Notice of Redemption. Notice of redemption shall be given
by first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Notes to be redeemed, at
its address appearing in the Note register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all outstanding Notes are to be redeemed, the
identification (and, in the case of a Note to be redeemed in part, the
aggregate principal amount to be redeemed) of the particular Notes to be
redeemed;
(d) that on the Redemption Date the Redemption Price will become due and
payable upon each such Note or portion thereof, and that unless the Issuers
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
Issuers shall be given by the Issuers or, at its request, by the Trustee in
the name and at the expense of the Issuers.
SECTION 12.6 Deposit of Redemption Price. On or prior to 11:00 a.m.,
New York City time, on any Redemption Date, the Issuers shall deposit with the
Trustee or with a Paying Agent (or, if the Issuers are acting as their own
Paying Agent, segregate and hold in trust) an amount of money in same day
funds (or New York Clearing House funds if such deposit is made prior to the
applicable Redemption Date) sufficient to pay the Redemption Price of all the
Notes or portions thereof which are to be redeemed on that Redemption Date.
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 Issuers 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 Issuers 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 Issuers
maintained for such purpose pursuant to Section 3.2 (with, if the Issuers or
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Issuers or the Trustee duly executed by,
the Holder thereof or its attorney duly authorized in writing), and the
Issuers 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. TEL hereby agrees that any amounts
to be paid by TEL 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 any such
subdivision or authority thereof or therein, TEL 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 extent
that 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 Issuers 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: /s/
Title: Title:
TRITON ENERGY CORPORATION, as
Issuer
Attest:____________________ By: /s/
Title: Title:
THE CHASE MANHATTAN BANK, as
Trustee
Attest:____________________ By: /s/
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
TRITON ENERGY CORPORATION
9 1/4% SENIOR NOTES DUE 2005
No. G-1
CUSIP No. 89675VAB4
Issue Date: April 10, 1997
Triton Energy Limited, a Cayman Islands company ("TEL"), and Triton
Energy Corporation, a Delaware corporation ("TEC", and together with TEL, the
"Issuers"), jointly and severally promise 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 Issuers have caused this instrument to be
duly executed under its facsimile corporate seal.
TRITON ENERGY LIMITED, as
Issuer
By:___________________________
Title:
TRITON ENERGY CORPORATION, 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 Issuers maintained for that purpose in the City and State of New
York. The Issuers 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 Issuers may
appoint and change any paying agent or registrar without notice, other than
notice to the Trustee. TEL or any of its Subsidiaries or any of their
Affiliates may act as paying agent or registrar.
4. INDENTURE. The Issuers issued the Notes under an Indenture,
dated as of April 10, 1997, among TEL, TEC and the Trustee, as supplemented by
a First Supplemental Indenture, dated as of April 10, 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 Issuers, limited
to $200 million aggregate principal amount.
5. REDEMPTION AT THE OPTION OF THE ISSUERS. No sinking fund is
provided for the Notes. The Notes will be subject to redemption at the option
of the Issuers, 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 Issuers 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 .25%. 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 Issuers.
"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 Issuers.
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 Issuer for 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 either of the Issuers applicable to the Notes, continued for 60
days after written notice to the Issuers by the Trustee or to the Issuers 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 either of the Issuers or
any Restricted Subsidiary; and (e) default under any bond, debenture, note or
other evidence of indebtedness for money borrowed by either of the Issuers 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 either of the Issuers 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 Issuers (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 Issuers and the Trustee,
may rescind and annul 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 Issuers are required to furnish to the Trustee annually a certificate
as to compliance by the Issuers with all conditions and covenants under the
Indenture.
12. TRUSTEE DEALINGS WITH THE ISSUERS. 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 Issuers or their Affiliates and may otherwise deal with the Issuers
or their 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 each Issuer shall not have any liability for any
obligations of such 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 Issuers will furnish to any Holder of Notes upon written request
and without charge a copy of the Indenture. Requests may be made to: Triton
Energy Corporation, 6688 North Central Expressway, Suite 1400, Dallas, Texas
75206, Attention of Corporate Secretary.
<PAGE>
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 10.54
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "First Amendment") is
entered into as of the 4th day of April, 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 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, 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); and
WHEREAS, pursuant to the Credit Agreement the Banks have made a Loan to
Borrowers, and certain Issuers have issued certain Letters of Credit on behalf
of Borrowers; and
WHEREAS, Borrowers 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,
Borrower, each Agent and each Bank hereby agree as follows:
Section 1. Amendments. In reliance on the representations,
warranties, covenants and agreements contained in this First Amendment, the
Credit Agreement is amended effective as of April 4, 1997 in the manner
provided in this Section 1.
1.1. Amendment to Definitions. The definitions of "Consolidated
Current Assets" and "Loan Papers", contained in Section 1.1 of the Credit
Agreement are hereby amended to read in full as follows:
"Consolidated Current Assets" means, for any Person at any time, the sum
of (a) the consolidated current assets of such Person and its Consolidated
Subsidiaries including accounts or notes receivable (if properly reserved in
accordance with GAAP), but excluding (i) prepaid expenses, (ii) assets held
for resale (other than marketable securities and Hydrocarbons), and (iii)
Restricted Cash, plus (b) in the case of TEL and its Consolidated
Subsidiaries, Availability at such time.
"Loan Papers" means this Agreement, the First 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.
1.2 Additional Definitions. Section 1.1 of the Credit Agreement is
hereby amended to add (in alphabetical order) the following defined terms:
"1997 Debt Offering" means the offering by Borrowers of $400,000,000
principal amount of senior notes expected to be completed in April 1997 (a)
$200,000,000 of which shall have a maturity date no earlier than five (5)
years from the issue date, (b) $200,000,000 of which shall have a maturity
date no earlier than eight (8) years from the issue date, (c) none of which
shall require amortization of principal or any mandatory redemption,
repurchase or defeasance prior to the earlier of maturity or eight (8) years
from the issue date, and (d) which shall be substantially on the terms set
forth in the 1997 Debt Offering Preliminary Prospectus, provided that (e) such
offering may be increased by up to $80,000,000 in the aggregate on
substantially similar terms as set forth in clause (a) through (d) above,
where the proceeds of such increase would be applied solely to the repayment
of the Loan.
"1997 Debt Offering Preliminary Prospectus" means that certain
Preliminary Prospectus of TEL and TEC dated on or about March 28, 1997
relating to the issuance of $400,000,000 of debt securities.
"Permitted Redemption of 1997 Notes and 9 3/4% Notes" means the
redemption by Borrowers of 1997 Notes and 9 3/4% Notes with proceeds of the
1997 Debt Offering which shall include the tender for or other purchase of the
1997 Notes and the 9 3/4% Notes and or the defeasance of such notes; provided,
that such redemption shall constitute a "Permitted Redemption of 1997 Notes
and 9 3/4% Notes" to the extent that (a) the 1997 Debt Offering is completed
prior to April 30, 1997, and (b) such redemption is completed prior to January
31, 1998.
"Restricted Cash" means cash held by or on behalf of TEC or TEL which (a)
constitutes proceeds from the 1997 Debt Offering, (b) is being held by TEC or
TEL to fund the Permitted Redemption of 1997 Notes and 9 3/4% Notes, and (c)
until utilized to fund such Permitted Redemption of 1997 Notes and 9 3/4%
Notes, is either (i) deposited with and held by the paying agent for such
Permitted Redemption of 1997 Notes and 9 3/4% Notes, or (ii) maintained in an
account on deposit with Administrative Agent established for such purpose and
segregated from Borrowers' and their Subsidiaries' other funds.
1.3 Additional Affirmative Covenant. Article VII of the Credit
Agreement is hereby amended to add the following Section 7.11.
SECTION 7.11. Proceeds of 1997 Debt Offering. The proceeds from
the 1997 Debt Offering shall be used to (i) first, establish Restricted Cash
in a sufficient amount to redeem all 1997 Notes and 9 3/4% Notes, (ii) second,
to prepay the Loan pursuant to Section 2.6, and (iii) third, to the extent
of any remaining proceeds after application in accordance with clause (i) and
(ii) preceding, for any other proper purposes consistent with this Agreement.
All Restricted Cash established pursuant to this Section 7.11 shall be
applied to redeem all 1997 Notes and 9 3/4% Notes before January 31, 1998.
1.4 Amendment to Section 8.1. Section 8.1 is hereby amended to add
a new subsection (h) thereto which shall read in full as follows:
"(h) Notwithstanding anything contained inSubsections 8.1(a), (b)
or(c) above, Debt outstanding under the 1997 Notes and the 9 3/4% Notes
will not be considered "Debt" solely for purposes of computing compliance with
such Subsections 8.1(a), (b) and (c) to the extent that (a) Borrowers have
completed the 1997 Debt Offering, (b) Borrowers intend to redeem all of such
1997 Notes and 9 3/4% Notes pursuant to a Permitted Redemption of 1997 Notes
and 9 3/4% Notes, and (c) Borrowers hold Restricted Cash in an amount
sufficient to fully fund such redemption."
1.5 Amendment to Section 8.2. Section 8.2 of the Credit Agreement
shall be amended to read in full as follows:
"SECTION 8.2.Restricted Payments . Neither Borrower will, nor will
either Borrower permit any of its Subsidiaries to, make any Restricted Payment
or enter into any agreement which obligates any such Persons to make any such
Restricted Payment; provided, that so long as no Default or Event of Default
has occurred which is continuing or will result therefrom, (a) TEL may pay
dividends on the TEL Preferred Stock in an amount not to exceed $1,000,000 in
any Fiscal Year, (b) TEL may repurchase shares of its common stock from
individual shareholders holding less than 100 shares for an aggregate
consideration not exceeding $25,000 in any Fiscal Year, (c) subject
toSection 8.1 TEL and its Subsidiaries may complete the Permitted
Redemption of 1997 Notes and 9 3/4% Notes and may otherwise purchase,
repurchase, redeem, retire or defease any Debt with respect to which TEL or
any of its Subsidiaries is the obligor within eighteen (18) months of the
scheduled maturity thereof (i) with proceeds of Debt securities (other than
the Obligations) issued to Persons other than TEL and its Subsidiaries after
the Closing Date or with proceeds of equity securities issued to Persons other
than TEL and its Subsidiaries after the Closing Date (such Restricted Payments
to be made substantially simultaneously with the receipt of such proceeds
except with respect to the Permitted Redemption of 1997 Notes and 9 3/4%
Notes), and (ii) with proceeds of the Loan and from other available cash;
provided, that the aggregate amount of all Restricted Payments made pursuant
to this clause (c) (ii) shall not exceed the Restricted Payment Limit. As
used herein, "Restricted Payment Limit" means (w) $50,000,000 minus (x) the
aggregate amount of the Restricted Payments made pursuant to clause (ii)
ofSection 8.2(c) on or after the Closing Date, (y) minus $9,005,000 in
respect of repurchases of 1997 Notes prior to the Closing Date, plus (z) net
proceeds to TEL and its Subsidiaries of Debt and equity securities (other than
the Obligations) issued to Persons other than TEL and its Subsidiaries after
the Closing Date and not utilized to make Restricted Payments pursuant to
clause (i) ofSection 8.2(c); provided, that (i) in no event shall this
clause (z) operate to increase the Restricted Payment Limit to an amount
greater than $50,000,000 at any time, and (ii) proceeds of any issue of Debt
or equity securities in excess of the amount necessary to replenish the
Restricted Payment Limit to $50,000,000 shall not be carried forward and
utilized to replenish the Restricted Payment Limit at any date subsequent to
the date of receipt of such proceeds."
Section 2. Representations and Warranties of Borrower. To
induce the Banks and Agents to enter into this First Amendment, each Borrower
hereby jointly and severally represents and warrants 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 amendments set
forth inSection 1 hereof.
(b) The execution, delivery and performance by each Borrower of this
First Amendment are within such Borrower's corporate powers, have been duly
authorized by necessary action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not violate or
constitute a default under any provision of applicable law or any agreement
binding upon either Borrower, or any of the Subsidiaries of either Borrower or
result in the creation or imposition of any Lien upon any of the assets of
Borrower or the Subsidiaries of either Borrower other Permitted Encumbrances.
(c) This First Amendment constitutes the valid and binding obligation
of each Borrower enforceable against each Borrower 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 defenses to payment, counterclaim or
right of set-off with respect to the Obligations existing on the date hereof.
Section 3. Miscellaneous.
3.1 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.
3.2 Parties in Interest. All of the terms and provisions of this
First Amendment shall bind and inure to the benefit of the parties hereto and
their respective permitted successors and assigns.
3.3 Legal Expenses. Borrowers hereby agree 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 First Amendment and all related documents.
3.4 Counterparts. This First Amendment may be executed in
counterparts, and all parties need not execute the same counterpart; however,
no party shall be bound by this First Amendment until all parties have
executed a counterpart. Facsimiles shall be effective as originals.
3.5 Complete Agreement. THIS FIRST 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.
3.6 Headings. The headings, captions and arrangements used in
this First Amendment are, unless specified otherwise, for convenience only and
shall not be deemed to limit, amplify or modify the terms of this First
Amendment, nor affect the meaning thereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed by their respective authorized officers on the date and
year first above written.
BORROWERS:
TRITON ENERGY LIMITED,
a Cayman Islands company
By: /s/
Peter Rugg,
Senior Vice President and Chief
Financial Officer
TRITON ENERGY CORPORATION,
a Delaware corporation
By: /s/
Peter Rugg,
Vice President
BANKS:
NATIONSBANK OF TEXAS, N.A.
By: /s/
Name:
Title:
BARCLAYS BANK PLC
By: /s/
Name:
Title:
THE CHASE MANHATTAN BANK
By: /s/
Name:
Title:
MEESPIERSON N.V.
By: /s/
Name:
Title:
SOCIETE GENERALE SOUTHWEST
AGENCY
By: /s/
Name:
Title:
ADMINISTRATIVE AGENT:
NATIONSBANK OF TEXAS, N.A.
By: /s/
Name:
Title:
DOCUMENTARY AGENT:
BARCLAYS BANK PLC
By: /s/
Name:
Title:
<PAGE>
CO-AGENTS:
MEESPIERSON N.V.
By: /s/
Name:
Title:
THE CHASE MANHATTAN BANK
By: /s/
Name:
Title:
Exhibit 10.55
TRITON ENERGY LIMITED
1997 SHARE COMPENSATION PLAN
Triton Energy Limited (the Company") hereby establishes its 1997 Share
Compensation Plan. Capitalized terms used herein are defined in Article I.
The purpose of the Plan is to help the Company and its Subsidiaries
attract and retain Directors, Employees and Advisors and to provide such
persons with a proprietary interest in the Company, which will (a) increase
the interest of the Directors, Employees and Advisors in the Company's
welfare; (b) furnish an incentive to the Directors, Employees and Advisors to
continue their services for the Company or its Subsidiaries; and (c) provide
a means through which the Company or its Subsidiaries may attract able persons
to enter its employ or serve as Directors, Employees or Advisors.
ARTICLE I
Definitions
For the purpose of this Plan, unless the context requires otherwise, the
following terms shall have the meanings indicated:
"Advisor" means any person performing services for the Company or
any Subsidiary of the Company, with or without compensation, to whom the
Company chooses to grant Stock Options or to whom the Company chooses to issue
Elected Shares or Restricted Shares in accordance with the Plan, provided that
bona fide services must be rendered by such person and such services shall
not be rendered in connection with the offer or sale of securities in a
capital-raising transaction.
"Board" means the Board of Directors of the Company as constituted
from time to time.
"Cause" means an act or acts involving a felony, fraud, willful
misconduct, the commission of any act that causes or reasonably may be
expected to cause substantial injury to the Company, or other good cause. The
term "other good cause" shall include, but shall not be limited to, habitual
impertinence, a pattern of onduct that tends to hold the Company up to
ridicule in the community, onduct disloyal to the Company, conviction of any
crime of moral turpitude, and substantial dependence, as judged by the
Committee, on alcohol or any controlled substance. To the extent that a
Participant is a party to a written employment agreement with the Company or
any Subsidiary that contains a provision setting forth consequences for
termination for cause and a definition of cause, such definition shall
control with respect to benefits granted hereunder.
"Change in Control" means the occurrence of any of the following
events: (i) there shall be consummated (x) any consolidation or merger of the
Company in which the Company is not the continuing or surviving
corporation or pursuant to which the Company's Ordinary Shares would be
converted into cash, securities or other property, other than a merger
of the Company in which the holders of the Company's Ordinary Shares
immediately prior to the merger would represent at least a majority of
the common stock or ordinary shares of the surviving corporation
immediately after the merger, or (y) any sale, lease, exchange or other
transfer (excluding transfer by way of pledge or hypothecation), in one
transaction or a series of related transactions, of all, or
substantially all, of the assets of the Company, (ii) the shareholders
of the Company approve any plan or proposal for the liquidation or
dissolution of the Company, (iii) any "person" (as such term is defined
in Section 3(a)(9) or Section 13(d)(3) under the 1934 Act) or any
"group" (as such term is used in Rule 13d-5 promulgated under the 1934
Act), other than the Company or any successor of the Company or any
Subsidiary or any employee benefit plan of the Company or any Subsidiary
(including such plan's trustee), becomes, without the prior approval of
the Board, a beneficial owner for purposes of Rule 13d-3 promulgated
under the 1934 Act, directly or indirectly, of securities of the Company
representing 25.0% or more of the Company's then outstanding securities
having the right to vote in the election of Directors of the Company, or
(iv) during any period of two consecutive years, individuals who, at the
beginning of such period constituted the entire Board, cease for any
reason (other than death) to constitute a majority of the Directors of
the Company, unless the election, or the nomination for election, by the
Company's shareholders, of each new Director of the Company was approved
by a vote of at least two-thirds of the Directors of the Company then
still in office who were Directors of the Company at the beginning of
the period.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the committee or committees appointed or
designated by the Board or another Committee in accordance with Section
2.1 of the Plan.
"Date of Grant" means the effective date on which a Stock Option is
awarded to a Director, Employee, or Advisor as set forth in the Stock Option
Agreement.
"Director" means a member of the Board.
"Disability" means an event whereby a Participant is rendered unable
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment in accordance with policies as may
be determined from time to time by the Committee.
"Elected Share Agreement" means an agreement between the Company and
a Participant with respect to the issuance of Elected Shares.
"Elected Shares" means Ordinary Shares issued to a Participant under
Article IV.
"Employee" means an employee of the Company or of any Subsidiary.
"Fair Market Value" of an Ordinary Share means (i) the closing price per
share on the principal stock exchange on which the Ordinary Shares are
traded, or (ii) if not listed for trading on a stock exchange, the mean
between the closing or average (as the case may be) bid and asked prices
per Ordinary Share on the over-the-counter market, whichever is
applicable.
"Incentive Stock Option" means an option to purchase Ordinary Shares
granted to a Participant and which is intended to be treated as an "incentive
stock option" under Section 422 of the Code.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Non-Employee Director" means a Director of the Company who is not
an Employee.
"Nonqualified Stock Option" means any Stock Option that does not
qualify as an Incentive Stock Option.
"Ordinary Shares" means the Ordinary Shares, par value $.01 per share,
of the Company or in the event that the outstanding Ordinary Shares are
hereafter changed into or exchanged for shares or other securities of
the Company or another issuer, such other shares or securities.
"Participant" means any Employee, Director or Advisor who is, or who
is proposed to be, a recipient of a Stock Option, Elected Shares or Restricted
Shares.
"Plan" means this Triton Energy Limited 1997 Share Compensation Plan, as
amended from time to time.
"Restricted Shares" means Ordinary Shares issued to a Participant
pursuant to Article VII.
"Retirement" of a Participant shall be deemed to be retirement in
accordance with policies as may be determined from time to time by the
Committee.
"Restricted Share Agreement" means an agreement between the Company
and a Participant with respect to the issuance of Restricted Shares.
"Rule 16b-3" means Rule 16b-3 promulgated under the 1934 Act, as
amended from time to time, or any successor provision.
"Section 162(m)" means Section 162(m) of the Code and the
regulations promulgated thereunder from time to time.
"Section 162(m) Exception" means the exception under Section 162(m)
for "qualified performance-based compensation."
"Stock Options" means any and all Incentive Stock Options and
Nonqualified Stock Options granted pursuant to Article V of the Plan.
"Stock Option Agreement" means an agreement between the Company and
a Participant with respect to one or more Stock Options.
"Subsidiary" means any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain owns stock possessing 50% or more
of the total combined voting power of all classes of stock in one of the other
corporations in the chain, and "Subsidiaries" means more than one of any such
corporations.
ARTICLE II
Administration; Eligibility
2.1 Administration. The Plan shall be administered by a committee
or committees of Directors appointed by the Board, each of which may delegate
all or any of a portion of its powers with respect to the Plan to a committee
of Directors, whether or not then serving on the appointing committee;
provided that, with respect to any Stock Option that is intended to satisfy
the requirements of the Section 162(m) Exception, such committee shall consist
of at least such number of Directors as are required from time to time to
satisfy the Section 162(m) Exception, and each such committee member shall
qualify as an "outside director" within the meaning of Section 162(m). Any
member of any such committee may be removed at any time, with or without
cause, by resolution of the Board. Any vacancy occurring in the membership of
the committee may be filled by appointment by the Board.
The Committee shall select one of its members (if more than one) to act
as its Chairman, and shall make such rules and regulations for its operation
as it deems appropriate. A majority of the Committee shall constitute a
quorum and the act of a majority of the members of the Committee present at a
meeting at which a quorum is present shall be the act of the Committee.
Subject to the terms hereof, the Committee shall have complete discretion and
authority to (i) designate from time to time the persons to whom Stock Options
will be granted and Elected Shares and Restricted Shares will be issued, (ii)
interpret the Plan, (iii) prescribe, amend, and rescind any rules and
regulations necessary or appropriate for the administration of the Plan, to
determine the terms, details and provisions of each Stock Option Agreement,
Elected Share Agreement and Restricted Share Agreement, (iv) modify or amend
any Stock Option Agreement, Elected Share Agreement and Restricted Share
Agreement or modify, amend or waive any terms, conditions or restrictions
applicable to any Stock Option, Elected Shares or Restricted Shares, and (v)
make such other determinations and, subject to the terms of the Plan, take
such other action as it deems necessary or advisable; provided that, without
the approval of shareholders (by vote or consent of shareholders representing
a majority of the shares present at a meeting and entitled to vote), the
Committee shall not amend or modify any outstanding Stock Option to decrease
the exercise price thereof except pursuant to the antidilution provisions of
Articles XI and XII. In this regard, the Committee shall consider and give
appropriate weight to input from representatives of management of the Company
regarding the contributions or potential contributions to the Company of
certain of the Participants or potential Participants. Except as provided
below, any interpretation, determination, or other action made or taken by the
Committee shall be final, binding, and conclusive on all interested parties,
including the Company and all Participants.
2.2 Eligibility. Any Director, Employee and Advisor whose
judgment, initiative, and efforts contributed or may be expected to contribute
to the successful performance of the Company is eligible to participate in the
Plan; provided that only Employees shall be eligible to receive Incentive
Stock Options. The Committee's determinations under the Plan (including
without limitation determinations of which persons, if any, are to receive
Stock Options, Elected Shares and Restricted Shares, the form, amount and
timing of such Stock Options, Elected Shares and Restricted Shares, the terms
and provisions of such Stock Options, Elected Shares and Restricted Shares and
any agreements evidencing same) need not be uniform and may be made by it
selectively among Employees, Directors and/or Advisors who receive, or are
eligible to receive, Stock Options, Elected Shares and Restricted Shares under
the Plan.
ARTICLE III
Shares Subject to Plan
The Committee may not grant Stock Options or issue Elected Shares or
Restricted Shares under the Plan for more than 1,000,000 Ordinary Shares, in
the aggregate (as may be adjusted in accordance with Article XI or XII
hereof), and no Participant shall be eligible to receive more than 50% of such
shares. Shares to be distributed and sold may be made available from either
authorized but unissued Ordinary Shares or Ordinary Shares held by the Company
in its treasury. Shares that by reason of the expiration or unexercised
termination of a Stock Option or forfeited Elected Shares or Restricted Shares
are no longer subject to issuance to the Participant may be reofferred under
the Plan.
ARTICLE IV
Elected Shares
4.1 Eligibility. The Committee shall have complete discretion to
select the particular Directors, Employees and Advisors to whom Elected Shares
may be issued, if any; provided that all Non-Employee Directors are
automatically eligible to elect to receive Elected Shares as provided under
this Article IV.
4.2 Election to Receive Elected Shares. Each Participant eligible
to receive Elected Shares may make an irrevocable election (an "Election")
either (a) to receive a grant of Ordinary Shares in a number determined by the
Committee from time to time in lieu of cash compensation from the Company or a
Subsidiary in an amount or amounts determined by the Committee (whether in a
fixed amount or by formula) or (b) not to participate in this Article IV. With
respect to the participation by Non-Employee Directors, each such Director is
automatically eligible to receive a grant of 1,000 Elected Shares in lieu of
up to $25,000 in annual cash stipends from the Company.
4.3 Written Election. Unless the Committee otherwise provides, any
Participant eligible for Elected Shares and electing to participate shall make
his or her election in writing delivered to the Secretary of the Company
(which written election may be in the form of an Elected Share Agreement) no
later than January 31 of the year with respect to which such Participant's
compensation will be applied toward the issuance of Elected Shares; provided
that with respect to Non-Employee Directors electing to participate for the
1997 year, such election shall be made no later than May 15, 1997; and
provided further, that with respect to Non-Employee Directors elected to the
Board for the first time, such election shall be made no later than ten (10)
days following the date of his or her election to the Board. A Participant
participating in this Article IV may revoke or change his or her election by
filing a new election with the Secretary of the Company. Any revocation or
change in election by a Participant shall not be effective for any period with
respected to which Elected Shares have been issued to such Participant.
4.4 Issuance of Shares. Unless the Committee otherwise provides and
except as provided below with respect to Non-Employee Directors, on each date
on which a payment of compensation to a Participant is due, Ordinary Shares
shall be issued to such Participant in an amount determined by the Committee
pursuant to Section 4.1. With respect to each Non-Employee Director electing
to participate pursuant to this Article IV, 1,000 Ordinary Shares shall be
issued on January 31 of the year in which the election is made, or as soon
thereafter is reasonably practicable (although January 31 shall be deemed the
date of issuance); provided that, with respect to Non-Employee Directors
electing to participate for the 1997 year, 1,000 Ordinary Shares shall be
issued on such date as any necessary prior approvals are obtained, or as soon
thereafter as is reasonably practicable (although the date specified in
the applicable Elected Share Agreement shall be deemed the date of
issuance); and provided further, that with respect to a Non-Employee Director
elected to the Board for the first time who elects to participate for the
year in which he or she is elected, 1,000 shares shall be issued on such date
as any necessary prior approvals are obtained, or as soon thereafter is
reasonably practicable (although the date of delivery of his or
her election to the Plan Administrator shall be deemed the date of issuance).
All Electing Shares issued or deemed issued pursuant to this Article IV shall
be deemed outstanding for all purposes as of the date of their deemed
issuance; provided that, with respect to Elected Shares issued to Non-Employee
Directors pursuant to this Section 4.4, for a period of one year from the date
of deemed issuance, such Elected Shares shall not be sold, transferred or
otherwise disposed of, and shall not be pledged or otherwise hypothecated, and
if for any reason other than death, disability or Retirement, such
Non-Employee Director is not a Director of the Company at the end of such
one-year term, then such shares shall be forfeited and returned to the
Company. The issuance of Elected Shares shall be evidenced by Elected Share
Agreements setting forth the total number of shares to be issued and such
other terms, restrictions and provisions as are consistent with the Plan.
ARTICLE V
Stock Options
5.1 Eligibility. The Committee shall, from time to time, select
the particular Directors, Employees and Advisors to whom the Stock Options
provided under this Article V are to be granted.
5.2 Grant of Stock Options. All grants of Stock Options under this
Article V shall be awarded by the Committee at such times and for such amounts
as the Committee may determine. In the discretion of the Committee, any grant
to an Employee may be in the form of an Incentive Stock Option (subject to the
requirements of the Code). The grant of Stock Options shall be evidenced by
Stock Option Agreements setting forth the total number of shares subject to
each Stock Option, the option exercise price, the term of the Stock Option,
and such other terms and provisions as are consistent with the Plan.
5.3 Option Exercise Price. The exercise price for a Stock Option
granted under this Article V shall be determined by the Committee and shall be
an amount not less than 100% of the Fair Market Value per Ordinary Share on
the Date of Grant. Notwithstanding anything to the contrary in this Section
5.3, the exercise price of each Stock Option granted under the Plan shall not
be less than the par value per share of an Ordinary Share.
5.4 Option Period. The option period for each Stock Option granted
under this Article V will begin and terminate on the respective dates
specified by the Committee. No Stock Option granted under the Plan may be
exercised at any time after its term. The Committee may provide that Stock
Options granted under this Article V may vest and be exercised in installments
and upon such terms, conditions and restrictions as it may determine.
5.5 Payment. Full payment for shares purchased upon exercise of a
Stock Option shall be made (i) in cash, (ii) by certified or cashier's check,
(iii) if permitted by the Committee, by Ordinary Shares, (iv) if permitted by
the Committee, and if permitted under applicable law, by delivery of a
promissory note for the purchase price, which note shall provide for full
personal liability of the maker and shall contain such other terms and
provisions as the Committee may determine, including without limitation the
right to repay the note partially or wholly with Ordinary Shares, (v) by
delivery of a copy of irrevocable instructions from the Participant to a
broker or dealer, reasonably acceptable to the Company, to sell certain of the
shares purchased upon exercise of the Stock Option or to pledge them as
collateral for a loan and promptly deliver to the Company the amount of sale
or loan proceeds necessary to pay such purchase price or (vi) if permitted by
the Committee, and to the extent permitted under applicable law, by any
combination of the foregoing. If any portion of the purchase price or a note
given at the time of exercise is paid in Ordinary Shares, those shares shall
be valued at the then Fair Market Value.
5.6 Exercise of Stock Option. Stock Options granted under the Plan
may be exercised during the option period, at such times and in such amounts,
in accordance with the terms and conditions and subject to such restrictions
as are set forth herein and in the applicable Stock Option Agreements.
The Committee shall have the right to accelerate the time at which any
Stock Option granted under this Article V shall become vested and exercisable.
Subject to such administrative regulations as the Committee may from time
to time adopt, a Stock Option will be deemed exercised for purposes of the
Plan when (i) written notice of exercise has been received by the Company
(which notice shall set forth the number of Ordinary Shares with respect to
which the Stock Option is to be exercised and the date of exercise thereof)
and (ii) payment of the Option Exercise Price is received by the Company in
accordance with Section 5.5 above; provided that, with respect to a cashless
exercise of any Stock Option (in accordance with clause (v) of Section 5.5
above), such Stock Option will be deemed exercised for purposes of the Plan on
the date of sale of the Ordinary Shares received upon exercise.
5.7 Automatic Grant of Stock Options.
(a) Grant of Stock Options. In addition to the options provided for in
this Article V, throughout the term of this Plan, on May 15 of each year the
Committee shall grant to each Non-Employee Director of the Company a
Nonqualified Stock Option to purchase 15,000 Ordinary Shares, and if a person
is first appointed or elected as a Non-Employee Director other than at an
annual meeting of shareholders of the Company, then on the date of such
appointment or election the Committee shall grant to such Non-Employee
Director a Nonqualified Stock Option to purchase 15,000 Ordinary Shares.
(b) Option Exercise Price. The exercise price for a Stock Option
granted under this Section 5.7 shall be equal to 100% of the Fair Market Value
of an Ordinary Share on the Date of Grant. Notwithstanding anything to the
contrary in this paragraph, the exercise price of each Stock Option granted
pursuant to this Section 5.7 shall not be less than the par value of an
Ordinary Share.
(c) Option Period. The option period for each Stock Option granted
under this Section 5.7 will terminate ten years from the Date of Grant. No
Stock Option granted under this Section 5.7 may be exercised at any time after
its term.
(d) Exercise of Stock Option. Except only as specifically provided
elsewhere in this Plan, each Stock Option granted under this Section 5.7 shall
vest and become exercisable in the following cumulative installments:
First installment. Up to 33-1/3% of the total optioned shares at any
time on and after the earlier of (i) the first anniversary of the Date of
Grant and (ii) the day immediately preceding the date of the annual meeting of
shareholders for the first year following the year in which the Date of Grant
occurs.
Second installment. Up to 33-1/3% of the total optioned shares at any
time on and after the earlier of (i) the second anniversary of the Date of
Grant and (ii) the day immediately preceding the date of the annual meeting of
shareholders for the second year following the year in which the Date of Grant
occurs.
Third installment. Up to 33-1/3% of the total optioned shares at any
time on and after the earlier of (i) the third anniversary of the Date of
Grant and (ii) the day immediately preceding the date of the annual meeting of
shareholders for the third year following the year in which the Date of Grant
occurs.
If an installment covers a fractional share, such installment will be
rounded off to the next highest share, except for the final installment, which
will be for the balance of the total optioned shares. No Stock Option granted
under the Plan may be exercised at any time after ten years from the Date of
Grant.
ARTICLE VI
Limitations on Incentive Stock Options
Notwithstanding the terms of Article V hereof, the following provisions
of this Article VI shall apply to all Incentive Stock Options granted under
the Plan.
6.1 Stock Ownership Limitation. In the case of an Incentive Stock
Option, the Stock Option Agreement shall include provisions that may be
necessary to assure that the option is an incentive stock option under the
Code. No Incentive Stock Option may be granted to an Employee who owns more
than 10% of the total combined voting power of all classes of shares of the
Company or its Subsidiaries. This limitation will not apply if the option
price is at least 110% of the fair market value of the Ordinary Shares on the
Date of Grant and the option is not exercisable more than five years from the
Date of Grant.
6.2 Limitation on Exercise of Incentive Stock Options. To the
extent required by the Code for incentive stock options, the exercise of
Incentive Stock Options granted under the Plan shall be subject to the
$100,000 calendar year limit as set forth in Section 422(d) of the Code.
6.3 Limitation on Incentive Stock Option Characterization. To the
extent that any Stock Option fails to qualify as an Incentive Stock Option,
such Stock Option will be considered a Nonqualified Stock Option.
ARTICLE VII
Restricted Shares
Section 7.1 Eligibility. The Committee shall have complete
discretion to select the particular Directors, Employees and Advisors to whom
Restricted Shares may be issued, if any.
Section 7.2 Transfer Restrictions. Subject to the terms,
provisions and conditions of the Plan, the Committee shall, upon the approval
of the issuance of Restricted Shares, determine the number of shares to be
issued to each Participant and to prescribe the form of the instruments
evidencing any issuance of Restricted Shares and the legend, if any, to be
affixed to the certificates representing Restricted Shares. Restricted Shares
shall not be sold, transferred or otherwise disposed of, and shall not be
pledged or otherwise hypothecated (any such sale, transfer or other
disposition, pledge or other hypothecation being referred to as "to dispose
of" or a "disposition"), by any Participant except as permitted under any
conditions imposed by the Committee in connection with the issuance thereof.
The Committee may require any Participant to whom Restricted Shares are issued
to execute and deliver to the Company a stock power in blank with respect to
the shares issued and may require that the Company retain possession of the
certificates for shares with respect to which the restrictions have not
lapsed.
Section 7.3 Notice to Company of Section 83(b)Election. Any
Participant who exercises the election under Section 83(b) of the Code to have
his receipt of shares of Restricted Shares taxed currently without regard to
the restrictions shall give notice to the Company of such election immediately
upon making the election. Such an election must be made within thirty days of
the effective date of issuance and cannot be revoked except with the consent
of the Internal Revenue Service, as required by the treasury regulations under
the Code.
Section 7.4 Withholding. The Company is authorized to withhold any
tax required to be withheld from the amount considered as taxable compensation
to the Participant. In the event that funds are not otherwise available to
cover any required withholding tax, the Participant shall be required to
provide such funds before shares shall be issued to him.
ARTICLE VIII
Termination of Employment or Service
In the event a Participant who is an Employee shall cease to be employed
by the Company or a Subsidiary, or a Participant who is a Director or Advisor
shall cease to serve as a Director or Advisor, for any reason other than
death, Retirement, Disability or for Cause, (i) the Committee shall have the
ability to accelerate the vesting of the Participant's Stock Option and the
lapse of any transfer restrictions imposed on Restricted Shares or Elected
Shares in its sole discretion, and (ii) such Participant's Stock Option shall
be exercisable (to the extent exercisable on the date of termination of
employment or service as a Director or Advisor, or, if the Committee, in its
discretion, has accelerated the vesting of such Stock Option, to the extent
exercisable following such acceleration) (a) if such Stock Option is an
Incentive Stock Option, at any time within three months after the date of
termination of employment, unless by its terms the Stock Option expires
earlier; or (b) if such Stock Option is a Nonqualified Stock Option, at any
time within one year after the date of termination of employment or service as
a Director or Advisor, unless by its terms the Stock Option expires earlier or
unless the Committee agrees, in its sole discretion, to further extend the
term of such Nonqualified Stock Option. In addition, a Participant's Stock
Option may be exercised and any transfer restrictions imposed on a
Participant's Restricted Shares and Elected Shares shall lapse as follows in
the event such Participant ceases to serve as an Employee, Director or Advisor
due to death, Disability, Retirement or for Cause:
(a) Death. Except as otherwise limited by the Committee at the
time of the grant of a Stock Option or the issuance of Elected Shares or
Restricted Shares, if a Participant dies while employed by the Company or a
Subsidiary, or while serving as a Director or Advisor, or within three months
after ceasing to be an Employee, Director or Advisor, his Stock Option shall
become fully vested and exercisable on the date of his death and shall expire
three years thereafter, unless by its terms it expires sooner or the Committee
agrees, in its sole discretion, to further extend the term of such Stock
Option (other than an Incentive Stock Option), and any transfer restrictions
imposed on a Participant's Restricted Shares or Elected Shares shall lapse.
During such period, the Stock Option may be fully exercised, to the extent
that it remains unexercised on the date of death, by the Participant's
personal representative or by the distributees to whom the Participant's
rights under the Stock Option shall pass by will or by the laws of descent and
distribution.
(b) Retirement. If a Participant ceases to be employed by the
Company or a Subsidiary, or ceases to serve as a Director or Advisor, as a
result of Retirement, (i) the Committee shall have the ability to accelerate
the vesting of the Participant's Stock Option and the lapse of any transfer
restrictions imposed on Restricted Shares or Elected Shares in its sole
discretion, and (ii) the Participant's Stock Option shall be exercisable (to
the extent exercisable on the effective date of such retirement or, if the
vesting of such Stock Option has been accelerated, to the extent exercisable
following such acceleration) (a) if such Stock Option is an Incentive Stock
Option, at any time three months after the effective date of such Retirement,
unless by its terms the Stock Option expires earlier, and (b) if such Stock
Option is a Nonqualified Stock Option, at any time within one year after the
effective date of such Retirement, unless by its terms the Stock Option
expires sooner or the Committee agrees, in its sole discretion, to further
extend the term of such Nonqualified Stock Option.
(c) Disability. If a Participant ceases to be employed by the
Company or a Subsidiary, or ceases to serve as a Director or Advisor, as a
result of Disability, the Participant's Stock Option shall become fully vested
and exercisable and shall expire 12 months thereafter, unless by its terms it
expires sooner or, unless the Committee agrees, in its sole discretion, to
extend the term of such Stock Option (other than an Incentive Stock Option),
and any transfer restrictions imposed on a Participant's Restricted Shares or
Elected Shares shall lapse.
(d) Cause. If a Participant ceases to be employed by the Company
or a Subsidiary, or ceases to serve as a Director or Advisor, because the
Participant is terminated for Cause, the Participant's Stock Option shall
automatically expire, and any Restricted Shares and Elected Shares as to which
the transfer restrictions imposed thereon have not lapsed shall be returned
and forfeited to the Company, unless the Committee otherwise agrees in its
sole discretion.
ARTICLE IX
Amendment or Discontinuance
The Plan may be amended or discontinued by the Board or the Committee,
without the approval of the shareholders or Participants; provided that no
termination or amendment of the Plan may, without the consent of the
Participant to whom any Stock Option has theretofore been granted or Elected
Shares or Restricted Shares have been issued, adversely affect the rights of
such Participant with respect to such Stock Option, Elected Shares or
Restricted Shares. In addition, notwithstanding the foregoing, neither the
Board nor the Committee may substitute new Stock Options for previously
granted Stock Options where such new Stock Options would have a lower exercise
price than such previously granted Stock Options unless the shareholders of
the Company approve such substitution (by vote or consent of shareholders
representing a majority of the shares present at a meeting and entitled to
vote).
ARTICLE X
Term
The Plan may be terminated at any time by action of the Board or the
Committee; provided that such termination will not adversely affect the terms
of any outstanding Stock Options, Restricted Shares or Elected Shares.
ARTICLE XI
Capital Adjustments
If at any time while the Plan is in effect or unexercised Stock Options
are outstanding there shall be any increase or decrease in the number of
issued and outstanding Ordinary Shares, or there shall be a change in the
issued and outstanding Ordinary Shares, through the declaration of a share
dividend or through any recapitalization, stock split, combination, or
exchange of Ordinary Shares, then and in such event:
(i) Any Elected Shares and Restricted Shares issued or deemed
issued hereunder will be deemed outstanding and affected in the same manner as
the outstanding Ordinary Shares (provided that any securities or other
property distributed or deemed distributed in respect of Restricted Shares or
Elected Shares shall be subject to the transfer restrictions then imposed on
the underlying Restricted Shares or Elected Shares);
(ii) An appropriate adjustment shall be made in the maximum
number of Ordinary Shares then subject to being awarded under grants pursuant
to the Plan, to the end that the same proportion of the Company's issued and
outstanding Ordinary Shares shall continue to be subject to being so awarded;
and
(iii) Appropriate adjustments shall be made in the number of
Ordinary Shares and the exercise price per share thereof then subject to
purchase pursuant to each Stock Option previously granted and unexercised, to
the end that the same proportion of the Company's issued and outstanding
Ordinary Shares in each instance shall remain subject to purchase at the same
aggregate exercise price.
Any fractional shares resulting from any adjustment made pursuant to this
Article XI shall be rounded to the nearer whole share for the purposes of such
adjustment. Except as otherwise expressly provided herein, the issuance by
the Company of shares of any class, or securities convertible into shares of
any class, either in connection with direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number of or exercise price of Ordinary Shares then subject to
outstanding Stock Options granted under the Plan.
ARTICLE XII
Recapitalization, Merger and Consolidation
(a) The existence of this Plan shall not affect in any way the
right or power of the Company or its shareholders to make or authorize any or
all adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business, or any merger, share exchange or
consolidation of the Company, or any issue of bonds, debentures, preferred or
prior preference shares ranking prior to or otherwise affecting the Ordinary
Shares or the rights thereof (or any rights, options or warrants to purchase
same), or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
(b) Subject to any required action by the shareholders, if the
Company shall be the surviving or resulting corporation in any merger, share
exchange or consolidation, any outstanding Stock Option granted hereunder
shall pertain to and apply to the securities or rights (including cash,
property or assets) to which a holder of the number of Ordinary Shares subject
to the Stock Option would have been entitled.
(c) In the event of any merger, share exchange or consolidation
pursuant to which the Company is not the surviving or resulting corporation,
there shall be substituted for each Ordinary Share subject to the unexercised
portions of such outstanding Stock Option that number of shares of each class
of shares or other securities or that amount of cash, property or assets of
the surviving or consolidated company which were distributed or distributable
to the shareholders of the Company in respect of each Ordinary Share held by
them, such outstanding Stock Options to be thereafter exercisable for such
shares, securities, cash or property in accordance with their terms.
Notwithstanding the foregoing, however, all such Stock Options may be canceled
by the Board as of the effective date of any such reorganization, merger or
consolidation, or of any proposed sale of substantially all of the assets of
the Company, or of any dissolution or liquidation of the Company, by giving
notice to each holder thereof or his personal representative of its intention
to do so and by permitting the purchase during the thirty (30) day period next
preceding such effective date of any or all of the shares subject to such
outstanding Stock Options, whether or not vested in accordance with their
original terms.
(d) In the event of a Change in Control of the Company, then,
notwithstanding any other provision in the Plan to the contrary, the vesting
of all unvested installments of Stock Options outstanding shall thereupon
automatically be accelerated and all such Stock Options shall become
exercisable in full and any transfer restrictions remaining applicable to
Restricted Shares shall automatically lapse.
(e) In case the Company shall, at any time while any Stock
Option under this Plan shall be in force and remain unexpired, (i) sell all or
substantially all of its property, or (ii) dissolve, liquidate, or wind up its
affairs, then each Participant may thereafter receive upon exercise thereof
(in lieu of each Ordinary Share which such Participant would have been
entitled to receive) the same kind and amount of any securities or assets as
may be issuable, distributable or payable upon any such sale, dissolution,
liquidation, or winding up with respect to each Ordinary Share. In the event
that the Company shall, at any time prior to the expiration of any Stock
Option, make any partial distribution of its assets in the nature of a partial
liquidation, spin-off or other special distribution, then the Committee may
make or provide for such adjustment in the number of Ordinary Shares covered
by outstanding Stock Options, in the exercise price applicable to such Stock
Options and/or in the kind of shares covered thereby that the Committee, in
its sole discretion, exercised in good faith, may determine is equitably
required to prevent dilution or enlargement of rights of Participants that
otherwise would result therefrom.
ARTICLE XIII
Options in Substitution for Stock Options
Granted by Other Corporations
Stock Options may be granted under the Plan from time to time in
substitution for stock options held by employees of a corporation who become
or are about to become Employees of the Company or a Subsidiary as the result
of a merger or consolidation of the employing corporation with the Company or
a Subsidiary, the acquisition by either of the foregoing of stock of the
employing corporation as the result of which it becomes a Subsidiary or a sale
of substantially all of the assets of the employing corporation. The terms
and conditions of the substitute options so granted may vary from the terms
and conditions set forth in this Plan to such extent as the Committee at the
time of grant may deem appropriate to conform, in whole or in part, to the
provisions of the options in substitution for which they are granted.
ARTICLE XIV
Miscellaneous Provisions
14.1 Transferability of Stock Options.
(a) Incentive Stock Options. Incentive Stock Options may not be
transferred or assigned other than by will or the laws of descent and
distribution and may be exercised during the lifetime of the Participant only
by the Participant or the Participant's legally authorized representative, and
each Stock Option Agreement in respect of an Incentive Stock Option shall so
provide. The designation by a Participant of a beneficiary will not
constitute a transfer of the Stock Option. The Company may waive or modify
any limitation contained in this Section that is not required for compliance
with Section 422 of the Code.
(b) Nonqualified Stock Options. The Committee may, in its sole
discretion, provide in any Stock Option Agreement with respect to Nonqualified
Stock Options (or in an amendment to any existing Stock Option Agreement) such
provisions regarding transferability of the Nonqualified Stock Options as the
Committee, in its sole discretion, deems appropriate.
14.2 Investment Intent. The Company may require that there be
presented to and filed with it by any Participant(s) under the Plan, such
evidence as it may deem necessary to establish that the Stock Options granted
or the Ordinary Shares to be issued, purchased or transferred are being
acquired for investment and not with a view to their distribution.
14.3 No Right to Continue Employment. Nothing in the Plan or the
grant of any Stock Option or the issuance of any Elected Shares or Restricted
Shares confers upon any Director, Officer, Employee or Advisor the right to
continue in the employ or service of the Company or interferes with or
restricts in any way the right of the Company to discharge or remove any
Director, Officer, Employee or Advisor at any time (subject to any contract
rights of such person).
14.4 Shareholders' Rights. The holder of a Stock Option shall have
none of the rights or privileges of a shareholder except with respect to
shares which have been actually issued.
14.5 Tax Withholding.
(a) Whenever Ordinary Shares are to be issued in satisfaction of
a Stock Option granted hereunder, the Company shall have the right to require
the Participant to remit to the Company an amount sufficient to satisfy
federal, state, local or other withholding tax requirements (whether so
required to secure for the Company an otherwise available tax deduction or
otherwise) prior to the delivery of any certificate or certificates for such
shares.
(b) When a Participant is required to pay to the Company an
amount required to be withheld under applicable tax laws in connection with a
Stock Option, such payment may be made (i) in cash, (ii) by check, (iii) if
permitted by the Committee, by delivery to the Company of Ordinary Shares
already owned by the Participant having a Fair Market Value on the date the
amount of tax to be withheld is to be determined (the "Tax Date") equal to the
amount required to be withheld, (iv) if permitted by the Committee, through
the withholding by the Company of a portion of the Ordinary Shares acquired
upon the exercise of the Stock Options having a Fair Market Value on the Tax
Date equal to the amount required to be withheld, or (v) in any other form of
valid consideration, as permitted by the Committee in its discretion.
(c) As a condition to the issuance of Ordinary Shares covered by
any Incentive Stock Option, the Company may require the party exercising such
Stock Option to give a written representation to the Company, which is
satisfactory in form and substance to its counsel and upon which the Company
may reasonably rely, that he or she will report to the Company any disposition
of such shares prior to the expiration of the holding periods specified by
Section 422(a)(1) of the Code. If and to the extent that the realization of
income in such a disposition imposes upon the Company federal, state, local or
other withholding tax requirements, or any such withholding is required to
secure for the Company an otherwise available tax deduction, the Company shall
have the right to require that the recipient remit to the Company an amount
sufficient to satisfy those requirements; and the Company may require as a
condition to the issuance of Ordinary Shares covered by an Incentive Stock
Option that the party exercising such Stock Option give a satisfactory written
representation promising to make such a remittance.
14.6 Indemnification of Board and Committee. No member of the
Board or the Committee, nor any officer or Employee of the Company acting on
behalf of the Board or the Committee, shall be personally liable for any
action, determination, or interpretation taken or made in good faith with
respect to the Plan, and all members of the Board or the Committee and each
and any officer or Employee of the Company acting on their behalf shall, to
the extent permitted by law, be fully indemnified and protected by the Company
in respect of any such action, determination or interpretation.
14.7 Government Regulations. Notwithstanding any of the provisions
hereof, or of any written agreements evidencing Stock Options, Elected Shares
or Restricted Shares granted or issued hereunder, the obligation of the
Company to issue, sell and deliver shares and remove any restrictions on any
Elected Shares or Restricted Shares shall be subject to all applicable laws,
rules and regulations and to such approvals by any government agencies or
national securities exchanges as may be required. The Participant shall not
exercise any Stock Option, and the Company shall not be obligated to issue any
shares or remove restrictions on any Elected Shares or Restricted Shares, if
such exercise, issuance or removal would constitute a violation by the
Participant or the Company of any provision of any law or regulation of any
governmental authority or any agreement with any stock exchange.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
effective as of the 18th day of March, 1997.
TRITON ENERGY LIMITED
By:/s/
Thomas G. Finck, Chairman of
the Board and Chief Executive Officer
Attest:
/s/
Robert B. Holland, III,
Sr. Vice President, General Counsel
and Secretary
Exhibit 10.56
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED 1992STOCK OPTION PLAN
This First Amendment to the Second Amended and Restated 1992 Stock Option
Plan (this "Amendment") is executed by Triton Energy Limited, a Cayman Islands
company ("Triton"), as of the effective date specified below.
R E C I T A L S:
A. Triton has adopted the Second Amended and Restated 1992 Stock
Option Plan (the "Plan"), and amended and restated the Plan effective as of
April 9, 1996; and
B. In accordance with the terms of the Plan, the Board of Directors
has adopted certain amendments to the Plan effective as of March 18, 1997.
NOW, THEREFORE, in accordance with the terms of the Plan, the Plan is
amended in the following respects:
1. Section 4.2 is amended by adding the following sentence to the end
of such Section:
"Notwithstanding anything in the foregoing, or any other provision of the
Plan, to the contrary, from and after March 17, 1997, there shall be no
further grants of Stock Options under this Article IV."
2. The vesting schedule of Stock Options granted and outstanding
pursuant to Article IV of the Plan shall be amended by amending the vesting
provisions contained in Section 4.6 of the Plan to read in their entirety as
follows:
"First installment. Up to 33-1/3% of the total optioned shares at any
time on and after the earlier of (i) the first anniversary of the Date of
Grant and (ii) the day immediately preceding the date of the annual meeting of
shareholders for the first year following the year in which the Date of Grant
occurs.
Second installment. Up to 33-1/3% of the total optioned shares at any
time on and after the earlier of (i) the second anniversary of the Date of
Grant and (ii) the day immediately preceding the date of the annual meeting of
shareholders for the second year following the year in which the Date of Grant
occurs.
Third installment. Up to 33-1/3% of the total optioned shares at any
time on and after the earlier of (i) the third anniversary of the Date of
Grant and (ii) the day immediately preceding the date of the annual meeting of
shareholders for the third year following the year in which the Date of Grant
occurs."
3. Except as amended by the provisions of this Amendment, all other
provisions of the Plan remain in full force and effect.
IN WITNESS WHEREOF, Triton Energy Limited has caused this Amendment to be
executed by its duly authorized officer effective this 18th day of March,
1997.
TRITON ENERGY LIMITED
By: /s/
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>
THREE MONTHS ENDED
MARCH 31,
------------------------------
1997 1996
-------------------- --------
PRIMARY COMPUTATION:
Net earnings $ 3,486 $11,351
Dividends on preference shares (213) (772)
-------------------- --------
Net earnings applicable to ordinary shares $ 3,273 $10,579
-------------------- --------
Shares:
Average number of ordinary shares outstanding 36,375 35,410
Additional shares assuming conversion of
stock options and convertible debentures 727 1,213
-------------------- --------
Average ordinary and equivalent shares outstanding 37,102 36,623
-------------------- --------
PRIMARY EARNINGS PER ORDINARY SHARE $ 0.09 $ 0.29
-------------------- --------
FULLY DILUTED COMPUTATION:*
Net earnings $ 3,486 $11,351
Net interest expense related to convertible debt --- 196
-------------------- --------
Net earnings applicable to ordinary shares as adjusted $ 3,486 $11,547
-------------------- --------
Shares:
Average number of ordinary shares outstanding 36,375 35,410
Additional shares assuming conversion of:
Stock options and convertible debentures 727 1,304
Preference shares 247 257
Convertible debt of affiliate --- 556
-------------------- --------
Average ordinary and equivalent shares
outstanding as adjusted 37,349 37,527
-------------------- --------
FULLY DILUTED EARNINGS PER ORDINARY SHARE $ 0.09 $ 0.31
-------------------- --------
</TABLE>
* This calculation is submitted in accordance with Regulation S-K item
601(b)(11) although it is contrary to paragraph 40 of APB Opinion No. 15
because it produces an anti-dilutive result.
EXHIBIT 12.1
TRITON ENERGY LIMITED AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS, EXCEPT RATIOS)
(UNAUDITED)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
------------------------------ ------------------------------------
1997 1996 1996 1995
-------------------- -------- ------------------------- ---------
Fixed charges, as defined (1):
Interest charges $ 11,641 $11,106 $ 43,884 $ 41,305
Preferred dividend requirements of
subsidiaries adjusted to pre-tax basis --- --- --- ---
-------------------- -------- ------------------------- ---------
Total fixed charges $ 11,641 $11,106 $ 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 $ 4,413 $12,044 $ 20,945 $ 16,600
Fixed charges, above 11,641 11,106 43,884 41,305
Less interest capitalized (6,361) (5,182) (27,102) (16,211)
Plus undistributed (earnings) loss of affiliates --- 46 (118) 2,249
Less preferred dividend requirements of
subsidiaries adjusted to pre-tax basis --- --- --- ---
-------------------- -------- ------------------------- ---------
$ 9,693 $18,014 $ 37,609 $ 43,943
-------------------- -------- ------------------------- ---------
RATIO OF EARNINGS TO FIXED CHARGES (2) (3) 0.8 1.6 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 an affiliate whose
debt is 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 three months
ended March 31, 1997 by $1,948,000, 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 three months ended March 31, 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 $4,150,000 for the
three months ended March 31, 1996, $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 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 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>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
------------------------------ ------------------------------------
1997 1996 1996 1995
-------------------- -------- ------------------------- ---------
Fixed charges, as defined (1):
Interest charges $ 11,641 $11,106 $ 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 $ 11,854 $11,878 $ 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 $ 4,413 $12,044 $ 20,945 $ 16,600
Fixed charges, above 11,854 11,878 44,869 42,107
Less interest capitalized (6,361) (5,182) (27,102) (16,211)
Plus undistributed (earnings) loss of affiliates --- 46 (118) 2,249
Less preference dividend requirements of the
Company and its subsidiaries adjusted to pre-tax basis (213) (772) (985) (802)
-------------------- -------- ------------------------- ---------
$ 9,693 $18,014 $ 37,609 $ 43,943
-------------------- -------- ------------------------- ---------
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERENCE DIVIDENDS (2) (3) 0.8 1.5 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 an affiliate
whose debt is 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 three months ended March 31, 1997 by $2,161,000, 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 three months ended March 31, 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 $4,150,000 for the
three months ended March 31, 1996, $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 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 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 MARCH 31,
1997 FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> MAR-31-1997
<CASH> 88,609
<SECURITIES> 785
<RECEIVABLES> 7,989
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 148,555
<PP&E> 817,616
<DEPRECIATION> 102,866
<TOTAL-ASSETS> 1,018,482
<CURRENT-LIABILITIES> 163,396
<BONDS> 427,268
0
8,513
<COMMON> 364
<OTHER-SE> 296,407
<TOTAL-LIABILITY-AND-EQUITY> 1,018,482
<SALES> 33,759
<TOTAL-REVENUES> 33,759
<CGS> 11,221
<TOTAL-COSTS> 11,221
<OTHER-EXPENSES> 7,443
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5,026
<INCOME-PRETAX> 4,413
<INCOME-TAX> 927
<INCOME-CONTINUING> 3,486
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,486
<EPS-PRIMARY> 0.09
<EPS-DILUTED> 0.09
</TABLE>
